THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, October 8, 1996 TAG: 9610080001
SECTION: FRONT PAGE: A16 EDITION: FINAL
TYPE: OPINION
SOURCE: By DANIEL P. RICHARDSON
LENGTH: 81 lines
A joint study committee of the Virginia General Assembly has had two recent meetings to discuss what one witness called one of society's ``dirty little secrets.''
The committee is composed of five Virginia legislators: Sens. Joe Benedetti and John Edwards and Dels. Bob McDonnell, Vivian Watts and Roscoe Reynolds, chairman. The charge to the committee is ``to study the criminal law in relation to the capacity of the mentally impaired to consent.''
Delegate McDonnell sponsored the resolution in response to a November 1994 article in The Virginian-Pilot by Laura LaFay titled ``Talked Into It: Sex case raises questions about the rights of the mentally disabled.'' The article was in large part about our mentally retarded daughter, Betsy, and her rape by three men who were not prosecuted for the rape. It was determined that Betsy, despite having said ``no'' many times to three large men, had eventually said ``yes,'' and this constituted consent under current Virginia law. We approached the newspaper and offered the story in the hope that we might effect a change in the law. We are very grateful that Delegate McDonnell offered his help.
Betsy's mother and I testified at the first subcommittee hearing as did another person whose sister had suffered a comparable assault. In neither case had there been prosecution.
At the hearing, there was also discussion by a commonwealth's attorney concerning the difficulties in prosecuting a case with a retarded victim. The testimony of such victims may appear contradictory and their reactions to stressful situations may not fit what is ``normal'' in the eyes of the law, police, attorneys and judges. We learned that there is confusion as to the legality of expert witnesses in trials involving rape of the retarded and a concern that writing a law to protect the retarded could make illegal a loving and caring relationship between the retarded and a member of the opposite sex.
The second hearing featured two expert witnesses: Professor Ruth Luckasson, a lawyer, professor of special education and member of the President's Committee on Mental Retardation, and Dr. Harold Carmel, director of medical affairs for the Virginia Department of Mental Health and Retardation. The committee and the experts discussed how to deal with the consent issue without interfering with a retarded person's right to have a consensual relationship, as well as the need for an expert witness to have specific expertise in retardation.
Professor Luckasson reported on data that indicate the retarded are victims of crime at a rate four times that of the general population and another study indicating that in cases of sexual assault and robbery the rate is 10 to 12 times greater. We learned that the difficulties of prosecution, the shame felt by victims, the public's fear of the retarded and the reluctance on the part of caregivers to report crimes against the retarded tend to cause many such crimes to go unreported. Professor Luckasson suggested a law requiring mandatory reporting of suspected crimes against the retarded and suggested that an expert on retardation work with the prosecution and the victim. The third and last committee meeting, planned for the end of November, will feature the testimony of commonwealth's and defense attorneys.
A quarter of a century ago, government decided that ``mainstreaming'' the retarded is preferable to ``warehousing'' them in institutions. Mainstreaming was initiated, not only because it is considered the best way to care for the mentally handicapped, but also because it is more cost effective. National, state and local programs were organized to achieve the ``least-restrictive environment'' for the retarded.
The retarded who are part of independent programs live, work, socialize and contribute to the greater community. But they also are vulnerable members of society, easy victims of unscrupulous telemarketers and other salespeople and easy victims of violence. There are many instances in which the retarded do not get a fair shake in our legal system as either accused or victim. Since the living situation of the retarded who live independently has been fostered by public policy, state policy should also help to protect them. Because policy ``mainstreams,''" the state has an absolute responsibility to strive to ensure that the retarded are not victimized by people disposed to take advantage of their disability.
The committee should bear in mind that both major-party candidates for the presidency strongly support the Americans with Disabilities Act, which requires accommodations that provide access to public facilities and jobs by the handicapped. We are asking the legislature to ensure that the mentally handicapped have access to justice. MEMO: Daniel Richardson is headmaster of Cape Henry Collegiate School in
Virginia Beach. by CNB