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

See all articles by Janine Benedet

Janine Benedet

University of British Columbia - Faculty of Law

Isabel Grant

University of British Columbia - Faculty of Law

Date Written: 2007

Abstract

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

Suggested Citation

Benedet, Janine and Grant, Isabel, Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues (2007). McGill Law Journal, Vol. 52, pp. 515-552, 2007, Available at SSRN: https://ssrn.com/abstract=1657128

Janine Benedet (Contact Author)

University of British Columbia - Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada
604 822 0637 (Phone)
604 822 8108 (Fax)

Isabel Grant

University of British Columbia - Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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