in no shape to take a case to trial, but more importantly, extending the statute of lim- itations would empower us to protect to- day’s
children against known offenders
who evaded prosecution and are at risk of reoffending. Each year, victims whose crimes happened twenty or thirty years ago contact our office wanting to bring charg- es because they found their perpetrator on the internet and learned that he is still lead- ing a church youth group or having regular contact with children. Extending the stat- ute of limitations would enable us to better protect today’s children. We worked with Senator Sears and the legislature to get the law changed. The governor signed the bill into law at our Child Advocacy Center in Bennington. Now, we can prosecute child sexual abuse cases up to forty years after the crime, pur- suant to 13 V.S.A. §4501.
Judicial System Changes
Changing the laws is essential, but the judiciary also needs to take part in the pro- cess for change.
Training About Common Disabilities All judges should be trained to have a basic understanding of common disabilities and how they can affect a child’s ability to testify. A child’s disability can affect every aspect of the court process. Children with neurological disabilities may have difficul- ty understanding complex questions, ques- tions that use words with double meanings, expressions, idioms, or leading questions. Other children may understand the ques- tions but not be able to respond in a “nor- mal” way due to communications disabili- ties. Children on the autism spectrum may also have sensory issues where they can- not tolerate some aspect of the courtroom, from the lights, to the space, to the peo- ple. Children with PTSD may require spe- cial planning to avoid their triggers, and children with RAD may be rude and disre- spectful to the judge. In all of these cases, judges need to understand the child’s be- havior is not something a child can control, but rather, a function of a disability, and ac- commodations may be required.
Training About the Americans with Disabilities Act
The Americans with Disabilities Act (ADA)2
requires all courts to provide accom- modations for witnesses with disabilities to permit them to testify.3
Judges should be
trained about the ADA, the range of ac- commodations that may commonly be re- quired, and how to analyze those accom- modations against a defendant’s right to a fair trial.
The judiciary should also establish pro- cedures for judges to use when consider-
28
ing the need to provide accommodations to witnesses with disabilities, much like the Massachusetts Supreme Judicial Court did in In re McDonough.4
There, the court es-
tablished that witnesses with disabilities have a right to a hearing before the trial court denies a request for accommodation, that such decisions are entitled to interloc- utory review, and that the party seeking to use the testimony has standing to seek re- view.
Investing in Courtroom Technology A key aspect of eliminating barriers to access for children with disabilities is tech- nology. These children, much more than their non-disabled peers, need to be able to testify outside the courtroom. Although allowing disabled children to testify out- side the courtroom due to disabilities may be a somewhat novel concept in America, the law in the United Kingdom has required that children with disabilities be permit- ted to testify outside the courtroom since 1999.5 There are many reasons why children with disabilities may not be able to testify in the courtroom. Children with PTSD cannot see their offender without being triggered, and having to face their offender may make it impossible to testify, or may cause a re- gression of their symptoms. Many of these children may suffer relapses in their treat- ment by even thinking about having to face their abuser in court. This can happen re- gardless of whether the abuse was sexual, physical, or emotional. Children with other disabilities may need to testify outside the courtroom for other reasons. Children on the autism spectrum may not be able to bear the sensory over- load that a courtroom environment entails; children with intellectual disability may be- come similarly overwhelmed; and any child with any disability may simply shut down over the stress of testifying in a crowded courtroom.
In Bennington County, we recognized that we desperately needed video equip- ment to enable disabled children to go forward with their cases. We obtained a $22,000 grant from the American Bar Asso- ciation and installed the equipment. Now, we are able to prosecute cases that would have been impossible before, but we re- main the only county in Vermont that has the equipment necessary to protect these children. The judiciary should invest in that equipment for every county in Vermont. We used the equipment for the first time this summer. Judge Cortland Cor- sones ordered that the complaining wit- ness—a seven year-old boy with autism— would be permitted to testify by live video from outside the courtroom in a domestic- assault/cruelty-to-child case after a two- day hearing where the boy’s doctors tes-
THE VERMONT BAR JOURNAL • FALL 2013
tified that the child would never be able to testify in the courtroom. Judge Corsones found that the ADA required accommoda- tions for the child to testify, including that he could testify outside the courtroom, his testimony would be limited to fifteen min- utes per side (with possible extensions for good cause), and that the questions would be simple and straightforward. These ba- sic accommodations were required by the ADA. Although the jury ultimately acquit- ted, a little boy who wanted to testify got his day in court.
Modifying Court Rules
In addition to investing in technology, the judiciary also needs to reassess court rules that inadvertently bar access for chil- dren with disabilities. Rule 807 of the Vermont Rules of Evi- dence, for example, permits video testimo- ny, but only in sexual abuse cases; and the rule requires two-way video, which defeats the whole purpose of having the child tes- tify outside the courtroom. We are grateful that our Supreme Court changed the rule for Bennington County to allow one-way video transmission with Administrative Or- der No. 38, but the rule should be changed state-wide and extended beyond sexual abuse cases.
Many old court rules are based on pre-
cepts and concepts that no doubt pre-date the Magna Carta and are therefore viewed as immutable. If we are going to protect our most vulnerable children, some of these longstanding principles must be modified, and some should be set aside entirely in appropriate cases. For example, rules that require witnesses to “speak” their answers, or favor speech over other communication methods, should be eliminated entirely and replaced with rules that allow witness- es to communicate by any method that can be understood reliably by others.
Rules Regarding Leading and Nonleading Questions
Leading and nonleading questions can cause problems for children with disabili- ties. Most court rules, such as Vermont’s Rule 611, allow lawyers to ask a child lead- ing questions on direct examination when “necessary to develop the witness’s testi- mony.” Often, a judge may order that in- tuitively when a very young child is on the stand and struggling to answer questions. The need to ask leading questions can also be important for older children whose disabilities impair their ability to provide narrative responses. For many children on the autism spectrum, for example, their disability may make it impossible to pro- vide coherent narrative responses when they are perfectly capable of responding
www.vtbar.org
The Children’s Corner
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40