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Hong Kong must ensure equal access to justice for the mentally disabled

A big public outcry erupted in Hong Kong recently over a case in which a charge of sexual assault against a former superintendent of the Bridge of Rehabilitation, a home for the mentally disabled, was dropped by the prosecution on the grounds that the victim – a 21-year-old woman with a mental age of eight – was unfit to give evidence due to post-traumatic stress.

There has been evidence that people with mental or intellectual disabilities are more likely to be subjected to sexual abuse and violence. And to get justice done, they often face more barriers than others.

Their disabilities may make it difficult for them to recall facts, describe what happened and communicate with others, and that does not include the huge psychological stress victims experience in such a situation. Others’ insensitivity, disbelief, stereotyping and dismissive attitudes are also hindering factors. In some instances, the defence takes advantage of this to challenge the credibility of the victim’s testimony.

The victim is trapped in a dire situation if the crime took place within a relationship of dependence when trust was abused. There have been reports that institutionalised people with mental and intellectual disabilities are more susceptible to such exploitation. Those in poorly regulated and sub-standard homes face even worse situations.

To make the justice system more accessible for the disabled, a cross-sector, comprehensive, problem-solving approach is needed. The aim should be to uphold the right to equality and the right to fair legal proceedings, and to serve justice.

Such an approach calls for a review and reform of the laws concerning vulnerable witnesses and supporting services.

The UN Convention on the Rights of Persons with Disabilities, to which Hong Kong is a signatory, offers inspiration and guidance. It demands that the dignity and equal personhood of those with disabilities be recognised and respected.

Article 13 of the convention requires the government to ensure effective access to justice for persons with disabilities on an equal basis with others, “including through the provision of procedural and age-appropriate accommodations” to facilitate their role as direct or indirect participants in all legal proceedings.

The purpose of procedural accommodations is to remove obstacles that may prevent witnesses with disabilities from accessing justice and to ensure their full capacity to testify.

Appreciating the wide array of mental, intellectual and communication disabilities, individualised accommodative measures are needed. Good practices and standards from other jurisdictions include the use of special investigators and professional facilitators. Police investigation and courtroom adaptations such as modifications to the technical and ceremonial aspects and the use of video links should be considered, so long as they can facilitate communication without compromising the rights of the parties, fairness of proceedings and the substance of the rule of law.

The Law Reform Commission recently released a consultation paper on sexual offences involving children and persons with mental impairments. A number of recommendations as to substantive offences have been proposed.

Lastly, Article 13 also requires signatories to “promote appropriate training” for those working in the administration of justice. The provision does not elaborate on the meaning.

But quality training to enhance professional competence of law enforcers, lawyers, judges and forensic professionals, and the development of an ethic of care are some of the fundamentals, as many international reports have recommended.

After all, ensuring equal right of access to justice should be a concerted professional effort.

An edited version of this article was published in the legal column, Letter of the Law, in the South China Morning Post on November, 7, 2016.

Further readings:

a. Documents

UN Committee on the Rights of Persons with Disabilities General Comment 3 [Link]

UK Judicial College, Equal Treatment Bench Book 2013 (with 2015 amendments) [Link]

b. Reports/ Guidelines

Sharon Primor and Na'ama Lerner, The Right of Persons with Intellectual, Psychosocial and Communication Disabilities to Access to Justice: Accommodations in the Criminal Process (Bizchut - The Israel Human Rights Center for People with Disabilities) [Link]

Claire Edwards, Gillian Harold, and Shane Kilcommins, "Access to Justice for People with Disabilities as Victims of Crime in Ireland" (School of Applied Social Studies and Centre for Criminal Justice and Human Rights, Faculty of Law University College Cork, February 2012) [Link]

c. Academic works

Benedet, Janine and Grant, Isabel. "Taking the Stand: Access to Justice for Witnesses with Mental Disabilities in Sexual Assault Cases." Osgoode Hall Law Journal 50.1 (2012) : 1-45

Susan R. Hall and Bruce D. Sales, Courtroom Modifications for Child Witnesses: Law and Science in Forensic Evaluations (Washington, DC: American Psychological Association, 2008)

d. Media report/ commentaries

Oliver Lewis, "Institutionalised and raped: Moldova turns shocking case into bold example of justice for vulnerable victims" (October 31, 2016) The Conversation [Link]