INTRODUCTION
3.1 This Chapter considers how crime affects people with an intellectual disability, whether as offenders or victims. For the purposes of this Paper, “crimes” will refer to those offences found in the Crimes Act 1900 (NSW) and the Summary Offences Act 1988 (NSW), together with common law crimes.1 Although these comments are necessarily brief and generalised, the Commission believes that it is important to consider in what ways and how frequently people with an intellectual disability come into contact with the criminal justice system before making recommendations as to how they may be better treated.
The Commission recognises the need for further research in this area and welcomes comments or further information, case studies or statistics as to the impact of crime on people with an intellectual disability.
AS OFFENDERS
Crimes committed by people with an intellectual disability
3.2 There is a dearth of statistics on the types of crimes most commonly committed by people with an intellectual disability. There is:
... no Australian data in this area and overseas results are equivocal; however research ... suggests that intellectually disabled offenders most frequently commit offences against property and persons, including murder, but that they seldom commit indecent assault, rape and other sexual offences. The types of crime they commit are thought to be bi-modal in distribution, ie a high representation ... in low-severity and nuisance-style offences and a high representation in high-severity crimes like assault and murder. The common thread tentatively suggested, but which has as yet received no empirical testing, is a lack of premeditation.2
Those offenders committing the serious crimes:
... do not appear to be more aggressively motivated, but rather, their lack of ability to inhibit expression of aggressive impulses leads to the greater likelihood of violence.3
A contrasting viewpoint, however, about the frequency of sexual offences has been put forward in a recent study of the West Australian prison population which found that over two-thirds of the prisoners with an intellectual disability studied were serving a sentence for a violent crime against the person, and three-quarters of these had committed a sexual offence.4
3.3 There are a number of theories to explain the apparent over-representation of people with an intellectual disability in the New South Wales prison population referred to in Chapter 1, including theories which emphasise psychological and socio-economic factors. There may be reasons for offending that are peculiar to people with an intellectual disability; for example, many people with an intellectual disability have a background of abuse, discrimination, lack of education and isolation from their peers.5 This background may make people with an intellectual disability particularly susceptible to exploitation and to learning inappropriate behaviour. Once criminal behaviour begins the person may not understand its consequences. For example:
A person with an intellectual disability became involved with a group of persons known to police who introduced him to consuming large amounts of alcohol. They then asked him to take off his clothes in a hotel bar, which he did, and abandoned him when the police were called. Criminal behaviour which had been non- existent previously then began and he came under police notice continually. Upon separation from this group, the criminal behaviour ceased.6
A person with an intellectual disability left the institution where she resided and was caught shoplifting. The security staff cared for her until the police arrived and the police then took her home. Along the way home the police bought her dinner. No-one explained to the offender that she had stolen and the consequences of her offence. The person then thought that if she stole she received attention, a ride in a police car and a free meal. The result, in this case, was that stealing became a serious problem.
3.4 People with an intellectual disability are also likely to experience:
... poverty, unemployment or under-employment, sub-standard accommodation, social rejection, alcohol abuse and an ensuing sense of failure. To the extent that there exists a relationship between these pressures and the incidence of crime, people with an intellectual disability may be more likely to be drawn into the criminal justice system.7
Similar comments were made by The Missing Services Report, particularly where people with an intellectual disability have left institutions but have not been provided with adequate community support, often leading to poor integration and isolation within those communities. The Report suggested that, in some cases, “community failure follows which may in turn lead to law breaking ... In such cases, inappropriate behaviour and petty crime may often be seen as a symptom of a deficit in the knowledge, skills and experience for independent living”.8 The Report also listed some common attributes of people with an intellectual disability which may affect, and perhaps increase, their entry into the criminal justice system, including:
- a desire for recognition and status;
- desire to please others;
- a yearning for acceptance and belonging - an unmet need for meaningful relationships;
- low self esteem;
- poor social skills and inability to deal with problems; and
- restricted social network and lack of family support.9
AS VICTIMS
3.5 People with an intellectual disability are not only offenders but also particularly vulnerable victims of crime. Many offenders have at one stage been victims, and may have learned criminal behaviour from that experience. It has been suggested that their vulnerability is accentuated by the factors listed below.
- Trust. People with an intellectual disability often are very trusting of adults because of the fact that for most of their life they have been looked after or told what to do by adults, whether parents, doctors, nurses, speech and behaviour therapists, social and other welfare workers.
- Isolation and ostracism from normal social intercourse, support and services due to their disability. This isolation has increased misconceptions about the nature of intellectual disability and the abilities and “dangerousness” of people with an intellectual disability and, in particular, confusion with people suffering from psychiatric or other illnesses. These misconceptions may affect the acceptance by people in authority of their allegations of crimes committed against them.
- Lack of understanding of the criminal law. This is often as a result of low literacy and communication skills, which leads often to the failure to realise that they are a victim and hence to the low reporting rate of crime by people with an intellectual disability. Most information produced by government departments or legal centres is found in written brochures in language too complex for people with an intellectual disability to read.
- Lack of knowledge about where to report crime or what can be done about it. This may be exacerbated by fear of police and poor communication skills.
- Poverty. Most people with an intellectual disability living independently in the community exist on a pension or on sheltered workshop or other unskilled wages. This poverty can mean increased vulnerability to crimes against them, due to lack of insurance or access to legal advice to seek adequate redress.
- Powerlessness. People with an intellectual disability may feel powerless over their surroundings, relationships and information. They are constrained or made fearful by their lack of control or complaint mechanisms, particularly in institutional settings, or by their lack of education, in such areas as living skills or sexuality. A further issue important to victims is that the decision to report crime or press charges may be made by the family or a service provider, rather than the victim. Though such a decision may be made with the victim’s best interests in mind it may increase the victim’s feeling of powerlessness, particularly if the offence is repeated.10
Crimes committed against people with an intellectual disability
3.6 The Silent Victims Report commented on “the paucity of obtainable data in relation to the nature and extent of crimes against people with an intellectual disability”, and suggested the following reasons:
- confusion about whether a crime had been committed against a person with an intellectual disability; for example, when did “control of challenging behaviour” in an institution become an assault;
- ethical dilemmas for service providers to people with an intellectual disability leading to a low reporting rate; for example, in a hostel situation where the offender is another resident, and may not understand the consequences of his or her actions;
- crime, especially thefts and minor assaults, may be the norm in some institutional environments and therefore not recognised as crime;
- lack of statistical information kept by government agencies about crimes against people with an intellectual disability; and
- difficulty in detecting when offences against people with an intellectual disability occur, either due to non-reporting by the victim or the difficulty, for service providers, in following up alleged offences.11
The types of crimes committed against people with an intellectual disability may be a result of their particular vulnerability.
Fraud
3.7 Fraud is usually reported by the carers for people with an intellectual disability, not the people themselves, because they are unaware that the fraud has occurred. Many people with an intellectual disability have difficulty understanding the value of money and the different denominations.
A person with an intellectual disability advertised an item for sale worth $25. A buyer arrived, and was asked for $25. The person was given a handful of change and told it was the correct amount. The actual amount given to them by the buyer was $2.40 but the person did not realise this until informed by a carer.
3.8 The fears of people with an intellectual disability must also be recognised.
A landlord defrauded a couple, each with an intellectual disability, by charging $140 rent a week in his home which he rented for $60. The offender also charged the couple for petrol every time he took them somewhere in his car. He also took out a loan in the couple’s name and kept the money. This went on for a year and, although a care-giver visited the couple daily, they were afraid to tell her because the offender had threatened to kill them if they told anyone.
Sexual Assault
3.9 Reporting. As noted in Chapter 1, the NSW Sexual Assault Committee’s 1990 Report,12 found that people with an intellectual disability report a higher than average proportion of sexual assault cases, which, considering the low reporting rate referred to in the Silent Victims Report, indicates the actual number of sexual assault cases may be much higher. The Silent Victims Report also revealed higher levels of reported sexual assault than any other offence against people with an intellectual disability.13
3.10 Sexual assault is an under-reported crime and, it has been suggested, likely to be even more so when the victim has an intellectual disability, for the following reasons:
- The victim may not know that what has happened is wrong or that he or she has the right to say “no”.
- The fear of the victim that he or she will not be believed.
- The victim may lack the communication skills to disclose the details of the sexual assault, or may not know where to go or whom to tell. The victim also may be highly dependent on the person who has sexually assaulted him or her.
- A person with a severe or profound intellectual disability may not be able to communicate verbally at all. In such a case he or she will be totally dependent on a third person recognising the sexual assault and then being prepared to do something about it.14
3.11 Vulnerability. It has been suggested that the concern about the vulnerability of people with an intellectual disability to sexual assault may lead to over-protectiveness and to legislation which may inhibit the freedoms of the people themselves. Concern that people with an intellectual disability may be vulnerable to sexual assault by disability workers has led to legislation making it an offence for disability workers in some circumstances to have sexual intercourse with a person with an intellectual disability, even if informed consent can be given.15 There is still a debate whether special provisions are necessary at all, or whether the general sexual assault provisions offer sufficient protection.16 The “serious intellectual disability” of the victim is also one of the “circumstances of aggravation” involved in the recently created New South Wales offence of “aggravated sexual assault”.17 These amendments have been criticised for making the victim’s disability part of the offence, while not making it any more likely that the prosecution will succeed.18
3.12 Consent. A further issue brought to the Commission’s attention is whether or not a person with an intellectual disability can consent to a sexual act. In Western Australia, for example, the Acts Amendment (Sexual Offences) Bill 1991 (WA) has been prepared to amend the Criminal Code 1913 (WA) so that a child under the age of 13 years is deemed incapable of consenting to a sexual act which constitutes an offence against the child. This provision is designed to prevent cross-examining of children as to consent. The question arises whether people with an intellectual disability should be similarly protected, though this may be beyond the scope of the Commission’s terms of reference.19 It is important to emphasise the inappropriateness, however, of comparing people with an intellectual disability to children and assuming that similar protections are appropriate. The question will of course be affected by the degree of disability involved. Until 1987, under the Crimes Act 1900 (NSW)20 it was an offence for any person to have sexual intercourse with “an idiot or an imbecile”, based on the assumption that a person with an intellectual disability could never consent to intercourse.
AS WITNESSES
3.13 The low reporting rate for crime against people with an intellectual disability may also be a result of the fact that the witnesses of crimes sometimes have disabilities and may have similar problems to victims in identifying crime, in knowing what to do about it and in being believed. The position of witnesses is considered in more detail in Chapters 4 and 5.
QUESTIONS FOR DISCUSSION
3.14 There have been a number of suggestions about methods of both assisting people with an intellectual disability and the general community in their understanding of crime and how it affects people with an intellectual disability. These include:
- compilation of statistics as to how crime affects people with an intellectual disability whether as offenders or victims.
- education for people with an intellectual disability and carers as to legal rights, services available for victims of crimes and guidelines as to recognising and reporting crime.
- crime prevention workshops, seminars and other information days for people with an intellectual disability and their carers to assist in identifying criminal offences; and
- police public relations programs to provide information about crime reporting, such as visiting institutions, schools, homes, recreational services, sheltered workshops and other places of employment. This will also assist police in their understanding of how crime affects people with an intellectual disability.21
The Commissions seeks information about other ways of increasing the identification and understanding of crime in people with an intellectual disability.
FOOTNOTES
1. It must be noted, however, that the attempt to define “crime” has itself been described as problematic. See, for example, D Brown, D Neal, D Farrier and D Weisbrot Criminal Laws (The Federation Press, Sydney, 1990), especially ch 2.
2. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) at 11.
3. E S Rockoff and R J Hofmann “The Normal and Retarded Offender: Some Characteristic Distinctions” International Journal of Offender Therapy and Comparative Criminology (1972) 21(1) at 52-56, cited in S C Hayes and R Hayes Simply Criminal (1984) at 24.
4. G P Jones and K Coombes The Prevalence of Intellectual Deficit Among the West Australian Prisoner Population (The West Australian Department of Corrective Services, October 1990) at 30.
5. Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 4.
6. The Commission has been provided with a number of case studies from people with experience with intellectually disabled offenders and victims. The details and sources of all the examples in this Chapter have been deleted or changed slightly to avoid identifying features.
7. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 5.
8. Report of the Inter-departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales Australia The Missing Services (Sydney, 1985) at 24.
9. The Missing Services at 24.
10. This list is based upon the comments from Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 27-30 and K Johnson, R Andrew and V Topp Silent Victims: A Study of the Difficulties Encountered by Victims of Crime who are Intellectually Disabled (Office of the Public Advocate, Victoria, 1988) at 18-21.
11. Johnson, Andrew and Topp at 25-27.
12. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990).
13. Johnson, Andrew and Topp at 28, 30.
14. K Rosser “A particular vulnerability” (Feb 1990) 15 Legal Service Bulletin 1, at 33.
15. Rosser at 33. See, for example, s 66F Crimes Act 1900 (NSW) and s 51 Crimes Act 1958 (Vic).
16. See S C Hayes and R Hayes Mental Retardation: Law, Policy and Administration (Law Book Co, Sydney, 1982) at 411-412 and Law Reform Commission of Victoria Sexual Offences Against People with Impaired Mental Functioning (Report 15, 1988) at para 50, cited in Rosser at 33.
17. Section 61J Crimes Act 1900 (NSW).
18. Rosser at 34.
19. Western Australia. Crown Solicitor’s Office Submission (11 November 1991).
20. Sections 72A and 78M.
21. See, for example, Johnson, Andrew and Topp at 90-92; Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 27-34.
