Vulnerable witnesses at risk in court
Justice system may be failing the developmentally disabled
WARNING: This article contains graphic content
In 2014, a woman with autism and the verbal abilities of a five-year-old told her personal support worker she had been sexually assaulted by another caregiver at her group home.
In 2015, a judge found the caregiver guilty. In 2016, another judge acquitted him on appeal, disallowing the developmentally disabled woman’s statements about her alleged sexual assault for being inconsistent. On June13, a court of appeal upheld that acquittal.
The trial and appeal of Valentine Ngoddy, charged with the alleged sexual assault of a woman known as MGW, raised questions about the level of access people with developmental disabilities have to the justice system, especially when they cannot take the witness stand.
To lawyers and judges, the case was about striking a balance between the rights of an alleged victim with special needs and an accused person’s right to face their accuser and receive a fair trial.
“People on the spectrum can have issues with processing speed and (their) hesitation during questioning may be misinterpreted.” LAURIE MAWLAM EXECUTIVE DIRECTOR OF AUTISM CANADA
To MGW’s family, it was a bewildering example of the court denying legal recourse and protection to a vulnerable woman.
“It seems incomprehensible to me that the justice system is not prepared to offer a disabled person, who has suffered an alleged sexual assault, a voice of her own in court,” MGW’s father told the Star.
MGW, now 30 years old, was in her group home’s washroom with her longtime personal support worker on Jan.15, 2014, when she brought up details of an alleged sexual assault.
“Why did . . . Mike kiss my breasts, touch my vagina and put his penis on my body?” MGW asked, according to the support worker’s testimony at trial.
The support worker told the court she had heard MGW refer to Ngoddy as “Mike” the day before.
In interviews with police and other statements later heard by the court, MGW described a night in December or January 2014 when Ngoddy allegedly entered her room at the group home and molested her.
As Ngoddy’s trial date approached, however, it became clear to MGW’s family that she would not be capable of taking the witness stand, let alone endure cross-examination by defence lawyers.
During a visit to court to meet the Crown attorneys with her parents and support worker, MGW became extremely distressed. Court documents describe her curling up into the fetal position on a courthouse bench and licking the leg of her father’s pants. To avoid making MGW take the stand during the trial, the Crown applied to have the statement she made to her support worker in the group home washroom submitted as “hearsay” evidence — a means of including statements from people who cannot take the witness stand in person.
Before hearsay evidence can be admitted at trial, a judge must decide whether the absent witness’s statement is “sufficiently reliable,” since the opposing side will not have the opportunity to test it in a cross-examination, said Benjamin Berger, an associate dean and professor at Os- goode Hall law school.
A judge might consider the context in which the statement was made, who else was present at the time and any potentially corroborating information that’s available, Berger said.
The trouble for a person like MGW is that her disabilities could make it hard for her to meet a judge’s criteria of a “sufficiently reliable” statement.
Laurie Mawlam, executive director of Autism Canada, said memory function can be a problem for people with autism.
“People on the spectrum can have issues with processing speed and (their) hesitation during questioning may be misinterpreted. On top of all this, they may also be susceptible to being overwhelmed easily,” Mawlam said.
Dr. Bruce Linder, a behavioural psychologist and autism expert hired by MGW’s family, testified at pretrial hearing that although MGW has a very low IQ and limited verbal abilities, she is able to recall visual information, particularly if it is emotionally relevant to her.
If MGW felt comfortable and was relaxed, she might be able to tell a consistent “albeit fragmented” story, he added. “The big argument that ran through this case, from trial to appeal, was . . . how to assess the reliability of a statement of someone who has cognitive limitations that affect how she processes, remembers and communicates information,” said Ngoddy’s appeal lawyer Marianne Salih.
“You don’t want to exclude these people from participation in the criminal justice process (or) be assaulted with impunity. But you can’t elevate that so far above the rights of the accused person that you end up trumping their right to a fair trial,” she added.
At the end of the pretrial hearing, Justice Carol Brewer ruled MGW’s washroom conversation was reliable enough to be allowed as hearsay evidence.
In October 2015, Brewer found Ngoddy guilty of sexually assaulting MGW.
The judge called Ngoddy’s own testimony “illogical” and “implausible” in her written decision, adding that his account of events had been contradicted by other staff members at the group home.
He was sentenced to 13 months in jail plus three years on probation.
Ngoddy’s lawyers launched an appeal questioning, among other things, the reliability of MGW’s washroom conversation.
On Sept. 27, 2016, Justice Bonnie Croll ruled that the MGW’s hearsay evidence was not reliable enough to have been included in the trial.
There were “numerous inconsistencies” in six statements MGW made about the alleged assault, Croll wrote in her decision. Saying that MGW’s washroom statement had been critical to the prosecution’s case, Croll set aside Ngoddy’s conviction and acquitted him of the sexual assault charge.
David Butt, a criminal lawyer hired by MGW’s family, agrees there were inconsistencies in MGW’s statements, but said consideration must be given to her mental capabilities.
“Those inconsistencies . . . have to be filtered through the lens of how her innate disabilities affect her communication,” Butt said.
This spring the Crown requested to appeal that acquittal decision, arguing that the “failure to accommodate (disabled) persons leads to the exclusion of their evidence in disproportionate numbers, effectively silencing an entire group of victims and subjecting them to violation with near impunity.”
The court dismissed the Crown’s appeal on June 13.
MGW’s father said he was “saddened” by the court’s process.
He is worried, he said, that his daughter might be victimized in the future and have to deal with the justice system again.
“We are aging and we know we cannot, or will not, always be there for her,” he added.
“The bleakness of her prospects fills us with despair.”
“It seems incomprehensible to me that the justice system is not prepared to offer a disabled person a voice of her own in court.” MGW’S FATHER ON COURT CASE