Barriers to Justice for Women with Mental Disabilities

“Canadian courts have always taken the approach that capacity to consent to sexual activity is an all or nothing phenomenon”

When Professor Isabel Grant began a collaborative research project on sexual assault against women with mental disabilities with colleague Professor Janine Benedet in 2007, they planned to write one paper, exploring the fact that while the literature suggested women with mental disabilities were at high risk of sexual violence the case law did not reveal many prosecutions.

“We knew that successful prosecution of sexual assault was very challenging for all complainants and we wanted to explore the barriers that existed for this group of women in particular,” Professor Grant explains.

As their initial research unfolded, however, it quickly became apparent that there were so many unexplored barriers for this group of women that one article could not cover them all. Several years later, the collaboration has evolved into six articles and a book chapter.

Professor Grant researches in a number of areas related to violence against women. Her recent work has included a major study of intimate partner criminal harassment as well as several papers involving the criminalization of HIV nondisclosure, and she has also written and taught in the area of mental health law. With Professor Benedet’s research background on sexual violence, the collaboration has proved an exceptional fruitful combination of expertise. (A profile of Professor Benedet’s work can be found here.)

Their research showed that there were barriers at virtually every stage of the criminal justice system to women with mental disabilities having their stories heard, from the police to Crown counsel, and, if the case made it that far, even at trial. Their first co-authored article on “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity and Mistaken Beliefs”, published in the McGill Law Journal explored issues around consent using the lens of inequality based on sex and disability.

“Canadian law dealing with consent was not developed with this group of women in mind. For example, the Supreme Court of Canada had said that the key element of consent is whether the complainant wanted the sexual activity to take place. But we were finding cases where the complainant may not have known that she had any choice in the matter. She may have been used to complying with demands made by those with authority over her, or unable to remember or reconstruct to police or at trial what happened,” Professor Grant explains.

One of the major conceptual problems Professor Grant and Benedet uncovered was the degree to which women with mental disabilities were infantilized and compared with children. Women in their 20s and 30s are described in the cases as having the mental age of a three-year-old, without any recognition that these women are adults with years of lived experience. Emerging from this language are strangely contradictory stereotypes. On the one hand, because of the analogy to children, many women with mental disabilities were construed as asexual, with the conclusion that no sexual activity is ever appropriate for them. On the other hand, however, we see the somewhat contradictory stereotype that they are hypersexual or “too friendly” if they do have sexual experiences. Where these dual stereotypes could be particularly damaging was in considering issues like sexual history. Professors Grant and Benedet found that it was not unusual to see sexual history evidence readily admitted without the proper process required by the Criminal Code. It was simply assumed to be relevant to the sexual activity at issue.

In a further article, “A Situational Approach to Incapacity and Mental Disability in Sexual Assault Law,” (published in the Ottawa Law Review), Professors Grant and Benedet moved on to suggest a new approach to capacity to consent which would better address situations involving women with mental disabilities. Canadian courts have always taken the approach that capacity to consent to sexual activity is an all or nothing phenomenon: either a woman has the capacity to consent to anyone at any time or never has the capacity to consent to sexual activity with anyone. The result is a potential limit on the sexual autonomy of this group of women, and the resultant reluctance on the part of courts to find incapacity. Professors Grant and Benedet have argued for a contextualized or situational approach to incapacity which recognizes that an individual does not give consent in the abstract but rather in a particular place and time, and with a particular person.

“We were able to find a couple of examples in English and American case law that recognized this possibility and we argued that Canadian courts needed to recast the concept of incapacity from a global concept to a situational one, just as they do in other contexts such as consent to medical treatment. This would also avoid labeling women as completely incapable of participating in consensual sexual relationships,” Professor Grant explains.

In presenting their work on women with mental disabilities at various conferences, Professors Grant and Benedet were often asked about the applicability of their work to older women, both those living in the community and in some form of assisted living. In their latest work together, they have moved on to examine issues around consent and capacity for older women. Reminiscent of their earlier experience, preliminary research has demonstrated how few cases of sexual violence against older women even get to the stage of charges and trial. While social science literature suggests that older victims of sexual assault are most likely to be assaulted by family members, the case law is dominated by cases involving strangers breaking into women’s homes and assaulting them, and their plan is to explore this apparent discrepancy.

“The virtual absence of cases involving familial sexual abuse and caregiver sexual abuse in the community lead us to believe that these cases are not being prosecuted, whether at the reporting level or at the level of deciding whether to lay charges. We are starting to investigate what explains this discrepancy. To supplement the literature and case law, we will be interviewing people working for community organizations that serve this group of women, police and prosecutors, to better understand the barriers involved in these cases,” Professor Grant notes.

Professors Benedet and Grant believe that their research has wide implications for both judicial education and potential law reform. Promisingly, the Irish Law Reform Commission has picked up on their earlier research to suggest significant changes to sexual assault law. Following on their recommendations for allowing women to have a trained support person able to assist women with mental disabilities in testifying, they have also had conversations with Scottish and English judges around how best to accommodate women with disabilities as witnesses in the trial process. There are signs of progress at home, too.

“Although progress is slow, we do see judges in some cases attempting to deal with the complex barriers faced by this group of complainants. We have seen a number of courts across the country relying on our work in this area. The barriers faced by women with mental disabilities are not that different from the barriers that all women face as complainants; they are only more exaggerated versions of the stereotypes and assumptions we make about women who complain of sexual assault. It is time we saw this group of women as paradigmatic complainants of sexual assault, not merely as exceptional cases.”

Professor Isabel Grant

Professor Isabel Grant joined the Allard School of Law in 1987. Her main research interests lie in the areas of Criminal Law and Mental Health Law. She is particularly interested in the law and policy issues surrounding homicide, HIV non-disclosure and gender and criminal law. She is currently working on criminal law defences and equality and has previously published in the area of sexual assault, homicide, dangerous offenders and criminal harassment.

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