Improving the criminal justice system's response to victimization of persons with disabilities.

• Author: Backstrom, James C.

ONE OF THE TRULY SAD REALITIES of the world we live in is that some of the most vulnerable persons in our society, those living with developmental disabilities, are at a much higher risk of criminal victimization than are others. Yet we hear very little about this problem, and we have a long way to go to fully understand it and develop tools and ideas to effectively address it. The time has come for criminal justice professionals to work together to better understand the dynamics of this serious problem, to establish policies and practices aimed at preventing this abuse from occurring in the first place, and to more efficiently and effectively intervene to address it when it has occurred. This article will identify the scope of this problem; identify specific laws in Minnesota designed to protect vulnerable victims; explore ways to overcome this problem; discuss the need for extra support and sensitivity during the investigation, charging, pretrial, and trial process; and discuss the importance of the sentencing phase of such cases.

SCOPE OF THE PROBLEM

Statistics relating to the criminal victimization of persons with disabilities are staggering. One in five persons in America has a mental or physical impairment, and for half of this population the disability is a severe one. (2) Numerous studies have shown that the risk of criminal victimization for persons with a disability is much higher than for persons without a disability. (3) Persons with disabilities are four to ten times more likely to be abused than persons without disabilities. (4) The number of women with disabilities who will be sexually assaulted in their lifetime ranges from 68 to 83 percent. (5) Children with disabilities are three times more likely to be abused than children without disabilities. (6) The likelihood of sexual victimization is even higher for children with intellectual or mental health disabilities. (7)

Persons with disabilities experience violent crimes at more than twice the rate of persons without disabilities. (8) Other forms of physical abuse and financial exploitation of persons with disabilities are also far too common. (9) As Colleen Wieck, Director of the Minnesota Governors Council on Developmental Disabilities, put it in a 2009 report on this topic, persons with disabilities may be "the perfect, invisible victims." (10) These individuals are often victimized repeatedly by the same person. (11) Most abusers are known personally by the victim and are often family members, classmates, caregivers, neighbors and staff members assigned to work with persons with disabilities. (12)

Why is it that persons with disabilities fall prey to criminal victimization at such alarming rates? Persons with disabilities are taught to be compliant. (13) These individuals are often unable to defend themselves (14) and are more prone to accept improper advances without questioning or understanding the potential sinister motive behind them. (15) Some persons with disabilities have limited communication skills, and they are often unable to describe what was done to them and by whom after the victimization has occurred. (16) Many of these victims are isolated, dependent on a small number of people, and live in segregated settings such as group homes. (17) Other unique barriers also contribute to the increased risk of victimization of persons with disabilities, including: social isolation, physical accessibility barriers, attitudinal behaviors, and dependence upon caretakers. (18) All of these factors contribute to persons with disabilities being more vulnerable to victimization.

Far too often crimes committed against persons with disabilities go unreported. (19) This is often due to fear of retaliation or loss of care if the victim were to report the crime. (20) Limited advocacy resources exist for these vulnerable victims, including lack of access to lawyers, and this is also a factor involved in the underreporting of these crimes. (21) A disability can affect a persons mental functioning, such as the ability to reason and use good judgment, leading to the victim not reporting the crime. (22) Crime victims with disabilities may also be embarrassed by what was done to them and may unjustifiably blame themselves for what occurred, which can also lead to the failure to report the crime. (23) Some may not even realize they have been victimized. (24) Many are fearful and untrusting of police and prosecutors and most do not fully comprehend the intricacies of the criminal justice system. (25)

Persons with disabilities are the victims of crime at significantly higher and disproportionate rates as compared to others in our society. These vulnerable victims often fall prey to persons they know and believe they can trust and this problem is amplified by multiple factors which make these victims much easier targets than persons without disabilities. Consequently, there is a clear need for greater legal protections and extra support for crime victims with disabilities in our criminal justice system.

SPECIFIC LAWS DESIGNED TO PROTECT VULNERABLE VICTIMS

In Minnesota, there are a number of specific crimes which provide greater legal protections for victims with disabilities. These include:

1. Mistreatment of Persons Confined (26)

   * Anyone in charge of or employed in a public or private institution who intentionally abuses or ill-treats any person confined therein who is mentally or physically disabled or who is involuntarily confined therein by court order is guilty of a gross misdemeanor.

2. Mistreatment of Residents or Patients (27)

   * Anyone in charge of or employed in any facility licensed by the state who intentionally abuses, ill-treats, or culpably neglects any patient or resident therein is guilty of a gross misdemeanor.

3. Criminal Abuse (28)

   * A caregiver who, with intent to produce physical or mental pain or injury to a vulnerable adult, subjects a vulnerable adult to any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion is guilty of a felony if the act results in substantial bodily harm, great bodily harm, risk of death or death (the penalty is a gross misdemeanor if only bodily harm results).

4. Criminal Neglect (29)

   * A caregiver or operator (i.e., person in charge of administrative activities or decision-making for a facility) who intentionally neglects a vulnerable adult or knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult is guilty of a gross misdemeanor.

   * A caregiver or operator who intentionally deprives a vulnerable adult of necessary food, clothing, shelter, health care, or supervision, when reasonably able to make such provisions, is guilty of a felony if the deprivation could likely result in substantial or great bodily harm or the deprivation occurred over an extended period of time.

5. Financial Exploitation of a Vulnerable Adult (30)

   * This statute defines various acts of breach of fiduciary obligations, contractual obligations, and theft from or involving a vulnerable adult; and the failure to use the real or personal property or other financial resources of a vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct, or supervision.

   * The penalties for these crimes range from gross misdemeanors to felonies depending upon the specific violations and value of property stolen or misappropriated.

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