Camilleri, Marg --- "Barriers to acceptance of evidence: Reports of sexual assault made by adults with cognitive impairment or CCN" [2022] PrecedentAULA 51; (2022) 172 Precedent 24

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BARRIERS TO ACCEPTANCE OF EVIDENCE

REPORTS OF SEXUAL ASSAULT MADE BY ADULTS WITH COGNITIVE IMPAIRMENT OR CCN

Dr Marg Camilleri

This article provides a perspective on acceptance of evidence in matters relating to reports of sexual assault made by complainants with cognitive impairment or complex communication needs (CCN).^[1] These cohorts have similar or overlapping experiences with the justice system and the acceptance of their evidence in Victoria.

Typically, evidence is considered at the points of investigation, prosecution and finally at court, as decisions to progress reports of sexual assault through the justice system are based predominantly on the availability and quality of evidence, including that of the victim and/or witness/es. For victims with cognitive impairment or CCN, however, decisions about the acceptability or otherwise of their evidence begins, as this article discusses, at the point of first report.

Although adults with cognitive impairment are overrepresented as victims of sexual assault, few matters involving such victims reach court.^[2] It is not known what proportion of people with CCN are victims of sexual assault, however, a greater reliance on others for support to assist with day-to-day activities increases the risk of sexual assault and victimisation. While the introduction of the intermediary program^[3] (which assists witnesses (adults with intellectual disability and children to communicate and understand questions asked by police or at court), has potentially had a positive impact on the number of sexual assault reports reaching court, barriers to justice continue for adults with cognitive impairment or CCN. This article considers some of the barriers that continue to limit access to justice by undermining their opportunity to report sexual assault and then to provide evidence.

CONTEXT

Women living with disability are at higher risk of sexual assault compared to other women in the community.^[4] Women with cognitive impairment are at greater risk of sexual assault compared to women living with other disabilities.^[5] According to data released by the Australian Bureau of Statistics,^[6] across a 12-month period 5.9 per cent of women ‘living with disability or a long-term health condition experienced violence’ compared to 4.3 per cent of other women in the community.^[7]

The high risk to women living with disability is not unique to Australia. Women with cognitive impairment are similarly disproportionally overrepresented as victims across international jurisdictions.^[8] Despite this overrepresentation, reports of sexual assault made by adults with cognitive impairment or CCN are less likely to reach court.

BARRIERS – FIRST REPORT TO COURT

There are multiple barriers that can limit the opportunity of victims with cognitive impairment or CCN to access justice and provide evidence. These barriers, discussed in more detail below, include generalised negative perceptions of people with cognitive impairment or CCN; inconsistent engagement with legislation or policy; and inequitable distribution of resources.

Barriers experienced by victims with cognitive impairment, whether in Australian or international jurisdictions, have negative implications on report progression and the acceptance of evidence, which has the effect of diminishing access to the justice system.^[9]

Generalised negative perceptions of people with cognitive impairment or CCN

The overriding perception of people with cognitive impairment or CCN is that they are a homogenous group who lack capacity and credibility, sometimes irrespective of the type of impairment and the impact of that impairment on the individual. People with CCN have shared their experiences of being treated as though they lack intelligence.^[10]

Police are the ‘gatekeepers’ of the justice system.^[11] Discretion at the point of first report determines which cases enter the justice system and which do not. Decisions and the use of discretion vary between police officers and police stations,^[12] resulting in inconsistent recompense to victims.

Depending on where a person with cognitive impairment or CNN decides to make a report, an ‘assessment’ based on negative characterisation may be made about their capacity, credibility and reliability to provide evidence.^[13] The implication of this assessment is that downstream decisions about how or if the matter will progress, and the likelihood of success at court, will inform the decisions of police and potentially the prosecutor.

More evidence

There are often no witnesses to sexual assault, resulting in a situation where it is the victim’s word against that of the alleged perpetrator. The quantity and quality of evidence required to get matters over the line and through to court appears to be higher for people with cognitive impairment or CCN compared to the evidence required for other sexual assault matters.

As interviews conducted with police in four regions of Victoria indicate,^[14] matters involving victims with cognitive impairment may be considered by police as ‘too difficult’ to investigate,^[15] and may require additional corroborating evidence based on a number of factors, including:

• The generalised assumption that the victim is not credible due to cognitive impairment or CCN. Corroboration is typically sought from a person not living with disability to confirm or support the victim’s evidence.

• Few matters involving victims with cognitive impairment reach and are likely to succeed in court.

Inconsistent engagement with legislation and policy

Acceptance of Alternative and Augmentative Communication (AAC)?

AAC includes all forms of communication (other than oral speech) that are used to express thoughts, needs, wants and ideas. AAC can be aided or unaided; the latter utilises communication partners. For victims with CCN who use AAC, their mode of communication also comes into question when assessing their reliability and capacity.

Currently, the Evidence Act 2008 (Vic), s31, allows the following:

‘(2) A witness who cannot speak adequately may give evidence by any appropriate means.

(3) The court may give direction concerning ... the means by which a witness may give evidence under subsection (2).’

While s31 could be interpreted to allow for the use of AAC to provide evidence, it is unclear if all forms of ACC are accepted. A level of caution exists within the justice system about the use of some forms of AAC. This question of its acceptability remains open to interpretation at the point of first report, and once the case is in front of a prosecutor. Some electronic forms of AAC have not been accepted by police and as a result a statement has not been taken, while in other instances the same form of AAC has been accepted. Official data may be collected but data about the use of AAC in court is not publicly available.

Inequitable distribution of resources

Access to support services such as the intermediary program, which could assist victims to provide their best evidence, or indeed access other prosecutorial support services, may be limited depending on where the victim resides.

It is recognised that people accused of crimes who live in regional or rural locations are disproportionately impacted by the limited availability of specialised support.^[16] The situation is similar for victims residing in rural and regional areas who seek to report crimes,^[17] and for victims with cognitive impairment or CCN.^[18]

The lack of experience or understanding of police in obtaining statements from victims with cognitive impairment or CCN can have negative implications for the progress of the report, including those initial statements not being taken. Even if a statement is taken, the police’s lack of understanding could lead to a decision not to progress the report, or to negotiate down the charges due to the perceived diminished capacity of the victim to provide evidence in court.^[19] If video and audio recorded evidence (VARE) is taken, the quality and strength of the VARE relies in part on the interviewing officer’s understanding of how questions should be asked to ensure that the victim can understand and respond in a manner that is clear and accurate. In rural and regional locations, the expertise required to ensure the victim provides their best evidence may not be available.

Initial analysis of data collected during 2021–22 seeking the experiences of victims’ support, advocacy and disability advocacy services in remote, rural and regional areas indicates that victims with disabilities need more assistance in reporting crimes to police. Support that was identified by participants as being particularly important included: transport for victims, often over the long distances from rural locations to regional or metropolitan police stations and courts; ensuring that reports are taken seriously; assistance with communication; and resources and training to help reduce fear of victims who are sometimes also known to police as accused, defendants or perpetrators of crimes.^[20]

ASSISTING VICTIMS TO GIVE THEIR BEST EVIDENCE

Providing victims with assistance to give their best evidence can have a significant and positive impact on report progression, including the outcome at finalisation. There are a range of services available to victims of sexual assault and victims of crime more broadly, including victims with cognitive impairment, depending on where victims reside and the type of crime. The intermediary program, which is perhaps the most recent of these initiatives, provides assistance to complainants who are deemed vulnerable witnesses, including children and young people under the age of 18 years and adults with intellectual disability. The availability of the program is ‘limited geographically – it is available only in courts and some police locations across Melbourne, as well as in a smaller number of courts and police stations regionally’,^[21] and it is currently not available to people with CCN.

While data and an evaluation of the pilot intermediary program are not publicly available, there are reports that the program is informing attitudinal change, is being well-received by police, and that cases involving adults living with intellectual disability are reaching court.^[22] Conversely, there was some level of initial caution among the judiciary, with the VLRC referring to the consultation with the Children’s Court of Victoria when suggesting that there were ‘isolated reports of some judicial officers being reluctant to engage with the program’.^[23]

CONCLUSION

Sexual assault matters have received considerable attention within the criminal justice system through reforms made to legislation, policy and programs over the last two decades in Victoria. From many (but not all) perspectives, such reforms are positive and have been hard fought.

However, full and consistent implementation of these reforms is yet to be realised, due in part to the interpretation of legislation or a reluctance to engage; the inequitable spread of resources; and commonly held generalised assumptions about people with cognitive impairment or CCN. Decisions from report to finalisation, and whether the report should reach court, are informed by negative perceptions regarding the capacity and credibility of people living with cognitive impairment or CCN.

The intermediary program has the potential to increase the number of sexual assault matters involving victims with cognitive impairment reaching court and in so doing, demonstrates the capacity of victims when appropriate support is provided. It is vital, however, that the program expands to assist victims with CCN and into regional and rural locations. Importantly, the program should also include accused with intellectual or acquired brain injury (ABI) as they continue to be overrepresented in correctional facilities.

Dr Marg Camilleri is Senior Lecturer, Criminology and Criminal Justice at Federation University Australia, Victoria. EMAIL [e-mail].

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^[1] For the purposes of this piece, cognitive impairment is defined in the Criminal Procedure Act 2009 (Vic), s3 as ‘impairment because of mental illness, intellectual disability, dementia or brain injury’. ‘“Complex communication needs” is a broad term that refers to difficulties communicating using speech and writing, or difficulties understanding how others communicate’ (Family and Community Development Committee, 2015, 79). Depending on the mode of communication, people with CCN who are nonverbal may use alternative and augmentative communication (AAC) devices or require the assistance of a communication partner.

^[2] JM Maher et al, ‘Women, disability and violence: Barriers to accessing justice: Final report’, ANROWS Horizons, April 2018.

^[3] Criminal Procedure Act 2009 (Vic), s 389I:

‘(1) The function of an intermediary is –

(a) to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and

(b) to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person.

(2) An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness.’

^[4] Australian Bureau of Statistics, Disability and Violence – In Focus: Crime and Justice Statistics (2021) <https://www.abs.gov.au/statistics/people/crime-and-justice/focus-crime-and-justice-statistics/latest-release>.

^[5] Ibid.

^[6] Ibid.

^[7] Data was collected through a telephone survey, which means that women in residential accommodation and potentially the experiences of women who are nonverbal would typically not be represented.

^[8] DA Brownridge, ‘Partner violence against women with disabilities: Prevalence, risk, and explanations’, Violence Against Women, Vol. 12(9), 2006, 805–22; C Edwards, G Harold and S Kilcommins, Access to justice for people with disabilities as victims of crime in Ireland, University College Cork, National Disability Authority (2012); see above note 2.

^[9] C Edwards, ‘Spacing access to justice: Geographical perspectives on disabled people’s interaction with the criminal justice system as victims of crime’, Area, Vol. 45(3), 2013, 307–13; S Ortoleva and H Lewis, Forgotten sisters: A report on violence against women with disabilities: An overview of its nature, scope, causes and consequences (21 August, 2012) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2133332>; Victorian Equal Opportunity & Human Rights Commission (VEOHRC), Beyond doubt: The experiences of people with disabilities reporting crime (2014) <https://www.humanrights.vic.gov.au/static/eb518811156a82cf571ca51959454bf1/Resource-Beyond_Doubt-Research_findings-2014.pdf>; M Camilleri and C Pedersen, Hear Us: The experiences of persons with Complex Communication Needs in accessing justice, Federation University Australia, 26 February 2019; L Dowse et al, Research report: Police responses to people with disability, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2021) <https://disability.royalcommission.gov.au/system/files/2021-10/Research%20Report%20-%20Police%20responses%20to%20people%20with%20disability.pdf>; S Kilcommins and M Donnelly. ‘Victims of crime with disabilities in Ireland: Hidden casualties in the “vision of victim as everyman”’, International Review of Victimology, Vol. 20(3), 2014, 305–25; S Murray and M Heenan, ‘Reported rapes in Victoria: Police responses to victims with a psychiatric disability or mental health issue’, Current Issues in Criminal Justice, Vol. 23(3), 2012, 253–68 <https://www.tandfonline.com/doi/abs/10.1080/10345329.2012.12035929>.

^[10] M Camilleri and C Pedersen, above note 9.

^[11] M Tasca et al, ‘Police decision making in sexual assault cases: Predictors of suspect identification and arrest’, Journal of Interpersonal Violence, Vol. 28(6), 2013, 1157–77 <https://journals.sagepub.com/doi/abs/10.1177/0886260512468233>.

^[12] VEOHRC, Beyond doubt: The experiences of people with disabilities reporting crime (2014) <https://www.humanrights.vic.gov.au/static/eb518811156a82cf571ca51959454bf1/Resource-Beyond_Doubt-Research_findings-2014.pdf>; L Dowse et al, above note 9.

^[13] Australian Human Rights Commission, Equal before the law: Towards disability justice strategies (2014) <https://www.humanrights.gov.au/equal-law-towards-disability-justice-strategies>; Law Council of Australia, The Justice Project: Final Report – Part 1 (2018) <https://www.lawcouncil.asn.au/justice-project/final-report>; C Edwards, G Harold and S Kilcommins, above note 8; JM Maher et al, above note 2; VEOHRC, above note 9.

^[14] M Camilleri, [Dis]Abled justice: Why reports of sexual assault made by adults with cognitive impairment fail to proceed through the justice system (doctoral thesis), University of Ballarat, Ballarat, Vic, 2010; VEOHRC, above note 9.

^[15] M Camilleri, ‘Enabling justice’ (Conference Paper presented at the National Victims of Crime Conference ‘New Ways Forward – Pathways to Change’, 23–24 September 2008) <http://library.aic.gov.au/cgi-bin/koha/opac-search.pl?idx= & q=Camilleri> VEOHRC, above note 9.

^[16] R Coverdale, ‘Postcode justice: Rural and regional disadvantage in the administration of the law’, Deakin Law Review, Vol 16(1), 2011, 155–87 <http://www.austlii.edu.au/au/journals/DeakinLRev/2011/9.pdf> Law Council of Australia, above note 13.

^[17] A George and B Harris, Landscapes of violence: Women surviving family violence in rural and regional Victoria (Report, 2014) Deakin University School of Law’s Centre for Rural and Regional Law and Justice.

^[18] M Camilleri, ‘Disabled in rural Victoria: Exploring the intersection of victimisation, disability and rurality on access to justice’, International Journal of Rural Criminology. Vol. 5(1), 2019, 88–112 <https://pdfs.semanticscholar.org/ce40/b867024a42871f4c5b716fbf5e27ff9666a4.pdf>.

^[19] See above note 7.

^[20] Data collected during 2021/2022; publication in development.

^[21] Victorian Law Reform Commission, Improving the response of the justice system to sexual offences (2021) 322 <https://www.lawreform.vic.gov.au/publication/improving-the-justice-system-response-to-sexual-offences/>.

^[22] Ibid.

^[23] Ibid, 322.