Appendix K. Prosecuting Sexual Assault of Victims with Intellectual and Developmental Disabilities

Volume I: Prosecution Practices
Acknowledgments
Foreword
1.1 The Need for a Model Response 1.2 Core Principles 1.3 Defining and Measuring Success 1.4 The RSVP Model: The Two Facets of Progress
2.0 Introduction 2.1 Assess Current Practice in Your Jurisdiction 2.2 Build Capacity 2.3 Office-Level Conceptual Model
3.0 Introduction 3.1 Review, Evaluate, and Charge the Case 3.2 Thoroughly Prepare the Case 3.3 Try the Case 3.4 Post-Verdict Considerations
Volume II: Performance Management
Acknowledgments
Foreword
1.1 Who Should Read This Volume? 1.2 Performance Management 1.3 How This Volume Is Organized
2.1 Outcome Measures
3.1 Why Case Attrition? 3.2 Capturing Prevalence and Reasons Why Victims Do Not Report 3.3 Capturing Prevalence and Reasons Why Law Enforcement Does Not Refer Cases 3.4 Capturing Prevalence and Reasons Why Prosecutors Decline Cases
4.1 Importance of Categorizing Data
5.1 The Issue 5.2 How Can Complexity Be Measured? 5.3 Final Thoughts
6.0 Introduction 6.1 Recommended Steps to Measure Resolutions
7.0 Introduction 7.1 Recommended Steps to Measure Case Success
8.1 Example Manual Data Collection Tool
9.1 Determining Effectiveness of Victim Services 9.2 Survey Design 9.3 Survey Administration
10.0 Introduction 10.1 Basic Analysis and Reporting Process 10.2 Basic Analysis Options 10.3 Reporting Results
11.0 Introduction 11.1 Uses for Performance/Outcome Information 11.2 Cautions and Limitations
12.1 Logic Models 12.2 New Tools 12.3 Putting It All Together: Key Elements 12.4 Going Forward
Appendices
Acknowledgments
Appendix A. Office- and Case-Level Checklists
Appendix B. Core Competencies for Prosecuting Sexual Violence
Appendix C. Vicarious Trauma
Appendix D. Sexual Assault Response Teams (SARTs)
Appendix E. Charging Tool
Appendix F. Considerations for Working with Experts
Appendix G. Stages of Acute Alcoholic Influence/Intoxication
Appendix H. Witness Intimidation Checklist
Appendix I. Ethical Considerations
Appendix J. Overcoming the Blackout vs. Pass-Out Defense
Appendix K. Prosecuting Sexual Assault of Victims with Intellectual and Developmental Disabilities
Appendix L. Example of a Brief Victim Survey
Appendix M: Sample Case Review Protocol
Appendix N: Sample Case Data Tracking Sheet
Appendix O: Sample Case Review Timeline

Appendix K. Prosecuting Sexual Assault of Victims with Intellectual and Developmental Disabilities

“Prosecutors should be aware that developmental disabilities manifest themselves on a variety of levels, depending on the severity of the disability as well as other factors. The term ‘developmental disability’refers to: a diverse group of severe chronic conditions that are due to mental and/or physical impairments. People with developmental disabilities have problems with major life activities such as language, mobility, learning, self-help, and independent living. Developmental disabilities begin any time during development up to 22 years of age and usually last throughout a person’s lifetime… [S]ome developmental disabilities … will not directly affect intellectual ability, but may cause challenges for the victim on the witness stand.”118

Checklist for Preparing and Trying Cases Involving Victims with Disabilities

✔ What is the disability and how may it impact the victimization?
  • Verbal communication
  • Physical maneuverability
  • Reliance on others for certain needs
  • Perceived or actual vulnerability
  • Victim’s perception of self
  • Victim’s ability to make a prompt complaint to anyone (g., based on communication limitations or limited access to a neutral or safe party)
  • Ability or decision to report
  • Professionals’ receipt of the report
  • Medical treatment
  • Access to victim advocates
  • Access to law enforcement and availability of specialized interview equipment
  • Access to forensic interviewer and availability of specialized interview equipment
  • Access to prosecutor
  • Access to courthouse
  • Ability of prosecutor or courtroom to meet victim’s needs
✔ Are there special considerations for ensuring the victim can communicate with others?
  • Use of communication aids
  • iPad, software, picture communicators, talk-talk devices, etc.
  • Use of interpreters
    • Two if victim uses sign language
    • Revoicer
  • Work with professionals who already work with victim
  • Work with family members who can communicate with victim
✔ Consider the victim’s disability when making charging decisions.
  • Did the offender target the victim due to her/his disability?
  • Specific crime against victim with disability
  • Does the disability impact the victim’s ability to consent (as an element of the crime)?
  • Aggravating factor in charging and/or sentencing
  • Stay-away order as condition of bail
  • Protective order issued, if one is available in the jurisdiction
✔ What pretrial motions should be filed to protect the victim during the criminal prosecution?
  • Advocate in room/next to victim
    • Confidential victim advocate
    • Support person from disability organization
    • Victim’s personal assistant
  • CCTV
  • Support dog
  • Rape shield
  • Motion to prevent victim submission to psychological examination
✔ Anticipate defense motions.
  • Challenging victim’s competence
  • Alleging taint
  • Seeking victim’s mental health records
  • Introducing victim’s “bad” character evidence under 404(a)
  • Piercing rape shield
✔ Prepare the victim.
  • Prosecutor must meet with victim and develop understanding of victim’s abilities
  • Explain process to the victim
  • Ask victim about his/her concerns
  • Take victim to the courtroom
  • Bring tissues, food, and water to court
  • Have item of comfort, such as blanket or teddy bear (not visible to jury)
  • Ensure victim has glasses or other items s/he needs
  • Ensure room temperature is comfortable for victim and/or have victim bring extra sweater
  • Consider the time of day of victim’s testimony and take breaks during testimony to accommodate victim’s eating, medication, or other schedule
  • Explain role of judge and jury
  • Explain role of prosecutor and questions victim will be asked
  • Explain role of defense attorney and questions victim will be asked
✔ Trial considerations.
  • Voir dire to determine whether the victim’s disabilities will affect the juror’s assessment of victim’s credibility
  • Do certain charges require expert testimony to prove?
  • What can laypersons testify to? 
✔ Consider the following when making sentencing recommendations.
  • Nature of and gravity of the crimes
  • Impact on the victim
  • Defendant’s reaction to verdict (acceptance, remorse, etc.)
  • Defendant’s criminal history
  • Defendant’s characteristics
  • Education
  • Employment history
  • Community support
  • Familial support
  • Victim impact statement
  • Restitution
✔ Identify experts in your community and/or develop them within the office.
  • Work with experts who represent the community members most at risk of sexual assault, both because of the actual vulnerabilities as well as the perception of their credibility – oftentimes inaccurate and exploited by the defense.
    • Expert can testify about victim’s mental and physical capabilities119
    • Lay witnesses can testify about victim’s abilities120

Trainings and Other Resources

  1. William Paul Deal & Viktoria Kristiansson, Victims and Witnesses with Developmental Disabilities and the Prosecution of Sexual Assault, 1(12) The Voice 1 (2007) (internal citations omitted). ↩
  2. See Commonwealth v. Thomson, 449 Pa. Super. 159 (1995); and Georgina Stobbs & Mark Rhys Kebbell, Jurors' Perception of Witnesses with Intellectual Disability and the Influence of Expert Evidence, 16 J. Applied Res. Intell. Disabilities 112 (2003). ↩
  3. See Weir v. Chao, 364 Pa.Super. 490 (1987). ↩
Appendix J. Overcoming the Blackout vs. Pass-Out Defense Appendix L. Example of a Brief Victim Survey