[real-eyes] Fw: Sexual Violence Against People With Disabilities

From: <bigdaddylou63@xxxxxxxxxxxxx>
To: <real-eyes@xxxxxxxxxxxxx>
Date: Wed, 24 Dec 2008 11:43:09 -0500
Since some of you on this list are from Kansas City I thought I would share the 
below.  More than likely some are familiar with this place.
Peace
Luis 

violence against people with disabilities
continues to be a real, damaging and disempowering fact of life in our 
community.
One of the biggest problems in fighting this issue is figuring out when people 
with
intellectual, cognitive or TBI-type disabilities can actually consent to sex.  
Also,
when I look at this story I am wondering why this is labeled a "sodomy" charge 
and
not a "rape" charge.  I am passing this story along to raise community 
awareness.let's
get talking!
Dropped sodomy charge spurs call for law change when brain-damaged victim
involved
The Kansas City Star
Breaking News
A nurse's aide accused of sexually assaulting a severely brain-damaged patient
won't be prosecuted because the woman could have been capable of consent,
Johnson County prosecutors say.
Although a doctor said the woman in her 40s had the mental capacity of a
3-year-old, she could have met the requirements for consent under Kansas law,
assistant prosecutor Michael McElhinney said at a court hearing Monday.
The prosecutor's office dropped a sodomy charge that had been filed against
Brent A. Wheeler, 38, of Lawrence. He formerly worked at a Gardner
rehabilitation hospital where the incident allegedly took place.
The case illustrates the difficulty of prosecuting cases in which the victim has
a mental disability, and some people are calling for a law change that would
outlaw sexual relations between caregivers and their patients.
"I'm just kind of amazed - this is very disheartening," said Palle Riling!
er, CEO
of the Metropolitan Organization to Counter Sexual Assault.
She said women with disabilities are up to five times more likely to suffer
sexual assault than other women. The organization is splitting a three-year
$750,000 federal grant with two other advocacy groups to better serve or treat
Kansas City area women with disabilities.
"The elderly and disabled are easy prey," but the issue of consent can be
difficult, she said. "When is the line crossed?"
Johnson County District Attorney Phill Kline said consent can be a tough issue
in the law as it stands.
"There's moral wrong and there are acts contrary to the law," Kline said, "and
sometimes they're dif!
ferent.&
#8221;
The Meadowbrook Rehabilitation Hospital reported the incident to police on Dec.
3, 2007, after employees witnessed what they thought was a sexual act,
prosecutors said.
"He (Wheeler) was terminated the same day," said Angela Hullinger,
CEO/administrator of the hospital.
Hullinger said the hospital would handle such a matter the same way again. She
called the incident unfortunate and the outcome strange.
At this week's hearing, McElhinney said a doctor at the hospital originally told
prosecutors that the woman could not have knowingly consented. The doctor
changed his mind after reading the definition of consent under Kansas law,
McElhinney said.
Kansas case law says one has capacity for consent when a person can understand
the sexual nature of the act, can understand his or her right to refuse and has
a rudimentary grasp of the possible results.
In this case, Kline said, the sex act was consensual. "The only issue is, does
she have the capacity, and the state's doctor says she does under the law -
there's not much you can do with that," he said.
Defense attorney John DeMarco said his client was not guilty and praised the
dismissal.
Prosecutions also can be difficult when victims are not competent to testify,
said Rilinger, the metropolitan organization leader. She called for law changes
in Kansas and Missouri.
"There should be legal ramifications for caretakers who have sex with patients
even if it is consensual," she said. "They can easily condition and manipulate
them in ways that gain power."
Sean O'Brien, a Kansas City law professor and defense lawyer, said the case
could have been difficult partly because the woman's mental age was subjective
and "even a 3-year-old can be quite sophisticated."
Her mental state would have been key in a case that "is neither purely legal nor
purely psychological - it's an intersection of two professions."
Even if the state proved the woman could not consent, it would also have to
prove that the defendant knew she couldn't consent.
< pre style="background:white;">
He said it would greatly simplify matters to heed Rilinger's suggestion and
define sex between a patient and a hospital worker as a crime.
"Make the relationship trigger the criminality," he said.
Kansas Sen. John Vratil, the outgoing chairman of the Senate Judiciary
Committee, said the proposal "is perhaps something we should take a look at."
About four years ago, he noted, Kansas made it a crime for teachers to have sex
with their students.
To reach Joe Lambe, call 816-234-7714 or send e-mail to
com
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[real-eyes] Fw: Sexual Violence Against People With Disabilities

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