Court Access for People with Aphasia Case to Determine Permissibility of Communication Accommodations Features
Features  |   February 01, 2011
Court Access for People with Aphasia
Author Notes
  • Susan Boswell, is former assistant managing editor of The ASHA Leader.
    Susan Boswell, is former assistant managing editor of The ASHA Leader.×
Article Information
Language Disorders / Aphasia / Features
Features   |   February 01, 2011
Court Access for People with Aphasia
The ASHA Leader, February 2011, Vol. 16, 1-7. doi:10.1044/leader.FTR6.16022011.1
The ASHA Leader, February 2011, Vol. 16, 1-7. doi:10.1044/leader.FTR6.16022011.1
A court case is underway in Massachusetts that highlights the legal challenges faced by people with aphasia who want access to communication to be able to participate in criminal cases. Ruby McDonough, a crime victim who has severe expressive aphasia, is fighting for her right to testify in her alleged assailant’s trial with access to accommodations that will give her the ability to tell the court what happened.
The case has far-reaching implications for people with aphasia, an often-misunderstood disorder of language but not of intelligence. McDonough, 62, claimed that Kofi Agana, 49, an aide at the nursing home where McDonough has lived since a stroke 10 years ago, repeatedly sexually assaulted her. Although McDonough was not able to provide a narrative account of the events to facility staff, family, and police, she could respond to “yes” or “no” questions and was able to communicate through gestures. Occasionally, she can speak a complete sentence.
Agana was arrested in February 2009 and charged with two counts of indecent assault and battery on a disabled person older than 60 and one count of assault and battery on a disabled person older than 60.
During pretrial proceedings, the defense attorney requested a competency evaluation of McDonough. A court-appointed psychologist had concluded that McDonough was competent but would need accommodations to testify.
At the competency hearing, however, the court did not allow accommodations. The defense attorney asked questions such as, “Can you see the defendant?” as he stood in front of the defendant. McDonough had difficulty responding to this type of question, and the Framingham District Court found McDonough not competent to testify.
“The way they questioned her was unfair because McDonough has difficulty with narrative skills,” said Ellayne Ganzfried, executive director of the National Aphasia Association (NAA). “A question such as, ‘Tell me what happened’ is difficult for someone with aphasia. I think she [McDonough] got emotional, as we all do when we are upset. The fact that the court didn’t bring in someone to assist with communication is a concern.”
When an individual has a communication impairment, there may be a subjective judgment that the person isn’t intelligent or competent, said Darlene Williamson, executive director of the Stroke Comeback Center in Vienna, Va. “This is an example of how people with aphasia can be misunderstood and mistreated by society and the courts. Because of her aphasia, the court assumed that McDonough wasn’t intelligent enough to testify. In reality, she just didn’t have the language to express herself.”
A Test Case
Wendy Murphy, a victims’ rights attorney specializing in sex crimes cases and an adjunct professor at New England Law in Boston who is a regular commenter on television news shows, was searching for a test case related to people with disabilities in the criminal justice system when McDonough’s daughter contacted her.
“Her daughter knew that what happened to Ruby was unfair—but she didn’t know it was wrong,” said Murphy, who provided pro bono representation for McDonough. “There has never been a case where the rights of a crime victim under the Americans with Disabilities Act had been enforced. It [the Act] was all about physical access to buildings but not access to participation.”
Murphy filed a special emergency appeal to the Massachusetts Supreme Judicial Court, arguing that McDonough’s rights under the Americans with Disabilities Act had been violated. In an unusual move, the case was reported for full court review. Both the prosecutor and the defense attorney fought vigorously to prevent the case from being heard because they didn’t want it to set a precedent, Murphy said.
Attorneys are normally given 15 minutes to make their case before the court, Murphy noted. “They gave me eight extra minutes because they were so interested in the issue.”
The state supreme court appeal was bolstered by a January 2010 amicus brief in support of McDonough by the NAA, National Disability Rights Network, Judge David L. Bazelon Center for Mental Health Law, Hearing Loss Association of America, Center for Public Representation, Mental Health Legal Advisors Committee, and the Disability Law Center.
“We were proud to support this amicus brief as the lead organization,” Ganzfried said. “We knew this would be a precedent-setting case, and we applaud Massachusetts for taking this case to the next level.”
In August 2010, the Massachusetts Supreme Court ruled that McDonough’s rights had been violated and established new rules that provide a right to accommodations to ensure that witnesses with disabilities are able to testify.
“This will become part of Massachusetts case law and it should be used as a test case nationally to make reasonable accommodations for people with aphasia,” Williamson said.
Advocates also hope the case will provide a strong message to perpetrators who may select victims with disabilities, Ganzfried said. “We need to send a message to the perpetrators that they will be held accountable for their actions. We hope this case will deter potential criminals from selecting victims who may be more vulnerable because of a disability.”
The case was sent back to the trial court, where the judge ruled that the matter was moot because the alleged perpetrator, an illegal alien from Ghana, was in federal custody awaiting deportation. Murphy once again filed an emergency appeal to the state supreme court so that the alleged assailant could be present, and in November, the district court reversed everything and set a January trial date.
“Ruby is so committed to having her day in court,” Murphy said. “If Kofi Agana goes free, Ruby won’t be disappointed. He’s already served two years. It’s not about winning—it’s about respect.”
Legal Challenges
The day before the scheduled January trial, the case took a new turn as the prosecutor again requested another competency evaluation. In a December meeting, McDonough had answered with two different names when the prosecutor asked who assaulted her. Murphy argued that people with expressive aphasia often say the wrong word because words become jumbled in their minds as they try to speak.
The Framingham district court did not order a new competency exam, and the lawyers agreed to allow Marjorie Nicholas, a speech-language pathologist who coordinates the Massachusetts General Hospital Institute Aphasia Center, to examine McDonough. The trial has been rescheduled for early March.
“From what I understand, Ruby is a tough lady. She has a lot of people fighting and supporting her,” Ganzfried said.
For updates on the case, visit the “News Watch” section on The ASHA Leader online.
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February 2011
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