Psycho-legal issues surrounding the rape of children and adolescents with mental retardation

Abstract

The rape of individuals with mental retardation poses challenges for the judicial system as well as for the survivors themselves. As a result, the courts tend to refer these individuals for forensic mental health examination to assist them in proceeding with criminal trials. This sequence of events may appear unusual, considering that these individuals have already suffered significant trauma, and yet have to undergo mental health evaluation before the trial can begin. The questions posed by the courts to mental health experts deal with the cognitive assessment of the rape survivor, the survivor's ability to testify, and her/his capacity to consent to sexual intercourse. The paper provides an outline of this situation within the authors' work context in the KwaZulu-Natal Midlands, and also engages in a critical discussion of the issues involved in such forensic examinations, taking into consideration the implications for the expert witness and her/his approach to such examinations.