Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues
McGill Law Journal, Vol. 52, pp. 515-552, 2007
38 Pages Posted: 13 Aug 2010 Last revised: 7 Jun 2015
Date Written: 2007
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 not 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.
Keywords: Canada, Criminal law, Sexual assault, Mental disability, Evidence, Criminal procedure
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