Sexual abuse of people with developmental disabilities

The sexual abuse of people with developmental disabilities is unusually common because of the greater risk of victimization of such people.

Risk of victimization
Studies indicate that people with developmental disabilities are four to ten times more likely to have acts of violence committed against them. Dr. Dick Sobsey Associate Director of the JP Das Developmental Disabilities Centre and Director of the John Dossetor Health Ethics Centre, found that 80% out of 162 people with developmental and substantial disabilities who had been sexually assaulted had been sexually assaulted more than once. According to research people with disabilities are at a greater risk for victimization of sexual assault or sexual abuse because of lack of understanding.

Sobsey estimates that between 15,000 and 19,000 individuals with developmental disabilities experience rape each year. There are several reasons why developmentally disabled individuals are especially prone to sexual abuse, the most significant of which is the ingrained reliance on the caregiver authority figure. Emotional and social insecurities, ignorance of sexuality and sexual abuse, and powerless position in society have been noted as further causes of frequent exploitation. About 20% of females and 10% of males are sexually abused in the US every year. The percentage is even higher among people with disabilities. According to research, more than 90% of people with developmental disabilities will experience some form of sexual abuse at some time in their lives. 49% will experience 10 or more abusive incidents.

Other studies suggest 68% of girls with developmental disabilities and 30% of boys with developmental disabilities will be sexually abused before their eighteenth birthday. According to research 15,000 to 19,000 people with developmental disabilities are raped each year in the United States.

Abuser Profile
Sexual abuse is common among people with disabilities because the person being abused may not realize that sexual abuse can harm them and some individuals with disabilities may not be able to tell anyone that they were sexually abused. Typically, people with disabilities learn not to question caregivers or others in authority. It is the authority figures that are often committing the abuse. Research suggests that 97% to 99% of abusers are known and trusted by the victim who has the developmental disability.

The sexual abuse offender is most likely to be known and trusted by the developmentally disabled victim. According to Sobsey and Doe's 1991 analysis of 162 reports of sexual abuse against people with disabilities, the largest percentage of offenders (28%) were service providers (direct care staff members, personal care attendants, psychiatrists). In addition, 19% of sexual offenders were natural or step-family members, 15.2% were acquaintances (neighbors, family friends), 9.8% were informal paid service providers (baby-sitters), and 3.8% were dates. Further, 81.7% of the victims were women, and 90.8% of the offenders were men.

Reporting of Crimes
Cases of sexual abuse are considered in many states to qualify as “sexual assault” under the law; sexual assault is often arbitrated through rape or sexual battery statutes. Cases of sexual assault are arbitrated differently according to individual state laws and statutes.

States often have statutes for the developmentally disabled person separate from the general sex offense statutes. Such separate statutes often hold the disabled person at a “higher standard” than the non-disabled person; that is, the legal standards used to prove sexual consent will be stricter for the disabled individual.

As Deborah W. Denno, Ph.D., J.D., of the Fordham University of Law explains,
“courts have applied vague, unworkable tests in determining a mentally retarded victim's capacity to consent; it would be unrealistic to suggest that a rigid, precisely defined standard could ever be effective in so amorphous an area as sexual relations.”

Six tests are used as such a standard to assess the legal capacity of the developmentally disabled individual to consent to sexual conduct. These are the tests of “nature and consequences,” “morality,” “nature of the conduct,” “totality of the circumstances,” “evidence of mental disability,” and “judgment.” 49 American states, with the exception of Illinois, use 1 of these 6 tests in reviewing cases of sexual abuse.

The majority of states in the nation (19 states, or 38% of the nation) currently implement the “nature of the conduct test”: California, Delaware, Florida, Kentucky, Louisiana, Maine, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, Texas, and Utah. This test necessitates understanding the sexual nature of any sexual conduct and the voluntary aspect of such activity. In sharp contrast to the medical informed consent doctrine, there is no obligation to understand the nature and consequences of such sexual activity, nor is there any obligation to comprehend the morality of the act.

The “nature and consequences test” is employed by 13 states (26% of the nation): Alaska, Arizona, Arkansas, Indiana, Iowa, Kansas, New Mexico, Oklahoma, Pennsylvania, Tennessee, Vermont, Virginia, and Wyoming. This test is remarkably similar to the medical informed consent doctrine in which the patient must understand both the nature and consequences of a procedure; this test also parallels the medical consent doctrine in that the individual must understand the risks of behavior, including negative outcomes.

The “morality test” is employed in a group of 7 very geographically, politically, and socially diverse states (14% of the nation): Alabama, Colorado, Hawaii, Idaho, Illinois, New York, and Washington. This test necessitates a moral understanding of the sexual activity in addition to understanding the nature and consequences of sexual conduct.

The “totality of the circumstances test” is unique to Illinois, which recently employed this test in addition to its previously existing morality test. The “evidence of mental disability test” is not a statute per se but a method that allows for the court to consider evidence of disability. Nine states (18% of the nation) use this method: Connecticut, Maryland, Massachusetts, Michigan, Mississippi, Missouri, South Dakota, West Virginia, and Wisconsin. The “judgment test” is unique to Georgia and Minnesota and simply ascertains whether the individual can exercise judgment regarding consent to sexual activity. Developmentally disabled people do get special protection under US law. In the state penal code, a person is defined as mentally defective if they suffer from "a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct." The special protection granted to the mentally impaired in these cases is akin to the statutory protection given to children. In cases of sexual abuse, actual consent is irrelevant, because the person is incapable of giving legal consent.

Daniel D. Sorensen, Chair of the Victims of Crime Committee, Criminal Justice Task Force for People with Developmental Disabilities estimates that less than 4.5% of crimes against people with disabilities in California are reported compared to the 44% of the general public who experience crimes. The Seattle Rape Relief Project program for victims of sexual assault with developmental disabilities conclude that there is underreporting of sexual assaults of victims with developmental disabilities that exceed underreporting with other populations. Several studies suggest 80-85% of criminal abuse of residents of institutions never reach the proper authorities. The studies have found that 40% of those criminally abused and 40% of non-abusing staff of care facilities studied are reluctant to come forward with criminal abuse issues for fear of reprisals or retribution from administrators.

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