Sexual Exploitation of Young People with FASD - UBC ...

SEXUAL EXPLOITATION OF YOUNG PEOPLE
WITH FETAL ALCOHOL SPECTRUM DISORDER
Dr Valerie McGinn, Neuropsychologist, Alcohol
Healthwatch
Dr Zoe McLaren, Paediatrician

Introduction
Clinicians working with young people who may have been
sexually exploited
Capacity to consent is the question
Views range from paternalism to allowing the freedom to
agree in any situation
United Nations Declaration to maximum degree feasible
disabled person has same rights as other human beings
Our objective is to share cases and encourage discussion about
how we can reach a balance while protecting from sexual
exploitation yet ensure their human rights

Outline
A case that may have been sexual exploitation depending on
your point of view
How can we prevent sexual exploitation?
What is sexual abuse and sexual exploitation?
Why are young people with FASD vulnerable?
How does this impact on capacity to consent to sexual activity?
How can the Law afford protection to young people with
FASD?
A NZ case where young person with FASD was sexually
exploited

Kelly
16 ½ year old with 6 month daughter both in CYF care, living in residence,
referred for capacity to parent child
Heavy alcohol exposed, 4 th of 8 children, raised by grandparents from
birth, well cared for but poorly supervised
Floppy irritable baby, poor feeder sleeper, walked at 3, talked at 5
Overactive, ADHD, slow learner, family opposed to ID services
No reserve, overly friendly, go with anyone
At school intrusive, no friends, thrived on one on one,
Wanted own way, low stress tolerance, anger outbursts, couldn’t share cooperate,
kind to and played with much younger kids
At high school mainstreamed, taken advantage of, bullied
Befriended by middle aged man at 14 years, 15 pregnant

FASD Assessment
Caregiver reported short attention span, need to speak simply
Does what she wants, puts self first, disregards needs of baby
Thinks she can do everything independently but can’t care for self or baby,
gets distracted, forgets, tries hard but wanders off
Loves her baby, would never deliberately hurt him but doesn’t think
Gets easily angry and frustrated, shouts at him
Taught routines but needs to be prompted and shown directly
Not able to make friends, black and white, tells them off
Doesn’t think she was exploited, loves him and says they wanted a baby
Staff say he dominates and controls her via txt and phone

FASD Assessment- 4 digit code 3334- Partial FAS
Moderate growth retardation from birth records
Moderate expression of FAS face, ABC score CCB
High risk pattern of alcohol exposure
Probable CNS damage
Cognition: IQ 62
Adaptive function; GAC 56
Language Deficits, 8 year old level
Memory Deficits
Executive Dysfunction, impaired reasoning, structure dependent,
dysregulated, confabulated, perseverative, rigid, can’t multitask
With structure hard working and co-operative, literacy 9 years

Definition of sexual abuse
Sexual abuse can be defined as:
The forcing of unwanted sexual activity by one
person on another, as by the use of threats or
coercion AND/OR
Sexual activity that is deemed improper or harmful,
as between an adult and a minor or with a
person of diminished capacity

Definition of sexual exploitation
Not clear!
No statutory definition of exploitation
No judicial guidance exists as to its meaning
Reeves: "taking unfair advantage of persons, their
characteristics, or their situations.... A particular
problem is the identification of exploitative
transactions within consensual exchanges.”
The heart of the matter in the sexual exploitation of
young people with FASD.

Factors that increase vulnerability to sexual
exploitation in ID (Graydon, 2006)
Socialised to acquiesce
Limited decision-making ability
Easily manipulated
Issues of dependency
Limited knowledge about sex
Limited knowledge of rights and the law

Scope of the problem in ID
Victimization rate for sexual assault 10.7 times
higher than for non-disabled
80% of women with ID and 30-50% of men are
sexually assaulted at least once
Often sexually assaulted repeatedly
Abuse often starts in childhood
16 to 30% of boys and from 39 to 68% of girls
with ID will be sexually abused before the age of
18

Who are the abusers?
More that 97% of abusers are known and trusted
by victim
Largest percentage of offenders (28%) were
service providers
19% of sexual offenders were natural or stepfamily
members
15.2% were acquaintances

ID in FASD
25 percent of people with FAS and 10 percent of
people with ARND have IQ scores of 70 or below
Mean IQ score of people with FASD is in the 80’s
However all with FASD exhibit cognitive problems

Characteristics of FASD that increase
vulnerability
Executive functioning factors
Deficits in linking cause and effect, foreseeing
consequences, judgment, decision-making, and
controlling behavioral impulses
Social intelligence/adaptive behaviour factors
Inability to read social cues, failure to anticipate
disastrous consequences of actions, tendency to be
taken advantage of, failure to learn from
experience, chronic absence of “common sense”

Importance of secondary disability
Mental health problems > 90%
Inappropriate sexual behavior > 45%
Disrupted school experience > 40%
Trouble with the law > 40%
Confinement > 30%
Alcohol and drug problems > 20%

Risk factors for secondary disability
Not being raised in a stable nurturing home
Not being diagnosed at an early age
Experiencing sexual or physical abuse (72%)
Changing households every 2-3 years
Not receiving Developmental Disabilities Services
(Streissguth et al)

Inappropriate sexual behaviours and
sexual abuse
39% in children
48% in adolescents
52% in adults
94% of females with ISB had experienced sexual,
physical abuse or interpersonal violence
55-60% of those with FASD had been sexually
victimized
(Streissguth et al)

Vulnerabilities of the Adolescent with
FASD
Sexually mature body in an immature mind
The internet and social media risks
Secondary disabilities manifest in adolescence
increasing isolation from support networks
Risk-taking behaviour
Alcohol and drug abuse (29% of adolescents with
FASD – Streissguth)
Risky sex with all the consequences of this

Characteristics of adolescents with FASD
“talk the talk” while unable to “walk the walk”
Faulty logic
Increased problems with abstract thinking
Impulsive
Difficulty showing remorse or taking responsibility
for actions
Difficulty identifying and labeling feelings

Capacity to consent to sexual activity
People with FASD lack sex education
Primary and secondary disabilities impacts on
ability to make responsible decisions about sex
Sex may be “consensual” but disability is severe
enough to raise doubt as to capacity to consent
More research is needed on this

FASD, sexual exploitation and the
court-room
4% of all children (including adolescents) referred for medical
evaluation of child sexual abuse have abnormal examinations
The vital evidence in sexual abuse trials is the verbal evidence
Implications for managing legal process for victims of sexual
exploitation with FASD
Increased potential for suggestibility and impulsive responding
Risk of further victimisation through the Court process

Prevention
Diagnosis
Supervision
Building a network of safety in community
Systems recognising vulnerable young people
Sex education
Personal safety training
Law enforcement education
Vetting of social service providers
Laws that allow for freedoms but protect from exploitation

English law :Sexual Offences Act 1956
S 7:
It is an offence for any man to have extra-marital sexual
intercourse with a ‘defective’, defined as any woman who
suffered from ‘a state of arrested or incomplete development
of mind which includes severe impairment of intelligence and
social functioning
Nor could such a woman or such a man give a valid consent to
an indecent assault

Previous Law failed to acknowledge:
Right of people with disability to have a sexual relationships with partners
of their choice and not to be restricted because of their ‘status’
Over-inclusive to include some severely handicapped men and woman who
might be quite capable of making a genuine choice about their sexual
partners and would not be harmed by their sexual relationships
Did not enable or encourage people to take for themselves any decision
which they have the capacity to take

English Law: Sexual Offences Act 2003
s.30:
(1) a person (A) commits an offence if- (a) he intentionally touches another
person (B), (b) the touching is sexual, (c) B is unable to refuse because of or
for a reason related to a mental disorder, and (d) A knows or could be
reasonably expected to know that B has a mental disorder and because of
it or for a reason related to it B is likely to be unable to refuse.
(2) B is unable to refuse if-(a) she lacks the ability to choose whether to
agree to the touching (whether because she lacks sufficient understanding
of the nature or reasonably foreseeable consequences of what is being
done, or for any other reason), or (b) she is unable to communicate such a
choice to A

Functional Approach
At the time the decision had to be made, could the person understand its
nature and effects
Assessment of capacity on a material occasion
Protects sexual autonomy including a right to refuse unwanted sexual
attention as well as the right to choose to engage in sexual activity
Both person specific and occasion specific, to have sex with this person here
and now
Separating an inability to refuse rather than to consent
Looks at capacity to choose, make a decision through understanding
relevant information and weighing it in balance to make a choice

NZ Law: s138 Crimes Act 1961(amended 2005)
Pre 2005 was an offence to have sexual intercourse with a
“severely subnormal” woman, consent irrelevant
2005 amendment sought to ensure the offence did not catch
situations where a person with intellectual impairment was able
and wished to have a genuinely consensual sexual relationship
To apply when complainant, although significantly impaired,
retained some capacity to make meaningful decisions about
their personal lives and apparently consented

s. 138: having exploitative sexual connection with a person with
a significant impairment: four elements
(a) There was a sexual connection, and
(b) The complainant had a significant impairment, and
(c) At the time the sexual connection took place, the accused knew of the
complainant’s significant impairment, and
(d) The accused obtained the complainant’s acquiescence, submission,
participation in or undertaking of the sexual connection by “taking
advantage” of the impairment

Significant Impairment Issue- 4 limbs
A significant impairment is an intellectual, mental or physical
condition or impairment that affects a person to such an extent
that it significantly impairs the person’s capacity:
1. To understand the nature of sexual conduct; or
2. To understand the nature of decisions about sexual conduct
3. To foresee the consequences of decisions about sexual
conduct: or
4. To communicate decisions about sexual conduct

Essence of s.138 is element of exploitation
Consent of person significantly impaired to be respected
UNLESS consent was obtained by the accused by
“taking ADVANTAGE of their impairment”.
Crown must prove “exploitative sexual connection” with a
person with “a significant impairment” beyond reasonable
doubt
Focuses on predatory conduct where accused knows of
condition and obtains consent by exploiting it

Knew of mental impairment issue
Young people with FASD may appear like any other young
person-it is an invisible disability
This is a subjective issue that can’t be quantified
“if the disability is such that any reasonable observer would
immediately be aware of severe intellectual disability, then
that would go a long way in assessing what must have been
the state of mind of the accused”
How the complainant impresses as a witness is a factor
Past history with accused and his statements used in evidence
Not to protect from all people, only those who take advantage

Obtaining acquiesence, submission, participation or undertaking
of the sexual connection by taking advantage of the impairment
Consent may be given but examination of the circumstances
will enable the conclusion to be drawn as to whether the
impairment was exploited
Focus is on how the complainant is brought to the state of
agreement
Consider accused background knowledge of complainant
Evidence such as down playing of disability
Inducements that may be offered
Actions that may have taken complainants away from usual
safety nets

Trial Issues for complainant with FASD giving evidence
Want to please people in authority
Language, attention and memory deficits
Confuse reality with fantasy, what they have been told with
what actually happened
May seem unreliable witnesses, leading questions
Need special accommodations in Court similar to child
witnesses
Emotional trauma of testifying may further victimise
Risk of retaliation from accused

R V Thorley (2011)
2 charges of exploitative sexual connection with a person who
suffers from a significant impairment
20 year old student in special needs unit
Accused partner of her teacher, doing work experience at
their home
Interviewed at Police special evidential unit
Accused admitted to having sex with her but said it was
consensual
She appeared to consent, he gave her $28

Trial
Trial 5 days, Judge taking role of jury
Jane questioned by defence for a whole day
FASD expert testimony over 3 days
Defence psychiatrist 1/2 day
That there was a sexual connection admitted
At issue significant impairment that he knew of and took
advantage of
Defence presents submission to get FASD expert dismissed as
a witness

Did Jane have a significant impairment?
Mother drank heavily throughout pregnancy
Born prematurely, multiple medical problems
Delay, special needs education, placid sweet natured girl
Not adaptable to change, easily stressed, slow processing
IQ 61, GAC 71, verbal skills 1 st %ile, attention and memory deficits,
Executive dysfunction: concrete thinking, takes things literally, no capacity to
plan ahead, problem solve or do two steps
Can’t think through to consequences of own or others actions
Impaired capacity to judge risk
Lacks insight into own limitations and vulnerability

BUT has she a significant impairment pursuant to s 138
Judge said “having observed the complainant over a day of giving
evidence it is quite apparent she suffers from significant intellectual
limitations. That is not determinative of the issues before the Court.
Results of testing were not contested but was impairment of an extent to
significantly impair capacity to understand nature of sexual conduct or
make decisions about or foresee consequences or communicate decisions
about sexual conduct.
Findings amount to opinions based on results of testing and are not
determinative

Understand nature of sexual conduct
Nature not defined in Act
Is first limb restricted to understanding what is the physical act of sex or
also significance of it?
Threshold test of consent is “fully voluntary, free and informed”
Defence brought in prior sexual knowledge and experience
Supplementary ASK test with defence expert observing
J McAuslan said “I do not find it material whether she was the instigator or
consented…but given her disability…had she the capacity to make the
appropriate decision and if not was she taken advantage of”
“J knew of essence of sexual intercourse” sufficiently to meet first limb

Understand the nature of decisions about sexual conduct
Crown put that her severely impaired reasoning capacity meant she could not
make proper decisions
Judge considered:
Confusion about sex for money (para 40)
Lack of understanding of inappropriateness of certain sexual relationships (48)
Lack of awareness as to age of consent
Prior sexual experience and recounting of events (55)
Lack of awareness of impropriety of her sexual conduct

Judge McAuslan found:
“that J knew sex was to happen in the bedroom but had no
appreciation of any options available to her and decisions that
could be made as a result. She had no understanding of the
inappropriateness of some sexual relationships and no
appreciation of legal concepts such as the age of consent.
The combined effect of all of the above demonstrates that the
complainants intellectual disability significantly impaired her
capacity to make decisions about sexual conduct.

Capacity to foresee consequences of decisions about sexual
conduct
No understanding of risk of sexually transmitted diseases
Dearth of understanding about getting pregnant and function of a condom
No capacity to plan ahead to future such as being a parent
Defence contended don’t need to foresee all consequences
Defence expert conceded that she couldn’t foresee many consequences
“I am satisfied that she had a significant impairment of capacity to foresee
consequences of sexual conduct”

Communicate decisions about sexual conduct
“complainant does not understand more than one step
instructions, vocabulary at 8 year old level, does not
understand time references, when fails to understand will
become passive and say yes”.
Example in her evidence of 14 yes responses to leading
questions then added “I said yes but that was 3 years and I
can’t remember”.
Judge said “if she lacks the capacity to understand and
foresee… then it must follow that she lacks capacity to
communicate decisions that she is unable to make”

Did the accused know of her mental impairment
Judge referred to how she impressed as a witness
Various undisputed facts
Knew his wife worked in special needs unit
Knew she was coming to house to learn how to do housework
Knew not mainstream students, visited and knew others
In his interview described her as a slow learner
He said “she’s not as dumb as she thinks she is, as people think she is”
“ a subjective test…anyone who had any dealings with J would have
realised her IDs were such that her limited reasoning capacity and decision
making were impaired”

Obtain acquiescence in, submission to, participation in or undertaking or the
sexual connection by taking advantage
Belief that she consented not a defence
Essence of offence is exploitation
Judge considered as pointing to deliberate abuse of J:
His background knowledge of her,
Extended association with her,
Opportunities to observe her,
Use of money in exchange for sex
Clandestine efforts to play down level of disability in Police interview
2 Counts of Guilty

Some Australian Legislation specifies types of associations
Prohibits sexual acts between people with some form of mental impairment
and those who hold a position of care, supervision, authority or
responsibility towards them (NSW, Vic, Tas, NT)
Victorian s 51 prohibits sex by a person who provides medical or
therapeutic services, s 52 by a worker at a residential facility
Law Reform Commission recommended extending to any facility or
programme providing services

Graydon et al. (2006) Murdoch University stance of “unjustified paternalism”
Current range of legislative efforts are untenable and unenforceable and
extending the range of persons prohibited from sexual relationships with
people with mental impairment will not reduce incidence of sexual assault.
“reporting rates are currently low so it is difficult to see how prohibiting
more sexual liaisons would alter that. Sexual offences in general are
underreported and are defended in court more than any other type of
crime. The difficulties of testifying in court are amplified for persons with
mental impairment and convictions may be more difficult to secure when the
victim has a mental impairment. Persons with mental impairment are
unaware of complaint channels”.

Is protection without discrimination feasible?
Defining exploitation is a value judgement
Persons with ID have restricted range of partners and have right to have
sexual relations with nondisabled, including their caregivers
They claim the persons may have genuine feelings for each other (R V
Grech, 1999)
Should casual sex be illegal for disabled but not everyone else. Everyone
can make errors of judgement in choosing partners
We cannot condemn any consensual relationship whose partners are not the
equals of one another
Sex within doctor and patient or teacher and student is not criminal but
sanctioned by profession

They advocate
“Legislation that allows sexual relationships between persons
with mental impairment and any person who does not hold a
position of authority whose scope proscribes such contact”
Positions of authority are those that incorporate ascendancy
over the person being cared for where any co-ersive pressure
could be exerted
Eg. direct caregiver/teacher but not others, not the gardener, cleaner,
administrator, taxi driver

Prevention
Diagnosis
Supervision
Building a network of safety in community
Systems recognising vulnerable young people
Sex education
Personal safety training
Law enforcement education
Vetting of social service providers

Taawhiti rawa toou haerenga ake te kore haere tonu.
Nui rawa oou mahi te kore mahi nui tonu.
We have come to far not to go further.
We have done too much not to do more