NCJ Number
204265
Journal
Judicial Officers' Bulletin Volume: 15 Issue: 9 Dated: October 2003 Pages: 75-78,82
Date Published
October 2003
Length
5 pages
Annotation
This case study of how New South Wales (Australia) law deals with complex mental health issues illustrates how the law and the mental health sciences continue to have significant problems in reconciling their views on managing cases that involve mentally ill victims.
Abstract
The case reviewed involved a number of charges of indecent assault in the form of unwanted and explicit fondling and touching. The defendant was a caregiver at a special home, and the victim was a 22 year-old young woman under his care and supervision. The victim suffered from Asperger's Disorder, as well as a supervening schizophrenia that was generally well controlled by medication, epilepsy, and bed-wetting. Asperger's Disorder is a disorder that affects social relationships, such that the afflicted person has difficulty appreciating the social significance of others' intentions as well as their own intentions and feelings in the dynamics of a relationship. Asperger's sufferers tend to think and describe experiences in very literal, black-and-white terms. In the application of New South Wales law pertinent to the special protection from sexual assault of persons suffering from "intellectual disability," the prosecution in the case could not so classify the victim's disability. It relied upon the defendant being portrayed as a "person in authority" over the victim to establish an aggravating circumstance. This further required that the victim be viewed legally as a "normal" person who did not consent to the indecent assaults upon her by the defendant. The defense in turn submitted evidence that the defendant's depression decreased his ability to be sensitive to what other people's communications meant. The jury found the defendant guilty on three of the five counts of indecent assault, and he was sentenced to 2 1/2 years of imprisonment, with a nonparole period of 1 year and 3 months, to be served through periodic detention. This article advises that the law failed to take into account the kind of disability suffered by the victim, a disability that clearly increased her vulnerability to sexual victimization. An expansion of the nature of disabilities that make persons vulnerable to sexual victimization is recommended. 6 notes