COFAR blog

Although the Department of Developmental Services (DDS) substantiated a sexual abuse charge in 2018 against the supervisor of a day program for allegedly raping a client of the program, the Suffolk County District Attorney’s Office has apparently not brought criminal charges against the supervisor.

The case has resulted in a lawsuit brought by the victim’s mother against the supervisor and the day program provider, Work, Inc.

The case offers insights into why sexual abuse of disabled individuals happens so often in day and residential programs and why it is so difficult for victims of the crimes to obtain justice.

The lawsuit states that on September 5, 2018, a supervisor at the Dorchester-based day program allegedly “coerced and intimidated (the victim) to follow him into a separate room on the premises. He then physically forced her into the bathroom and raped her.”

The Boston Globe reported last month that DDS investigated and substantiated the sexual abuse allegation against the supervisor, based primarily on a medical examination that revealed physical evidence of rape.

According to the lawsuit, the victim, who is deaf, was unable, due to her disability, to call out for help during the alleged assault. The following day, September 6, the victim disclosed to a staff member at WORK, Inc. that she had been sexually assaulted by the supervisor, the complaint stated.

Both the Globe and an attorney for the victim stated, however, that no criminal charges have been brought against the supervisor.

John Martin, an attorney representing the victim, said that the alleged assailant’s employment was terminated after the complaint was substantiated by DDS. He said, however, that no disciplinary action was taken against the assailant’s supervisors or the program manager.

COFAR has asked the Suffolk County District Attorney’s Office why criminal charges have not been filed in the case. Thus far, the office has not responded.

“We do not know why they (the Suffolk County DA) did not prosecute or arrest the assailant,” Martin told COFAR. “The fact that he was not arrested is unfathomable to me.”

The name of the victim is being withheld. The supervisor is referred to in the lawsuit as “John Doe.” The lawsuit is seeking $1 million in damages.

Lawsuit reveals problems with safety of DDS system

The lawsuit alleges several lapses or omissions  in Work, Inc.’s safety procedures in its day program. Among them are that Work, Inc. “failed to maintain proper policies and procedures to protect (clients’) safety… failed to properly supervise and monitor their staff and their (clients) while on the premises, and … failed to maintain any type of surveillance on certain areas of the premises.”

The complaint specifically alleges that Work, Inc. had no security measures in place in separate parts of the facility, such as surveillance cameras, and had no policies regarding monitoring or safety checks on clients when they “stepped away from the main area where the program was conducted.”

Also, Work, Inc. didn’t have any formal policies or procedures “regarding instructors and staff being alone with disabled clients in the program,” and didn’t have any policies in place “specific to female disabled (clients).”

According to the lawsuit, Work, Inc. was also negligent in waiting several hours after the victim disclosed to a staff member that she had been sexually assaulted by the supervisor before sending her to the South Shore Hospital ER to undergo a Sexual Assault Nurse Exam (SANE).

And Work, Inc. failed to send a sign language interpreter with the victim to the hospital. No interpreters were available at the hospital either, so the victim was forced to wait until the next day to undergo the exam, the complaint stated.

In addition, the complaint alleges that Work, Inc. “failed to exercise reasonable care in hiring, training, and supervising (the supervisor),” who the complaint alleged was “unfit and/or incompetent to perform the work for which he was hired.”

We are concerned that Work, Inc. is not alone in failing to maintain proper policies and procedures to protect clients in both day and residential programs. Some of these measures can be costly, and it has become apparent that many corporate providers that dominate the DDS system are more focused on keeping their costs down rather than keeping clients safe. (See here and here.)

Case was referred to the Suffolk County DA, which apparently has not brought charges

It is our understanding that under state regulations, this incident should have been reported to the Disabled Persons Protection Commission (DPPC). Also, under DPPC regulations, the DPPC should have referred it to the Suffolk County District Attorney for a crminal investigation. I first checked February 23 with the DA’s office, and was told there was no record of the case having been referred to them.

Martin contended, however, that he has emails indicating that the rape allegation had been referred to the Suffolk County DA, which” allegedly conducted an investigation, including an interview of the assailant.”

On March 1, after talking with Martin, I called the DA’s office back and reached a supervisor who said she would  ask the DA’s High Risk Crimes Unit about the matter. She said it is possible that the DA’s office concluded that there was not enough evidence to bring charges, but that she didn’t know if that was the case here.

The supervisor also said that since we are not directly involved in the case, she might not be able to give me any information about it, but that she would get back either way. To date, we have not heard back.

It is hard for us to believe that the DA would not have sufficient evidence to bring charges in a case like this in which the victim had not only reported the assault and identified the alleged assailant, but DDS had substantiated her allegation.

Alleged assailant’s name will apparently not go into Nicky’s Law registry

Given that DDS substantiated the alleged rape in 2018, it does not appear that the alleged assailant’s name would be placed in a new state registry of names of substantiated abusers of persons with developmental disabilities in Massachusetts.

Under Nicky’s Law, persons whose names are placed in the registry are banned from further employment in DDS-funded facilities. Nicky’s Law, however, went into effect in July 2021.

In this case, it would appear the Work, Inc. supervisor, whose alleged assault was substantiated in 2018, could be continuing to work in another day or residential program in the system.

Criminal charges are rare in assaults of people with developmental disabilities

If the Suffolk County DA is reluctant to bring charges in a sexual assault case involving a developmentally disabled victim, the office would not be alone. Prosecutions of assaults against disabled persons are apparently rare.

Perpetrators, in fact, are aware that women, in particular, with developmental disabilities ”are less likely to be believed by police, judges and juries” when they say they have been sexually assaulted, according to researchers at the University of British Columbia.

The researchers, Janine Benedet and Isabel Grant, noted that experts in criminal court proceedings often portray  women with developmental disabilities as “having childlike levels of intelligence” in order to undermine their credibility  as witnesses “in ways that would be impermissible for other women.”

In addition, the researchers contend that while women with developmental disabilities are often “infantilized,” their  ”vulnerability disappears” when considering whether they actually gave consent,  and instead they are “portrayed as desperate for male attention or as overly friendly.” (Links in the orignal.)

Martin said, in fact, that recent correspondence from Work, Inc.’s defense counsel suggests they are intending to pursue a “blame the victim defense” and have instructed him to “preserve all evidence of the ‘relationship’ between our client and her rapist.”

This would be a particularly disturbing legal strategy by Work, Inc., in our view.  We don’t understand how it is possible that someone could argue that a sexual relationship between a developmentally disabled client of a day program and a supervisor of that program could be consensual.

In discussing when an individual can be considered to have given sexual consent,  Alexander A. Boni-Saenz  wrote in Psychiatric Times that the individual “must be willing to express volition, have the ability to control one’s choices, and not be overly susceptible to outside influence.”

DDS reportedly discounts second alleged assault of victim by another staff

Martin said that the victim in this case was recently assaulted again at the same Work, Inc. facility when an employee “flirted with her and slapped her on the buttocks.” He said DDS has opened another investigation, but that their opening letter “included some very disappointing and alarming language that indicates they are treating the complaint with a great deal of skepticism.”

Specifically, Martin said, the DDS investigator “took pains to point out that the assault was not witnessed by other employees, a fact that should be irrelevant given that no one witnessed an anal rape that was medically confirmed.”

Charitable Immunity cap

Adding to the difficulties that developmentally disabled victims, such the victim in this case, face in seeking justice is a state law limiting legal liability for nonprofit organizations in Massachusetts in abuse and neglect cases.

Under the the Charitable Immunity Law (M.G.L. c. 231, s. 85K), any damages assessed against Work, Inc. would apparently have to be whittled down to $20,000. We are advocating on Beacon Hill for ending or changing the law to eliminate the $20,000 cap.

Martin maintained that,“ There are ways around the cap and we intend to pursue all of them in this case.”

It is likely, however, that the Charitable Immunity Law will present one more difficulty in a long series of difficulties that the victim and her family in this case will face in order to realize a measure of redress for what happened to her more than three years ago.