Update - Volume 12, Number 11, 1999

Successful Prosecution When the Sexual Assault Victim Is Mentally impaired

by Laura L. Rogers¹

Individuals with mental impairment are often the targets of sexual predators.  This is due to social and psychological conditions, including short term memory impairment, reduced language ability, difficulty with abstract thinking, reduced social skills, failure or inability to report, excessive obedience and minimal sexual education.  These conditions both promote victimization and make successful prosecution appear unlikely.

According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the diagnosis of "mental retardation" is made when a person:  1) has an IQ of approximately 70 or below, 2) is unable to be independent in the activities of daily living commensurate with with his or her chronological age, and 3) the onset of the disability was before the age of 18.²  General intellectual functioning can be determined through clinical assessment and one or more of the available standardized intelligence tests.³  Conditions such as autism, Down's Syndrome or other chromosomal disorders, and traumatic brain injury may result in mental retardation.

Though some legal and technical issues are unique to cases involving victims with mental impairment, many of the issues mirror child sexual abuse prosecutions.  For example, most jurisdictions have specific statutes that protect adult sexual assault victims with mental impairment from sexual abuse even if the perpetrator does not use "legal force or duress."⁴ These victims may be found to be incapable of legally consenting to the sexual conduct.⁵

Furthermore, juror reluctance to believe the testimony of a person with mental impairment is not unlike juror reluctance to believe child victims in sexual abuse cases.  As in child sexual abuse cases, proper investigation to develop corroboration, pretrial motions to limit the issues and proper trial techniques are the key to success.

The Investigation

1.  The interview procedure.   Procedures adopted for child sexual abuse interviews can be employed in cases involving victims with mental impairment.⁶  These procedures include using a "victim friendly" interview room, non-leading questions, and conducting a minimal number of victim interviews.  Prior to the interview, have an in-depth conversation regarding the victim's impairment with a parent or guardian to learn about cognitive functioning, communication styles and phobias.   Consult psychologists and other professionals to develop techniques to overcome the particular limitations that the victim's impairment presents.

2.  Determining competency to consent.  Evaluating a victim for competency to consent to sexual activity requires an in-depth understanding of forensic interview skills.⁷  During the initial interview, appraise the victim's knowledge level.  In other words, does the victim understand the nature, quality and consequences of the act?⁸  Questions regarding the victim's true understanding of human reproduction and contraception are vital in this determination.   For example, the questions, "where do babies come from?" or "how do babies get inside women?" and "why does the pill prevent a woman from getting pregnant?" are helpful.  The answers should assist the prosecutor in determining whether the victim has a competent understanding of the consequences of engaging in sexual conduct.

Also, inquire about prior sexual conduct.  The defense may attempt to present prior sexual conduct to establish that the victim consented in the past.  Mere capitulation does not constitute competent consent.  Be aware, the rape shield doctrine may not prevent admission of the victim's prior sexual conduct if proffered on the issue of competency to consent, rather than to impugn reputation.⁹

3.  Documenting the physical examination.  A complete forensic examination and rape kit should be performed.   Document all corroborating evidence including the victim's statements, demeanor and any apparent difficulties understanding concepts or procedures during the examination.   The examining professional should acquire a complete history of abuse or sexual conduct from the victim, if possible, or from another knowledgeable source.  This information will assist in rendering an accurate opinion regarding the cause or timing of any physical findings.

4.  The police investigation.   A focus of the investigation is to find unbiased witnesses to enhance victim credibility and corroborate victim testimony.  Optimal witnesses include teachers, friends, family, caretakers, bus drivers, neighbors and employers.  Pertinent interview topics include behavioral, physical and social patterns.  Behavior patterns that corroborate testimony or show emotional distress include daily routine, changes in routine before, during or after the abuse, and reversion to childlike conduct such as bedwetting or nightmares.  Changes in the victim's attitude such as perception of reality, aversion to trusted persons, or increased sexual knowledge or activity, corroborate abuse.  Physical indications of abuse include refusal to undress or bathe, unusual walking or sitting, painful or itchy genital area, bruising, bleeding, stained or bloody clothing, pregnancy or stress related medical complaints.

5.  Obtaining IQ information. The IQ and mental age of the victim will be a vital piece of evidence during the criminal trial.   Obtain a complete developmental history at the outset of the investigation.  Many states have Adult Protective Services or other agencies that maintain records on adults with the "mental retardation" diagnosis who are receiving assistance.  If the victim attends or attended special education classes, the school district will maintain an Individual Educational Plan (IEP).  The IEP contains information on the victim's educational level and social goals.  The IEP provides a practical understanding of adaptive functioning.¹⁰   Determine if there is a school psychologist familiar with the victim, and the victim's mental age and concrete thinking ability.  The school psychologist may be a valuable, unbiased expert or lay witness.

Retain a psychologist experienced in dealing with individuals meeting the DSM-IV criteria for "mental retardation" and who is familiar with the victim's specific impairment and any cultural issues.   Have the victim examined by the expert to determine:  1) adaptive functioning to confirm that the victim meets the DSM-IV definition of "mental retardation";   2) IQ level and corresponding mental age;¹¹   30 confabulation,¹² and  4) concrete thinking ability.  This expert will be a vital witness at trial on the issue of the victim's ability to "consent" to sexual activity.

6.  Getting to know the victim.  Before going to court, it is important that the victim trust the prosecutor.  By spending time with the victim, the prosecutor becomes familiar with the victim's body language, verbal expressions and schedule.  As a result, the prosecutor can alert the court when the victim is stressed, tired, agitated or in need of medication.

Pretrial Motions

State and federal statutes exist to assist and protect child witnesses in court.  "Child friendly" statutes include:  closed courtroom during victim testimony; allowing leading questions during direct examination; use of anatomical dolls; limiting length of testimony and cross examination; support persons;¹³preventing undue harassment¹⁴and accelerated court scheduling.¹⁵

Child witnesses experience fear, embarrassment, exhaustion, short concentration spans and inadequate vocabulary skills.   Many difficulties that child witnesses encounter are also experienced by witnesses with mental impairment.  Logically then, these "child friendly" statutes should also be applicable to adult victims with mental impairment.  Argue that "child friendly" statutes, normally triggered by chronological age, should also be triggered by mental age.  To support this argument, offer in limine evidence via declaration, lay or expert testimony, witness examination or generic psychological studies.

Trial Considerations

1.  Voir Dire.  Jury selection is the prosecutor's first opportunity to promote the victim's credibility with the jury.  In addition to standard cild or sexual abuse questions, ask jurors about:   1) perceived credibility of mentally impaired persons;   2) attitudes regarding mentally impaired persons;  3) the issue of incompetency to consent, and 4) the fact that the state is not required to show force or duress if a victim is mentally incapable of giving meaningful consent to sexual activity.

2.  Competency to testify.   Do not confuse the fact that a victim is competent to be a witness in court with the fact that a victim is not competent to consent to sexual activity.   Most jurisdictions agree that all persons are presumed competent to be a witness.¹⁶  To be competent, a witness must be capable of communicating relevant material and understanding the obligation  to do so.¹⁷  The court decides the competency of a witness. ¹⁸  The party challenging competency has the burden of proving incompetency through cross examination.¹⁹  Accordingly, courts should refuse defense requests to order a psychiatric examination to determine competency to testify.²⁰  Further, inconsistent statements do not make a witness incompetent to testify.²¹

3.  The oath. There is no special verbal formula required for an oath.  The oath need only impress on the witness the duty to be truthful.²²   Versatility is appropriate for children and witnesses who are mentally impaired.²³  Encourage the trial judge to administer an oath appropriately tailored to the witness' mental age and level of understanding.²⁴

4.  Witness order.   A well-organized case-in-chief begins and finishes strongly.  All weak or detrimental evidence is presented in the middle.  Witnesses and evidence should be presented according to strength and relevance.  a strong victim should testify early in the trial while the jurors are most attentive.  However, a witness to educate the jury about the victim's impairment should precede the victim to the stand.   Understanding how the victim thinks and acts will allow jurors to focus on the content of the victim's testimony and the issue of consent.

The retained psychologist is well suited for educating the jury.  First, present generic testimony regarding the victim's impairment.  Educate the jury on medical, psychological, physical and social issues.  Second, present evidence of the victim's mental age, language skills, concrete thinking ability, physical attributes and other relevant issues.

The victim should testify next, while the attributes of the victim's impairment are fresh in the jurors' minds.  It is vital to establish the victim's reliability as a historian and credibility as a witness.   Dedicate part of the direct examination to developing information that can be corroborated by subsequent witnesses.  Elicit information regarding the victim's daily routine, transportation, and meal or school schedules.  After establishing reliability, thoroughly explore the facts and details of the criminal conduct.

Use photographs or other demonstrative evidence during the victim's testimony.  The victim's accurate identification of items, locations, and objects will further enhance reliability.  The jury will have greater confidence in the victim's identification of the defendant, the crime scene or other valuable items of evidence. 

Be aware of the victim's special needs.   Scheduling testimony around crucial activities such as meals, resting and the taking of medication will maximize the quality of the testimony.

A witness who corroborates the victim's testimony should testify next.  A parent, guardian, sibling, teacher, employer, daycare provider, or neighbor may be able to offer this evidence.  Corroborating testimony may discuss the victim's daily routine, ability to perceive, personal habits and character for truth and veracity.

Customary medical and scientific evidence, percipient witnesses, or investigative testimony should be presented around these core witnesses.   Also, for issues such as unusual victim reaction or delayed or recanted disclosure, consider presenting a Rape Trauma Syndrome expert or Child Sexual Abuse Accommodation Syndrome²⁵expert.

Rebutal Case

Be prepared to present expert and lay testimony to contradict defense attempts to discredit the victim.  Issues such as suggestibility, possible misidentification, disability related fabrication or fantasy are all fertile ground for rebuttal.  Try to anticipate the defense and consult an expert with some knowledge or understanding of the victim's issues.  A knowledgeable professional can easily do away with a manufactured defense.

¹ Senior Attorney, APRI's National Center for Prosecution of Child Abuse.
² AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 46 (4th ed. 1994) [hereinafter DSM-IV].
³ E.g., Wechsler Intelligence Scales for Children - Revised, Stanford-Binet, Kaufman Assessment Battery for Children.
⁴ See Cal. Penal Code § 261(a)(1).
⁵ See People v. Whitten, 647 N.E.2d 1062 (Ill. App. Ct. 1995); State v. Frost, 686 A.2d 1172 (N.H. 1996) (discussing H.H. Rev. Stat. § 632-A:2); People v. Mobley, 85 Cal Rptr. 2d (Cal. Ct. App. 1999) (Discussing Cal. Penal Code § 261 (a)(1)).
⁶ See AMERICAN PROSECUTORS RESEARCH INSTITUTE, INVESTIGATION AND PROSECUTION OF CHILD ABUSE (2d ed. 1999);
⁷ The National Center for Prosecution of Child Abuse recommends the forensic interviewing course, Finding Words, offered by AMERICAN PROSECUTORS RESEARCH INSTITUTE.
⁸ Review local statues to determine the requirements for competency to consent in your jurisdiction.
⁹ Frost, 686 A.2d at 1172.
¹⁰ Refers to "how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age groups, socialcultural background, and community setting."  DSM-IV, supra note 2, at 40.
¹¹ The Degrees of Severity of Mental Retardation are:  Mild:  IQ level 50-55 to approximately 70; Moderate:  IQ level 35-40 to 50-55; Severe:  IQ level 20-25 to 35-40; Profound IQ level below 20-25.  DSM-IV, supra note 2 §§317-318.2, at 41.
¹² A behavioral reaction to memory loss in which the patient fills in memory gaps with inappropriate words.
¹³ 18 U.S.C.A. §3509 (West 1999); Dept. Health and Human Services, Child Abuse and Neglect State Statute Series, Volume 4, Child Witnesses, Number 26, Authorization for Special Support Persons in Criminal Child Abuse Proceedings (1999); See also, N.Y. Exec. Law §642-a (Lexis 1999).
¹⁴ Fed. R. Evid. 601.
¹⁵ Dept. Health and Human Services, Child Abuse and Neglect State Statutes Series, Volume 4, Child Witnesses, Number 28, Special Procedures in Criminal Child Abuse Cases (1999).
¹⁶ Fed. R. Evid. 601.
¹⁷ United States v. Saenz, 747 F. 2d 930 (5th Cir.), reh'g denied, en banc, 752 F.2d, and cert. denied, 473 U.S. 906 (1985).
¹⁸ State v. Briere, 644 A.2d 551, 554 (N.H. 1994).
¹⁹ See State v. Waugh, 771 P.2d 949 (Kan. Ct. App. 1989); State v. Watkins, 857 P.2d 300 (Wash. Ct. App. 1993); Adamson v. Dep't. of Social Services, 254 Cal. Rptr. 667 (Cal. Ct. App. 1988).
²⁰ Fed. R. Evid. 601 advisory committee's note; United States v. Gates, 10 F.3d 765 (11th Cir. 1993), aff'd on reh'g, 20 F.3d 1550 (1994).
²¹ United States v. Cook, 949 F.2d 289 (10th Cir. 1991).
²² Fed. R. Evid. 603.
²³ Fed. R. Evid 603 ancillary laws and directives.
²⁴ Fed. R. Evid. 603 advisory committee's notes; United States v. Allen J. 127 F.3d 1292, (10th Cir. 1997), cert denied, 523 U.S. 1013 (1998).
²⁵ R.C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 CHILD ABUSE AND NEGLECT 177, 1983.  See also R.C. Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, 1 J. CHILD SEXUAL ABUSE (1992).