Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but-contend that the doctrine of incapacity may be applicable and useful in some cases where the accused has exploited the complainant's disability. They argue that capacity to consent to sexual activity should be defined situationally, rather than as an all-or-nothing measure. Since consent is given to a specific person in a specific circumstance, incapacity should be also assessed by reference to the particular context of the case. This approach to incapacity has been adopted in English and American cases, which provide examples of how it might be applied and understood in Canada. A situational definition of incapacity offers some legal recognition of the particular challenges faced by women with mental disabilities with respect to sexual abuse, without disqualifying them from any lawful sexual activity in other contexts.
En regle generale, les poursuites pour agressions sexuelles se concentrent sur la question de savoir si la Couronne a reussi a demontrer que la plaignante n'avait pas consenti a l'activite sexuelle reprochee, en se fondant sur son etat d'esprit subjectif au moment de l'infraction. Selon le droit penal canadien, toutefois, il est impossible d'obtenir un quelconque consentement valide lorsque la plaignante est incapable de consentir. On observe par ailleurs que, dans les cas ou la plaignante souffre d'une incapacite mentale qui influence sa cognition ou sa prise de decision, les procureurs au Canada sont reticents a plaider l'incapacite de la plaignante a consentir. Dans cet article, les auteurs soutiennent qu'il convient d'invoquer l'incapacite avec prudence, tout en precisant que l'on peut appliquer avec succes la doctrine de l'incapacite dans les cas ou l'accuse a exploite le handicap de la plaignante. Selon ces auteurs, la capacite a consentir a une activite sexuelle devrait etre definie selon les circonstances plutot que de se cantonner a etre un recours du >. Puisque le consentement est accorde a une personne donnee dans une situation specifique, on devrait evaluer l'incapacite en fonction des circonstances particulieres en l'espece. On note que l'on a eu recours a cette approche de l'incapacite dans des causes en Angleterre et aux Etats-Unis, ce qui fournit des exemples sur la maniere dont on pourrait l'appliquer et le comprendre au Canada. Une definition circonstancielle de l'incapacite permettrait de conferer une reconnaissance juridique aux defis propres aux femmes souffrant de handicap mental dans un contexte de violence sexuelle, sans pour autant les empecher d'avoir des rapports sexuels licites dans d'autres circonstances.
Table of Contents I. INTRODUCTION II. STATUTORY PROVISIONS ON INCAPACITY TO CONSENT III. THE LIMITATIONS OF NON-CONSENT FOR WOMEN WITH MENTAL DISABILITIES IV. RECONSIDERING THE MEANING OF INCAPACITY TO CONSENT TO SEX A. The Current Canadian Approach: Capacity as an All-or-Nothing Construct B. American Approaches to Incapacity C. Learning from Two English Cases on Capacity to Consent D. Applying the Situational Approach in the Canadian Context V. CONCLUSION I. INTRODUCTION
In criminal trials, convictions for sexual assault are often dependent on the testimony of the female complainant; in many cases, she is the only lay witness. Where sexual activity is acknowledged but consent is disputed, the complainant's evidence is usually necessary to prove non-consent. Where the complainant has an intellectual, cognitive or developmental disability, the challenges of proving non-consent are magnified. This group of women, whom we refer to as women with mental disabilities, (1) experiences rates of sexual assault even higher than women generally. For this reason, it is especially important that women with mental disabilities have access to justice in a substantive sense. (2)
We have written elsewhere of the challenges of applying the traditional doctrines of consent and honest belief in consent in some of these sexual assault cases and have argued that incapacity to consent needs to be reconceptualized. (3) In this article, we consider in more detail whether reframing the doctrine of incapacity to consent in Canadian criminal law might be a useful development for some cases where women with mental disabilities complain of sexual assault. Particular attention will be directed to how that doctrine has been applied in recent decisions in England and the United States. While there is a considerable body of literature analyzing the meaning of non-consent in the law of sexual assault, comparatively little consideration has been given to the threshold for incapacity to consent. We examine how incapacity might be defined more consistently with women's equality and with the recent legal developments in the understanding of non-consent more generally.
Furthermore, we argue that incapacity to consent is invoked infrequently by prosecutors in Canadian courts in part because it is understood as a fixed status that disqualifies women from any consensual sexual activity. We suggest instead that incapacity can and should be defined situationally--in a functional manner that maximizes women's sexual self-determination while still recognizing when they are exploited in situations of power imbalance. Disability rights advocates have supported this approach to incapacity in other contexts. (4)
Finally, we consider the difficult question of whether expanding the use of incapacity is truly necessary, or whether it merely masks deficiencies in our understanding of the existing categories of non-consent and abuse of trust or authority. We conclude that a doctrine of situational incapacity could be useful in some cases by recognizing the exploitative context that exists in many sexual assault cases involving women with mental disabilities. We caution, however, that where there is no evidence that the complainant consented, these cases should be decided on the basis of non-consent before resorting to a doctrine that puts even partial limits on a woman's right to make decisions about sexual activity.
STATUTORY PROVISIONS ON INCAPACITY TO CONSENT
The sexual offence provisions of the Criminal Code (Code) remained largely unchanged from 1892 until the major reforms of the 1980s and 1990s. During this time, the Code contained an offence, less serious than rape, of unlawful carnal knowledge with "any female idiot or imbecile" (5) later expanded to include women who were "feebleminded" (6) or "deaf and dumb." (7) The offence was premised on the incapacity of these categories of women to engage in lawful sexual activity. Because non-consent was defined legally in terms of a victim's resistance, the carnal knowledge offence was notionally designed to account for the failure of women with "mental disabilities to offer resistance to sexual advances. The assumption that these women would not resist was partly rooted in the stereotype that they were sexually indiscriminate and subject to base instincts. Moreover, women with disabilities were assumed to be unsuitable for procreation, which bolstered the conclusion that they ought not to engage in sexual activity. (8) Nonetheless, the offence does not appear to have often been successfully prosecuted and any protection it might have offered was largely illusory. (9)
In the major 1982 amendments to the sexual offences in the Code, the old offences of rape and indecent assault were replaced with the gender-neutral offence of sexual assault, which requires proof of the application of force (any physical contact) in circumstances of a sexual nature and a lack of consent. The "carnal knowledge of the feeble-minded" offence was repealed. (10) One of the major purposes of these changes was to create a single offence of sexual assault for all victims and for all non-consensual sexual acts, rather than have the patchwork of offences that were contained in the prior Code.
One of the problems with the new scheme, however, was that consent was not defined in the statute. Courts were left to interpret the meaning of consent and to identify the situations in which it might be vitiated. Further reforms in 1992 added a definition of consent as the voluntary agreement of the complainant to engage in the sexual activity in question, as well as a non-exhaustive list of factors that are deemed not to equal consent. (11) Included in these factors is the provision that "No consent is obtained ... where the complainant is incapable of consenting to the activity." (12) Incapacity, however, is not defined in the statute, and so its definition is once again left to judicial interpretation. Courts have considered this provision in a variety of contexts including incapacity from intoxication, unconsciousness and disability. (13)
These changes to the Code in the 1980s and 1990s occurred at a time when advocates for persons with mental disabilities were arguing that all adults ought to be able to develop their sexuality and to experience sexual relationships with others. These advocates argued that persons with mental disabilities ought not to be presumptively excluded from sexual activity as a matter of basic human rights. This led to the development of sexual health education and training for persons with mental disabilities, particularly those who were living in institutions or group homes. (14)
Michelle McCarthy has argued that little of the early sexual...