Is it fair to convict a man of sexual assault based in part on the word of a disabled woman with the mental age of a three- to six-year-old, who can't explain the difference between truth and lies?
That was the tough question before the Supreme Court of Canada last week. To answer "no" might deprive mentally challenged adults of a voice in court, leaving them virtually unprotected by the law.
The court answered well. Sticking to the text of a 1987 law, which allows mentally disabled adults to testify on a promise to tell the truth, as long as they can communicate evidence, the majority in the 6-3 ruling said it was wrong to ask the Ontario woman to explain what truth means.
A transcript of her questioning at the hands of a Crown attorney and the trial judge shows why this was a sound ruling. The Crown says he is wearing a black gown, and asks her if that is the truth or a lie. "The truth," she says. "And why is that?" "I don't know." "Is it a good thing or a bad thing to tell the truth?" "Good thing." "Is it a good thing or a bad thing to tell a lie?" "Bad thing." She understands that truth is good, lies are bad. But she can't explain why.
The trial judge asks if she has been taught about God. She hasn't been. "What happens if you steal something?" "I don't know." "Tell me what you think about the truth." "I don't know." "Is it important to tell the truth?" "I don't know." "What's a promise?" "I don't know." He insists on an explanation that she is not capable of.
Not all testimony is equal; a judge decides how much weight to give it. But to cut off the possibility of testimony from disabled adults because they have trouble verbalizing what they understand of truth and lies is an arbitrary approach. It doesn't get at what they know, just at what they can explain about what they know.
That 1987 law permitting disabled adults to testify on a promise to tell the truth came after various scandals and studies revealed startling levels of victimization of disabled people. Truth is the only safe ground to stand on, someone once said, and mentally disabled adults should not be arbitrarily denied a piece of that ground.