SEXUAL ASSAULT OF WOMEN WITH MENTAL DISABILITIES: RETHINKING INCAPACITY AND NON-CONSENT

Women with mental disabilities confront sexual assault at an alarming rate. We have argued elsewhere that this reality should be reflected in our understanding of the concepts of consent and capacity in the criminal law of sexual assault (Benedet and Grant 2007a; Benedet and Grant 2007b). In this paper, we examine recent developments in Canadian sexual assault law and consider whether they are adequate to recognize the experience of sexual assault for women with mental disabilities. In using the term mental disability, we refer to any developmental disability, psychiatric condition or other chronic, non-episodic disability that affects cognition or decision-making. Of course, the range of conditions that might fall within this category is vast and its boundaries not clearly fixed. Disability is both bio-medically and socially constructed in ways that shift with time and place. We are focusing on cases where the complainant is an adult woman with impairments in cognition, memory, and/or intellectual development that affect her ability to understand and make decisions about her sexuality. Our cases include those with formal diagnoses, such as Down syndrome or autism, as well as brain injuries and impairments for which there is no identified cause or label. This variation leads to different challenges for each woman, yet despite these differences we see several issues of common concern