About Psychology and the Law

Individuals with intellectual disabilities suffer a number of cognitive obstacles that disrupt their social and emotional structure. According to studies, those who are mentally ill are more vulnerable to being exploited and sexually abused than ordinary people. Because of their reliance on those who may assist them, mentally impaired people are more vulnerable to danger. Calitz (2011)
This study article discusses the difficulties that mentally impaired people encounter when giving testimony in court. Some of the difficulties include social and mental self-doubt, as well as a lack of basic sexual education. Disagreements between the legal and medical definitions of mental disability make life more difficult for mentally impaired person  to give testimony in court.


The purpose of the research paper is to provide solutions that face rape victims that are mentally disabled. The paper has part 1 where it looks at the challenges that face mentally disabled people in the community. The paper then provides solutions that the legal system can have towards these rape victims at part 2. Ideally, the paper focuses on educating both the people in the legal system and the complainants who are the perpetrators that have been sexually assaulted but are mentally disabled.

Controversial Topic Part 1

Challenges and the Controversy facing rape victims that are mentally disabled

Individuals that have a mental disability are usually denounced and discerned as sexually incompetent or having perverted sexual habits or an uncontrollable libido. Lack of primary knowledge concerning sexual behavior makes them a key target for sexual abuse. Developmentally disabled individuals are at high risk of being assaulted since some of them have difficulties in speech and cannot report the matter after they are raped. They can end up keeping the memory to themselves and not be able to seek justice. This may be challenging to the person since they do not know their rights hence cannot make the right decisions. The rest of the community does not regard them as active sexual beings thus their predicament can hardly be grasped unless when the perpetrator ends up failing a promise they made to them. However, even after being abandoned, the victims end up reporting the matter to a close member of the family or caretaker in other instances. Assessing mentally disabled individuals to determine if they are competent enough to act as witnesses in court can be quite demanding. The situation will be more difficult when the victim of sexual abuse is mentally disabled and is the only witness against the accused. Justice systems especially criminal justice system view mentally disabled people as unsound court testifiers since it is considered that their memory is faulty. The victims are taken as naive and therefore do not have the prowess to carefully recall the situation. Mentally disabled people find it hard to remember the events that took place since they take more time to contemplate, understand and keep the data in memory. This, therefore, affects the possibility of a mentally retarded individual to giving reliable and consistent information about an alleged rape. (Kebbel and Hatton, 1999)

Other challenges include, the rape victim may not want people to know that they are mentally disabled, pretending to understand their rights yet they do not get confused on who is responsible for the assault ending up confessing yet they are innocent and not following the instructions and commands given in a court hearing. In order to be able to understand basically why rape victims that are mentally retarded find it hard to seek justice we have to know what mental disability means.

Background Literature

Ideally, mental disability can be termed as intellectual disability. A mentally disabled person has a below average mind that learns things slowly that a typical brain will otherwise learn faster. Someone who is mentally disabled has an IQ of 70 or below. People with intellectual disability usually have an imperfection in either of the following adaptive features; self-care, communication, self-direction, use of public assets, scholarly ingenuity, health, recreation, work, and security. The onset of the problem must occur before the person attains 18 years of age. Other health organizations such as International Classification of Diseases have defined mental disability as a state of restrained progress of the mind constituted by weakened dexterity that displays during the maturity period. These attributes of the mind are the ones that add up to the overall point of intelligence.

Legislation and Mental Disability

Mentally disabled rape victims are subjected to a different system of legal events from those that are perceived to be normal or healthy since the legal system is not in agreement with clinicians who use scientific terms to provide advice in such cases. (Pillay and Sargent, 2000). In order to become a witness in a court proceeding, the witness must be able to satisfy a threshold requirement that they possess the capacity and intelligence to understand what the oath entails and the importance of giving a true testimony to the court. This is a big challenge to rape victims that are mentally retarded.

Another major challenge is that corroboration is a necessity. A law in New York states that the accused cannot be sentenced based mainly on the complainant’s testimony that is mentally retarded. This bill was once used on all intellectually disabled rape victims but has been erased. The closest designate of mental disability is serious or severe intellectual disability (section 1). The sexual offense act in South Africa, for instance, does not allow any person to have sexual relations with a person that is mentally disabled. The bill considers the action as a crime.

The pursuit to use accurate terminology that describes this group of people was historically argued with intense debate and sensitivity. The standard terms are therefore the mentally challenged or a mentally disabled individual, both of which are in harmony with the terminology used by both the American Association on Mental Retardation (AAMR) which is an active supporting group for the mentally disabled and the Medical Association (AMA).

Besides, there should be evidence that the perpetrator knew that the victim was mentally disabled to be charged liable to rape. (Section 15) Predominantly, the justice system does not speak about mental retardation. It, however, talks about psychological disability which implies anyone with mental disability inclusive of any jumble of the brain during the time of the act whereby the person was not able to;

1. Not able to resist such an act

2. Not ready to admit their unwillingness to participate in the act

3. Able to foresee the consequences of the act and could acknowledge but did not because they were not able to operate with the required precision.

4. Appreciate the nature or rather foresees the consequences of the act.

Presumably, under the same act, section 2 states that anyone who is mentally disabled cannot be able to participate in a sexual relationship. (Denno, 1997)

Controversial Topic Part 2

Possible Solutions

The law and mental health professionals should agree on a common explanation on mental disability. It should, therefore, be sorted out and make the two groups understand psychological retardation in the same context. A rational assessment should be done on the person to determine the level of mental retardation. Using these findings the court will, therefore, pass judgment based on the individual’s abilities like agreeing to sexual intercourse, decision making, participate in court proceedings while giving accurate testimonies, however, social competence should also be tested. Social power is an individual’s skill to withstand challenges and solve issues that may otherwise come up within their socio-cultural context. It brings together life experiences in bits that are broader rather than merely abstract and cognitive constructs hence have more meaning and value in real life situations. It is therefore vital to measure the mental capability of the person since mental disability isn’t a similar problem as different complainants suffering from the condition have capabilities that vary when giving testimony but in a conventional manner. This works for individuals with profound or rather those with serious mental retardation. Getting the fact that court sessions usually evoke anxiety in ordinary people, the case will be more difficult to developmentally disabled people especially vulnerable women and children. Basing on past occasions where witnesses are treated with malice and intimidation, trauma will trigger confusion, distress, and withdrawal causing poor speech delivery. The court will, therefore, take them as unreliable witnesses because cross-examination uses prerogative for such a defense. The rape survivor’s competency should include understanding the questions asked, correctly describe the account of events as well as responding to questions asked of them and cross-examination. Research argues that even a four-year-old child can give a proper testimony with meaningful information if handled well by the court of law. For vulnerable witnesses to be able to provide the right information, familiarity with the court setting and procedures should help differentiate between incompetence and competence as a witness in court. Familiarity can be done by ensuring that the individual forms a liaison with the prosecutor. Running court proceeding preparation sessions earlier before the final trial day will help them build confidence and avoid anxiety during the trial. Steps in conducting a court preparation begin with familiarizing the complainant with the court setting such that they should know where different people i.e. where the magistrate will seat, where the prosecutor stands, where they will seat when giving testimony and where the defense attorney will stand. It is also necessary that the prosecutor assigned the case and the complainant meet before attending the court hearing.

The prosecutor should then explain the roles of the lawyer easily i.e. the prosecutor guides the complainant when they tell their side of the story while the defense attorney guides the accused when they say their side of the story. After listening to both the complainant and the accused, the judge will use the rules stipulated by the law to pass judgment on the case.

The prosecutor should ensure that they tell the complainant who is the rape victim and that they have a right to ask questions to be repeated in a more straightforward way if they fail to understand. The complainant who is the rape victim should also know that they have a right to ask the person asking the questions to rephrase when they fail to understand. This is important as it will help ensure that the complainant gives an honest answer without just saying anything due to failure to understand the problem. The prosecutor should explain to the complainant that it is not wrong not to have all the answers to all the questions asked and it is better to answer they don’t know when they don’t. The complainant should be informed that he/she can explain the events that took place by using their own words. By using their own words, the complainant who is mentally disabled will be able to provide a more realistic accusation that may have the law deliver a just judgment.

A question regarding evidence of the individual’s mental deficiency to an average person is challenging. The reason behind the issue may argue that the complainant did not give in to sexual activity which is usually a common defense. This bill applies to complainants who are above sixteen years. Usually, the law contests by ruling that the individual who is the complainant did not agree to sexual intercourse due to their mental disability. In other words, the tactical defense reply would be that the accusation used on their client is unreasonable since the accused cannot be able to know if the complainant was mentally retarded at the time since they are not a health expert. In the case of rape survivors, the argument is more natural where cognitive disability is highly noticeable when measuring between average and lower mental disability. Nonetheless, in tackling this question, it is essential to address the situation whereby social interaction may show an individual’s overall level of brain functioning.

Mental age is a level of performance that is age-normed by using a test that measures the intelligence level of a person. The IQ, a percentage of the chronological age is a definition of an individual’s mental age. Intelligence quotient measures a person’s intelligence level by an examiner who is licensed. The first formal scale was Stanford-Binet Scale, which was used to assess persons that are between the ages of two and eighteen years. However, the system is used on children that are below the age of six, those that may be hugely gifted or rather cognitively impaired. A revised version was made that assesses teenagers and children between the ages of six and seventeen years. To be able to acquire the intelligence level of an individual, the verbal score and the performance scores have to be added.

An example is that of an adult having an IQ ranging from 50-69. This individual is intellectually disabled hence their intellectual level ranges between 9 and 12 years. The court will, therefore, use the subjective age to determine how the complainant’s mind functions. This means that the person is having a mind that works like that of a child and cannot reason like an adult.

The police are also a key point in the psychological issue concerning rape victims that are mentally disabled. If a rape victim who is mentally disabled is viewed as incompetent to testify and there is no sufficient evidence available, the court will rule in favor of the accused thus allowing them to walk away free. This will insinuate more rape assaults as predators know that the complainants will be viewed as mentally retarded when testifying.

To be able to relate to the events that took place, it was therefore crucial that a non-intimidator approach is used towards the victims of rape that were mentally disabled. The plan should have a developmentally compassionate interview as it will radically increase the complainant’s confidence hence they can relate to the events gradually.

The use of an intermediary system will work efficiently in cases that involve mentally retarded persons irrespective of age. An intermediary system is a system that has a third party that will help ensure that both sides of the case are heard primarily from the complainant who is believed to be mentally retarded.

The rights of a developmentally disabled rape victim should be met when they are educated on the importance of understanding the approaches towards seeking justice. Mentally disabled individuals have to be taught how they can protect their rights when they have an encounter with a police officer or the law in this case. This will help them be able to speak up when they will be assaulted in any way. It will also familiarize the victims with how the law works in a court proceeding.

Cross training is used in all sets of organizations like schools where children that are mentally retarded are taught in an exclusive system that will teach them how to handle themselves in the public when they experience any mode of sexual assault.

Court officials should also be educated by forming a liaison and asking for a meeting with the magistrate or judge who will inquire to know what training will be provided.


In conclusion, education is a significant solution to mentally retarded victims. By educating them on how a court setting operates, they will be able to defend themselves with the true testimony that will grant them justice. Ideally, the judges have to be educated on how the mind of a mentally disabled victim works precisely the one who is complaining. This is the only way whereby psycho-dilemma issues surrounding rape victims that are mentally retarded can be sorted out once and for all.

Individuals suffering from mental disability are weak because of their profound defect on social and intellectual levels. Mentally disabled individuals who are rape victims have to face

Psycho legal challenges. This field, however, requires more work to solve the case of mental retardation from both the mental health and legal system.

Understanding the capabilities of mentally disabled victims is, therefore, the principal solution to creating a legal system that will pass the right judgment to rape victims without oppressing them by basing their decision on the defect. Developments in understanding the mentally retarded mind are being made in the fields of psychopathology as explained by Joel Bregman.


Calitz, F. J. (2011). Psycho-legal challenges facing the mentally retarded rape victim. South African Journal of Psychiatry, 17(3), 66-72.

Pillay, A. L., & Sargent, C. (2000). Psycho-legal issues affecting rape survivors with mental retardation. South African Journal of Psychology, 30(3), 9-13.

Kebbell, M. R., & Hatton, C. (1999). People with mental retardation as witnesses in court: A review. Mental retardation, 37(3), 179-187.

Pillay, A. L., & Kritzinger, A. M. (2008). Psycho-legal issues surrounding the rape of children and adolescents with mental retardation. Journal of child and adolescent mental health, 20(2), 123-131.

Denno, D. W. (1997). Sexuality, rape, and mental retardation. U. Ill. L. Rev., 315.

Sullivan, P. M., & Knutson, J. F. (2000). Maltreatment and disabilities: A population-based epidemiological study. Child abuse & neglect, 24(10), 1257-1273.

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