In too many parts of the world, including my home country of Zimbabwe, rape victims who have intellectual disabilities are frequently victimized twice: once during the commission of a crime, and again when their cases go to trial.
In certain cases, their testimony is discounted at the outset because of their disability, making them more likely to be denied justice and more susceptible to crimes.
Those fortunate enough to be allowed to testify still face great difficulty in giving effective testimony in court. This is because the law in Zimbabwe does not provide for making accommodations to facilitate effective testimony.
Secondly, prosecutors, lawyers, and magistrates lack training on handling witnesses with intellectual disabilities. This means that they often do not know the right type of questions to ask. Research shows, for example, that when trying to establish the time the offense occurred, asking whether the offense took place after a specific event, like lunch, could elicit a more accurate response than simply asking the witness what time the offense took place.
In addition, they also do not know how to correctly interpret the witness’s body language. Fidgeting and avoiding eye contact is usually interpreted as a sign of untruthfulness, but this may not be true for a witness with an intellectual disability. Still, that body language could cause the witness’s credibility to be called into question and lead the magistrate to acquit the defendant.
I saw this firsthand as a prosecutor in Zimbabwe when I was involved with just such a case. The victim, who had an intellectual disability, was raped by her neighbor. Getting her to relate the details I needed in court was challenging because of the lack of training on how to question such a witness and interpret her responses and reactions. In the end, I secured a conviction, but this was largely due to the fact that there was an eyewitness to the crime—a rarity in rape cases, which normally occur behind closed doors.
I realized that there was an urgent need to address problems relating to the testimony of witnesses with intellectual disabilities. This was particularly true for those who were victims of rape. A rape victim’s testimony is essential in establishing that the sexual contact occurred without the victim’s consent and was an act of violence.
As long as the law does not adequately protect rape victims with intellectual disabilities by recognizing their competence to testify and providing accommodations to enable effective testimony, there is a risk of sending a message that those who rape intellectually disabled persons can do so with impunity.
Defending those citizens has become my life’s work thanks to the Open Society Foundations’ Disability Rights Scholarship Program, which allowed me to pursue graduate studies in law with a focus on disability rights at McGill University in Montreal, Canada.
At McGill, my LLM thesis focuses on the right to access to justice for victims of rape with intellectual disabilities secured under the Convention on the Rights of Persons with Disabilities. In particular, the research focuses on the provisions relating to the competency of witnesses with intellectual disabilities to give evidence in court.
But accessing justice is about more than just being permitted to say something in the witness stand. It also is about giving effective testimony. With that in mind, I recommended several accommodations which, in addition to the provision of disability awareness training for prosecutors, lawyers, and magistrates, are designed to assist the witness to give effective testimony.
One such accommodation would allow an expert who can assist the court to interpret the witness’s body language and responses to participate in a trial. Another change would let a witness testify via video link using a specially trained intermediary who phrases and rephrases questions from the prosecutor and the defense lawyer in an appropriate manner. This also would reduce the level of intimidation the witness may experience from testifying in the same room as the accused person. Finally, courts should allow the use of communicative aids, such as drawings, to assist witnesses with problems in oral communication.
You can see my passion for my work in this video, “Three Minutes to Change the World,” highlighting the thesis research of students at McGill University.