Published In

McGill Law Journal

Document Type

Article

Publication Date

2007

Subjects

Canada; Criminal law; Sexual assault; Mental disability; Consent; Capacity; Sex equality

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.

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