New York State law does not sufficiently protect our developmentally disabled population with respect to Sexual Abuse. As shocking as it may sound, as the law stands today, it is only a misdemeanor to sexually abuse a mentally disabled person. Assemblywoman Aileen Gunther wants the law changed.
Even though victims fit mentally into the felony sexual abuse definition (less than eleven years old), chronologically they do not, so often the provision in the law is not applicable. Sexual Abuse crimes against the mentally disabled is only a felony if the person is less than eleven years old, is physically helpless, and forcible compulsion is used.
The law needs to be changed to recognize the mental age of the victim rather than the chronological age. Assemblywoman Aileen Gunther must be applauded for introducing legislation that will do just that and make these types of crimes against the mentally disabled a felony.
A recent Sullivan County court decision that vacated a jury’s verdict of guilty on the felony forcible compulsion count of a sexual abuse case led to Gunther introducing this legislation. The issue of what constitutes forcible compulsion when a twelve year old, severely handicapped and disabled girl is sexually abused by an adult is not clearly defined as the law presently stands.
Having a sister and cousin who are both developmentally challenged, this topic is very emotional and important to me. My blood boils when I hear of someone who could abuse these loving helpless victims in any shape or form. Out of curiosity, I attended the original trial and wrote a column on it.
The prosecutor on the case was Chief Assistant District Attorney Jim Farrell, and anyone who knows Farrell knows he takes crimes against the helpless very seriously.
The trial involved Daniel MacLean, accused with sexually abusing a teenager born profoundly disabled. It was alleged he “forcefully” removed her clothing and placed his tongue on her breasts.
I remember vividly how Farrell faced the jury and charged MacLean violated the victim for his own sexual gratification. He contended that “force” towards a helpless victim was far different from “force” as we know it. In displaying a turtleneck sweater, blouse, and sports bra he angrily charged there was “no way she could remove the clothing without force.” Farrell was so emotional, persuasive, and mesmerizing he brought tears to my eyes and chills up my spine.
The jury came back twice asking for definition and clarification on “force.” It was clear they were deadlocked. County Court Judge Frank LaBuda told the jurists they had to depict the terminology from the law and that there needed to be legislation to further define “force.” Although MacLean was found guilty on all counts, the verdict was thrown out because the definition of “force” involving someone who was mentally challenged was unclear.
Discussing Gunther’s bill with me, Farrell said, “I have nothing but praise for Assemblywoman Aileen Gunther in proposing a change in the law that would make it a felony to sexually abuse a mentally disabled victim. The Sullivan County DA’s Office fully supports this effort and new legislation. This change is urgently needed to protect this vulnerable population from exploitation. We would also urge the legislature to consider allowing the proof of mental age not chronological age when dealing with this vulnerable population.”
Gunther told me, “When I heard of this case I was outraged. Obviously we must close this loop-hole in the law. If an individual cannot scream out or fight back due to their handicap or disability current law does not allow for a Class B felony of Sexual Abuse in the 1st Degree. I will work to ensure passage of this bill and have asked Senator Eric Schneiderman, Chairman of the Senate Codes Committee, to pass it in his house. These vulnerable individuals must be protected by the law!”
Thank you Assemblywoman Aileen Gunther for introducing this legislation and we can only hope it will sail through the State Legislature and Governor David Paterson will sign it into law.