Bio:
Janine Benedet, Associate Professor, Faculty of Law, University of British Columbia
Title of paper:
‘Capacity to Consent in the Criminal Law of Sexual Assault and Women with Mental Disabilities: A Situational Approach’
Abstract:
Women with disabilities affecting cognition are sexually assaulted by men at rates even higher than women in general. Yet when these women seek prosecution of crimes of sexual violence, they come up against a system that was not designed with them in mind, and they face prejudices and stereotypes that work to undermine their credibility. Securing equality for this group of women requires reframing criminal processes and doctrines to treat these complaints as paradigmatic rather than exceptional, as well as challenging the false dichotomy between sexual autonomy and protection from sexual violence. This paper considers specifically the concept of incapacity to consent to sexual activity in the context of research that reveals that Canadian courts rarely find women incapable of consenting to sexual activity because they consider such a finding to disqualify women from consensual sexual activity in all circumstances. Using a comparative approach, the authors argue that capacity should be defined situationally, rather than as an all-or-nothing measure. Recognizing there are risks to this approach, they argue that it nonetheless may be useful for some cases where the complainant’s agreement to sexual activity results from the exploitation of her disability.