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COMMENTARY
Interviewing and deposing survivors of sexual
crimes who have intellectual disabilities
Daniel Pollack and Helene M. Weiss｜ November 29, 2021
Individuals with intellectual disabilities (ID) are the most likely victims
of sexual assault. To be effective advocates, attorneys must be properly
trained to interview and depose this survivor population.
Even before a sexual assault becomes a “case”, many reporting hurdles
face these survivors:
• Even if these survivors are capable of making a report, their credibility
may be questioned simply because of their disability.
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• If the survivor is living exclusively with a community caregiver who may
also be the perpetrator, there may be limited opportunities to make a
report. Indeed, survivors may be putting themselves at risk by even
attempting to report.
• The person taking the report may not have the necessary skills to conduct
the interview correctly.
Clients with intellectual disabilities, like many survivors of sexual abuse,
may be unsure of what to do following an assault. Sadly, oftentimes the
abuser is either living in close proximity to the client, or has a certain
level of psychological and physical control over the victim due to their
particular vulnerability. This can create an uphill battle for survivors
deciding to disclose their abuse, especially considering that clients with
intellectual disabilities may not have received the same type of sexual
education as a client without intellectual disabilities.
Even when speaking with their own attorneys, these survivors may
hesitate revealing all of the details of their ordeal. They may not
understand that the answers to their attorney’s questions may or may
not remain confidential. In fact, the attorney cannot always provide their
clients with firm answers about how their revelations will be used.
Moreover, the attorney cannot guarantee how an opposing attorney or
the court will use the information. However, attorneys who are mindful
of their ability to effectively communicate, gain trust, and practice
empathically with these clients will improve their ability to successfully
interview survivors with intellectual disabilities.
Once a matter is in pre-trial phase, interviews and depositions by
attorneys can, at best, be healing; at worst, they can be traumatizing.
Because the type of evidence collected by attorneys may be
quantitatively more extensive and qualitatively different from the
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evidence gathered by law enforcement, SANE nurses, or other mental
health professionals, it may be necessary for attorneys to ask particularly
sensitive and invasive questions in order to establish the exact
circumstances of the incident(s). This is when genuine compassion,
empathy and a toolkit of interviewing skills are imperative.
When interviewing a client with intellectual disabilities, it is important to
remember that the interview process will likely require additional time
and patience. Enough time must be set aside to have a meaningful
conversation. Before beginning the interview phase, it may be beneficial
for the client to engage in a conversation about general matters: hobbies,
the weather, current events, sports, etc. This ice-breaker process will
help establish a sufficient rapport and level of trust with the client. It
may also be comforting to have the presence of a trusted friend or family
member at the interview in order to ensure that the client is at ease.
Providing the client with an environment that is non-threatening,
neutral, and familiar, will yield a greater chance for a successful case.
An essential starting point is to clearly and plainly explain to the client
the purpose of the interview, including everyone’s role and the reason
for their presence at the interview. Lawyers should not assume that
clients with intellectual disabilities have the same understanding of the
judicial system as a lay person without intellectual disabilities. Although
attorneys should use simple, concrete and clear language, it is also
important to treat all survivors in an age-appropriate manner, regardless
of intellectual ability. Acknowledge that questions and instructions may
need to be repeated. Encourage note taking if the client wishes to do so,
and don’t assume that the person can read well, if at all.
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During the interviewing process, occasionally check to ensure that the
client understands what you’re saying. This may occur between topics or
between each question and answer. If the client expresses a desire for
you to rephrase your questioning, be mindful to use language that is
appropriate for the client’s particular vulnerabilities. As always, empathy
and compassion are crucial tools to bring to the table while conducting
this type of interview.
While the interviewing process is typically internal, the deposition
process will expose the client to a much more intense environment. As
with any client, preparation is key. The client should understand what
the deposition process is, how the process of questioning will proceed,
and that they will be asked questions by an opposing attorney. Attorneys
must explain to their clients that there are no right or wrong answers.
Alternatively, when cross-examining a client with intellectual disabilities,
it is imperative to show as much empathy, understanding, and patience
as possible. Despite the adversarial process of depositions, there is no
legitimate reason for an attorney to harass, intimidate, or otherwise
speak down to any representative or client.
Interviewing and deposing are both art and science. There is no ironclad
rulebook on how to properly relate with, interview, and depose a client
with intellectual disabilities. Attorneys are encouraged to seek out
resources and educate themselves prior to conducting interviews and
depositions of an intellectually disabled client.
Daniel Pollack, MSW, JD, is a Professor at Yeshiva University’s School of
Social Work in New York. Helene M. Weiss is an associate attorney at the
Marsh Law Firm in New York, and Special Professor of Law, Maurice A.
Deane School of Law, Hofstra University. They may be contacted
at dpollack@yu.edu and heleneweiss@marsh.law, respectively.