Open access peer-reviewed chapter - ONLINE FIRST

What Accommodations Do Courts Provide for Abused Children with Communication Disabilities? A Legal Scoping Review

Written By

Juan Bornman, Robyn White and Ensa Johnson

Submitted: December 13th, 2021Reviewed: January 27th, 2022Published: March 21st, 2022

DOI: 10.5772/intechopen.102907

IntechOpen
Child Abuse and NeglectEdited by Michael Fitzgerald

From the Edited Volume

Child Abuse and Neglect [Working Title]

Dr. Michael Fitzgerald

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Abstract

Children with disabilities are at higher risk for becoming victims of violence and sexual abuse than peers without disabilities. Despite this, very few of these cases are heard in court due to a plethora of reasons. In the rare event that they do, the court appears to be unaware and unable to efficiently provide accommodations that would allow these children to testify and obtain justice. The aim of this legal scoping review was to identify the range of documented court accommodations to enable abused children with communication disabilities to testify in court. The legal scoping review methodology developed by White et al. (2021) was used to search the extant evidence related to court accommodations for children with communication disabilities across electronic social sciences databases (i.e., PubMed, CINAHL, The Cochrane Library and PscyInfo) and law databases (i.e., Hein Online, Lexis Nexis, Sabinet and Saflii). Results describe the available accommodations used across different countries and jurisdictions.

Keywords

  • accommodations
  • court
  • sexual abuse
  • children with disabilities
  • law
  • witness
  • victim

1. Introduction

Children—all children—should be seen, heard, respected, and cherished, not hidden, silenced, abused and neglected. The umbrella term “child abuse” includes sexual abuse, physical abuse, emotional abuse, neglect and exploitation of children [1] and affects more than one billion children globally—half of the children in the world [2]. Hence it is safe to say that child abuse is one of the most prevalent challenges affecting modern society.

Certain factors appear to increase children’s risk of abuse even further, and these can be related to either the environment, or to adults in the child’s life (including parents) or to the children themselves. Regarding the environment it has been reported that children from impoverished neighborhoods who live in poverty have a heightened risk [3] as are children with smaller social networks and those who experience greater social isolation [4].

Regarding adult factors, research on parenting has noted that social and economic instability and difficulty, parental mental illness and substance abuse are strongly correlated to child abuse [5]. Parental mental illness and substance abuse [5] as well as low parental involvement also increase the risk. Furthermore, overly strict parenting styles might be linked to an increase risk of child abuse too [6]. Parents of children with disabilities in particular have increased financial, physical and emotional responsibilities related to caring for their child’s needs which may result in heightened mental and emotional stress [7] and eventually burn out and neglect [8, 9].

Apart from parents, children also face the risk of “professional perpetrators” such as teachers, priests and sports coaches (i.e., adults who use their work with children and seek out contexts to enable abuse) [10, 11]. In several East African countries for example, teachers are known for verbal and physical abuse [12, 13].

Regarding child factors it appears as if younger children who are more dependent on others, (including parents) for their daily care, experience the highest rates of child abuse [14]. Apart from age, other child factors may also heighten their risk, namely the presence of a disability: more specifically intellectual disability [15, 16], autism spectrum disorder (ASD) [17] and communication disability [18], as well as emotional and/or behavioral disabilities (i.e., anxiety and depression, Attention Deficit Hyperactivity Disorder (ADHD), aggressive behavior and rule breaking behavior) [19, 20]. A large meta-analysis estimated that children with disabilities were at three to five times higher risk of abuse than same-aged peers without disabilities [21]. Additional factors that are linked to disability and that increases the risk for abuse is the fact that these children are trained to be compliant (e.g., to facilitate the ease of caregiving due to high dependence on others for caregiving, often involving intimate activities such as toileting and bathing) [4]. Moreover, these children are typically dependent on support in their everyday lives from a range of service providers such as social workers, taxi/bus drivers, health care workers, personal assistants and other professionals, which also increases their exposure to multiple potential perpetrators [22, 23].

Additionally, it should be noted that the risk of child abuse increases exponentially with the cumulative number of risk factors experienced by a child [15]. For example, a combination of intellectual disability and ASD increases risk [17] as does intellectual disability and communication disability [24]. Barron and colleagues [25] reported that individuals with severe and complex disabilities, are at increased risk due to the potential communication barriers challenges they experience. Children with disabilities are often victims of polyvictimization as they experience several types of abuse (e.g., sexual, emotional and physical abuse) with repeated episodes when compared to their peers without disabilities [26]. This type of polyvictimization also tends to intensify if the abuse continues over time, negatively impacting on the child’s well-being and quality of life [27]. Moreover, this abuse is often committed by perpetrators who are known, familiar and trusted partners [28]—not stranger abuse.

Furthermore, it should be highlighted that children typically face the added challenges of not being believed when they try to disclose abuse. This increases their risk of becoming repeat victims. For example, a third of parents in an Australian study stated that that they would not believe a child who disclosed sexual abuse [10]. It is thus hardly surprising that a recent Scandinavian study that examined police records as a possible methodology for determining abuse prevalence rates (as abuse is a criminal offense) discarded this methodology as it found a general absence of police records involving children with disabilities [29].

In addition to not being believed, children might also experience communication challenges that negatively impact on detecting or disclosing the abuse as well as on reporting it (e.g., to social workers or the police) and ultimately on testifying in court. These challenges might be related to the children’s age (younger children may not yet have the needed language due to a restricted vocabulary or unintelligible speech due to the presence of articulation errors or normal phonetical processes) or due to disability (disability may result in speech that is difficult to understand, or it may limit language proficiency to clearly describe the abuse situation) [30].

Addressing childhood abuse requires a systemic approach, starting with primary intervention which entails interventions aimed at preventing abuse from happening in the first place [31] to secondary prevention which includes interventions aimed at preventing further abuse from occurring [32] and finally tertiary prevention which includes interventions aimed at decreasing the effects of abuse, such as rehabilitation and medical treatment for children [31]. Courts have a role to play in secondary prevention as perpetrators often have little or no fear for the consequences of their acts [33, 34]. Besides, perpetrators see their victims as vulnerable as they know that very few cases of childhood abuse, and even less of childhood abuse that involves children with disabilities are successfully prosecuted, and hence they exploit this vulnerability [35]. Child victims often regard courts as unapproachable, with a range of legal formalities, complex rules, and practices and formal (unfamiliar) legal language that make it difficult to navigate the court proceedings. Even formal court attire (e.g., wigs and gowns) is typically reported as being intimidating [36].

Therefore, the current study aimed to investigate which accommodations have been afforded to abused children with communication disabilities across the world to enable them to participate in court. This is seen as a way of strengthening secondary abuse prevention initiatives by bringing perpetrators to justice while also affording children with disabilities the opportunity to be accommodated to participate equally without any form of discrimination.

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2. Method

The current research used data mining, and specifically the clustering technique (i.e., extrapolating new knowledge from previously collected data by grouping data together based on different demographics) [37]. The data collected in the original legal scoping review, which was the first of its kind to use that specific legal scoping review methodology at the time of publication [38], focused on court accommodations for both adults and children with severe communication disabilities and included both the accused and victims. For the purpose of this research, the original data was clustered to only focus on children, and to only focus on child victims (described as “witness” as the victim will participate in the justice system as a witness [39], thereby tightening the focus of the broader original search significantly).

In order to answer the research question, What accommodations have been afforded to abused children with communication disabilities across the world to enable them to participate equally in court without any form of discrimination?a legal scoping review was conducted [38]. This methodology acknowledges the nexus of social sciences and law, and hence combined the scoping review framework [40, 41] commonly used in social sciences with the steps suggested for a systematic review of legal doctrine [42]. As such, a legal scoping review can document existing evidence of a specific legal topic by describing what has been written about the topic, and how it has been examined to date, while also providing the necessary evidence to support a central claim, for example, the type and range of court accommodations that should be provided to children with disabilities. Moreover, it could assist courts by lending credibility to the process and reducing any perception of bias about their decisions [38]. The five steps proposed in the legal scoping review methodology are: i) identify and state the research question; ii) identify and define the studies related to legal cases, laws, and treaties; iii) select relevant studies; iv) chart and weigh the data (e.g., in terms of regency, citation frequency, precedential status) and v) conduct the analysis and report the results.

2.1 Identify and state the research question

The legal scoping review methodology commences with a clearly articulated research question, preferably using the PIO (Population, Intervention, Outcome) framework [43], as this guides the scope of the research and facilitates the identification of relevant information as shown in Table 1. Therefore, the main research question, What accommodations(Intervention) have been afforded to abused children with communication disabilities across the world(Population) to enable them to participate equally in court without any form of discrimination(Outcome), was supplemented by two specific sub-questions related to this population, irrespective of the country in which they reside:

  1. Which sources typically document court accommodations for abused children with disabilities?

  2. What is the nature of these accommodations? (In what countries are they provided? Do they cite international or national law? How many specific cases do they mention? What types of court proceedings, (e.g., criminal, civil, family), are most frequently mentioned?)

2.2 Identify and define the studies and legal cases

Clear and replicable processes were set at the start to increase data reliability [38]. The databases that were identified and selected in the social sciences were PubMed, CINAHL, the Cochrane Library and PsycInfo, while Hein Online, Lexis Nexis, Sabinet and Saflii were selected in the legal field. Thereafter, a comprehensive and systematic literature search was done using keywords based on the PIO framework (Table 2) with truncation (*) and Boolean operators AND and OR to link the population to the intervention and outcomes in the search.

Descriptive information about articlesPopulationOutcomes
#AuthorsYearSourceCountryChildren’s type of disabilityInternational /national lawType of courtSpecific law(s) mentioned
1Backstrom, J.C.2016Law journal article
  • USA

  • Not specified

NationalNot specified
  • Minnesota State Legislature, 2015

2Benedet, J. Grant, I.2012Law journal article
  • Canada,

  • South Africa

  • England

  • Intellectual

  • Physical

  • Multiple

NationalCriminal
  • Section 486.1 of the Code, Section 486.2(1) of the Code

  • Section 16 of Youth Justice and Evidence Act, 1999

  • Section 170A (1) of the Criminal Law (Sexual Of- fences and Related Matters) Act

3BenZeev, N., Lerner, N., Klein, Y.2014Book chapter
  • Israel

  • Intellectual

  • Physical

  • Communication

National and InternationalCriminal
  • Investigation and Testimony Procedures (Adaptation to Persons with Mental or Psychological Disability) Law, 2005

4Bornman, J.2014Book chapter
  • South Africa

  • Communication

National and InternationalNot specified
  • CRC

  • African Charter on the Rights and Welfare of the Child

  • CRPD

  • Constitution of the Republic of South Africa (including the Bill of Rights)

  • Children’s Act 38, 2005

  • Criminal Law (Sexual Offenses and Related Matters) Amendment Act, 2007

  • Mental Health Care Act 17, 2002

5Bryen, D.N. Wickman, C.2014Book chapter
  • USA

  • Communication

  • Physical

  • ASD

NationalCriminal,
State,
Supreme,
Court of Appeal
  • California rule of evidence 701,

  • Section 387 of the Judiciary Law of the state of New York

6Carter, E., Boezaart, T.2016Law journal article
  • South Africa

  • Not specified

National and InternationalChildren’s, Criminal
Civil
  • United Nation’s Declaration on the Rights of Mentally Retarded Persons, 1971

  • Declaration on the Rights of Disabled Persons, 1975

  • CRC

  • CRPD

  • Children’s Act 38, 2005

7Cooper, P.,Dando, C.,Ormerod, T., Mattison, M., Marchant, R., Milne, R., Bull, R.2018Law journal article
  • UK

  • Not specified

National and InternationalNot specified
  • Youth Justice and Criminal Evidence Act, 1999

  • Mental Health Act, 1983

8Cusack, A.2017Law journal article
  • Ireland

  • Intellectual

NationalCriminal
  • Criminal Evidence Act

  • Criminal Law (Sexual Offenses) Act, 2017

9Doak, J., Doak, L.2017Law journal article
  • Ireland

  • England

  • Wales

  • Intellectual

  • Physical

  • Communication

NationalCriminal
  • Criminal Justice Act 2003 as an exception to the hearsay rule

  • Youth Justice and Criminal Evidence Act (YJCEA), 1999

10Edwards, C., Harold, G., Kilcommins, S.2012Research paper
  • Ireland

  • Intellectual

National and InternationalCriminal
  • Section 29(1) of the Criminal Evidence Act, 1992

  • Criminal Justice Act, 2006

  • Criminal Procedure Act, 2010

  • YJCEA 1999

  • Disability Act, 2005 in Ireland

  • Disability Discrimination Act (DDA), 2005 in the UK

  • Americans with Disabilities Act (ADA), 1990

  • New South Wales Evidence Act, 1995

  • CRPD—Article 13

11Flynn, E.2016Book chapter
  • South Africa

  • USA

  • UK

  • Ireland

  • Bulgaria

  • Intellectual

  • Physical

  • Communication

  • Hearing

National and InternationalCriminal
SA Equality Court
European Court of Human Rights
High
  • The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 South Africa

  • American Disabilities Act (ADA), 1990

  • Article 6 of the European Convention

  • Mental Capacity Act, 2005 in England and Wales

  • Section 60 of the Assisted Decision-Making (Capacity) Bill

12Hepner, I., Woodward, M., Stewart, J.2015Multi-disciplinary journal article
  • Australia

  • Not specified

National and InternationalCriminal
  • CRPD—Article 13

  • YJCEA, 1999 in the UK

  • Australian Law Reform Commission, 2009

13Larcher, J.2014Book chapter
  • UK

  • Not specified

NationalNot specified
  • YJCEA, 1999

  • Coroners and Justice Act, 2009

14Malunga, B., Kanyongolo, N.
Mweso, N.
2017Law journal article
  • Malawi

  • Not specified

National and InternationalCriminal
  • CRPD—Article 13

  • Section 41 of the Malawian Constitution Section

  • Malawi Disability Act, 2012

15Murphy, W.2014Law journal article
  • USA

  • Physical

NationalCriminal
  • Americans with Disabilities Act (ADA), 1990

16O’Leary, C.2016Master’s thesis
  • Ireland

  • Australia

  • Israel

  • UK

  • Not specified

NationalCriminal
  • CRPD—Article 13

  • Criminal Evidence Act, 1992

  • Criminal Law (Sexual Offenses) Act, 1993

  • Evidence Act

  • Investigation and Testimony Procedures (Adaptation to Persons with Mental or Psychological Disability) Law, 2005

  • YJCEA, 1999

17O’Leary, C., Feely, M.2018Multi-disciplinary journal article
  • Ireland

  • Australia

  • Israel

  • UK

  • Not specified

National and InternationalCriminal
  • CRPD—Article 13

  • Criminal Evidence Act, 1992

  • Criminal Law (Sexual Offenses) Act, 1993

  • Assisted Decision Making (Capacity) Act, 2015

  • Evidence Act, 1995

  • Investigation and Testimony Procedures (Adaptation to Persons with Mental or Psychological Disability) Law, 2005

  • YJCEA, 1999

18Pillay, A.2012Social science journal article
  • South Africa

  • Not specified

NationalCriminal
  • Criminal Law Amendment Act No. 10, 1997

  • Criminal Law (Sexual Offenses and Related Matters) Amendment Act No. 3, 2007

19White, R., Msipa, D.2018Law journal article
  • South Africa

  • Not specified

NationalCriminal
  • Criminal Procedure Act 51, 1977

  • Children’s Act 38, 2005

  • Child Justice Act 75, 2008

  • CRPD—Article 13

  • Israel Act, 2005

Table 1.

Descriptive characteristics of publications (N = 19).

Note: USA = United Sates of America; UK = United Kingdom (England, Wales, Scotland and Northern Ireland).

PIOInclusion criteriaExclusion criteria
PPopulation: Abused children with communication disabilities who have either been victims or witnesses.
Child is defined as an individual below the chronological age of eighteen years [44].
Children:
 with complex communication needs
 with little or no functional speech
 with intellectual or cognitive disabilities (can have mental illness—dual diagnosis)
 who had been victims of crime
 who had been witnesses in court
 who are deaf
 who are deaf-blind
 with sensory impairments
 with autism spectrum disorder (ASD)
Medical conditions (e.g., cardiovascular diseases, AIDS/HIV)
Mental health illness that is treated with medication and defined as “… health conditions involving changes in emotion, thinking or behavior (or a combination of these). Mental illnesses are associated with distress and/or problems functioning in social, work or family activities (e.g., major depressive disorder, schizophrenia and bipolar disorder). Mental illness is treatable. The vast majority of individuals with mental illness continue to function in their daily lives.” [45].
The focus of the current study is on abused children who have communication disabilities, and hence publications that reported on mental illness, mental disability and intellectual disability in the same publication were included.
IIntervention: Court accommodations relevant to communication disability
Strategies, communication boards, intermediaries, court preparation officers, training, communication accommodations.
Physical accommodations, wheelchair access, child-friendly rooms, separate testifying rooms.
Publications that only described barriers without referring to accommodations, were excluded. Interventions and strategies that did not focus on court accommodations for children with disabilities (e.g., attitudinal training of court officers, strategies and accommodations used at the police station).
OOutcome: Access to justice and participation in court (in terms of types of courts and types of law)
Participation in court proceedings
Access to justice
Accommodations that did not focus on court, but on legal processes prior to court (e.g., interpreters used at police stations, or during the forensic examination) or after court (e.g., during detention).

Table 2.

Eligibility criteria based on the PIO framework for including studies in this scoping review.

2.3 Select relevant studies

For the current study, we clustered the information originally used for the Population (by reanalyzing it to only focus on children and child victims) while the rest remained the same, namely all publications that were available in English, that had been published between 2006 (which marks the adoption of the CRPD) and December 2019, and that focused on court accommodations for abused children with disabilities. As we reviewed the abstracts, we engaged in an iterative process of refining our inclusion and exclusion criteria (see Table 2), based on the PIO framework mentioned earlier.

Figure 1 outlines of the study selection process in accordance with the Preferred Reporting Items for Systematic Review and Meta-Analyses (PRISMA) statement [46]. All publications identified following the data-based search were exported into the reference management software, Mendeley, and thereafter, screened.

Figure 1.

PRISMA study selection flow diagram.

2.4 Chart and weigh the data

The charting and weighting process involved all three authors. The first author used the data extraction tool to extract data from each publication. This included general information about the author, data and source of publication, descriptive information about the participants as well as information pertaining to the accommodations. This tool contained working definitions for all constructs measured and data was captured in an Excel spreadsheet.

For the purpose of this study, a broad classification of disability types that could result in communication disability were used. The groups include intellectual disability (an impairment in intellectual functions such as reasoning, problem solving and abstract thinking); hearing disability (hearing loss that prevents children relying on auditory input, hence impacting on speech and language development); deaf-blindness disability (a dual sensory impairment); communication disability (an impairment in speech, language and/or communication); physical disability (a permanent and significant limit to the child’s physical ability); ASD (a persistent impairment in social communication and social interaction across multiple contexts); and multiple disabilities (any combination of any of the above-mentioned impairments) [47]. This classification has been used only for descriptive purposes. After the extracted data had been entered in the Excel spreadsheet, a high level of inter-rater agreement (97%) was calculated, pointing to very good interrater reliability.

For the purposes of the current study, weighting was based on the frequency with which each accommodation had been reported. Each accommodation was counted in terms of frequency and ranked from highest (i.e., mentioned most frequently) to lowest.

2.5 Conduct the analysis and report the results

An inductive coding approach was used to identify, synthesize and classify themes related to court accommodations [48]. All three authors engaged in this iterative process of reflecting on emerging themes and categories by reviewing publications and coming together to summarize key themes in the data. Points of disagreement were discussed in online team meetings until consensus was reached. Once the court accommodations had been identified, they were classified according to themes [49] in the court accommodation guidelines namely: (i) Children should be allowed to use their preferred ‘voice’—irrespective of the communication method or mode—throughout the whole legal process; (ii) Children should be shown respect and treated with dignity by all persons involved throughout the legal process; (iii) Children should feel that all decisions are being made in a fair and neutral way throughout the whole legal process; and (iv) Children should feel that all legal practitioners can be trusted and that their decisions are easy to understand and in the child’s best interest.

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3. Findings

The findings of this legal scoping review are presented as descriptive information related to the 19 included articles (i.e., authors, year of publication, type of publication, and the country in which the court accommodation was granted) as well as information on the Population (i.e., the type of disability that the children had), the Intervention (i.e., the types of accommodations) and finally the outcomes (i.e., whether accommodations reflect national or international law, the type of court in which the case was heard, as well as any specific laws that were mentioned). Table 1 includes descriptive information as well as information related to the Population and Outcomes, while Table 3 contains the bulk of the data and the main emphasis of the research, namely the accommodations.

Accommodations
#Guideline 1
Children should be allowed to use their preferred ‘voice’
Guideline 2
Children should be shown respect and treated with dignity
Guideline 3
Children should feel that all decisions are being made in a fair and neutral way
Guideline 4
Children should feel that all legal practitioners can be trusted
1
  • Use AAC

  • Use a sign language interpreter

  • Allow communication enhancements

  • Ensure physical accessibility

  • Allow support person

  • Allow support animal

  • Allow stuffed animal

  • Modify the courtroom setup

  • Use modified oath

  • Allow leading questions

2
  • Use an intermediary

  • Use a sign language interpreter

  • Allow support person

  • Testify behind a screen

  • Testify via live video/television link

  • Testify outside courtroom

  • Use CCTV in court

  • Allow video/ pre-recorded evidence

  • Allow judicial officers’ intervention

3
  • Involve a special investigator

  • Use AAC

  • Use AAC toolkit

  • Use an interpreter

  • Conduct trial in camera

  • Testify behind a screen

  • Testify outside the courtroom

  • Allow frequent breaks

  • Testify not on the witness stand

  • Testify in the judge’s chambers

  • Testify without the defendant present in the courtroom, and only the defense attorney present

  • Remove official attire

  • Involve an expert professional

  • Involve an expert witness

  • Use facilitator (to simplify language, give meaning and to support)

  • Allow linguistic simplification

4
  • Use an intermediary

  • Use AAC

  • Use anatomical dolls

  • Obtain a victim impact statement

  • Testify outside the courtroom

  • Develop specialized services for persons who use AAC

  • Conduct a functional assessment of individual

  • Involve an expert witness

  • Film proceedings to review the communication

  • Allow linguistic simplification

  • Use appropriate and proper questioning strategies

5
  • Use AAC

  • Use interpreter

  • Use sign language interpreter

  • Use facilitated communication

  • Allow leading questions

6• Use an intermediary
  • Ensure physical accessibility

  • Use CCTV in court

  • Conduct informal court proceedings in a relaxed and non-adversarial environment

  • Use appropriate and proper questioning strategies

7
  • Use an intermediary

  • Use appropriate and proper questioning strategies

  • Disallow tag questions

  • Disallow leading questions

8
  • Use an intermediary

  • Testify behind a screen

  • Testify via live video/television link

  • Remove official attire

  • Allow video/ pre-recorded evidence

  • Prohibit personal cross-examination by accused or defendant

  • Allow sworn depositions

9
  • Use AAC

  • Use an intermediary

  • Testify via live video/television link

  • Allow the functional assessment of individual

  • Remove official attire

  • Allow video/ pre-recorded evidence

  • Allow judicial officers’ intervention

  • Use appropriate and proper questioning

10
  • Use an intermediary

  • Use a sign language interpreter

  • Obtain a victim impact statement

  • Allow video/ prerecorded evidence

  • Allow out-of court testimony

  • Ensure physical accessibility

  • Testify via live video/ television link

  • Use CCTV in court

  • Make information accessible for those with visual and hearing impairments

  • Remove official attire

  • Allow judicial officers’ intervention

  • Provide information about the proceedings in plain language, Braille, accessible and child-friendly format

11
  • Use AAC

  • Use a sign language interpreter

  • Use facilitated communication

  • Ensure physical accessibility

  • Use auxiliary hearing devices

  • Allow Guardian ad Litem

  • Appoint an Amicus Curiae

  • Provide real-time captioning of court proceedings

  • Appoint independent advocate

12
  • Use AAC

  • Use an intermediary

  • Allow support person

  • Testify behind a screen

  • Testify outside courtroom

  • Conduct trial in camera

  • Use CCTV in court

  • Remove official attire

  • Use appropriate and proper questioning strategies

  • Familiarize witness with and explain the legal process and court procedures

13
  • Use an intermediary

  • Testify behind a screen

  • Testify via live video/ television link

  • Conduct trial in camera

  • Allow frequent breaks

  • Address witness by name to ensure his/her concentration

  • Remove official attire

  • Allow video/ pre-recorded evidence

  • Use appropriate and proper questioning strategies

  • Disallow tag questions

14
  • Use AAC

  • Use a sign language interpreter

  • Use an intermediary

  • Ensure physical accessibility

  • Provide materials in Braille and other accessible formats

  • Relook terminology that carries stigma and discrimination

  • Allow guides to assist with accessibility

  • Provide readers to assist with access to information

15
  • Use AAC

  • Use an intermediary

  • Ensure physical accessibility

  • Allow stuffed animal

  • Conduct trial in camera

  • Use CCTV in court

  • Allow Guardian ad Litem

  • Allow enough and extra time for testifying

  • Allow a familiar person to help the court to interpret and understand a child’s needs and disability throughout the process

  • Involve expert professional

  • Use appropriate and proper questioning strategies

  • Forbid protracted questioning of children

  • Forbid continuances that cause needless delay of the trial

16
  • Use AAC

  • Use an intermediary

  • Give evidence through free narration (no questioning)

  • Testify via live/ television link

  • Allow individualized support

  • Remove official attire

  • Allow video/ pre-recorded evidence

  • Use pictures/communication aids to enhance understanding

17
  • Use AAC

  • Use an intermediary

  • Give evidence through free narration (no questioning)

  • Testify via live/ television link

  • Remove official attire

  • Allow video/ pre-recorded evidence

18
  • Use an intermediary

  • Use CCTV in court

19
  • Use AAC

  • Use an intermediary

  • Use anatomical dolls

  • Allow support person

  • Modify the setup of the courtroom

  • Conduct trial in camera

  • Use CCTV in court

  • Allow frequent breaks

  • Address the child with a disability by name and wait for him/her to make eye contact

  • Involve expert witness

  • Allow linguistic simplification

  • Use appropriate and proper questioning strategies

Table 3.

Court accommodations identified in publications (the # in Table 3 correspond with the # in Table 1).

Note: AAC = Augmentative and Alternative Communication; CCTV = closed circuit television.

3.1 Descriptive information on included papers

Descriptive characteristics of included publications (N = 19) are summarized in Table 1. Despite the search starting in 2006 (following the adoption of the CRPD), the earliest papers included were from 2012 (3 papers, #2, 10, 18); five from 2014 (including four book chapters from the same international book, #3, 4, 5, 13 as well as a journal paper (#15); one from 2015 (#12); four from 2016 (#1, 6, 11, 16) and three each from 2017 (#8, 9, 14) and 2018 (#7, 17, 19). Despite alerts being put up, no later relevant papers were flagged. It is also interesting to note that by far the majority of papers (12/19 = 63%) were published in international peer-reviewed journals, comprising nine law journals, two multi-disciplinary journals and one social sciences journal. Five book chapters were also included (#3, 4, 5, 11, 13), a research paper (#10) as well as a master’s thesis (#16). The majority of studies were concerned with the status quo in the UK and its affiliates, comprising the UK (#7, 11, 13, 17), Ireland (#8, 9, 10, 11, 16, 17); England (#2) and Wales (#9) followed by six studies in South Africa (#2, 4, 6, 11, 18, 19), then four in the USA (#1, 5, 11, 15), three in Australia (#12, 16, 17), two in Israel (#3, 16), and one each in Canada (#2), Malawi (#14) and Bulgaria (#11). Five studies referred to more than one country (#2, 9, 11, 16, 17).

Next an analysis was made of the different types of childhood disability that the accommodations specifically referred to (i.e., addressing the population construct). Just more than half of the studies (10/19 = 52.6%) (#1, 6, 7, 12, 13, 14, 16, 17, 18, 19) did not refer to a specific type of disability while five referred to multiple types of disability (#2, 3, 5, 9, 11) with four referring to only one type of disability (# 4, 8, 10, 15). Regarding the specific type of disability, six papers each focused on intellectual disability (#2, 3, 8, 9, 10, 11), physical disability (#2, 3, 5, 9, 11, 15), five on communication disability (#3, 4, 5, 9, 11) and one each on ASD (#5), multiple disability (#2) and hearing disability (#11).

When unpacking the Outcomes (i.e., whether the laws are national or international, the types of courts represented and the specific laws mentioned), interesting observations were made. An almost equal split was seen between studies mentioning both national and international laws, with nine studies mentioning both (#3, 4, 6, 7, 10, 11, 12, 14, 17) and only one study more mentioning only national laws (#1, 2, 5, 8, 9, 13, 15,16, 18, 19). No studies mentioned only international law—always domesticating the international law (e.g., the CRPD or CRC) with national laws. A variety of courts were mentioned, with the criminal court system being mentioned most frequently in 15 papers (#2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19). Children’s court (presiding over civil and criminal matters) was mentioned once (#6); as was the Supreme Court, and the Court of Appeal (#5), and the South African Equality Court, European Court of Human Rights, and the High Court (#11). Four papers did not mention any particular courts (# 1, 4, 7, 13). Table 1 also includes a number of specific laws that were cited in the papers, but for the sake of brevity they are not analyzed any further. Thereafter in Table 3, a thematic analysis of the interventions that were described in the various papers (i.e., the specific accommodations) was done.

Across the 19 included papers, a total of 165 accommodations were mentioned, of which the majority was related to Guideline 2 (Respect) (65/165), followed by Guideline 1 (Voice) 48/165, Guideline 4 (Trust) (29/165) and finally Guideline 3 (Fairness) (23/165).

Under Guideline 2 (Respect), the use of CCTV (n = 7, 11%) and to be allowed to testify via live/television link (n = 7, 11%) were mentioned the most frequently. Under Guideline 1 (Voice), the use of an intermediary (n = 15, 31%) and the use of Augmentative and Alternative Communication (AAC) (n = 12, 25%) were mentioned the most frequently. Under Guideline 4 (Trust), the use of appropriate and proper questioning strategies (n = 8, 30%) was mentioned the most, and thereafter allowing linguistic simplification (n = 3, 10%) and allowing intervention by judicial officers (n = 3, 10%) were mentioned the most frequently. And lastly, under Guideline 3 (Fairness), removal of official attire (n = 8, 35%) and allowing video/pre-recorded evidence (n = 6, 26%) was mentioned the most frequently.

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4. Discussion

This scoping review aimed to identify accommodations that have been afforded to abused children with communication disabilities across the world to enable then to participate in court. Results showed that court accommodations are indeed highlighted by both legal and social science disciplines and furthermore, has been referred to in international and national law. Affording abused children with communication disabilities accommodations to improve the quality of their participation in court will promote child well-being and enhance the integrity of justice for all children [50]. The specific court accommodations identified in this review could ensure effective access to justice for abused children with communication disabilities.

The first guideline focused on ensuring that the child’s voice is being heard in court and on the accommodations that could assist children to express themselves in court. The use of intermediaries was the one accommodation highlighted most frequently. Most countries have an intermediary system in place, and research has highlighted the advantages of using intermediaries in court and how they can improve the communication for children [51, 52, 53, 54]. The main role of the intermediary is to protect the child from any difficulties experienced in testifying in court and giving evidence, and furthermore, facilitate a friendly court environment for the child with a communication disability [54]. However, it must be noted, that one accommodation alone is typically not effective to ensure effective participation in court for all children, and therefore, a variety of accommodations must be considered and accepted [38, 55]. An additional accommodation that was frequently mentioned under Guideline 1, was the use of AAC. AAC can be defined as a set of tools and strategies (including spoken and written modes of communication) that a child with a communication disability can use to solve daily communicative challenges [56]. Examples of AAC include gestures, sign languages, as well as object and graphic symbols that can be displayed on communication boards or on electronic devices with voice output. It is crucial for courts to be more accommodating and to recognize the diverse communication methods used by children with communication disabilities that could enable them to participate in court (i.e., to testify) [57].

The second guideline focused on the child with a communication disability being shown respect and treated with dignity. The use of closed-circuit television (CCTV) and to allow testimony via live/television link were the two court accommodations mentioned the most frequently under this guideline. A CCTV set-up can be used to protect the child with a communication disability during testimony, giving the people in the courtroom sight of the separate room [36, 58, 59]. Giving evidence via live/television link has also proven to reduce the child’s exposure to the harsh and unfriendly courtroom environment [60].

The third guideline focused on the child with a communication disability’s feeling that all decisions are being made in a fair and neutral manner. Court accommodations that were mentioned most frequently were removal of official attire and allowing video/pre-recorded evidence. Research has shown that the removal of official attire is also linked to child witnesses feeling more comfortable and at ease in the courtroom, and therefore, assisting the child in giving improved evidence in court [39, 55, 61, 62]. Allowing pre-recorded evidence has also been documented and has been used effectively in countries such as England and Wales [63], and could assist the child witness with a communication disability to provide quality evidence in court [55, 64].

Finally, the fourth guideline focused on how the child with a communication disability could feel that all legal practitioners can be trusted. Court accommodations mentioned were the use of appropriate and proper questioning strategies, allowing linguistic simplification and allowing judicial officers intervention. Children with communication disabilities are less likely to understand the legal language used by legal practitioners [50, 64]. The complexity of legal language creates knowledge and information gaps, causes isolation of the child witness and decreases trust in the legal system as an equal and fair system [65]. Allowing the use of appropriate questioning strategies and linguistic simplification (which is the process of editing and processing written and spoken information to ensure that it is simple, clear and easy to understand) could benefit the child witness in understanding important legal information about the court procedures as well as the questions asked in court [66].

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5. Limitations

One limitation of this review is its inclusion of only English-language material. It is also possible that not all relevant publications were identified, as gray literature or reports pertaining to experiences of children with disabilities in the criminal justice system were excluded.

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6. Conclusion

This legal scoping review sought to identify the specific court accommodations that have been reported in literature and that could enable abused children with communication disabilities to participate in court. Different court accommodations were identified and focused on the four court accommodation guidelines developed by White [49] that centered around voice, respect, fairness and trust. Abuse of children with communication disabilities, including sexual abuse, is a grave and devasting problem in society. The legal scholar, Keane [67] stated that while there may not be any official figures for the number of children with communication disabilities appearing as sexually abused witnesses in criminal cases, it appears as if the numbers are escalating within this group. Therefore, it is of utmost importance that court accommodations for children with communication disabilities is recognized and made available to support and enable their participation in court as witnesses. Every effort should be made to support abused children with communication disabilities in their pursuit of access to justice, but more importantly, in their pursuit of their basic rights as children.

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Acknowledgments

The librarians, specifically at the Law and Humanities Faculty at the University of Pretoria are gratefully acknowledged for their assistance and knowledgeable input into the review process. The authors would also like to acknowledge that the data included in this publication formed part of the doctorate thesis titled, “Accommodating persons with severe communication disabilities in court: Development and appraisal of guidelines” by Robyn White at the University of Pretoria, South Africa prepared under the supervision of the first and third authors. This PhD study was funded by the National Institute for the Humanities and Social Sciences (NIHSS) in collaboration with the South African Humanities Deans Association (SAHUDA) and the second author would like to acknowledge her financial contributors and their financial assistance towards this research. Opinions expressed and conclusions arrived at are those of the authors and cannot necessarily be attributed to the NIHSS and SAHUDA.

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Authors’ contributions

J.B, R.W. and E.J. contributed to the study conceptualization, methodology development, data analysis, critical analysis and review, visualizing the work. J.B. and R.W. contributed to writing the original draft and revision.

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Written By

Juan Bornman, Robyn White and Ensa Johnson

Submitted: December 13th, 2021Reviewed: January 27th, 2022Published: March 21st, 2022