Introduction
People with disabilities are at least twice as likely as those without any disability to be sexually assaulted.1 The statistics vary within this heterogeneous group,2 rising to up to seven times the likelihood for people with intellectual disabilities as compared with people without any disability.3 Perpetrators are likely to be not only known to the survivor,4 but are also often acquaintances, family members, and service providers.5 Moreover, people with disabilities are more likely than the general population to have already come into contact with some sort of government system, whether it be the Social Security Administration due to qualification for government benefits, or the criminal justice system due to the systemic discrimination that children of color with disabilities face.6 As such, this systemic phenomenon of sexual violence merits further discussion regarding the ways that legal systems and lawyers can intervene.
This piece seeks to draw attention to the issues at play at the intersection of disability and sexual violence and calls for lawyers to address them in a more humane and trauma-informed way. The first Part provides a case study of a woman with an intellectual disability who has had a significant interaction with the criminal justice system after reporting a sexual assault and told her story in a recent NPR news article. This case study demonstrates the significant impacts that sexual violence can have on a person with a disability. The second Part provides a brief overview of some of the legal issues that a survivor with a disability may face. The final Part calls for lawyers to engage with these cases using the Empowerment Model—a method of providing legal services that supports survivors—and for the legal profession to begin centering such experiences in the context of #MeToo and other movements.
I. The Experience7
The following excerpt describes the experience of one woman, Pauline, who has an intellectual disability and who has been sexually assaulted. This case study is presented to assist the reader in understanding the specific challenges survivors with disabilities may face, but it should not be confused with representation of an entire array of experiences.8
When Pauline . . . was raped on Feb. 20, 2016, she was living with her longtime caretaker, a social worker named Cheryl McClain, and that woman’s extended family. Pauline had lived half her life with McClain and called her “Mommy.” The family lived in Brooklyn, N.Y., but had bought that second home in the Pocono Mountains, in Pennsylvania. That’s . . . where the rape happened. Pauline was assaulted by two boys, just 12 and 13. These details come from the police criminal complaint. One boy, McClain explains, was her foster child. The other . . . was her adopted son. According to the police complaint, the two boys confessed right away to the police that they had raped Pauline and that she had told them to stop. Both boys . . . “confessed to raping the victim and both related that the victim repeatedly told both juveniles to stop assaulting her.” It was McClain who called the police that night. But after police charged the boys with rape, McClain seemed to have second thoughts. She pressured Pauline to change her story. . . . [Pauline reports that] “[s]he said, ‘It’s your fault, Pauline.’” . . . Then, on March 1, the night before the boys were to appear in juvenile court, McClain took Pauline—the rape victim—to the office of the public defender who was representing one of the boys—a rape suspect. McClain told the lawyer that the sex acts were consensual. The attorney, William Watkins, stopped her. If that were true, then Pauline might have been guilty of committing a crime against the two boys. . . . [In light of this, the judge took] an unusual step. To protect Pauline, he assigned her a lawyer . . . Syzane Arifaj, a former public defender for juveniles, had worked with clients with disabilities. . . . Pauline was torn, though, facing heavy pressure from McClain, whom she had long relied on. “Pauline didn’t want to upset anybody,” Arifaj says. “From the start, her thing was, she didn’t want anybody to be mad at her.” She had learned to survive by pleasing the people she depended upon for help. And when told she was putting people she lived with in danger with the law, Pauline said she didn’t want anyone to go to jail.9
Pauline did not recant her statements.10 Her assailants faced criminal punishment.11 She was forced to leave the family and the primary caretaker she had lived with for many years, who had acted as her Social Security Representative Payee.12 She now lives in a group home in Brooklyn, away from her husband, who chose to remain with the family.13
II. Legal Issues
Pauline and people in similar positions may face significant legal challenges, both in the criminal and civil law spheres. These challenges often cause significant distress that reaches beyond the original trauma of the sexual violence. Below is a brief introduction to only some of the issues of which lawyers must be aware when taking on such cases.
A. Criminal Proceedings
Pauline’s story is exceptional in that not only was she believed by police, but she was also believed by a judge, who took extra precautions such as assigning her a lawyer to ensure that she was protected through the criminal process and that those who harmed her faced criminal punishment.14 Survivors with disabilities who look to the criminal justice system for protection and restitution are, unfortunately, often not believed.
1. Investigation: Reporting to the Police
Survivors with disabilities may have more difficulty than survivors without disabilities—who already often face extreme scrutiny and bias—in convincing police to believe their stories.15 Reporting sexual violence is already a difficult task made more so by police officers who may not conduct interviews in a trauma-informed way.16 Added to this existing difficulty, officers may harbor explicit anti-disability bias, implicit anti-disability bias, or both, which may cause them to doubt the survivor’s story more than professionally necessary.17 Lawyers advising clients of their reporting options should warn clients of such possible challenges so that these clients can make informed decisions about with whom they18 share their stories While the officer who took Pauline’s report believed her, others may have easily made different assumptions.
2. Adjudication: Interactions with District Attorneys and Defense Attorneys
Survivors with disabilities may face similar discrimination from the attorneys involved in the case. District attorneys may not believe the survivor can take the stand or that a jury would believe the survivor. Defense attorneys may attempt to discredit the survivor based on their disability.19 Thus, even if the survivor is able to get past the reporting process, the criminal justice proceedings, likely to cause distress for anyone,20 may continue to perpetrate disability discrimination against the survivor, further impairing important aspects of the survivor’s life.
B. Civil Law
Civil law is as varied as the experiences of the clients who request assistance with it, but stereotypes of people with disabilities may affect their representation in all civil matters. Discussed in the following subsections are a few issues—not an exhaustive list—that people in situations like Pauline’s may experience, and of which lawyers should be aware.
1. Protection Orders
The process for receiving a protection order varies by state. However, it generally involves the following: (1) a written petition by the survivor that briefly explains the reason for the protection order, which will typically be a narrative of the sexual violence they have experienced; and (2) an appearance in front of a judge, where the respondent will appear and defend themselves after the survivor is heard.21
Survivors with disabilities may need help interpreting and filling out the original application; additionally, they may require accommodations such as the ability to fill it out by computer with an e-reader, assistance interpreting the prompts, and time between completing sections in conjunction with trauma-informed guidance on the application as a whole. At the hearing itself, lawyers should be aware of any accommodations for which they can advocate, such as sign language interpreters or seating near an exit or bathroom. Further, lawyers should also be cognizant of the possibility of explicit or implicit bias against people with disabilities on the part of the judge, respondent, or respondent’s counsel.
However, if a lawyer can assist the survivor through these challenges and such a protection order can be gained, this order may be a significant boon to the mental well-being of the client, who may feel more secure after obtaining it. Pauline herself, if she had been unable to access the criminal justice system or if she had continued to face harassment after she had moved out, may have benefited from consultation with an attorney regarding such protection orders.
2. Social Security Benefits
Pauline was receiving Social Security benefits at the time that she was assaulted, and McCain, the woman who pressured her to recant her statement, causing Pauline to need a lawyer independent of the District Attorney’s office assigned to her, was her Social Security Representative Payee. This Social Security arrangement means that whenever Pauline was meant to receive her benefits, they were given to McCain, who did with them as she saw fit.22 Pauline, in the article, discusses how she did not have control over the money to which she was entitled while she lived under McCain’s roof, even though she now lives independently and manages her own finances.23
People with disabilities may need help financially extricating themselves from the people who abuse them or people who do not support them through their healing. The Social Security benefits case is only one example of how such a financial need may present itself, and this alone may require significant legal counseling. To change a Representative Payee, the beneficiary (survivor with a disability) must contact the Social Security Administration, explain the situation, and request that another person be assigned to serve as Representative Payee. To terminate Representative Payee status altogether, the beneficiary must complete multiple forms, communicate with the Social Security Administration, and demonstrate they are mentally and physically able to manage or direct the management of benefit payments.24 Survivors with disabilities may, therefore, become saddled with additional financial and emotional burdens that that most survivors without disabilities would likely not have to consider.
3. Family Law
Pauline was married at the time of her assault.25 At the time the article about her experience was published, she was no longer living with her husband, as he had chosen to continue living with the family that perpetrated the assault.26
There is no reason to believe that Pauline is in need of family law counsel at this time, but survivors with disabilities in similar situations may be in need of such services. It is a common misconception that people with disabilities are not competent to create their own families and will not require legal advice on these issues.27 Rather, people with disabilities live in a wide array of situations, creating families of all sorts. Lawyers must not overlook the need for such services, especially after a person with a disability, who is more likely than a person without a disability to be targeted by someone close to them,28 experiences sexual violence.
III. The Empowerment Model: Relevant and Necessary
The Empowerment Model has been used in sexual violence survivor advocacy for some time. However, not all lawyers are familiar with the concept. Because it is not only important for survivor-centered advocacy, but also essential for advocacy for survivors with disabilities, who are so often disempowered through disability discrimination, a brief discussion of the Empowerment Model is presented here.
Empowerment supports clients in their decision-making, and it is especially important in the context of survivor advocacy: Sexual violence, which necessarily takes away choice, often results in feelings of powerlessness.29 The Empowerment Model centers the experience of the client (just as client-centered lawyering does) and assists them in defining and achieving goals that will help them feel as if they have regained control over one aspect of their life.30 The lawyer working with the Empowerment Model then works with the client to develop self-efficacy, knowledge relevant to the situation at hand, and competence to perform any relevant tasks through a strengths-based approach.31 Finally, the attorney assists the client in taking action to perform these tasks and assessing the impact of their own actions.32
For example, a client may request assistance filing for a protection order. Under the Empowerment Model, the lawyer and the client may set the goal that by the end of the following day, the client will have filled out the relevant court forms, as the client would like time at home to mentally prepare for the task during the evening. The client can come in the next day, when the attorney will explain the details of the process, answer any questions, and assist the client in filling out the form, providing any accommodations necessary without delay or judgement. At the end of the process, the attorney may reflect with the client on the significant steps that they have taken toward the ultimate goal of obtaining a protection order. Such centering of the survivor’s experiences and focus on empowering them to make choices relevant to both their legal process and healing can assist the client in healing from the trauma and challenging feelings of powerlessness that may have resulted from it.
Empowering survivors with disabilities like Pauline is essential to quality lawyering in this context. Too often, people with disabilities are underestimated and stereotyped. By working under the Empowerment Model and centering the experiences of their clients, attorneys can work against such bias and engage in lawyering that assists in the healing process for a population that is disproportionately targeted and affected by sexual violence.33 To do so will require attorneys to look at their own explicit and implicit biases, possibly change their practices, and actively work against the ableist attitudes34 that could hinder people like Pauline.
Conclusion
The legal profession has a history of marginalizing and erasing people with disabilities, whether through the consistent deprivation of rights that sparked the Disability Rights Movement35 or individual attorney interactions influenced by implicit or explicit anti-disability bias.36 This is a practice that must stop. As the profession reckons with #MeToo and related movements and begins to recognize the variety of ways survivors of sexual violence interact with legal systems, we must center those who are most likely to be affected and experience continued marginalization even after the hashtagging has stopped. This includes people with disabilities, women of color, transgender people, and those at the intersections of such groups. We can begin such centering and healing by recognizing the interactions that survivors with disabilities are forced to have with the legal system and empowering them through these interactions.
[1] See Kathleen C. Basile et al., Disability and Risk of Recent Sexual Violence in the United States, 106 [small-caps]Am. J. Pub. Health[end-small-caps] 928, 930 (2016); Sandra L. Martin et al., Physical and Sexual Assault of Women With Disabilities, 12 [small-caps]Violence Against Women[end-small-caps] 823 (2006).
[2] Disability refers to a vast and heterogeneous collection of experiences, including physical disability, sensory disability, intellectual disability, developmental disability, mental health disability, and others. This piece will be unable to discuss all relevant experiences; any oversight is unintentional and only demonstrates why more scholarship is needed in the field of disability law.
[3] Joseph Shapiro, NPR Investigation Finds Hidden Epidemic of Sexual Assault, NPR (Jan. 8, 2018), https://www.npr.org/2018/01/08/576428410/npr-investigation-finds-hidden-epidemic-of-sexual-assault (discussing the results of an NPR investigation into the prevalence of sexual assault among people with intellectual disabilities using U.S. Department of Justice statistics).
[4] This author uses the term “survivor” to refer to anyone who has experienced sexual violence of any kind. However, the author also acknowledges that not all people who have experienced sexual violence identify with the term “survivor” due to the pressure that it may unconsciously place to perform an overcoming narrative. For a fuller discussion of the overcoming narrative, see [small-caps]Tanya Titchkosky, Reading and Writing Disability Differently: The Textured Life of Embodiment[end-small-caps] (2007).
“Survivor” is not intended to communicate such pressure in this instance, but, instead, to connect with recent movements that utilize the term as a connecting thread between participants. See [small-caps]Me Too Movement[end-small-caps], https://metoomvmt.org/ (“Support survivors and end sexual violence.”) (last visited Jan. 2, 2019). The author encourages each individual to identify their experience in a way that feels valid to them and reject the pressure to perform an overcoming narrative in the contexts of trauma, disability, and the intersection of trauma and disability.
[5] Dick Sobsey & Tanis Doe, Patterns of Sexual Abuse and Assault, 9 [small-caps]Sexuality & Disability[end-small-caps] 243 (1991).
[6] See [small-caps]Nat’l Council on Disability, Breaking the School-to-Prison Pipeline for Students With Disabilities[end-small-caps] 7 (2015), https://www.ncd.gov/sites/default/files/Documents/NCD_School-to-PrisonReport_508-PDF.pdf (“First and foremost, NCD would like to see a unified system of education with all students educated in the regular education classrooms with special education supports. But improved implementation of disability laws in this manner alone will not eradicate the persistent racial and ethnic disparities within the class of students with disabilities caught in the Pipeline. Thus, the recommendations acknowledge that efforts to break the School-to-Prison Pipeline for students with disabilities must address both conscious and unconscious racial biases that combine with disability discrimination to contribute to the crisis.”).
[7] While this piece as a whole discusses difficult subject matter, this section in particular may be upsetting, as it describes acts of sexual violence. The author urges all readers to engage in self-reflection and self-care around these subjects.
[8] The array of experiences that survivors with disabilities have faced spans far more than one story can tell and far more than can be discussed in one piece. For further survivor-centered stories of survivors with disabilities, see, e.g., Aeryn, Stop Blaming My Sexual Assault on My Disability, [small-caps]Rooted in Rights[end-small-caps] (Mar. 15, 2018), https://www.rootedinrights.org/stop-blaming-my-sexual-assault-on-my-disability/; Angela Lemus-Mogrovejo, My Mental Health Disabilities Don’t Make My Experience of Sexual Assault Less Worthy of Belief, [small-caps]Rooted in Rights[end-small-caps] (Nov. 1, 2018), https://www.rootedinrights.org/my-mental-health-disabilities-dont-make-my-experience-of-sexual-assault-less-worthy-of-belief/; Erin Pritchard, Disabled People Can Sexually Harass and Assault People, Too, [small-caps]Rooted in Rights[end-small-caps] (Apr. 12, 2018), https://www.rootedinrights.org/disabled-people-can-sexually-harass-and-assault-people-too/.
[9] Joseph Shapiro, The Sexual Assault Epidemic No One Talks About, NPR (Jan. 8, 2018), https://www.npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talks-about.
[10] Id.
[11] Id.
[12] Id. See also 42 U.S.C. § 1383(a)(2)(A)(ii)(I) (West 2019) (“Upon a determination by the Commissioner of Social Security that the interest of such individual would be served thereby, such payments shall be made, regardless of the legal competency or incompetency of the individual or eligible spouse, to another individual, or an organization, with respect to whom the requirements of subparagraph (B) have been met (in this paragraph referred to as such individual’s ‘representative payee’) for the use and benefit of the individual or eligible spouse.”).
[13] Shapiro, supra note 9.
[14] Id.
[15] See Charles Antaki et al., Police Interviews With Vulnerable People Alleging Sexual Assault: Probing Inconsistency and Questioning Conduct, 19 [small-caps]J. Sociolinguistics[end-small-caps] 328 (2015).
[16] See generally Shana L. Maier, “I Have Heard Horrible Stories . . .” Rape Victim Advocates’ Perceptions of the Revictimization of Rape Victims by the Police and Medical System, 14 [small-caps]Violence Against Women[end-small-caps] 786, 793 (2008) (“Rape victims may experience revictimization by police through officers’ invasive questioning, victim-blaming attitudes, general insensitivity, and refusal to proceed with criminal investigation.”); Laura M. Monroe et al., The Experience of Sexual Assault Findings From a Statewide Victim Needs Assessment, 20 [small-caps]J. Interpersonal Violence[end-small-caps] 767, 770 (2005) (finding that, of those surveyed who reported to the police, almost half were unsatisfied with the police interview).
[17] Explicit bias and implicit bias against people with disabilities intersect with race. See David M. Perry & Lawrence Carter-Long, How Misunderstanding Disability Leads to Police Violence, [small-caps]Atlantic[end-small-caps] (May 6, 2014), https://www.theatlantic.com/health/archive/2014/05/misunderstanding-disability-leads-to-police-violence/361786/; Britney Wilson, #BlackDisabledLivesMatter, [small-caps]Nation[end-small-caps] (Nov. 30, 2016), https://www.thenation.com/article/blackdisabledlivesmatter/.
[18] This piece intentionally uses the word “they” to refer to singular persons whose gender is ambiguous to be inclusive of all gender identities.
[19] There is a long history of using a survivor’s utilization of mental health services against them in a trial. See Simon Bronitt & Bernadette McSherry, The Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the “Rape Shield”?, 8 [small-caps]Crim. L. Forum[end-small-caps] 259 (1997). This is essentially disability discrimination, as the underlying assumption is that if they have a mental health disability, they are not a credible witness.
[20] See, e.g., Amelia Gentleman, Prosecuting Sexual Assault: ‘Raped All Over Again’, [small-caps]Guardian[end-small-caps] (Apr. 13, 2013), https://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court (describing one survivor’s experience with cross-examination and its enduring effect on her mental health).
[21] See, e.g., Domestic Violence, [small-caps]Cal. Courts[end-small-caps], http://www.courts.ca.gov/selfhelp-domesticviolence.htm (explaining the process for obtaining a domestic violence protection order in California).
[22] See When People Need Help Managing Their Money, [small-caps]Soc. Security Admin.[end-small-caps], https://www.ssa.gov/payee/index.htm (explaining the concept of a Representative Payee). See generally 42 U.S.C. § 1383 (2019).
[23] Shapiro, supra note 9.
[24] See FAQs for Beneficiaries Who Have a Representative Payee, [small-caps]Soc. Security Admin.[end-small-caps], https://www.ssa.gov/payee/faqbene.htm.
[25] Shapiro, supra note 9.
[26] Id.
[27] See Maureen S. Milligan & Aldred H. Neufeldt, The Myth of Asexuality: A Survey of Social and Empirical Evidence, 19 [small-caps]Sexuality & Disability[end-small-caps] 91 (2001).
[28] Sobsey & Doe, supra note 5.
[29] See David Finkelhor & Angela Browne, The Traumatic Impact of Child Sexual Abuse: A Conceptualization, 55 [small-caps]Am. J. Orthopsychiatry[end-small-caps] 530 (1985).
[30] Lauren Bennett Cattaneo & Lisa A. Goodman, What Is Empowerment Anyway? A Model for Domestic Violence Practice, Research, and Evaluation, 5 [small-caps]Psych. Violence[end-small-caps] 84, 88 (2015); see also Ruthy Lowenstein Lazar, Interdisciplinary Clinical Education—On Empowerment, Women, and a Unique Clinical Model, 23 [small-caps]Clinical L. Rev.[end-small-caps] 429 (2016).
[31] Id.
[32] Id.
[33] Basile et al., supra note 1; Martin et al., supra note 1.
[34] Ableism refers to discrimination against people with disabilities based upon the belief, either implicit or explicit, that people without disabilities are superior to those with disabilities. Ableism, [small-caps]Encyclopedia Britannica[end-small-caps], https://www.britannica.com/topic/ableism. Ableism often intersects with other forms of discrimination. See, e.g., Crystal R. Emery, I Am a Black Woman With a Disability. Hear Me Roar., [small-caps]Time[end-small-caps] (July 20, 2016) (“When stereotypes and societal shortcomings manifest in these questions, I am left once again wondering if the inquiry stems from the fact I am black, the fact I am female or the fact I am in a wheelchair. As a multidimensional human being, I am required to explain the way each of those positions impacts my work in order to ensure a level of respect and understanding reserved for those with less complex identity markers—bodies that don’t require explanation.”).
[35] See generally Will Reckase, History of Disability Rights Interactive Timeline: Text-Only, [small-caps]Rooted in Rights[end-small-caps] (Feb. 17, 2013), https://www.rootedinrights.org/history-of-disability-rights-interactive-timeline-text-only/ (describing the herculean efforts of disability rights activists to pass laws prohibiting various forms of disability discrimination).
[36] See Wendy F. Hensel, The Disability Dilemma: A Skeptical Bench & Bar, 69 [small-caps]U. Pitt. L. Rev.[end-small-caps] 637, 639 (2008) (discussing anti-disability bias within the legal profession and stating that “the legal profession’s failure to understand the social component of disability and its skepticism towards impairments is not unique, but does have unique implications,” and that “[a]ttorneys draft the laws protecting individuals with impairments, prosecute and defend claims of disability discrimination by society, and define the scope of protection through judicial decisions”).
