More than an Empty Gesture: Enabling Women with Mental Disabilities to Testify on a Promise to Tell the Truth
25:1 Canadian Journal of Women and the Law, pp. 31-55, 2013
Posted: 2 May 2013
Date Written: 2013
In this article, the authors use the recent Supreme Court of Canada decision in R. v. DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. While, the authors support the outcome reached by the majority of the Court, they raise questions about the reasoning, including the equation of women with mental disabilities with children. The authors consider what types of questions will now be appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women who can communicate their evidence to testify is a small step towards the criminal justice system confronting the high rate of sexual assault against women with mental disabilities and the difficulties in prosecuting these cases.
Keywords: Competence, Testify, Sexual assault, Mental disability
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