The Forgotten Americans
Eliminating bias against and providing access to justice for people
with disabilities
By Ellen R. Peck
© 2006 Ellen R. Peck. All rights reserved.
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Peck |
In the summer of 2006, Marcus Fiesel, a 3-year-old with autism, was in foster
care in Cincinnati, Ohio. One weekend, his foster parents taped up his hands,
wrapped him in a blanket and placed him in a playpen in a locked closet without
food or water. His foster parents, who received $1,000 every month for his
care, then left home for the weekend to attend a family reunion. When they
got home, Marcus was dead.
The foster father burned the boy's body and hid it to conceal what had happened.
After the crime was discovered, the foster parents lied to officials and the
public, claiming Marcus had wandered off on a trip to a park when his foster
mother had fainted.
Although his foster parents are facing criminal charges, another issue is
how to protect children like Marcus who have disabilities. Marcus is the third
child with autism to be killed in the summer of 2006 in the United States.
(http://thegimpparade.blogspot.com/2006/09/)
People with disabilities are more frequently victims of crime
People with disabilities are primary targets of crime and abuse. Adults with
substantial disabilities were victims of violent and other major crimes at
rates four to 10 times higher than that of the 30.6 million crime victims in
the general population. In the 1990s, about 5 million disabled people were
the victims of serious crimes annually in the United States. (Dan Sorenson, The
Invisible Victims (March 2000).)
Sexual abuse rates of disabled men and women are also significantly higher
than in the general population. (Id.)
Children with disabilities fare even worse. They experience abuse at a rate
of abuse 3.44 times greater than children without disabilities, and children
with behavior disorders were the victims of physical abuse at rates 7.3 times
that of children without such behavior disorders. Disabled children are the
victims of (1) sexual assault 5.5 times more; (2) of neglect 6.7 times more
and (3) emotional abuse 7 times more than children who are not disabled. (Id.)
The highest rates of crime and criminal abuse of all are against children
and adults with psychiatric disabilities (Id.)
The crime rate against people with disabilities is proportionately the highest
in the country when compared to the 8,000 hate crimes, one million elder abuse
victims, and one million spousal assault victims each year. (Id.)
In California, only about 4.5 percent of these crimes are actually reported
to authorities, compared to an average 44 percent report rate for the general
population. (Id.) An estimated 80 to 85 percent of criminal abuse of
residents in institutions is never reported to authorities. (Id.)
One reason that crimes and abuse against disabled persons is underreported
is often because their disability makes it difficult or impossible to report.
Even where crimes have been reported, victims experienced lower rates of police
follow-up, prosecution and convictions. Reasons include the difficulty in investigating
cases, the lack of special skills and special training required for these cases
among law enforcement, the isolation of and communication difficulties for
some victims, and the negative stereotypes and prejudices that continue to
contribute to discrimination against these victims. (Id.)
Because of law enforcement lack of training, people with disabilities
are frequently mistaken for perpetrators of crimes
In late summer 2006, Daniel Beloungea, a person with epilepsy, was taking
a daily walk in his Michigan neighborhood when he experienced a complex partial
seizure, which left him in a state of semi-consciousness. Complex partial seizures
are associated with repetitive involuntary movements, sometimes for 30 minutes
or even longer, with post-seizure disorientation. Daniel needed to take a daily
walk as a form of rehabilitation to help restore functioning in his legs, which
had been impaired following brain surgery to treat his seizures.
A passerby noticed Daniel acting erratically and called police to report his
behavior. When officers arrived on the scene, they apparently assumed that
Daniel's failure to respond to their questions and his erratic involuntary
movements amounted to resistance, and failed to recognize the obvious signs
of a seizure. Furthermore, they failed to inspect the medical alert bracelet
he was wearing, which indicates clearly that he has epilepsy.
According to police reports, when Daniel was unresponsive to police direction,
the bag he was carrying was kicked by police from his hand. When he flailed
his arms involuntarily, he was tasered, sending 50,000 volts of electricity
through his body (risking serious injury or death), hit with a police baton,
threatened at gunpoint and handcuffed behind his back. (The handcuffing itself
is dangerous for persons experiencing a seizure, as it can lead to further
seizure-related agitation and struggling, possibly causing asphyxiation or
even cardiac arrest.) He was then prosecuted for assaulting police officers
and disorderly conduct, notwithstanding considerable evidence, including the
state's own mental health evaluation, confirming that his actions were involuntary
and solely the product of a seizure.
Because of an anomaly in Michigan law, Daniel Beloungea was forced to plead
not guilty by reason of insanity, rather than being permitted to submit evidence
that he lacked the mental and physical capacity to commit the crimes for which
he was charged. Because state law requires that all persons who have been adjudicated
not guilty by reason of insanity be committed for a mental health evaluation,
a man who posed no risk to anyone was forced to languish in a penal institution
housing violent criminal offenders (where he experienced at least two subsequent
seizures). He was discharged from the psychiatric facility after a stay of
more than three weeks.
According to the Epilepsy Foundation, in addition to Daniel, too many other
people who had experienced seizures have had encounters with police that have
resulted in serious permanent injuries or even death. The foundation is once
again calling for police, emergency medical personnel and other first responders
to undergo training and implement protocols to ensure they properly respond
in these kinds of situations. (http://www.epilepsyfoundation.org/epilepsyusa/beloungea.cfm)
If people with disabilities can be forgotten by the criminal justice
system, how do they fare in the civil justice system?
From 1942-45, Glenn Elmer Peck served in the Army Air Force during World War
II as a bombardier and rifle marksman trainer. After being constantly exposed
to firing range gunfire and other loud noises without earplugs, he discovered
after his military service that he had become hard of hearing. When he returned
to civilian status at age 24, he needed a hearing aid to hear normal conversation
and other noises. He filed a claim with the United States Government for his
hearing loss. His claim was denied on the basis that he had a predisposition
for hearing loss, since Glenn's father was also hard of hearing.
Today, people with ADA claims do not fare much better than Glenn did in the
late 1940's. Only one in 10 ADA lawsuits is won by the plaintiff. Attorneys
who represent claimants before the Social Security Administration report that
initial claims for disabilities are denied about 80 percent of the time.
If Americans with disabilities have the least access or success with
the justice system, they are nearly invisible in the media
A recent Wall Street Journal article discussed the lengths publishers go to
in order to portray diversity in race, ethnicity, religion, age, gender and
disability in textbook images so that their books will sell to diversity-sensitive
school districts. When it comes to portrayals of disabled people, non-disabled
children are frequently placed in wheelchairs or given crutches to stand in
to portray disabled children. It was estimated that at least three-fourths
of the children portrayed as visibly disabled in Houghton Mifflin textbooks
actually are not disabled. Children with hidden disabilities that may nevertheless
alter their appearance in subtle ways are not represented in photos at all
and their disabilities are not mentioned in the captions or text. (See http://thegimpparade.blogspot.com/
2006/09/fake-disabled-children.html Friday, Sept. 1, 2006)
In the entertainment industry, the "appearance" of diversity has become a
substitute replacement for the representation of actual diversity in portraying
people with disabilities. In Hollywood, some of the highest-paid non-disabled
actors' portrayal of disability is awarded with applause and honors. For example,
the "realism" of Hilary Swank in Million Dollar Baby got attention for being
truthful about disability, as did Russell Crowe in A Beautiful Mind, Tom Cruise
in Born on the Fourth of July, and Laura Inness as a doctor who had polio on
the television show ER. All of these actors are able-bodied people portraying
people with disabilities.
Don't get me wrong — I have enjoyed the performance and salute the talent
of these great actors. But people with disabilities have very few role models;
they seldom get to see characters with disabilities played by people who are
actually disabled. There is almost nowhere in mainstream public media where
we can see people with disabilities portrayed as they actually exist. People
with disabilities or without need more programming featuring people with disabilities
(e.g., the television series, Life Goes On (about a boy with Down Syndrome,
in which the actor actually had Down Syndrome); the television series C.S.I.
(in which Robert David Hall, an actor who had both legs amputated following
a tragic car crash portrays a pathologist who just happens to have had both
legs amputated and uses prosthetic legs), and programs featuring Marlee Matlin
(a deaf actress who frequently portrays strong and vibrant female characters
who just happen to be deaf in a variety of movies and television shows, including
The West Wing and Judging Amy).
That people with disabilities are largely forgotten by the justice system
and almost invisible in the media is surprising given their population demographics.
The numbers in our population
One fifth of the people on this earth have some type of disability. This estimated
figure is agreed upon by both the United Nations and United States Census Bureau.
(2000 U.S. Census.) Just how many Americans are disabled is still a mystery.
Although the 2000 census found that almost 49.7 million Americans had disabilities,
there are many indications that these numbers are low. Mirroring under representation
in the media, the census figures may well underrepresent the actual number
of Americans with disabilities, for the following reasons:
- First, the census figures do not include vast numbers of Americans with
disabilities who live in institutions.
- Second, disability advocates consider census numbers to be low, particularly
with regard to so-called mentally disabled as well as deaf and hard of hearing
Americans. They have cited charges that census takers skipped many respondents
who were deaf or developmentally disabled because of communication difficulties.
The true numbers of these persons may not be represented in the 2000 census.
- Third, many persons who would fit within the definition of having a disability
deny or conceal their disability. Therefore, surveys based upon self-identification
may never identify the true number of individuals with disabilities.
- Fourth, the Census Bureau's own surveys conflict. The bureau's 1997 Survey
of Income and Program Participation (SIPP), which used more extensive criteria
regarding the measuring of functional difficulties, estimated the number
of people with disabilities at 53 million, (19.7 percent of the population).
The 1997 survey, completed three years earlier, differs significantly (some
4 million more) from the 2000 United States Census.
Roughly 17.4 percent of California's population are people with disabilities.
This means that many California attorneys are likely to have clients who are
disabled and come into contact with people with disabilities in their practice
of law.
Age: The 2000 Census figures show that Americans with disabilities fell into
the following age groups: ages five to 20 (5.2 million); 21-64 (30.6 million);
and 65 or over (14 million). As the "baby boomer" generation ages and begins
to experience disabilities associated with aging, the figures in the last category
are likely to increase dramatically.
The mean earnings of full-time workers with disabilities were less than comparable
workers without disabilities. The mean earnings of full-time workers age 16
to 64 with disabilities were $33,109, compared to $43,269 mean earnings for
non-disabled workers.
- Next month, the MCLE test will offer communication and other tips for eliminating
bias in contacts with people with disabilities.
• Ellen R. Peck, a former State Bar Court judge, is a sole practitioner
in Escondido and a co-author of The Rutter Group California Practice Guide:
Professional Responsibility.
Certification
- This self-study activity has been approved for Minimum Continuing Legal
Education credit by the State Bar of California in the amount of one hour
in elimination of bias..
- The State Bar of California certifies that this activity conforms to the
standards for approved education activities prescribed by the rules and regulations
of the State Bar of California governing minimum continuing legal education.
Self-Assessment Test
Indicate whether the following statements are true or false after reading
the MCLE article. Use the answer
form provided to send the test, along with a $25 processing fee, to the
State Bar. If you do not receive your certificate within four to six weeks,
call 415-538-2504.
- Three children with autism were killed in the summer of 2006 in the United
States.
- Adults with substantial disabilities were not the victims of violent and
other major crimes at any greater rate than the general population.
- People with disabilities are sexually abused significantly more frequently
than the general population.
- Sexual abuse rates of disabled men and women were not significantly higher
than in the general population.
- Children with behavior disorders were the victims of physical abuse at
rates 7.3 times that of children without such behavior disorders.
- The highest rates of crime and criminal abuse are against children and
adults in wheelchairs.
- In California, only 50 percent of crimes against people with disabilities
are reported.
- An estimated 80 to 85 percent of criminal abuse of residents who are disabled
in institutions is never reported to authorities.
- Under reporting of crimes and abuse against disabled persons is never the
result of the victim's inability to communicate because of their disability.
- Persons with epilepsy can experience complex partial seizures lasting longer
than 30 minutes, accompanied by repetitive involuntary movements and post-seizure
disorientation.
- Handcuffing persons experiencing epileptic seizures can lead to further
seizure-related agitation and struggling, possibly causing asphyxiation or
even cardiac arrest.
- The Epilepsy Foundation believes that police, emergency medical personnel
and other first responders are well trained to properly respond to persons
having seizures.
- Nine out of 10 ADA lawsuits are won by the plaintiff.
- Textbook publishers are careful to hire children with disabilities to represent
children with disabilities in school textbook pictures of children.
- One-tenth of people on Earth have some type of disability.
- The 2000 United States Census found that almost 49.7 million Americans
had disabilities.
- The United States Census figures may be low since they do not include Americans
with disabilities who live in institutions.
- Roughly 17.4 percent of California's population are people with disabilities.
- The 2000 Census figures show that 30.6 Americans with disabilities were
between the ages of 21 and 64.
- The mean earnings of full-time workers with disabilities were not lower
than comparable workers without disabilities.
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