When human rights are violated, people can sue in court and recover the damages (a civil suit). However, when it comes to cases with people with intellectual disability, can their voices be heard in court as well as those without disability?
People with intellectual disability CAN sue in court; however, various difficulties do exist for them to recover their damages before the court.
One of the difficulties is cross-examination of people with intellectual disability. In order to elicit evidence from people with intellectual disability, it is essential for judges/lawyers to comprehend the characteristics of people with intellectual disability and take appropriate procedures. However, in Japanese courts, cross-examination procedures for people with intellectual disability have not been established, yet.
For instance, people with intellectual disability tend to have difficulties in specifying to the dates and time of incidents. However, this does not mean that they do not remember the incidents themselves. Another tendency is that as a first step, they usually agree to whatever questions they were asked. This comes from their home environments in which they have been forced to be compliant towards others. This tendency had led to the misunderstanding that testimony from people with intellectual disability is not reliable. However, it is fairly possible to elicit accurate testimony from people with intellectual disability, if judges/lawyers understands the characteristics of people with intellectual disability, chooses words to use in cross-examination based on the characteristics of them, and sets up an appropriate environment for them to testify. However, this fact is hardly known among those connected with judicial matters.
Having a critical mind, the counsel for the prosecution of "The Mito Incident About Intellectually Disabled Abused in the at Workplace," which JCLU supports, played a most active part in starting "Society of Protection for Legal Procedural Rights of People with Intellectual Disability ." With help from scholars and experts, the society has researched the testifying ability of people with intellectual disability in court and cross-examination procedures that have been used in other countries, etc., in order to make the voices of people with intellectual disability heard by the Japanese justice system.
This report aims to establish legal procedures, taking into consideration the distinctive characteristics of people with intellectual disability, such as their cognitive faculty, memory, psychology and testifying ability. The report includes the letters of opinions from the counsel of the prosecution submitted to the court.
This study is considered to be multi-disciplinary research across law, psychology, sociology, and welfare, etc. This research has made a great contribution by clarifying the characteristics of psychology and the testifying ability of people with intellectual disability.
We strongly desire that people with intellectual disability will be protected in legal procedures and fair judgement will be made in court for them when they become victims of ghastly abuse cases.