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Developmental Disability and Culpability
by Gerry Blasingame, M.A., L.M.F.T.
The degree of culpability or level of guilt or condemnation attributed
to any person who has committed a wrongful act involves several
factors. Clark (1999) suggests that culpability involves the following
considerations when determining whether an individual acted knowingly,
purposefully, recklessly, or negligently. Criminal intent involves
the offender knowing the nature of the criminal acts and doing it
anyway. Reckless intent involves the offender knowingly disregarding
the unreasonable risks involved with the criminal acts. Negligent
intent is involved when the offender should have known the nature
of the crime, but failed to be aware of its nature. Culpability,
in the legal sense, increases when there is evidence that the crime
was committed "willfully" (Clark, 1999) and with knowledge
of the wrongfulness of the actions (Shapiro, 1999).
A variety of factors must be considered when conducting forensic
evaluations and assessing the risk of re-offense for people with
developmental disabilities. These include identifying the factors
that undermine the offendersí level of control over his/her
behavior. Another issue is the individualís level of performance
and/or treatability in relation to relapse prevention. A third issue
is the level of external control needed to protect past victims
and/or potential victims in the community (Melton, et al, 1997).
The issues of undermining factors, amenability to treatment, and
level of external control all interface with a clientís ability
to generalize treatment concepts and increase their level of adaptive
functioning.
Culpability decreases when the offender has diminished capacities
resulting from insanity, the effects of mental disorders, or other
problems that interfere with the ability to form intent (Clark,
1999). Intent to harm is a concept that is difficult to apply with
many people who have developmental disabilities, especially when
considering aggressive behaviors (Benson & Aman, 1999). Since
children with mental retardation are at increased risk for mental
health problems (Alloy et al, 1999; Benson & Aman, 1999), the
issue of culpability is significant.
Certainly not every person with a developmental disability develops
a sexual behavior problem. However, several factors interfere with
normal developmental experiences and social learning opportunities,
which raise questions about the level of culpability assigned to
people who have developmental disabilities. Research has not clarified
whether sexual behavior problems are more frequent among people
with intellectual deficits (Kalal et al, 1999). In one study, Ward,
Trigler, & Pfeiffer (2001) indicated that approximately five
percent of community agency clients have sexual behavior problems.
Extent research has identified that the cognitive distortions of
persons with intellectual disabilities are not significantly different
from those of mainstream offenders (Kalal et al, 1999).
Social restrictions, alienation and discrimination create significant
barriers to learning for many people with developmental disabilities.
Opportunities to mingle with other people their own age are under
the control of their families and caretakers. For example, parents
or caretakers are highly unlikely to allow a youngster to flirt
or make sexual advances with age-mate peers, right in front of them.
The comfort level of parents and caretakers therefore limits opportunities
for age-appropriate social experimentation and acquiring social
feedback. Many people with developmental disabilities have experienced
shunning and avoidance by non-disabled persons (Alloy et al, 1999).
Often lacking are normal learning opportunities that promote development
of awareness or understanding of the nuances of emerging sexuality
and social behaviors. All too frequently, parental biases about
the childlikeness and need for protection of their developmentally
disabled youngster interfere with normal development. The heightened
levels of supervision by teachers or others in public settings often
impose stricter rules on children with developmental disabilities.
Because of these limited opportunities, these individuals are often
in social situations whereby they are chronologically older than
their peers and/or playmates with whom they are socializing. The
mis-match of ages is ignored when sexual curiosity, interest, arousal,
and desire converge with an opportunity. The person may view his/her
younger associates as the appropriate group with whom to interact,
play, and experiment. This situation may well be the training ground
for what Hingsberger et al (1991) referred to as inappropriate partner
selection skills. Some individuals have learned to relate to children
as their mental and social age-mates, making if very difficult to
ascertain whether their sexual activities with children are a product
of deviance or socialization.
Some people may consider this a moot point. If the developmentally
disabled person has engaged in sexual behaviors(s) with a child,
he/she needs intervention to stop the behavior from occurring again.
Too often, when a court does not find the individual culpable or
guilty, intervention is not considered. Only fifteen percent of
people with developmental disabilities who are serviced in community
based programs and who have engaged in sexually inappropriate or
offensive behaviors experienced incarceration (Ward et al, 2001).
In other words, there appears to be a lack of accountability and
formal intervention for those with developmental disabilities and
sexual behavior problems.
The most ethical action to take in evaluating the sexual behavior
problems of those with developmental and learning disabilities is
to first consider them as people not a diagnostic label (CMHDDC,
1999a). Other important factors include their living and learning
environments (Lund, 1992). Another consideration is the possibility
of iatrogenic factors contributing to the inappropriate sexual behaviors
similar to those noted by Hingsberger et al (1991). Forensic evaluations
also need to seek to determine the level of criminal thinking or
mental state at the time of the offense (Shapiro, 1999). Culpability
is ultimately a courtroom decision, but it may also represent a
number of issues relevant to treatment.
(References are available from Mr. Blasingame at gblasingame@ndth.org.)
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