It is well known by those in the intellectual disability services and disability rights movement that South Africa requires a 'vulnerable adults care act,' which considers the unique needs of those with intellectual and developmental disabilities (IDD). While the absence of such laws makes it difficult to promote and protect the rights and responsibilities of adults with IDD, there are other statutes which can be drawn on in developing protocols to bridge the disjuncture between law and practice.
The country's Integrated National Disability Strategy of 1997 paved the way for much-needed social and legislative change. In 2007 South Africa ratified the United Nations' Convention on the Rights of Persons with Disabilities (UNCRPD) and developed the White Paper on the Rights of Persons with Disabilities (WPRPD, 2016) to complete the domestication of the UNCRPD. The White Paper presents nine 'Strategic Pillars[1]' which “task duty-bearers with the responsibility of eradicating the persistent systemic discrimination and exclusion experienced by persons with disabilities."[2] The WPRPD makes it abundantly clear that people with disabilities must have access to justice and, in-step with the Bill of Rights, have the right to the full protection and benefit of the law.
But, as we know, there are critical flaws in the South African criminal justice system (CJS) which impedes persons with IDD's access justice[3]. This is not due to their limited ability to provide reliable witness testimony or the know-how to navigate the judicial system, but rather the system's shortcomings. Access to justice prerequisites sound policy to inform protocols and effective service delivery that includes individualised accommodations for people with IDD to enable equal participation. Additionally, there is a dire need for knowledgeable and informed servants of the law who are sensitive to the needs of people with IDD.
South Africa's National Strategic Plan on Gender-Based Violence and Femicide (GBVF-NSP)[4] emphasises principles of inclusivity, intersectionality as well as active and meaningful participation in addressing the particularities of vulnerable populations, such as those with IDD. While the GBVF-NSP pays a lot of attention to the CJS, the same cannot be said for the National Prosecuting Authority (NPA) and the South African Police Services (SAPS)' Strategic Plans for 2020-2025.
Both have omitted strategies to address the gross injustices suffered by people with IDD and vulnerable adults[5]. Neither the NPA nor the SAPS have national policies on disabilities and in my research and psycho-legal practice, I am yet to find protocols and guidelines on how to serve complainants (and defendants) with IDD. The only exception is that the court can appoint an intermediary to a person with a 'mental disability' who has a 'mental age' below that of 18 years. And this is when testifying may cause 'undue mental stress' and when the prosecutor or magistrate requests it.[6]
Yet, people with IDD experience disproportionately higher rates of abuse than neurotypical people and have been subjected to attitudinal bias, prejudice and discrimination.
They also are more likely to experience abuse for longer periods of time, more frequently and with a higher severity than non-disabled people. Their reliance on others for support and care makes them especially vulnerable to coercion, control and abuse from others. Additionally, women with IDD are at incredibly high risk of being sexually assaulted - even more so for those of colour.
“This stems from the combined cultural devaluation of women and persons with disabilities, overprotection, social isolation and the denial of sexuality in women with disabilities. People with disabilities are also perceived as lacking credibility and exhibiting sexual deviance, and are frequently not provided sexuality education. Perpetrators perceive that there is a lower risk of discovery. These myths, perceptions and stigma increase the likelihood that a victim with a disability is targeted for violence, and make it less likely that she will be able to identify, react to and report it"[7].
We take it for granted that persons with IDD do not have easy access to their rights. It can be difficult enough for a neurotypical person to access their rights, imagine the experience of a person with IDD. Our rights are considered to be inherent, but considerable work must go towards keeping them upheld.
Difficulties with cognitive and adaptive functioning may limit people with IDD's knowledge and appreciation of the law, which could lead to them not understanding their rights or how to exercise them. They are not simply dependent on others for support in activities of daily living, education and occupation, but also their participation in society and the administrative and practical aspects to 'life.' The people they are dependent on are also the ones to help them access justice. And as we know, it is the people closest to us who are most-likely to abuse us.
Ensuring access to justice for people with IDD goes beyond the shortcomings of the legal statutes and practice, beyond the state's collapse in infrastructure and policy across health, social services and the judicial systems, beyond academic and training institutions' inattention to accessible education and meaningful research but to the moral fabric of our society. The belief that people with IDD are somehow 'less than' and therefore not deserving of the basic human rights afforded by the Constitution. It is a reflection of society's 'carelessness,' our disregard for the lives of people with IDD.
Jenna-Lee de Beer-Procter (they/them) is a clinical psychologist and researcher based in Cape Town. They offer identity-focused, trauma-informed and gender-affirming mental health care using an eclectic approach that integrates psychodynamic therapies with intersectional feminism. Prior to completing their masters in clinical psychology, Jenna-Lee worked in the field of sexual health and trauma as a registered counsellor, and founded a non-profit organisation, Rape Outcry. They worked in the field of intellectual and developmental disabilities in the public sector since 2014, both for the state as well as the NGO sector. Their work focuses on adapting therapies for survivors of trauma with intellectual and developmental disabilities as well as psycho-legal work with the accused and complainants in sexual assault cases. They are a regular reviewer for the African Journal of Disabilities and a member of the Professional Association for Transgender Health South Africa.
[1] Strategic Pillar 1: Removing Barriers to Access and Participation
Strategic Pillar 2: Protecting the Rights of Persons at risk of Compounded Marginalisation
Strategic Pillar 3: Supporting Sustainable Integrated Community Life
Strategic Pillar 4: Promoting and Supporting the Empowerment of Children, Women, Youth and Persons with Disabilities
Strategic Pillar 5: Reducing Economic Vulnerability and Releasing Human Capital
Strategic Pillar 6: Strengthening the Representative Voice of Persons with Disabilities
Strategic Pillar 7: Building a Disability Equitable State Machinery
Strategic Pillar 8: Promoting International Co-operation
Strategic Pillar 9: Monitoring and Evaluation
[2] WPRPD (2016) pp. 9
[3] Viljoen, Erna & Bornman, Juan & Tönsing, Kerstin. (2021). Interacting with Persons with Disabilities: South African Police Officers' Knowledge, Experience and Perceived Competence. Policing: A Journal of Policy and Practice. 15. 10.1093/police/paaa084.
[4] National Strategic Plan on Gender-Based Violence and Femicide: Human Dignity and Healing, Safety, Freedom & Equality in our Lifetime. See, https://www.justice.gov.za/vg/gbv/NSP-GBVF-FINAL-DOC-04-05.pdf
[5] National Prosecuting Authority South Africa. Strategic Plan 2020-2025. See https://www.npa.gov.za/sites/default/files/New%20NPA%20Strategic%20Plan%202020_2025.pdf
South African Police Service. (2020). Strategic Plan 2020-2025. See https://www.saps.gov.za/about/stratframework/strategic_plan/2020_2021/saps_strategic_plan_2020to2025.pdf
[6] South African Government. FAQs >> Justice and crime prevention. How can a child or person with mental disability testify in court? Accessed, 22 September 2021. https://www.gov.za/faq/justice-and-crime-prevention/how-can-child-or-person-mental-disability-testify-court
[7] Holness, Willene. (2021). Hate crime based on disability in South Africa. Lessons for law reform. SA Crime Quarterly, (70), 2-11. https://dx.doi.org/10.17159/2413-3108/2021/vn70a5597
