Legal processes and disability

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Professor Teresa Iacono

E-mail: t.iacono@latrobe.edu.au

This piece was originally published in the National Times 15 December, 2011

For those of us working in the intellectual disability field there are many experiences of déjà vu. A report that charges may be dropped against a South Australian bus driver accused of sexually abusing two children with intellectual disabilities is a recent one. As a result of their intellectual disability and associated communication impairment, these children are thought to be unable to cope with prolonged legal questioning. There is also the issue of the reliability of their responses, which threatens the fairness of a trial.

Stories such as these have filtered both media and research reports for decades. Yet, the vulnerability of people with disability, particularly those with communication impairment, is well known. Staggering statistics of child abuse become even more staggering for both children and adults with intellectual or other forms of disability that impact on communication. Still, legal proceedings come to a halt in the face of requirements to rely on direct accounts by victims whose ability to communicate is impaired.

For people with intellectual disabilities, direct accounts become fraught. Even those with mild intellectual disability are known to struggle with questioning, which by their very nature, require the comprehension of complex sentence structures and abstract concepts. Their tendency to acquiesce has been shown in research and is well known — that is, to respond ‘‘yes’’ to a question requiring a yes/no response in an attempt to please the questioner.  At the moderate/severe/profound ends of the intellectual disability scale, communication becomes further complicated by varied, and often unknown, comprehension ability. Also most people lack awareness of or ability to understand methods of communication other than conventional speech. People with intellectual disabilities may rely on signs, gestures, and picture-based communication systems; some rely on family and others to interpret their facial expressions, vocalisations and body language.

The recent South Australian case, as with others over the years, sent a message that people with communication impairment, even those who can engage in conversations to some extent, provide the safest targets. The message for society is that it has failed and continues to fail in its responsibility to protect the human rights of its most vulnerable citizens. Solutions are not simple, but this does not exclude society from concerted attempts to develop, trial and implement them.

There are glimmers of hope in the form of recent reports of people who use alternative forms of communication being allowed to give evidence in court, and attempts by police to work with speech pathologists when questioning people with communication impairment. There are also proposals for different court models or changes to acts to allow video-taped interviews as evidence.

Unfortunately, these have been around for some time, but the risks for people with communication impairment remain in the form of vulnerability to crime and failure of the legal system to protect them.
Surely it’s time for society to recognise and accommodate differences in communication ability. It is also time to recognise different forms of communication and learn how to ‘‘converse’’ with people who use them. Then perhaps the legal system will fall in step.

There are lessons to be learnt from the physical access movement – it is now accepted that people using mobility aids should be able to get into buildings and use public facilities. It is now time for all sections of society to be communication accessible. In fact, Victoria is leading the way in promoting a Communication Access symbol that will signal to the public that a business or service is willing to work with people with communication impairment, including those who may rely on non-speech systems.

As with physical accessibility, being communication accessible requires a shift in attitude, which may then open the door to acceptance of different ways to communicate. The South Australian case demonstrates the need for the legal system to be communication accessible. Maybe then people with communication impairment will get their day in court – both figuratively and literally.

Teresa Iacono is Professor of Regional and Rural Allied Health at La Trobe University, Bendigo, and a speech pathologist specialising in complex communication impairment.

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