Public Testimony on Interim Charge 5 House Criminal Jurisprudence Committee

TCDD letterhead May 2017

House Criminal Jurisprudence Committee
Public Testimony on Interim Charge 5
May 23, 2018

Hello, my name is Ashley Ford and I am a Public Policy and Communications Specialist with the Texas Council for Developmental Disabilities or TCDD. TCDD is established by state and federal law and is governed by 27 Governor-appointed board members, 60 percent of whom are individuals with developmental disabilities (DD) or family members of individuals with disabilities. The Council’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives.

Thank you for the opportunity to provide testimony. TCDD appreciates the Speaker’s initiative on directing the committee to examine this topic and is interested in helping support future efforts to address this very important issue for Texans with DD and their families. TCDD supports the position that people with intellectual, developmental, and/or mental/behavioral health disabilities who are victims, suspects, or witnesses of a crime have the right to impartial justice and fair treatment in all areas of the criminal justice system, including reasonable accommodations.

Victims of Sexual Assault with Intellectual and Developmental Disabilities

Research suggests that there is pervasive victimization of epidemic proportions occurring against people with disabilities across America. Unpublished federal crime data obtained by NPR in January 2018 from the U.S. Department of Justice found that people with intellectual disabilities are sexually assaulted at a rate seven times higher than those without disabilities.1 However, most of these crimes rarely result in prosecution, making it one of the easiest crimes to get away with and commit again. The existing framework of handling sexual assaults against Texans with intellectual and developmental disabilities (I/DD) is worthy of the Texas Legislature’s attention and should be an issue prioritized during the 86th session.

Prevalence of Sexual Assault

Among people with DD, those with an intellectual disability and chronic mental health difficulty are the most likely to be sexually assaulted. Studies provide evidence that nearly 80 percent of women with DD will experience some form of sexual assault at some time in their lives and it is estimated that 15,000 to 19,000 people with intellectual disabilities are raped each year in the United States.2, 3, 4 One study found that 80 percent of women with DD who had been sexually assaulted had been sexually assaulted more than once and 50 percent had been assaulted 10 or more times.5

Risk Factors for Sexual Assault

It is estimated that 97 percent to 99 percent of perpetrators are known to the victim.6 Isolation and segregation, reliance on caregivers for personal care, and limited transportation options contribute to people with disabilities experiencing higher rates of sexual violence and higher recurrence rates. People with DD are not often taught to question care providers who perform personal procedures inappropriately. Some report feeling that they have no control over their bodies because of their dependency on having these procedures done routinely.7 One study found that 44 percent of all offenders against people with disabilities made initial contact with their victims through the network of medical, educational, and residential services provided to people with disabilities.5 Other factors that increase the risks of victimization and revictimization include: the presence of multiple caregivers, care provided outside the family home, shared care facilities, a continuing need for intimate care, communication barriers, reliance on others for decision-making, and sensory impairment.8

Barriers to Justice

People with DD often do not recognize or know that sexual assault is assault and illegal. As a result, they may not tell anyone. Only 3 percent of sexual abuse cases involving people with DD are ever reported. Victims may face challenges in accessing services and supports to make a report.9 If reported, they may experience the trauma of not being believed or of being blamed for the attack and may fear displacement from their homes or residences, retribution, or loss of services.

Texans with disabilities face many barriers in finding adequate housing, employment, and health care and the need for these fundamental necessities can overshadow their efforts to fight for prosecution in the criminal justice system. In a five-year study conducted by the Vera Institute of Justice, researchers found that a majority of sexual assault cases involving a victim with a disability (70.5 percent) referred to the special unit were closed with no charge. For half of these cases, law enforcement felt the case was not viable for prosecution due to lack of an identified perpetrator and sufficient forensic evidence, improper interviewing, and concerns about the victim to withstand trial.10, 11 This aligns with one study that found 65 percent of sexual assault cases reported to police were not prosecuted when the victim had a disability.12 A more recent survey that found only 5 percent of serious crimes against people with disabilities were prosecuted compared to 70 percent for similar crimes against people without disabilities.13

Adequate, specialized training for professionals who come in contact with people with I/DD who are victims or witnesses of a crime will both improve professionals’ interactions with, and understanding of, witnesses with I/DD. This ensures that victims receive all appropriate accommodations, and improves the victim’s ability to provide coherent testimony, while preserving the integrity of the civil and criminal justice systems.

Entities that perform sexual assault exams also report professionals being hesitant to conduct examinations on victims with I/DD who are under guardianship and/or receive services from a provider due to a lack of clarity, in law, regarding informed consent and reporting. Given that medical and forensic evidence is paramount in the prosecution of sexual assault cases, especially in cases involving victims with intellectual disabilities, this must be addressed.

All states are required under federal requirements to follow-up on allegations of sexual assault when they are reported or observed by a provider of services that receives state and federal funding. NPR found that just one percent of allegations in Texas were confirmed during fiscal years 2012-2016. Confirmed means that based on a preponderance of the evidence, it is more likely than not that abuse, neglect, or exploitation occurred. The Adult Protective Services (APS) division, within the Department of Family and Protective Services (DFPS), is responsible for protecting people with disabilities from abuse, neglect, and exploitation. When an allegation is made that is criminal in nature, APS notifies local law enforcement immediately and begins their own investigation. In the latest published DFPS data (2016), APS does not cite the number of people with I/DD for which investigations have been completed, but it does indicate that investigations associated with providers who serve individuals with I/DD (exclusively or in part) total 20,495.14,15 If an allegation took place in a state facility, such as a State Supported Living Center, the Office of the Inspector General is also notified. APS partners with Children’s Advocacy Centers of Texas (CACs) in some cases that involve adults with I/DD. CACs provide an environment where community agencies share information and develop strategies to meet the needs of each investigation. CAC workers receive training that includes how to handle cases involving people with I/DD and are called upon to conduct forensic interviews on sexual assault victims with I/DD when a center has the capacity to do so. While this partnership is encouraging, CACs do not accept all cases in a uniform manner and are only located in 201 out of Texas’ 254 counties.

Recommendations for the Prosecution of Sexual Assault Against People with I/DD

  • Increase awareness and training among criminal justice professionals
  • Implement a program that provides sexual assault survivors with victim advocates and court appointed advocates specifically for people with I/DD
  • Clarify, in law, the role of guardians and service providers in consenting to sexual assault exams being conducted on people with I/DD
  • Identify the barriers sexual assault victims with I/DD face in achieving justice and prosecution in Texas

It is time for Texas to be aware of the sexual assault epidemic impacting the disability community. Awareness, training, and coordination is needed to address the needs of individuals with I/DD in Texas in all areas of the criminal justice system. We should develop new expectations that Texans with I/DD have the same right as any other population to justice and fair treatment.

Please feel free to contact TCDD for additional information or if we can be of additional service.

Sincerely,
Ashley Ford
Public Policy and Communications Specialist
Texas Council for Developmental Disabilities

Footnotes

1. Shapiro, J. (2018). The Sexual Assault Epidemic No One Talks About. National Public Radio. Retrieved from npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talks-about

2. Sorensen, D. (1996). The invisible victim. Prosecutor’s Brief: The California District Attorneys Association’s Quarterly Journal, 19(1), 24-26.

3. Lumley, V., & Miltenberger, R. (1997). Sexual abuse prevention for persons with mental retardation. American Journal on Mental Retardation, 101, 459-472.

4. Baladerian, N., Coleman, T. & Steam, J. (2013). A report on the 2012 national survey on abuse of people with disabilities: Victims and their families speak out. Spectrum Institute Disability and Abuse Project. Retrieved from disability-abuse.com/survey/survey-report.pdf

5. Sobsey, D., & Doe, T. (1991). Patterns of sexual abuse and assault. Journal of Sexuality and Disability, 9(3), 243-59.

6. Davis, L. (2009). People with Intellectual Disability and Sexual Violence. The Arc. Retrieved from thearc.org/what-we-do/resources/fact-sheets/sexual-violence

7. Yeargin-Allsopp, M., Murphy C. C., Oakley G. P., & Sikes, R. K. (1992). A multiple-source method for studying the prevalence of developmental disabilities in children: The Metropolitan Atlanta Developmental Disabilities Study. Pediatrics, 89, 624-630.

8. Allington-Smith, P., Ball, R. & Haytor, R. (2002). Management of sexually abused children with learning disabilities. Advances in Psychiatric Treatment, 8, 66-72.

9. Valenti-Hein, D., & Schwartz, L. D. (1995). Sexual Abuse Interview for those With Developmental Disabilities. Santa Barbara, California: James Stanfield Company.

10. Browne, E., Agha, A., Demyan, A. & Beatriz, E. (2016). Examining Criminal Justice Responses To and Help-Seeking Patterns of Sexual Violence Survivors with Disabilities. Vera Institute of Justice. Retrieved from ncjrs.gov/pdffiles1/nij/grants/250196.pdf

11. Victims with Disabilities: The Forensic Interview: Techniques for Interviewing Victims with Communication and/or Cognitive Disabilities. Retrieved from ovc.gov/publications/infores/pdftxt/VictimsGuideBook.pdf

12. Sobsey, D. & Varnhaggen, C. (1991). Sexual Abuse and Exploitation of Disabled Individuals. Child Sexual Abuse: Critical Perspectives on Prevention, Intervention, and Treatment. Bagley, C.R. & Thomlinson, R.J. Editors. Wall & Emerson, Inc. Toronto. 1991.

13. Boston Globe (2001). In attacks on disabled, few verdicts despite evidence, law enforcement drops most cases, by R. Mishra. June 10.

14. Texas Department of Family and Protective Services’ APS Provider Investigations: Victims webpage. Retrieved from dfps.state.tx.us/About_DFPS/Data_Book/Adult_Protective_Services/Provider_Investigations/Investigations-Victims.asp

15. The number 20,495 comprises state supported living centers (5,271), HCS homes (5,086), community providers (7,211), private ICF-IID (1,659), community centers (613), and state centers (205). This number excludes completed investigations at state hospitals (3,421), although state hospitals also serve a limited number of individuals who have IDD.