Case rests on disabled victims

For prosecutors, the two developmentally disabled men are among the most challenging sex-crime victims to bring before a jury. Both have the mental ages of small children, one with an IQ of 33.

This month, the men are expected to enter Pierce County Superior Court and face Wei Tang Chen, a former Department of Social and Health Services employee accused of raping them last year at Rainier School, a state-run home in Buckley for the mentally retarded. A third alleged victim never learned to speak and will not participate in the trial.

Since there is no physical evidence, the case will rest largely on the strength of the two men's testimony, said Pierce County Deputy Prosecutor Diane Clarkson. "I'm very nervous because I don't know if my guys can meet the challenge. It's a fragile case," she said.

The state's case would be more compelling, according to Clarkson, if she could call to the stand the counselors and investigators at Rainier School who initially heard the men's stories and called police.

Such "hearsay" testimony — where a person hears of a crime but did not see it — is allowed in sex-abuse cases involving children under 10. But it is prohibited in most other criminal cases — including abuse cases in which the victims are adults but have the mental age of children.

A bill before the state Legislature last year that would have expanded the so-called hearsay exemption to include elderly and developmentally disabled victims failed, even though it was backed by the state Attorney General's Office.

Law-enforcement officials say they will try again next year to pass the bill, and fix a law they say fails to provide justice to vulnerable adults who can't speak for themselves.

According to DSHS files, Chen began working for Rainier School in 1984.

On March 24, 2000, another counselor reported seeing Chen on top of a nonverbal resident who was partly clothed. When the counselor confronted Chen, Chen allegedly placed $40 in his hand and told him not to say anything.

Court records indicate that Chen was immediately relieved of duty. He was formally dismissed from DSHS on Feb. 22. Chen has appealed the decision to the state Personnel Appeals Board.

When counselors began interviewing residents of a dormitory under Chen's supervision, another man said Chen had sex with him "lots of times," according to charging papers.

The third man came forward to investigators several months later.

Chen has pleaded not guilty to charges of rape and indecent liberties. His attorney, Hugh McGavick, said yesterday his client is innocent of all charges.

The exemption that allows hearsay to be introduced in cases involving victims 10 years old and younger has existed since 1982.

Last year, the state Attorney General's Office helped draft the bill that would have extended the hearsay exemption to the elderly and developmentally disabled.

The goal was to provide justice for adults who may not be able to participate in a trial, said Elaine Rose, senior assistant attorney general for policy and government relations.

Supported by advocates for the aged and the mentally retarded, the bill was opposed by criminal-defense lawyers and lobbyists for the nursing-home industry.

Rose conceded that it's a complicated issue. Most people involved in the criminal-justice system agree that witnesses should only testify about what they saw, not what they heard.

"It's not a black-and-white issue," she said. "I think there is a still a need for it, but it may take a while to work through."

Jennifer Shaw, co-chairwoman of the legislative committee of the Washington Association of Criminal Defense Lawyers, said she was sympathetic to the mentally ill and others, but she lobbied against the hearsay exemption for vulnerable adults.

"I don't see a purpose in it. I think we need more competent care providers," she said.

Clarkson, the Pierce County prosecutor, wishes she could put Rainier School counselors on the stand to tell the jury what the two men said about the abuse.

But Clarkson must rely instead on the testimony of the developmentally disabled men. In preparation, she has taken the men on visits to Pierce County Superior Court to show them the witness box and where the lawyers will sit. And she plans to call a lot of recesses to relieve the pressure of trial.

"I can't imagine that in 2001 we don't have laws on the books to protect vulnerable adults," she said. "I'm hoping for a conviction so people at Rainier School know they have a voice and that people are listening."

Alex Fryer can be reached at 206-464-8124 or afryer@seattletimes.com.