Disability, Child Abuse and Criminal Justice
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01948.x |
| Date | 01 May 1994 |
| Published date | 01 May 1994 |
Disability, Child
Abuse
and Criminal
Justice
Jennifer
Temkin
*
Introduction
The problems facing the sexually abused child involved
in
the criminal justice
system have been well rehearsed’ and steps have been taken to respond to their
plight.* But there has
so
far been little recognition of the added difficulties
confronting children with disabilities3 and relatively few cases involving such
children have so far reached the courts. Children whose disability results in a lack
of verbal skills are particularly disadvantaged in a legal culture which takes oral
communication for granted and relies heavily upon it. This article will consider the
vulnerability of disabled children to abuse. It will then go on to examine the
communication difficulties which affect many of them and the extent
to
which
these difficulties inhibit or debar them at each stage of the criminal process.
Finally, it will suggest what needs to be done to ensure that disabled children are
afforded equal access to the criminal justice system.
A Disability and Abuse
In
1985
it was officially estimated that there were
360,000
children under
16
in
this
country with one or more disabilities, that is,
3
per cent of all children under 16.4
But it is only relatively recently that it has been recognised that disabled children
may become victims of physical or sexual abuse and may, indeed, be more
vulnerable to such abuse than other children.’ Certainly, it is clear that there are a
number of factors which place disabled children particularly at risk of abuse.6
First, disabled children are often unable to run away and
are
easy to overpower.
Many are deprived of personal privacy because they are physically dependent and
their intimate personal care has to be undertaken by others. In extreme cases of
total physical dependency, recognition of abuse may be difficult for the child and
ideas about bodily integrity and sexual choice hard for her to sustain. Moreover, a
*LLM, Barrister, Professor of Law, University of
Sussex.
The author is indebted
to
Margaret Kennedy
for
her advice and encouragement with this article and
to
Di
Birch for helpful comments.
See
eg
Report ofthe Advisory Group
on
Video-Recorded Evidence
(London: Home Office, December
1989).
See
Criminal Justice Act 1988,
ss
32-34, Criminal Justice Act
1991,
ss
52-55.
The term ‘disability’ as
used
in this article covers a range
of
impairments including learning disability,
ie mental handicap.
Bone and Meltzer,
The Prevalence
of
Disability Among Children
(OPCS
Surveys
of
Disability in Great
Britain, Report 3, Office
of
Population, Censuses and Surveys, 1989) pp 17-
18.
The survey relied
on
the International Classification
of
Impairments, Disabilities and Handicaps produced by the World
Health Organisation;
see
pp 7-9.
See
eg Sinason,
Mental Handicap and the Human Condition
(London: Free Association Books, 1992)
p 298; Tharinger
et al,
‘Sexual Abuse and Mental Exploitation of Children with Mental Retardation
and Other Handicaps’ (1990) 14
ChiM Abuse and Neglect
301, at p 304.
See
eg Brown and Craft,
Thinking the Unthinkable
-
Papers
on
Sexual Abuse
and
People with
Learning Dipculties
(London: Family Planning Education Unit, 1989) pp 2-3.
@
The
Modern Law Review
Limited
1994
(MLR
57:3.
May). Published by Blackwell Publishers.
108
Cowley Road, Oxford
OX4
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and
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402
May
19941
Disability, Child Abuse
and
Criminal Justice
disabled child, whether she lives at home or in a residential setting, will frequently
be put in the charge of numerous carers and subjected to the ministrations of a
range of therapists, professionals and miscellaneous others. The sheer number of
those involved in the care of the disabled exposes them to greater risk of abuse than
other children.
Disabled children
also
tend to
be
ill-informed about sexual matters. There has
been a disinclination to provide them with sex education, owing in part to a general
denial of their sexuality. Abuse may therefore not
be
recognised or characterised
as such either by the child or by her carers and many disabled children may fail to
appreciate their right to sexual ~hoice.~
A
further significant factor is the poor
self-image which is characteristic of many disabled children. Deaf children, for
example, ‘very often become dependent, malleable and lacking in confidence, self-
esteem and strength.’8 Such children do not assume that account should be taken
of their wishes or that they have a right to say ‘no’. Children who are utterly
dependent on others may lack a sense of control over what happens to them. They
are geared towards survival which involves accommodation and obedience. The
compliance and exaggerated respect for authority frequently manifested by
disabled children may render them easy prey for ab~sers.~ It is also the case that
some disabled children are
so
deprived of affection and
so
used to being ignored
that they
may
accept abuse because of the attention it brings.
Disabled children with communication difficulties
may
be unable to protest to an
abuser or to cry out for help. They may also have great difficulty in explaining
what has happened to them. A child who is unable to report abuse is an attractive
proposition for an abuser. Disabled children who are able to communicate may
lack the assertiveness or the knowledge of how or where to complain or may be
too
dependent on the abuser to dare to do
so.
Those who do report the abuse may find
that their complaints are treated with scepticism. Some adults will doubt that a
severely disabled child could
be
the subject of sexual attention. Other myths about
the disabled serve equally to undermine their credibility.*O It may be thought, for
example, that no one would be
so
callous as to abuse a disabled child, that abuse is
perpetrated by strangers not by carers, that a child with learning disability or with
communication difficulties will have misunderstood what happened or may even
have invited attention.
It has also been suggested that societal attitudes to disability may provide a
climate for abuse.
‘I
Those who are afforded second-class citizenship
are
frequently singled out for victimisation. Whether or not this is the case, it is now
increasingly recognised that those who have a sexual interest in children may well
target the disabled child.’*
7
See
Cole, ‘Facing the Challenges of Sexual Abuse of the Disabled’ (1984-86)
7
Sexuality and
Disability
71, p 86; Tharinger,
loc cit
n
5
supra,
p 305.
In
a Canadian survey, lack of sexual
knowledge
was
found to
be
a major factor contributing to the vulnerability of disabled victims to
abuse.
See
Sobsey and Varnhagen, ‘Sexual Abuse and Exploitation of People with Disabilities’ in Sap0
and Gougen (eds),
Special Education Across
Canada
(Vancouver: Vancouver Centre for Human
Development and Research, 1989), at p 210.
8
Kennedy, ‘The Deaf Child who is Sexually Abused
-
Is
There a
Ned
for a Dual Specialist?’ (1990) 4
Child Abuse Review
3.
9
Walmsley, ‘The
Need
for Safeguards’ in Brown and Craft,
op cir
n
6
supra,
at p
5.
10
See
Cole, n 7
supra,
at pp
84-85.
11
See
eg
Roberts,
The SCOSAC Focus
on
Child Sexual Abuse and People wirh Disabiliries
(London: The
Standing
Committee
on Sexually Abused Children, 1992) p 5.
12
See
eg Cole,
loc cir
n
7
supra,
at p 82; Tharinger,
loc cit
n 5
supra,
p
305.
0
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Law
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1994
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