Hearing the sexual assault complaints of women with mental disabilities: consent, capacity, and mistaken belief.

• Author: Benedet, Janine

Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief.

The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against this group of women, the authors engage two key theoretical tensions: (1) the supposed dichotomy of protection and autonomy, and (2) the shift from biomedical to social models of disability.

The authors conclude that the substantive law of sexual assault is inadequate to meet the needs of women with mental disabilities. The authors propose, as a partial solution, a reformed legal analysis that focuses on the accused's abuse of a relationship of power or trust, the accused's coercive behaviour, and the complainant's voluntariness. While the authors acknowledge that women with mental disabilities face certain unique challenges, they reject the creation of special legislative provisions as a solution; they assert instead the importance of recognizing the common experience of inequality that this group shares with other women.

In a subsequent paper, published in Issue 3 of Volume 52 of the McGill Law Journal, the authors examine whether the present procedural and evidentiary laws allow the stories of women with mental disabilities to be heard and responded to in Canada's criminal justice system.

Les femmes souffrant de deficiences mentales sont souvent victimes d'agression sexuelle. Les auteures tracent l'historique des dispositions de droit criminel en la matiere dans le but d'evaluer si le droit substantiel est apte a repondre aux besoins de ces femmes. Les auteures mettent de l'emphase particulierement sur les questions de droit tel que le consentement, la capacite et la croyance erronee.

Les auteures situent cette discussion dans le contexte des debats actuels sur les theories feministes et la theorie critique sur l'incapacite, basant leur theorie sur la recherche academique ayant trait a l'agression sexuelle des femmes soufrant de deficiences mentales. Prenant en consideration la facon dont le droit traite la violence sexuelle contre ce groupe de femmes, les auteures presentent deux courants theoriques : (1) celle de la pretendue dichotomie entre la protection et l'autonomie et (2) celle du transfert du modele biomedical au modele social de l'handicap.

Les anteures concluent que le droit substantiel sur l'agression sexuelle est inadequat en guise de reponse aux besoins des femmes soufflant de deficiences mentales. Comme solution partielle, les anteures proposent une analyse de l'abus d'une relation de pouvoir ou de confiance par l'accuse, du comportement coercitif de l'accuse et de la volonte du plaignant. Bien que les auteures admettent que les femmes avec des problemes d'ordre mentaux font face a certaines difficultes uniques, elles rejettent la possibilite d'instaurer des dispositions legislatives distinctes. Par ailleurs, ceux-ci mettent l'emphase sur l'importance de reconnaitre l'experience collective d'inegalite que ce groupe partage avec le reste des femmes.

Dans un article subsequent, publie dans le troisieme numero du volume 52 de la Revue de droit de McGill, les auteures analysent le droit de la procedure et celui de la preuve en se demandant si ces branches du droit donnent la possibilite aux femmes soufrant de deficiences mentales et qui ont subi une agression sexuelle d'etre ecoutees et si la justice criminelle du Canada repond a leurs besoins.

Introduction I. History of the Criminal Code Provisions II. Mental Disability and Sex Discrimination III. The Reality of Sexual Assault for Women with Mental Disabilities IV. The Legal Treatment of Sexual Assault Complainants with Mental Disabilities A. Our Study B. Elements of Sexual Assault: Consent, Capacity, and Mistaken Belief 1. Consent 2. Capacity To Consent 3. Mistaken Belief a. Mistaken Belief in Consent b. Mistaken Belief in Capacity V. Discussion A. Coercion and Voluntariness B. Abuses of Power or Trust C. Rethinking Capacity to Consent Conclusion Introduction

Women with mental disabilities experience high rates of sexual assault. (1) In this article, we evaluate whether the criminal law of sexual assault, both in its statutory provisions and in the way that courts apply the law, is taking into account the experiences and meeting the needs of women with mental disabilities.

Over the past fifteen years, the criminal law of sexual assault has undergone significant amendment. These changes were driven in part by criticisms that sexual assault laws were based on sexist assumptions and stereotypes that impede women's access to full and equal justice.

In assessing whether our current legislative provisions are adequate to meet the needs of complainants with mental disabilities, we consider whether targeted legislative provisions for this group of complainants are necessary and/or appropriate. In particular, we consider the effect of the 1998 offence of sexual exploitation of a person with a disability, as well as the meaning of incapacity to consent as it is applied to complainants with mental disabilities. We also discuss whether the evolving definitions of consent and mistake of fact are being developed in the case law with this group of complainants in mind.

Having reviewed the case law, we conclude that the law fails to provide justice for women with mental disabilities. The substantive law of sexual assault is, in many respects, premised on the assumption that complainants do not have disabilities. We suggest that by moving the experiences of women with mental disabilities from "[m]argin to [c]entre," (2) we stand to gain in our understanding of sexual violence as an act of sex discrimination against all women. In particular, we argue that the supposed dichotomy between, on the one hand, the need to protect women from sexual exploitation and, on the other hand, the need to promote the sexual autonomy of women, is not a useful or accurate way of thinking about sexual violence. Rather, freedom from sexual violence is a necessary precondition for sexual autonomy. When feminist theory focuses on the supposed tension between autonomy and protection, this reality is obscured.

This is the first of two papers examining the effectiveness of sexual assault law in this context. We focus here on the substantive law dealing with the elements of sexual assault in the Criminal Code (3) and the ways in which courts interpret and apply these provisions; we pay special attention to the issues of consent, capacity, and mistaken belief. In a subsequent paper, we examine the law that governs the criminal trial process, with the aim of determining whether procedural and evidentiary laws allow the stories of women with mental disabilities to be heard and responded to by the criminal justice system. (4)

The present paper begins with a review of the history of the criminal law's treatment of sexual assault cases involving women with mental disabilities as well as modern legislative attempts to address this category of sexual assault. We situate this discussion in the context of current debates in feminist and critical disability theory. We then use our analysis of the case law on the substantive elements of sexual assault to reconsider these debates. Our analysis draws out both the common experiences that women with mental disabilities share with other women, as well as the unique challenges that this group of women faces in attempting to seek justice.

1. History of the Criminal Code Provisions

   The Criminal Code ("Code") has addressed the sexual assault of women with disabilities in various ways since its inception. The original 1892 Code contained a provision making it an offence to have "unlawful carnal knowledge" of any "female idiot or imbecile, insane or deaf and dumb woman or girl, under circumstances which do not amount to rape but which prove that the offender knew, at the time of the offence" that the woman belonged to one of the groups listed. (5)

   The offence was made more expansive in ensuing versions of the Code. In 1900, the knowledge requirement was changed, slightly, to include situations in which the accused "had good reason to believe" that the complainant fell into one of the listed categories. (6) Later versions were expanded to include women who were "feebleminded", which the Code defined as including "a person in whose case there exists from birth or from an early age, mental defectiveness not amounting to imbecility yet so pronounced that he or she requires care, supervision and control." (7) This version continued in force until 1954, when the language was changed slightly and the reference to "deaf and dumb" removed. The maximum penalty of four years imprisonment (increased to five years in 1954) was lower than for the crime of rape, which carried a maximum penalty of death (later reduced to life imprisonment). (8)

   This lesser offence was likely considered necessary because the general crime of rape was extremely difficult to prove, even for women who did not have disabilities. In order to prove that sexual intercourse had occurred without the woman's consent, the Crown usually had to show that the woman had physically resisted the accused or that she failed to resist because of threats of violence. (9) In cases where the complainant had a mental disability, there might have been no physical resistance and no evidence of threats by the accused that could be relied on to explain why resistance was absent.

   In one sense, then, the targeted offence could be seen as a progressive step within the confines...