Faculty Author Type

Current Faculty [Janine Benedet] & Current Faculty [Isabel Grant]

Published In

McGill Law Journal

Document Type

Article

Publication Date

2007

Subjects

Canada; Criminal law; Sexual assault; Mental disability; Evidence; Criminal procedure

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.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.