Published On Fri Jun 10 2011
By Helen Henderson
A young woman tells one of her teachers that her stepfather plays games with her. These “games” involve touching her genitals and breasts. The teacher reports the stepfather to the police. After an investigation, the stepfather is charged with sexual assault.
When the case goes to court, the evidence shows that the stepfather had a photograph of a young bare-breasted woman in a trunk, along with other photographs of a pornographic nature.
The stepfather argued the photo of his stepdaughter was taken innocently.
Before he was charged, the young woman had made a statement to the police and had testified at a preliminary inquiry. But when the case finally got to court, the stepfather’s lawyer argued the young woman shouldn’t be allowed to give evidence.
Her competency to testify was challenged because she was intellectually disabled.
The court then started questioning the young woman. Among other things, she was asked: “What do you think about the truth?” “What’s a promise?” and “If you tell big lies will you go to jail?”
Ultimately, the court decided the young woman was unable to adequately explain the meaning of abstract concepts like “truth,” “lie” and “promise.” Her evidence was excluded. At trial, the stepfather was acquitted.
What does this say about access to justice for people with intellectual disabilities? The Supreme Court of Canada is currently debating the question. It
is, needless to say, critical in the instance of any crime that involves an individual with an intellectual disability. For those who have been sexually
violated, it hits particularly close to home because their numbers are so chilling.
A shocking 83 per cent of women with intellectual disabilities will be sexually abused in their lifetime, according to figures from the Disabled Women’s
Network Canada ( dawncanada.net).
Of these assaults, 70 per cent may occur before the age of 18. And fewer than 25 per cent of cases are confined to one incident.
In the case known as R. v. D.A.I., the Supreme Court is examining how to interpret part of the Canada Evidence Act that allows witnesses who are unable
to understand an “oath” or “affirmation” to “communicate” evidence. In other words, they may testify under a “promise to tell the truth.”
Lower courts have ruled that the promise to tell the truth must be subject to an inquiry into whether a witness can demonstrate an understanding of promise, truth and falsehood.
The Disabled Women’s Network and the Women’s Legal Education and Action Fund (leaf.ca) argue that the interpretation of the lower courts rests on “discriminatory stereotypes of persons with mental disabilities, particularly women who report sexual assault, as inherently untrustworthy.”
As DAWN Canada president Carmela Hutchison said in a statement: “Women with intellectual and cognitive disabilities experience staggering rates of sexual assault. Abusers, who are frequently caregivers, believe that disabled women are powerless to complain or will not be believed even if we do complain …
This case is about the most basic right of being heard.”
“It is important to understand that it is only the already disadvantaged category of witnesses … who must answer questions about their understanding of
the duty to tell the truth,” added LEAF legal director Joanna Birenbaum. “No other category of witness is required to do so. Not even convicted perjurers
are probed before taking the stand on whether they feel bound to tell the truth.”
In an email, Birenbaum told the Star that DAWN and LEAF have had “broad and positive support” from other disability groups.
“There is consensus that access to justice for persons with mental disabilities is a critical issue … While there are a number of reasons why women with
mental disabilities are so highly targeted for sexual assault, the staggering rates of assault are in part because of these women’s lack of access to justice.”
Helen Henderson is a freelance writer and disability-studies student at Ryerson University. Her column appears Saturdays.