Hearing the sexual assault complaints of women with mental disabilities: evidentiary and procedural issues.

• Author: Benedet, Janine
• Position: Canada

When a woman with a mental disability makes a complaint of sexual assault, she must confront a criminal trial process that was not designed in contemplation of her as a witness. The requirements of repeated testimony under oath and the ability to be cross-examined are hot always well-suited to the particular needs and capacities of women with mental disabilities. These problems are magnified by the tendency to infantilize women with mental disabilities, thereby diminishing their credibility and depicting them as hypersexual when they engage in any sexual activity. These stereotypes also manifest themselves in the application of evidentiary rules relating to evidence of sexual history and records in the hands of third parties. In this way, the disabilities of these women are not merely physiological in an "objective" sense, but are also constructed by the trial process itself. This article considers how the experiences of women with mental disabilities demand modifications to evidentiary and procedural rules in sexual assault cases in ways that are consistent with the right of the accused to a fair trial. It also uses these experiences to reflect on the purported tension between sexual freedom and protection from violence that is evident in the feminist literature on sexual assault. The authors argue that substantive equality demands greater efforts to ensure the full participation of women with mental disabilities in the criminal trial process.

Lorsqu'une femme atteinte d'une deficience mentale depose une plainte d'abus sexuel, elle se retrouve a devoir affronter un processus judiciaire penal non concu initialement pour l'entendre en tant que temoin. Les exigences propres aux temoignages repetes sous serment et la capacite de subir un contre-interrogatoire ne sont pas toujours adaptes aux besoins et aux competences particulieres de femmes atteintes de troubles mentaux. Ce probleme n'est qu'aggrave par la tendance d'infantiliser ces femmes, ayant pour effet de diminuer leur credibilite et de les depeindre en tant qu'hypersexuelles des lors qu'elles entretiennent des rapports sexuels. On retrouve ces stereotypes egalement au niveau de l'admissibilite de la preuve de rapports sexuels anterieurs et de documents appartenant a des tiers. Le handicap de ces femmes n'est donc pas seulement physiologique de facon objective, il est aussi fabrique par le processus judiciaire. A travers les experiences de ces femmes, les auteures demontrent la necessite de modifier les regles de preuve et de procedure dans les cas d'abus sexuel, tout en respectant le droit de l'accuse a un proces juste. Ils se servent egalement de ces experiences pour illustrer la tension entre la liberte sexuelle et la protection contre la violence suggeree par la litterature feministe portant sur l'abus sexuel. Les auteures soutiennent que de plus grands efforts sont necessaires au niveau de l'egalite substantielle afin d'assurer aux femmes atteintes d'une deficience mentale une participation totale au sein du processus judiciaire penal.

Introduction The Infantilization of Women with Mental Disabilities II. Evidentiary Issues A. Competence to be Sworn and the Use of Hearsay Evidence B. Capacity to be Cross-Examined C. Corroboration D. Sexual History Evidence E. Third-Party Records F. Credibility 1. Disability Undermining Credibility 2. Credibility of Caregivers and Parents III. Discussion Conclusion Introduction

Most of the sexual assaults that men commit against women are never reported to the police. (1) One of the most common reasons that women give for not reporting such assaults is that they are wary of the treatment they will receive at the hands of the police and the courts. (2) Women express concerns that their claims will not be believed, that their sexual and mental health history will become public, and that they, rather than the man who committed the sexual assault, will become the focus of the investigation. These concerns are magnified for women with mental disabilities. Women with developmental disabilities, psychiatric disabilities, or brain injuries affecting intellectual ability or communication (3) have particular difficulties in accessing the criminal justice system as sexual assault complainants.

In an earlier article, we traced the history of the criminal law as applied to sexual offences against women with mental disabilities and demonstrated that the law has often not reflected the interests of these women. (4) Our analysis considered this history in the context of both feminist and critical disability theory. We argued that much of this history has been steeped in two conflicting stereotypes about women with mental disabilities: that they are either asexual and childlike, on the one hand, or oversexed and indiscriminate in the choice of their sexual partners on the other. These stereotypes are in some ways reflected in the perceived tension in the feminist literature between the need to protect women with mental disabilities from exploitative men and the importance of promoting their sexual autonomy. Measures designed to offer protection are sometimes criticized as overprotective and too prescriptive of appropriate sexual behaviour. Yet emphasizing sexual autonomy has been viewed as leaving women open to abuse. (5) Critical disability theory, like feminist theory, has also faced internal tensions, in particular over the meaning of "disability". Scholars have debated whether disability should be understood not according to a biomedical model, but rather as a social construct that views "disability" as a category created by social norms that fail to incorporate the full diversity of human beings and their ways of living. (6) This debate has arisen primarily in the context of physical disability, and it is important to consider whether it offers any insights in the context of mental disability.

Our goal has been to use the experiences of women with mental disabilities who complain of sexual assault by men to reconsider these supposed tensions. To that end, we examined approximately one hundred written judgments involving sexual offences against complainants with mental disabilities over the past two decades. (7) We set out to determine whether changes in the law during that period have benefited women with mental disabilities, and to identify the challenges and concerns raised by applying the elements of sexual assault--specifically consent, capacity, and mistaken belief to this group of complainants. The cases we reviewed bore out our assertion that sexual autonomy may be a hollow value if there is no safe context in which to exercise it.

We concluded that the situation of women with mental disabilities makes clear that the perceived dichotomy between protection and autonomy is largely a false one, because women with mental disabilities appear to enjoy very little of either. Rather, protection from exploitation is a prerequisite for any meaningful sexual autonomy.

We were struck by the similarities in the challenges facing complainants who have been labelled as having mental disabilities and those who have not: both groups of women are subject to having the quality of their resistance to unwanted sexual advances brought into question, to having their previous sexual experiences used inappropriately to interpret the particular sexual encounter at issue, and to having superficial reference made to sexual autonomy at the expense of the protection of bodily and psychological integrity from exploitation by men in positions of power over them. The fact that the issues are similar does not mean that their resolution is identical. Instead, disability intersects with gender to filter judges' responses to these legal issues in ways that uniquely disadvantage women with mental disabilities.

Nonetheless, while we acknowledged in our earlier work that there are arguments for having a specialized offence targeted at those who sexually assault women with disabilities, we concluded that we should have one law of sexual assault that recognizes the similarities and differences among all women rather than a distinct provision that tries to carve out a group of women as "different" from other women. Arguing that the definition of sexual assault should be the same for all women does not mean denying that women with mental disabilities face increased risk of sexual assault, or that they lack equal access to having their stories heard in the criminal justice system. A commitment to substantive sex equality requires not merely inclusivity, but also placing these women at the centre of our analysis of sexual assault law as opposed to treating them as exceptions that do not "fit" the regular law.

Our work to date has focused on the substantive elements of the crime of sexual assault. But at the same time that complainants with mental disabilities must confront concepts of consent, capacity, and mistaken belief that were not developed with their experiences or realities in mind, they also face barriers to the receipt of their testimony in court.

In this article, we examine whether existing, well-entrenched evidentiary and procedural rules disadvantage women with mental disabilities in the trial of sexual assault charges in ways that are specific to the intersection of discrimination on the grounds of sex and disability. As in our previous paper, we use the alleged dichotomy between autonomy and protection as a lens through which to assess the case law. Courts need to be made accessible, in the broadest sense of the word, to women with mental disabilities. The rules of evidence and procedure need to be sufficiently flexible in order to hear their stories in a manner that recognizes the individual circumstances of the complainant's disability while demonstrating respect for her as a human being.

Some of the evidentiary questions that we address in this paper apply to all complainants, while others are of special concern for women with mental...