By Daphne Bramham, Vancouver Sun May 30, 2011
Canadian girls and women with disabilities are up to 10 times more likely to be sexually assaulted or exploited than other girls and women. Overwhelmingly, their attackers are the people they trust most.
During their lifetimes, research suggests, 83 per cent of women with disabilities are sexually abused; 80 per cent of female psychiatric in-patients will be physically or sexually assaulted.
Before they turn 18, 40 to 70 per cent of girls with intellectual disabilities will be sexually exploited.
In three out of four cases, the assailants are doctors, teachers, parents and caregivers, or the friends of those trusted individuals.
The assumption seems to be that the girls and women cannot or will not complain, and there's good reason for these despicable predators to believe that.
Fewer than four per cent of sexual assaults on mentally disabled women and girls are reported. When these highly vulnerable girls and women report sexual abuse, they are often re-victimized.
It's rare for charges to be laid in any sexual-assault cases; rarer still when the victim has a mental disability. And when one of these rare cases gets to court, the complainant faces a unique hurdle.
The Evidence Act allows defence lawyers to challenge a person's mental capacity to understand what it means to take an oath to tell the truth and promise not to tell a lie.
Those with mental disabilities are the only people other than children who can be questioned about their understanding of the duty to tell the truth.
"No other category of witness is required to do so," Joanna Birenbaum, legal director for the Women's Legal, Education and Action Fund (LEAF), points out.
"Not even convicted perjurers are probed before taking the stand on whether they feel bound to tell the truth."
By challenging a mentally disabled person's ability to understand the abstract philosophical meaning of truth, defence lawyers usually succeed in silencing their clients' accusers and winning an acquittal.
Given the pervasiveness of the sexual assaults, this needs to change.
Earlier this month, LEAF, along with the Disabled Women's Network Canada (DAWN) appeared before the Supreme Court of Canada as interveners in an appeal of the case involving a woman known as K.B., who has the mental competency of a three-to six-yearold.
Police investigated after she told her teacher that her stepfather was playing "games" with her that included touching her genitals, buttocks and breasts.
Police found photographs of K.B. with bare breasts hidden in a trunk along with another pornographic image. And, during a recorded interview with police in 2005, she demonstrated how he touched her under her pyjamas and said it happened "all the time."
K.B. testified at the preliminary inquiry in 2006. But at trial, her competency was challenged.
She was asked a wide range of questions about specific hockey players, what she eats for breakfast and recent movies she'd seen. She was also asked what truth means and what it means to make a promise.
Her answers to the difficult, abstract questions were found by the trial judge to be inadequate. She was disqualified from testifying.
I can't help but wonder who among us might have met the judge's standard.
Truth. Lies. Promises. Their meanings have bedevilled philosophers and theologians. So asking anyone -and especially people with mental disabilities -to define those concepts in court seems unnecessarily discriminatory.
Birenbaum suggests that the requirement to do so is "based on deeply rooted stereotypes that such persons are unreliable and cannot accurately perceive, remember or relate events, or distinguish fact from fiction."
She argues for more appropriate and less onerous ways to evaluate whether someone is mentally competent to testify, because if the Ontario decision is upheld, "It will effectively render these women beyond the law's reach and protection.
"It will discourage reporting, impede prosecution, and further deepen these women's exclusion, thus leaving the women with the most severe disabilities the least likely to have access to justice."
There is reason to believe the Supreme Court justices will agree.
In an earlier decision, the court warned judges "should not be quick to leap to the assumption that a person with mental disabilities is not competent to give useful testimony." In another ruling, it noted that judges ought to avoid "any suggestion that a particular treatment, therapy, illness or disability implies unreliability."
No one wants wrongful convictions based on faulty testimony.
But if perjurers aren't required to explain their understanding of truth, why is the bar so high for people who have shown no propensity to lie?
If there is to be any chance to reduce the horrifically high levels of sexual exploitation of these most vulnerable people, the witnesses must be heard.
By giving them voice, the Supreme Court would make it more difficult for these despicable predators to get away with it.
dbramham@vancouversun.com
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