Justice emerges for the most vulnerable victims
Sydney Morning Herald
Monday June 1, 2009
IT IS always difficult for victims of sexual assault to pursue justice. From fear of not being believed to dread of the witness box, the barriers are formidable. But when the victims have an intellectual disability, the chance of justice triumphing seems even more remote because they may not be considered capable witnesses.Anna*, 21, who has a moderate intellectual disability, was waiting at a bus stop in February after having attended a TAFE literacy and numeracy course. She had only recently started to make her own way on public transport. A bus driver told her he would take her home. She had previously ridden on his bus, and though he was married, a father, and in his 40s, he had asked for her phone number and called her. She had refused to meet him. The video evidence from the bus revealed Anna was reluctant to go aboard that day. But once on the bus, the driver took her to a street beside a park and locked the door. With the video off, he assaulted her on the floor of the bus."It was such an abuse of power," said Virginia, her mother. "She didn't have the skills to get away. Now she cries at the drop of a hat. She says she'll need counselling for the rest of her life."My first thought when my daughter told me what happened is that the police will disregard what she says," said Virginia. "She has an intellectual disability."But last week the bus driver pleaded guilty in the District Court to indecent assault after having consistently denied the charges. He is in remand awaiting a custodial sentence.It was a difficult journey for Anna and Virginia. "When there's a disability, there are so many thing you don't do because it's not worth the stress," said Virginia. "And with a sexual assault, it's a big ask to take someone through the whole court process."But now Virginia wants other families to know the system can work. It is not easy, and it helped in Anna's case that video evidence supported aspects of her account of what happened. . And that, in the end, Anna did not have to be cross-examined.Despite evidence that between 50 and 90 per cent of people with an intellectual disability will be sexually assaulted in their lifetime, there are few prosecutions, according to a 2007 report by the NSW Attorney-General's Department. Only 21 people were successfully prosecuted in NSW between 1995 and 2007 under a special section of the Crimes Act aimed at carers of people with disabilities."Sometimes police handling cases say, 'There's no point; the person doesn't have the capacity to give evidence; it won't get up in court'," said Ben Fogarty, the principal solicitor with the Intellectual Disability Rights Service. Yet there are signs police and courts are making big strides in taking on these cases, said Susan Hayes, professor of behavioural science in medicine at the University of Sydney, and an expert on disabilities and criminal justice."There's more awareness that just because a person has an intellectual disability doesn't mean they can't give their version of events. They can often remember details extremely well," Professor Hayes said.But the family's experience from the sexual assault service at Westmead Hospital, the detectives who believed Anna, the Director of Public Prosecutions and the court has renewed their faith in justice."We had a little celebration, brought Anna flowers, told her she'd done the right thing; she understood he was at fault, not her," said Virginia. "She was very brave."*Names are changed for legal reasons.
© 2009 Sydney Morning Herald
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