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 firstname.lastname@example.org.)