Background
Although no accurate statistics exist, estimates suggest that the number of people with disabilities who experience violent or sexual assault is ten times higher than the general population. The fact that society encourages people with disabilities to trust implicitly the authority of adults and the relationships of dependency that often develops as a result of disability places people, particularly with developmental or emotional disabilities in positions of extreme vulnerability, and reduce their ability to defend or protect themselves. The problem becomes even more serious when exploitation occurs in institutions far removed from the community, where there is extremely high dependency between the individual with a disability and the 'caregiver', and the connections to the outside world are minimal.
Criminal Procedure is not Suitable for People with Developmental Disabilities
Long-term neglect and denial of the phenomenon of violence against people with disabilities in Israel has resulted in law enforcement agencies and professional frameworks lacking the necessary knowledge, experience and systems to meet the special needs of crime victims with disabilities. A rape victim with a developmental disability who at first claims she was attacked 'yesterday' and then changes her evidence to 'last week' is not lying or making up her evidence, but demonstrating that she does not have the intellectual capacity to measure time.
The inadequacies of the law enforcement system (the police, the district attorney's office, and the courts) leave crime victims with disabilities exposed and defenseless, resulting in their further injury during investigative and legal procedures. The police don't know how to get them to speak. The confrontational and threatening nature of the courtroom sometimes causes witnesses with disabilities to silently withdraw. Unlike the system of accommodations in place for dealing with children who are crime victims, the authorities do not have a framework for dealing with crime victims with disabilities. Thus the majority of cases actually reported to the police are closed due to a lack of credible evidence and the guilty are found innocent. This lack of justice creates a vicious circle that encourages more and more exploitation.
Draft Legislation: Modification of Criminal Procedure for People with Developmental and Emotional Disabilities and Mental Illness
Following Bizchut's submission of a special report on the matter to the Ministry of Justice, a ministerial committee was established to address the issue. The committee, headed by the Assistant Attorney General Yehudit Karp, authored draft legislation that would modify the police's investigative procedures and courtroom testimonial procedures in order to meet the needs of the people with developmental and emotional disabilities.
According to the draft, people with such disabilities would be questioned by a special investigator (e.g. a trained social worker) and not by police investigators. In the courtroom, witnesses with developmental and emotional disabilities would be able to testify via closed circuit television, in order to reduce confrontation with the accused and the accused's attorneys. Cross-examination could be conducted in the judge's chambers, without the robes and the ceremonial props. There would be the option of cross-examination by an intermediary, who would translate the questions into plain and clear language. Experts would testify before the court about the witness' disability and its influence on his/her testimony (e.g. a lack of perception of time, difficulty with numbers, etc.) In exceptional cases where the witness would not be able to testify because of his/her disability, a writ of excusal from testimony could be issued, and the special investigator could testify in place of the witness and present a videotape of his/her questioning of the witness.
The Committee for Ordering Criminal Procedures, headed by Supreme Court Justice Eliahu Mazza, also adopted the draft legislation. It is now in the hands of the government to decide if it wants to present the draft legislation to the Knesset as a government sponsored bill.
Advocacy Center for Crime Victims with Disabilities
Any person with a developmental or emotional disability who has been physically injured or sexually harmed by a criminal act (or any family member of such a person) is encouraged to contact us. We will do everything in our ability to ease the stress of police and court procedures upon the victim, and to see that the criminal is brought to justice to the fullest extent of the law.
What do we do at the Support Center?
We accompany the victim to the police station, we explain to the police officers the nature of the victim's disability, and we suggest modifications to normal procedure that will help the investigation (e.g. suggesting that a close family member accompany the victim during questioning, or the presence of an expert in the field of the victim's particular disability.) If the victim agrees, we will request that a Bizchut representative be present during questioning.
If the police decide to close the case, we will file an appeal in the name of the victim to the Attorney General, requesting that the case be reopened from scratch.
If the district attorney decides to file an indictment, we accompany the victim to the courthouse prior to the hearing, we introduce them to the courtroom environment and explain to them the procedures that they will be required to undergo. With proper presentation, familiarity with the procedures can help ease the victim's fears.
We accompany the victim throughout the court proceedings, as a supportive and calming presence.
When necessary, we will appeal to the court to make modifications in testimony procedures. Among the possible modifications are: the placement of a curtain between the victim and the accused (in order to reduce the victim's perceived threat); moving the proceedings into the judge's chambers (which are more pleasant and less intimidating than the courtroom); the calling of an expert who will explain the victim's disability and its impact on the testimony. Modifications would only be requested when appropriate to the victim's specific needs and with his/her permission.
Case Studies
People with Disabilities as Crime Victims - The Court's Perspective
- Case 1: D., a 50-year-old woman with a developmental disability, lived in her parents' house. Her sister noticed a 'hickey' on her neck. When she was asked, she responded that her nephew, who also lives in the same house, was having sexual relations with her. The family filed a complaint with the police, and the nephew was indicted. D. was interviewed by a district attorney in her home, and gave a clear and cogent description of the events. In court, she was called three times to the witness stand. Twice she stood, completely withdrawn, and did not respond to questions. The third time she was able to testify, but the court did not find her credible because she didn't know how many weeks there are in a month and how many days in a week. The accused was found not guilty.
The state appealed the verdict. The Supreme Court accepted the appeal and leveled criticism at the district court. Among other mistakes, the district court was singled out for ignoring the testimony of experts who differentiated between the victim's ability to recount the events and the discrepancies in her testimony arising from her disability. The case was returned to district court for a new hearing. In the new trial, the court convicted the nephew and sentenced him to 8 years in prison. The nephew appealed the verdict, and the sentence was subsequently reduced to 5 years.
- Case 2: R., a 42-year-old man with a developmental disability, worked as a janitor in Jerusalem's Central Bus Station. One day, two men entered the bus he was cleaning, locked the doors, and raped him. A doctor corroborated the fact that R. had indeed been sexually assaulted. The district court trying the case ruled:
'It is incumbent upon us to prepare optimally, even during the initial stages of the investigation, for the special problematic nature of cases (as we have learned through judicial experience) in which we respond to the complaints of people with mental illnesses or developmental deficiencies… The investigation of their complaints is performed by regular police officers, lacking the special training necessary for the task and not always sensitive enough to the need to modify the investigation to meet the needs of the disabled person (T.P. 145/99, State of Israel vs. Julani.)'
The court emphasized that importance of videotaping the victim's testimony during the investigation, of training special investigators, and of obtaining an expert opinion by specialists in the field of the victim's disability. The court further found that:
'The complainant, in his own manner and speech, was snarling and screaming from the depths of his soul about the humiliating and damaging sexual assault that he experienced in the Central Bus Station. Therefore, communication with the complainant… was difficult. He did not always answer the questions directed at him, and many times his answer did not address the question. Sometimes, his testimony sounded like it was memorized. This does not indicate that his testimony was false or insincere… various discrepancies… can be attributed to his disability and do not damage the credibility of his testimony.'
Nevertheless, the court leveled criticism at the faulty investigation carried out by the police. In the end, the accused were acquitted.
