Texas law opens doors for sexual assault victims with disabilitiesWritten by Megan Westmore
Say her name is Claudia. She is a young woman with an intellectual disability who was sexually assaulted by her legal guardian.
In Texas, until this September, Claudia could not have quick access to a sexual assault forensic exam without consent from her guardian – the same person who assaulted her. But now, thanks to HB 4531, a bill passed in the most recent Texas legislative session, one barrier to prosecuting sexual assault against survivors with disabilities has been removed.
Texas sexual assault survivors generally have four days from the time they are assaulted to receive a medical exam to collect possible DNA evidence for use in a prosecution. Some counties, like Travis, allow five days.
People with intellectual disabilities are seven times more likely to be sexually assaulted than people without disabilities.
Prior to the passage of the new law, survivors with legal guardians were forced to wait for their guardian’s approval to start a forensic exam. This was a problem if the guardian was also the assailant, could not be located in time, or refused to provide consent. Forcing these survivors to wait to receive medical care and to have a forensic exam could not only be traumatizing, but it also allowed evidence to degrade or to possibly not be collected at all.
Beginning in 2018, advocates from SAFE, Texas Council on Developmental Disabilities, The Arc of Texas (TAOT), Texas Association Against Sexual Assault (TAASA), Disability Rights Texas (DRTx), and others worked together to support legislation that would allow survivors like Claudia to make their own decisions about collecting forensic evidence.
HB 4531 passed through the legislature unanimously and was signed into law by the Governor’s office. The law took effect on Sept. 1, 2019.
The law makes it clear that, once survivors with intellectual disabilities demonstrate that they understand the nature of a forensic exam, they may provide their own consent for the exam. The majority of people with intellectual disabilities can provide informed consent, even if they have a guardian. Simple accommodations like using plain language or communication technology can help ensure they do have a truly informed choice. In the relatively rare circumstance where a survivor is unable to demonstrate that they can provide informed consent, the law allows a relative, caregiver, or Adult Protective Services staff to provide consent.
Access for all
In the time of crisis following a sexual assault, no survivor should be denied services because their guardian is abusive or cannot be located. SAFE and other victim service agencies have a legal and moral obligation to provide accommodations to survivors with disabilities so they can fully participate in the forensic exam process.
HB 4531 has the potential to greatly increase access to sexual assault crisis services for all survivors. It may also improve the prosecution of sexual assault of survivors with intellectual and other cognitive disabilities, one of the populations most vulnerable to experiencing this type of crime. This is one crucial step toward ensuring that the sexual abuse of people with disabilities no longer goes “unrecognized, unprosecuted, and unpunished.”
If you or someone you know has been sexually assaulted, SAFE can help. Nurses at Eloise House, our on-site forensic clinic, provide free sexual assault forensic medical exams 24/7. Call the SAFEline at 512.267.7233, text at 737.888.7233, or chat online at safeaustin.org/chat for more information.
This project was supported by Grant No. 2017-UD-AX-0008 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/ program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.