Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief

McGill Law Journal, Vol. 52, pp. 243-289, 2007

47 Pages Posted: 11 Aug 2010 Last revised: 25 Dec 2010

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

Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief.

The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against this group of women, the authors engage two key theoretical tensions: (1) the supposed dichotomy of protection and autonomy, and (2) the shift from biomedical to social models of disability. The authors conclude that the substantive law of sexual assault is inadequate to meet the needs of women with mental disabilities. The authors propose, as a partial solution, a reformed legal analysis that focuses on the accused's abuse of a relationship of power or trust, the accused's coercive behaviour, and the complainant's voluntariness. While the authors acknowledge that women with mental disabilities face certain unique challenges, they reject the creation of special legislative provisions as a solution; they assert instead the importance of recognizing the common experience of inequality that this group shares with other women.

Keywords: Canada, Criminal law, Sexual assault, Mental disability, Consent, Capacity, Sex equality

Suggested Citation

Benedet, Janine and Grant, Isabel, Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief (2007). McGill Law Journal, Vol. 52, pp. 243-289, 2007 , Available at SSRN: https://ssrn.com/abstract=1657139

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
261
Abstract Views
1,289
rank
141,119
PlumX Metrics