Hearing the Sexual Assault Complaints of
Women with Mental Disabilities:
Evidentiary and Procedural Issues
Janine Benedet and Isabel Grant*
to
themselves
trial process
that was not designed
When a woman with a mental disability makes a
complaint of sexual assault, she must confront a
criminal
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
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
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.
Lorsqu’une
fernme atteinte d’une d6ficience
mentale d6pose une plainte d’abus sexuel, elle se
retrouve A devoir affronter un processus judiciaire p6nal
non conqu initialement pour l’entendre en tant que
t6moin. Les exigences propres aux t6moignages r6p6t6s
sous serment et
la capacit6 de subir un contre-
interrogatoire ne sont pas toujours adapt6s aux besoins
et aux comp6tences particuliRres de femmes atteintes de
troubles mentaux. Ce probl&me n’est qu’aggrav par la
tendance d’infantiliser ces femmes, ayant pour effet de
leur cr6dibilit6 et de les d6peindre en tant
diminuer
qu’hypersexuelles d&s
lors qu’elles entretiennent des
rapports sexuels. On retrouve ces st6r6otypes 6galement
au niveau de l’admissibilit6 de la preuve de rapports
sexuels antrieurs et de documents appartenant A. des
tiers. Le handicap de ces femmes n’est done pas
seulement physiologique de faqon objective, il est aussi
fabriqu6 par le processus judiciaire. A travers
les
exp6riences de ces femmes, les auteures d6montrent la
n6cessit6 de modifier
les rgles de preuve et de
proc6dure dans les cas d’abus sexuel, tout en respectant
le droit de l’accus6 A un procs juste. Its se servent
6galement de ces exp6riences pour illustrer la tension
entre
la protection contre la
violence sugg6r&e par la litt6rature f6ministe portant sur
l’abus sexuel. Les auteures soutiennent que de plus
grands efforts sont n6cessaires au niveau de l’6galit6
substantielle afin d’assurer aux femrnmes atteintes d’une
d6ficience mentale une participation totale au sein du
processus judiciaire p6nal.
la libert& sexuelle et
. Janine Benedet, Associate Professor of Law, U.B.C. and Isabel Grant, Professor of Law, U.B.C.
The authors would like to thank Professor Judith Mosoff and Professor Elizabeth Sheehy for reading
earlier drafts of this paper and providing helpful feedback.
Janine Benedet and Isabel Grant 2007
To be cited as: (2007) 52 McGill L.J. 515
Mode de r6f6rence : (2007) 52 R.D. McGill 515
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Introduction
I. The Infantilization of Women with Mental Disabilities
I1. Evidentiary Issues
A. Competence to be Sworn and the Use of Hearsay
Evidence
B. Capacity to be Cross-Examined
C. Corroboration
D. Sexual History Evidence
E. Third-Party Records
F Credibility
1. Disability Undermining Credibility
2. Credibility of Caregivers and Parents
Ill. Discussion
Conclusion
517
521
524
524
528
531
532
537
542
543
545
546
551
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J. BENEDET & I. GRANT- EVIDENTIARYAND PROCEDURAL ISSUES
517
Introduction
Most of the sexual assaults that men commit against women are never reported to
the police.’ One of the most common reasons that women give for not reporting such
assaults is that they are wary of the treatment they will receive at the hands of the
police and the courts.2 Women express concerns that their claims will not be believed,
that their sexual and mental health history will become public, and that they, rather
than the man who committed the sexual assault, will become the focus of the
investigation. These concerns are magnified for women with mental disabilities.
Women with developmental disabilities, psychiatric disabilities, or brain injuries
affecting
in
accessing the criminal justice system as sexual assault complainants.
intellectual ability or communication3 have particular difficulties
In an earlier article, we traced the history of the criminal law as applied to sexual
offences against women with mental disabilities and demonstrated that the law has
often not reflected the interests of these women.4 Our analysis considered this history
in the context of both feminist and critical disability theory. We argued that much of
this history has been steeped in two conflicting stereotypes about women with mental
disabilities: that they are either asexual and childlike, on the one hand, or oversexed
and indiscriminate in the choice of their sexual partners on the other. These stereotypes
are in some ways reflected in the perceived tension in the feminist literature between
the need to protect women with mental disabilities from exploitative men and the
importance of promoting their sexual autonomy. Measures designed to offer protection
are sometimes criticized as overprotective and too prescriptive of appropriate sexual
behaviour. Yet emphasizing sexual autonomy has been viewed as leaving women open
to abuse.’ Critical disability theory, like feminist theory, has also faced internal
tensions, in particular over the meaning of “disability”. Scholars have debated whether
disability should be understood not according to a biomedical model, but rather as a
social construct that views “disability” as a category created by social norms that fail to
incorporate the full diversity of human beings and their ways of living.6 This debate
1 See Federal-Provincial-Territorial Ministers Responsible for the Status of Women, Status of
Women Canada, Assessing Piolence Against Women: A Statistical Profile (2002) at 19, online: Status
of Women Canada
Women’s Directorate, Sexual Assault: Reporting Issues (2002), online:
2 See Reporting Issues, ibid.
3 We have chosen to refer to these conditions collectively as “mental disabilities”, recognizing that
this term is an imprecise shorthand for a range of diverse conditions and experiences.
4 Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental
Disabilities: Consent, Capacity, and Mistaken Belief’ (2007) 52 McGill L.J. 243.
5 See ibid. at 250-55.
6 See Bill Hughes & Kevin Paterson, “The Social Model of Disability and the Disappearing Body:
Towards a Sociology of Impairment” (1997) 12 Disability and Society 327; Liz Crow, “Including All
of Our Lives: Renewing the Social Model of Disability” in Jenny Morris, ed., Encounters with
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has arisen primarily in the context of physical disability, and it is important to consider
whether it offers any insights in the context of mental disability.
Our goal has been to use the experiences of women with mental disabilities who
complain of sexual assault by men to reconsider these supposed tensions. To that end,
we examined approximately one hundred written judgments involving sexual offences
against complainants with mental disabilities over the past two decades.7 We set out to
determine whether changes in the law during that period have benefited women with
mental disabilities, and to identify the challenges and concerns raised by applying the
elements of sexual assault-specifically consent, capacity, and mistaken belief-to this
group of complainants. The cases we reviewed bore out our assertion that sexual
autonomy may be a hollow value if there is no safe context in which to exercise it.
We concluded that the situation of women with mental disabilities makes clear
that the perceived dichotomy between protection and autonomy is largely a false one,
because women with mental disabilities appear to enjoy very little of either. Rather,
protection from exploitation is a prerequisite for any meaningful sexual autonomy.
We were struck by the similarities in the challenges facing complainants who
have been labelled as having mental disabilities and those who have not: both groups
of women are subject to having the quality of their resistance to unwanted sexual
advances brought into question, to having their previous sexual experiences used
inappropriately to interpret the particular sexual encounter at issue, and to having
superficial reference made to sexual autonomy at the expense of the protection of
bodily and psychological integrity from exploitation by men in positions of power
over them. The fact that the issues are similar does not mean that their resolution is
identical. Instead, disability intersects with gender to filter judges’ responses to these
legal issues in ways that uniquely disadvantage women with mental disabilities.
Nonetheless, while we acknowledged in our earlier work that there are arguments
for having a specialized offence targeted at those who sexually assault women with
disabilities, we concluded that we should have one law of sexual assault that
recognizes the similarities and differences among all women rather than a distinct
provision that tries to carve out a group of women as “different” from other women.
Arguing that the definition of sexual assault should be the same for all women does
not mean denying that women with mental disabilities face increased risk of sexual
assault, or that they lack equal access to having their stories heard in the criminal
justice system. A commitment to substantive sex equality requires not merely
Strangers: Feminism and Disability (London: Women’s Press, 1996) 206. See also Benedet & Grant,
supra note 4 at 253-54.
7 Our study considered cases reported on Quicklaw that were decided between 1984 and 2004 in
English and between 1994 and 2004 in French. The large majority involved charges of the least
serious form of sexual assault. Of the cases where the nature of the disability was clear, eighty per cent
had an intellectual disability. The accused had a mental disability in less than twenty per cent of the
cases where this information was available.
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inclusivity, but also placing these women at the centre of our analysis of sexual
assault law as opposed to treating them as exceptions that do not “fit” the regular law.
Our work to date has focused on the substantive elements of the crime of sexual
assault. But at the same time that complainants with mental disabilities must confront
concepts of consent, capacity, and mistaken belief that were not developed with their
experiences or realities in mind, they also face barriers to the receipt of their
testimony in court.
In this article, we examine whether existing, well-entrenched evidentiary and
procedural rules disadvantage women with mental disabilities in the trial of sexual
assault charges in ways that are specific to the intersection of discrimination on the
grounds of sex and disability. As in our previous paper, we use the alleged dichotomy
between autonomy and protection as a lens through which to assess the case law.
Courts need to be made accessible, in the broadest sense of the word, to women with
mental disabilities. The rules of evidence and procedure need to be sufficiently
flexible in order to hear their stories in a manner that recognizes the individual
circumstances of the complainant’s disability while demonstrating respect for her as a
human being.
Some of the evidentiary questions that we address in this paper apply to all
complainants, while others are of special concern for women with mental disabilities.
Issues such as the (mis)use of evidence of sexual history and access to therapeutic
records are faced by many sexual assault complainants, though the presence of a
mental disability may make the resolution of these issues more complex. Other issues,
such as testimonial capacity and the use of hearsay evidence, are unique to the
context of mental disability, at least for adult complainants.
Many of these procedural rules are used to undermine
the credibility of
complainants, sometimes in the name of recognizing their sexual autonomy. Sexual
history evidence and evidence from third-party records, for example, can be used to
label women as oversexed and hence lacking in credibility. The requirement that a
witness understand an oath and the use of hearsay evidence, by contrast, may portray
women with mental disabilities as childlike and thus lacking in credibility.
The problems we identify in this paper are consistent with the social science
research on the experience of persons with mental disabilities in court, in particular
witnesses with developmental disabilities. For example, one Canadian study
concluded that individuals with developmental disabilities have far less familiarity
with common
level of
understanding than they in fact possess.8 The authors noted that many individuals
with developmental disabilities are inclined to acquiesce to persons perceived as
being in authority, and have difficulty saying “I don’t know”. The participants with
developmental disabilities were also more likely to have directly participated in the
they may report a higher
legal
terminology, though
8 Kristine I. Ericson & Nitza B. Perlman, “Knowledge of Legal Terminology and Court Proceedings
in Adults with Developmental Disabilities” (2001) [unpublished, on file with authors].
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courts as complainants, witnesses, or accused persons, or in family court proceedings,
than those who were not so labelled, a result the authors noted is consistent with other
studies. If women with mental disabilities are in fact more likely to find themselves
participating in court proceedings than other women and more likely to be sexually
assaulted than other women, the need for policies and procedures designed with their
needs in mind is all the greater. These women should not be seen as “exceptional”
cases requiring improvised modifications to the current system.
Our concerns about the processing of sexual assault complainants extend to all
players in the criminal justice system. One Australian study reported that police
officers had difficulty identifying when a sexual assault complainant had an intellectual
disability and were confused about how to respond.9 Many of the officers interviewed
for the study repeated social stereotypes portraying women with mental disabilities as
highly sexed and lacking credibility. Some police officers were reluctant to take
complaints from such women seriously and turned to support workers or other
professionals for their opinion as to whether anything had actually happened. 0
Although the manner in which police deal with such complaints is beyond the
scope of our research, we assume that such attitudes can influence the way that not
only police, but also Crown attorneys and judges, handle such cases. Our sample
certainly discloses cases in which the Crown does not appear to make much effort to
address the needs of complainants with mental disabilities.”I At best, attempts were
made to analogize the situation of these women to rules designed for children, a
practice that follows the lead of the Criminal Code’2 (“Code”) and the Canada
Evidence Act.”3
The case law demonstrates the tendency to equate women with mental disabilities
with children, particularly where the disability is an intellectual or developmental
one. We have labelled this phenomenon the “infantilization” of women with mental
disabilities. It is, in our view, inexorably intertwined with the perceived dichotomy
between protection and autonomy. We begin our analysis here because it is an
important precursor to a critical evaluation of the way that women with mental
disabilities are treated by police and the courts. While we expected that this
phenomenon would elicit a more protective approach by the courts, the case law did
9 Jennifer Keilty & Georgina Connelly, “Making a Statement: An Exploratory Study of Barriers
Facing Women with an Intellectual Disability When Making a Statement About Sexual Assault to
Police” (2001) 16 Disability and Society 273.
10 See ibid. The assumption that jurors will not find women with mental disabilities to be credible
witnesses is not supported by the available social science research. In one American study involving
mock jurors in a sexual assault trial, researchers found that the jurors were more likely to convict the
accused where the victim was described as “mildly mentally retarded” (Bette L. Bottoms et al.,
“Jurors’ Perceptions of Adolescent Sexual Assault Victims Who Have Intellectual Disabilities” (2003)
27 Law & Hum. Behav. 205 at 210).
11 See e.g. R. v. Wyatt (1997), 115 C.C.C. (3d) 288, 91 B.C.A.C. 166 [ Wyatt cited to C.C.C.].
12 R.S.C. 1985, c. C-46, s. 246.1.
“3 R.S.C. 1985, c. C-5, s. 16.
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not bear out this expectation. To the contrary, we found that the infantilization of
women with mental disabilities served more to undermine their credibility than to
elicit an ethic of protection.
Thus, as with the substantive cases addressed in our earlier paper, the cases reveal
a willingness to consider sexual autonomy at the expense of protection. Evidence
purportedly relating to sexual autonomy (such as prior sexual history) and evidence
suggesting that women are childlike in nature (such as the inability to be sworn)
coalesce in the overall tendency to disbelieve women with mental disabilities when
they testify in court.
I. The Infantilization of Women with Mental Disabilities
In the cases that we reviewed, women’s cognitive abilities, communication skills,
and even their understanding of sexuality were frequently equated with those of a
young child, sometimes as young as two or three years of age, more often in the range
of five to seven years of age.’4 In some cases, expert evidence was used to attach
different age equivalents to different abilities. Taken to the extreme, in R. v. R.R., the
Ontario Court of Appeal noted the following expert evidence about a twenty-one-
year-old complainant who had been sexually assaulted by her neighbour:
Based on a number of psychological and cognitive assessments undertaken
between 1984 and 1996, Dr. Cousins concluded that the complainant was
functioning cognitively at a mental age of 5 years, 5 months. His report showed
the following:
I. Communication:
Age equivalent:
2. Daily living skills:
Age equivalent:
3. Socialization:
Age equivalent:
4. Expressive language
Age equivalent:
5. Written language
Age equivalent:
6. Receptive language
0.1 percentile
5 yrs., 6 mos.
0.1 percentile
8 yrs., 9 mos.
0.1 percentile
4 yrs.
4 yrs., 3 mos.
7 yrs., 5 mos.
Age equivalent:
3 yrs., I mo.
7. Socialization
Age equivalent:
4 yrs., I mo.
8. Interpersonal relationship
Age equivalent:
4 yrs., 5 mos.’ 5
14 See e.g. R. v. Parsons (1999), 170 Nfld. & PE.I.R. 319 (Nfld. S.C. (T.D.)) [Parsons]; R. v.
Jackson, [1994] O.J. No. 453 at paras. 2, 15 (Gen. Div.) (QL); R. v. Sam, [1987] B.C.J. No. 3158 at
para. 9 (Co. Ct.) (QL); R. v. M.(M.K.), [1989] B.C.J. No. 1834 (C.A.) (QL); R. v. Aikoriogie, [2004]
O.J. No. 2717 (Ct. J.) (QL).
15 (2001), 159 C.C.C. (3d) 11 at para. 45, 151 O.A.C. 1 (C.A.), aff’d 2003 SCC 4, [2003] 1 S.C.R.
37, 171 C.C.C. (3d) 575 [R.R. cited to C.C.C.].
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While a person’s cognitive abilities may develop along a continuum, there are
very important differences between a woman with a mental disability and a child.
Children, generally speaking, are developing their emotional and intellectual abilities
as they pass through childhood and adolescence toward adulthood and independence.
Sexual activity is inappropriate for children because they are not yet at the stage of
cognitive and physical development necessary to make choices and to understand
sexuality, and because they do not have the same sexual desires as adults.”6
This is not true for women with mental disabilities. In the majority of our cases,
the complainants are adults whose intellectual abilities are limited and unlikely to
progress much further, but who are, physically and emotionally, adult sexual beings.
For most of these women, sexual feelings and expressions of those feelings are
appropriate, assuming they can find a noncoercive context in which to experience
them. All these factors get tangled up when too much weight is put on comparisons
with children. Women with mental disabilities are women. They are not children:
[U]nlike mentally
retarded adults, eight-year-olds cannot work, marry,
procreate, or engage in romantic love. As Leslie Walker-Hirsch, president of the
[American Association for the Mentally Retarded’s] special interest group on
sexual and social concerns has noted, “there is a belief that, when a person is
mentally retarded everything else is at the same level of advancement as the
intellect, when really the body is very on target with the age.” Mentally
retarded persons merely demonstrate “a developmental lag” because their social
skills and biological development are not commensurate.17
The analogy to children can set in motion a whole chain of assumptions that can
undermine a complainant’s credibility.’ 8 Just as no sexual activity is appropriate for
children, it is not uncommon to see women with mental disabilities who do have prior
sexual experience have that experience deemed “inappropriate”,’ 9 as it would be if the
complainant were in fact a child. Women are described as “too friendly””2 or “hyper-
sexual”.2′ Prior expressions of sexuality, whether coerced or consensual, once they
are labelled as “inappropriate”, can be used to question the complainant’s behaviour
during the encounter at issue, to question whether she consented to sexual activity,
and to question whether the accused knew she was not consenting. In this way,
stereotypes about the sexual availability of women with disabilities also play into
attacks on credibility, making the complainant less believable.22 Evidence of previous
16 Cf R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at paras. 199-208, 194 D.L.R. (4th) 1,
in reinforcing cognitive distortion of
L’Heureux-Dub6 J. (discussing the role of pornography
pedophiles, and the harm caused to children by child pornography).
17 Deborah Denno, “Sexuality, Rape, and Mental Retardation” (1997) U. Ill. L. Rev. 315 at 367
[footnotes omitted].
]8 See e.g. R. v. B.M., [1994] O.J. No. 2242 at para. 92 (Ct. J. (Prov. Div.)) (QL) [B.M.]; R. v.
Hundle, 2002 ABQB 1084, 10 C.R. (6th) 37, 56 W.C.B. (2d) 334 [Hundle].
“19 B.M., ibid. at para. 11; R.R., supra note 15 at para. 4.
20 R. v. Harper, 2002 YKSC 18, [2002] Y.J. No. 38 at para. 16 (QL) [Harper].
21 Hundle, supra note 18 at para. 20.
22 See e.g. ibid.
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sexual experience may, for example, be admitted on the issue of capacity to give
consent23 or for some other permissible use, thus challenging overall credibility
through the back door. As will be discussed below, it appears to be easier to get
evidence of sexual history admitted in cases where
the woman has a mental
disability.
24
Less often, equating a woman with a mental disability to a child leads to a
conflicting stereotype that can actually serve to bolster her credibility, but in an
that complainants with mental
equally problematic manner. If one assumes
disabilities are not “smart enough” to fabricate evidence of sexual assault-the idea
being that children do not lie and neither do women with the mental age of a child-
the complainant can be perceived as more believable. For example, in R. v. D.K.R.,
the judge stated, “[M]ost importantly, this witness did not possess the guile or
quickness of wit to create an atmosphere of credibility if it did not exist.”21 While this
statement expresses belief in the complainant’s testimony, the labelling of the
complainant as dim-witted is demeaning nonetheless.
Equating women with mental disabilities to children accomplishes two somewhat
contradictory outcomes. On the one hand, it sets women with mental disabilities apart
from other adult women, allowing us to distance ourselves from their realities and to
deny them the sexual lives to which other women are entitled. On the other hand, the
comparison gives us a familiar starting point, allowing us to draw analogies with the
sexual assault of children, something with which we are all too familiar. Both these
outcomes are problematic in that they undercut the sexuality and agency of women
with mental disabilities and obscure the similarities between women with mental
disabilities and other women.
The tendency to infantilize women with mental disabilities contributes to sex
them by perpetuating stereotypes of asexuality and
discrimination against
hypersexuality. When these women are analogized to children, sexual relationships
are no longer seen as necessary or important for them and they are depicted as
asexual. Since no sexual activity is considered appropriate for children, the sexual
activity that these women do have is then labelled as inappropriate, and they are also
tainted, paradoxically, with a label of hypersexuality.
As the examples discussed below demonstrate, this tendency to infantilize has
particular resonance in the procedural and evidentiary context. When women with
mental disabilities are treated like children, their credibility is often correspondingly
diminished. They are also subject to a host of incorrect assumptions about the kinds
23 See e.g. R.R., supra note 15 at para. 10.
24 B.M., supra note 18 is perhaps the most striking example of this tendency. The defence paraded
numerous witnesses at trial, all but one of whom were disbelieved by the judge, and who testified that
the complainant was likely to have sex with numerous students on her lunch hour. This display
occurred despite the fact that there was an independent witness to the complainant’s clear assertions of
nonconsent in the case before the court.
“25 (1998), 104 B.C.A.C. 296 at para. 3, 38 W.C.B. (2d) 42.
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of supports that will facilitate their testimony, by simple analogy to the situation of
child witnesses. Moreover, if they fail to fit the threshold criteria for those special
accommodations designed for children, they may end up with no accommodations at
all.
II. Evidentiary Issues
long period of time can present serious challenges
The criminal trial process was not designed to facilitate the testimony of persons
with disabilities. Oral testimony under oath, cross-examination, and the requirement
to repeat one’s story over and over again to persons in authority with consistency over
a
to women with mental
disabilities, yet these requirements are accepted without question as integral to the
criminal trial process. An inability to operate within the confines of the traditional
trial process may result in the diminished credibility of a woman’s testimony or even
in the granting of a stay of proceedings.
The nature of the evidence received by courts in sexual assault cases presents
other concerns. The routine use of sexual history evidence, cross-examination on
therapeutic and other
the
requirement of recent complaint raise unique concerns for women with mental
disabilities. We suggest that the myths and stereotypes on which these devices rest
remain active.
to undermine credibility, and
third-party
records
A. Competence to be Sworn and the Use of Hearsay Evidence
Parliament has made a number of legislative amendments in recent years that
specifically address the situation of witnesses with disabilities. At the same time that
section 153.1 was added to the Code in 1998 to create the offence of sexual
exploitation of a person with a disability,26 changes were made to the Canada
Evidence Act27 and to the Code28 to address the needs of persons with disabilities
when they testify as witnesses. These changes included permitting persons with
disabilities to testify behind a screen or with assistance from a support person or
interpreter. They also affirmed a presumption of testimonial competence for all adult
witnesses, while leaving open the possibility that a party might be able to prove that a
witness for the other side was not in fact competent to testify.29 The purpose of these
26 An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with
disabilities, to amend the Canadian Human Rights Act in respect ofpersons with disabilities and other
matters and to make consequential amendments to other Acts, S.C. 1998, c. 9, s. 2 [An Act to amend
the Canada Evidence Act].
27 Supra note 13, ss. 6, 6.1, as am. by An Act to amend the Canada Evidence Act, ibid., s. 1.
28 Supra note 12, s. 715.2, as am. by An Act to amend the Canada Evidence Act, ibid., s. 8.
29 These provisions were strengthened and expanded by An Act to amend the Criminal Code
(protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32,
s. 15. The use of a screen and support person is now presumptively appropriate rather than
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changes was to ensure the full and equal participation of persons with disabilities in
the justice system, and in particular in the criminal trial process.3”
Yet in the cases we have reviewed, there are repeated examples of complainants
whose evidence is given diminished weight because of their mental disability. While
these witnesses are not considered incompetent to testify, they are found to be
incapable of understanding the nature of an oath, and therefore permitted to testify
only on a promise to tell the truth. This, in turn, gives their evidence less weight than
that of other witnesses. The court in Parsons3 reached just such a result. The judge
found that while the twenty-six-year-old complainant had a “mental age”32 of a seven-
year-old child, the Crown was correct to have conceded her capacity to consent to sex
with the accused, a stranger, in his truck by the side of the road. However, that same
mental age rendered her incapable of being sworn and her testimony was thus given
less weight.
In some cases, judges assume that evidence given by a complainant with a mental
disability must be scrutinized especially carefully and given less weight, without even
hearing expert evidence on how the particular mental disability and life experience of
the complainant might affect, if at all, her testimonial capacity.33 On a more
is an unwillingness by many judges to reconsider the
fundamental level, there
the precise meaning of an oath or
assumption
affirmation is predictive of truthfulness or reliability as a witness.
that the ability to understand
The assigning of diminished weight to the testimony of complainants with mental
disabilities is especially troubling when compared to the relatively low threshold set
by Canadian courts for capacity to consent to sexual intercourse.34 In a number of
cases, the judge finds (or the Crown concedes) that the complainant has the mental
capacity to consent to sexual contact with the accused, but lacks the capacity to
understand the nature of an oath.35 The finding on capacity to consent means that
consent is in issue, and the finding on oath-taking capacity means that the accused’s
testimony that the complainant consented is given more weight because he does not
have a disability.
Conversely, in cases where it is agreed that the complainant does not have the
capacity to consent to sexual contact, her capacity to testify may also be in issue. In
discretionary, and the accused is prohibited from personally cross-examining a witness with a mental
disability.
30 See Department of Justice, News Release, “Federal Government Proposes Changes to Meet the
Needs of Persons With Disabilities” (23 April 1997), online: Department of Justice
February 1998) at 3742 (Paul Forseth).
31 Supra note 14.
32 Ibid. at para. 24.
33 See e.g. R. v. Sam, supra note 14 at para. 4; Parsons, supra note 14; R. v. M.(M. K.), supra note 14.
34 See Benedet & Grant, supra note 4 at 269-74.
35 See e.g. R. v. M.(M.K.), supra note 14; B.M, supra note 18 at para. 87; R. v. White, [2001] O.J.
No. 3367 at paras. 6-7 (Sup. Ct.) (QL).
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some cases where the complainant has profound mental disabilities, the Crown has
attempted to lead hearsay evidence according to the rule in R. v. Khan.36 In that case,
the Supreme Court of Canada held that a preschool child’s statements to her mother
about the actions of a doctor who had sexually assaulted her were admissible as
hearsay evidence because they met the requirements of necessity and reliability. In
the case of adult complainants with intellectual or developmental disabilities, support
persons to whom the complainant disclosed the assault, for example a doctor, social
worker, or mother, might also give evidence of the assault. It appears that such
applications have met with mixed success; from our review of the cases, it was not
easy to predict which factors would lead to the application being granted. Such
applications have generally been unsuccessful where the complainant is judged
competent to give at least some evidence in court.
The Supreme Court took a restrictive view of Khan in R. v. Parrott,3 while
invoking the language of autonomy and respect for persons with disabilities. In that
case, the complainant was a resident of a psychiatric hospital in Newfoundland,
where she had lived for many years. The complainant had Down syndrome and was
described as having the mental development of a three- or four-year-old child.38 A
staff member observed another patient bringing her to a man’s car; the man gave that
patient twenty dollars and drove off with the complainant. Seven hours later, at 2
a.m., the complainant was found with the accused in his car in a remote coastal area.
The complainant was bruised and scratched and her shorts were on backwards. The
accused was charged with kidnapping, assault causing bodily harm, and sexual
assault.
The Crown called expert evidence about the complainant’s intellectual limitations
and poor memory of events. On the basis of this evidence, the trial judge admitted
out-of-court statements that the complainant had made to the police and to a doctor
after the event. The complainant was not called as a witness on the Khan voir dire or
at the trial. The accused was convicted of kidnapping and assault causing bodily
harm. On appeal, the Newfoundland Court of Appeal overturned the assault-causing-
bodily-harm conviction and ordered a new trial. A majority of the Supreme Court, in a
4 to 3 decision, affirmed this result.
The appeal, strictly speaking, was not a sexual assault case, because the
complainant was not able to articulate any allegation of sexual misconduct to anyone,
and there was no physical evidence of intercourse or other sexual activity. The
accused was acquitted of the sexual assault charge at trial and it appears that the
Crown did not appeal this acquittal. It is clear, however, that there were strong
suspicions of sexual assault based on the complainant’s dishevelled clothing, her
injuries, and the simple fact that there was no other explanation for why the accused,
“36 2001 SCC 86, [2001] 3 S.C.R. 823, 207 D.L.R. (4th) 289 [Khan].
17 2001 SCC 3, [2001] 1 S.C.R. 178, 194 D.L.R. (4th) 427, aff’g (1999) 175 Nfld. & P.E.I.R. 89
(Nfld. C.A.) [Parrott].
38 Ibid. at para. 29.
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a stranger, took her from her residence and confined her to his vehicle for seven hours
in an isolated location. In any event, the comments of the Supreme Court would be
equally applicable to a case where sexual assault is at issue more directly.
Writing for the majority, Justice Binnie held that the trial judge erred in admitting
the hearsay evidence without hearing viva voce evidence from the complainant on the
voir dire.39 Justice Binnie noted that there was no suggestion that the complainant
might be harmed by being called to testify, beyond the usual trauma of the criminal
process.4” It was for the judge, and not the medical experts, to make the assessment of
to a Crown
testimonial competence based on direct observation. Responding
argument that bringing the complainant to court in an attempt to testify would be akin
to “marking her as an exhibit simply for the purpose of … showing her to all sides,”‘”
Justice Binnie invoked the language of autonomy and rebuttal of stereotypes:
[T]he Court should not be quick to leap to the assumption that a person with
mental disabilities is not competent to give useful testimony. Trauma should not
be presumed, not only because such a presumption would deprive the accused
of the ability to observe and cross-examine the witness, but also because
stereotypical assumptions about persons with disabilities should be avoided….
Persons with disabilities should not be underestimated.42
Justice LeBel, dissenting, would have found that the hearsay evidence was
properly admitted. He pointed out that the trial judge had viewed the complainant on
the videotape of her interview with police in which her responses to simple questions
in a supportive environment immediately after the event were repetitive and largely
incoherent. 43 He rejected the majority’s claim that calling her as a witness would not
be traumatic:
intellectual exercise
is a more sophisticated
My reservations are stronger still with respect to her ability to handle cross-
than
examination, which
examination-in-chief. To require the Crown to call the complainant before the
court in these circumstances, only to confirm her limited ability to convey
evidence, would have been demeaning and traumatic to her. As the trial judge
pointed out, … [s]he was … afraid to leave the hospital grounds. The trial judge
even wrote that she had “to be coaxed … with treats by staff to persuade her to
go out for a drive or an outing with other patients” … Dr. Morley had said that it
was not feasible for the victim to leave the hospital …
Justice LeBel noted that calling the complainant as a witness would have “deprived
her of that degree of respect that every disabled person is entitled to … “4′ Both
39 Ibid. at para. 52.
40 Ibid. at para. 79.
41 Ibid. at para. 78.
42 Ibid. at para. 80.
43 Ibid. at para. 12.
44 Ibid. at para. 17 [references omitted].
45 Ibid.
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judges, then, invoke the notion of respect for persons with disabilities to support quite
different results.
We prefer the approach of the dissent in this case, if only because it realistically
recognizes the trauma inherent in testifying as a sexual assault complainant in a
courtroom proceeding (potentially three times: at the voir dire, the preliminary
inquiry, and the trial) and how that trauma is magnified for a woman who not only
finds changes in her established routines upsetting even when they take the form of a
pleasant outing, but has already been subjected to a terrifying forcible confinement
for many hours. We are troubled by the majority’s invocation of the language of
autonomy in a vacuum without any consideration of what that term might mean for
this woman. Perhaps for her, respecting her autonomy means respecting her
fearfulness and desire to remain in familiar surroundings. Or maybe it means
acknowledging that any expression of autonomy engaged by disclosing acts of male
violence to a person in authority were fully realized immediately after the assault. A
more nuanced application of Khan, and a more contextualized analysis of autonomy,
would have recognized that the costs to this complainant of forcing her to testify far
outweighed any possible probative value of so doing.46
B. Capacity to be Cross-Examined
Even if the complainant is considered competent to testify, whether under oath or
on a promise to tell the truth, problems may still arise if the complainant is not able to
withstand the rigours of the standard trial process. Despite some modifications to
assist complainants with disabilities in testifying, such as the use of a screen device to
block their view of the accused, complainants are still expected to give evidence in
the standard form of examination-in-chief and cross-examination. If the Crown elects
to proceed by indictment, this may happen twice, once at the preliminary inquiry and
once at trial. If the Crown proceeds summarily in order to spare the complainant the
ordeal of testifying twice, then the maximum sentence can be no more than eighteen
months, regardless of the seriousness of the sexual assault (as opposed to ten years
where the Crown proceeds by indictment).47 Since charges of aggravated sexual
assault or sexual assault with a weapon are solely indictable offences, this makes it
more likely that, even where additional physical violence is present, such cases will
be downgraded to simple sexual assault to prevent the complainant from having to
testify twice.4” In this way, the full measure of the harm suffered by the complainant is
not even formally recognized.
46 For an alternative view, see Fiona Sampson, “Beyond Compassion and Sympathy to Respect and
Equality: Gendered Disability and Equality Rights Law” in Dianne Pothier & Richard Devlin, eds.,
Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (Vancouver: UBC Press,
2006) 267 at 272-77.
47 Criminal Code, supra note 12, ss. 271(1)(a), (b).
48 See generally Janice Du Mont, “Charging and Sentencing in Sexual Assault Cases: An
Exploratory Examination” (2003) 15 C.J.W.L. 305.
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Some complainants with disabilities in the cases we reviewed were able to give
evidence-in-chief but not able to give responsive answers on cross-examination. One
of the most striking examples is Wyatt.49 In that case, the twenty-eight-year-old
complainant met the accused, whom she had known for a number of years, at a bar.
The next day he came to her apartment where he had sexual intercourse with her. The
complainant later called the police and reported that she had been sexually assaulted.
The complainant lived independently with some support in her small northern
British Columbia town. Her disabilities arose from a serious brain injury sustained as
an infant when she was dropped headfirst onto a concrete floor. The injuries left her
with cognitive and memory deficits as well as impairment in her motion and
coordination. The complainant had completed a modified grade ten education and
had never been employed.
The complainant testified at the preliminary inquiry that she did not consent to
sexual contact with the accused. However, she became very emotional and agitated
when cross-examined. The cross-examination was not pursued further and the
accused was committed for trial.
At the trial, the complainant repeated in her evidence-in-chief that the sex was
without her consent. Defence counsel began to cross-examine the complainant,
apparently to suggest that the complainant was angry at the accused because the
condom had come off during intercourse. The complainant became distraught and
was unable to answer further questions about the alleged assault.
The Crown sought an order permitting the transcript of the complainant’s
evidence at the preliminary inquiry to be read into evidence, and a Khan voir dire to
admit hearsay statements made shortly after the event. Defence counsel opposed the
motion, arguing instead that a stay of proceedings should be granted because the
complainant could not be effectively cross-examined.
The trial judge, after hearing evidence on the complainant’s mental state, granted
the motion for a stay, and the British Columbia Court of Appeal unanimously
affirmed this order. The trial judge found that the preliminary inquiry evidence added
nothing to the record, since the complainant could not be effectively cross-examined
at that time either. Similarly, the use of some limited hearsay statements did not
address the problem that the accused could not effectively exercise his right to
confront his accuser through cross-examination. Noting that cross-examination is of
paramount importance where the defence is one of consent, the trial judge also
recognized that this result was unsatisfactory:
What I find enormously disturbing about the present circumstance is that we
have a young woman who has a complaint, rightly or wrongly, who by her
condition and disabilities and because of the nature of the process of this court
will be denied an opportunity to have a full and fair hearing on that complaint.
49 Supra note I.
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Effectively she will be denied access to the courts because of her inability to
participate in the process.50
In this passage, the trial judge comes close to locating the problem for this lack of
access in “the nature of the process of this court,” but is unable to disentangle this
from the complainant’s own “inability” to participate in that process. Crown counsel
also placed the focus on the complainant, referring to her as a “difficult witness”,51
and noting that “the problem here is … that we have a witness … essentially what
we’re dealing with is … a thin skull rule almost. … [I]t isn’t the Crown, it isn’t the
state that created this witness. This witness was there.”’52
Yet, the expert evidence about the complainant’s mental state confirmed how
disability can be the product of both biomedical and socially constructed views of
disability. The complainant was described as prone
to emotional outbursts,
frustration, as well as tearful and depressive episodes.53 The expert report indicated
how her physical limitations had been aggravated by her social experiences:
Ms. [T.] was extraordinarily sensitive to any form of challenge. She would
get agitated, tearful, flustered and loud even after I would carefully explain to
her that I was only clarifying rather than questioning a statement. Her mother
explained that Ms. [T.] has felt unwanted, disbelieved and rejected ever since
she was a child. Other children would not play with her or include her in their
activities. Moreover, her explanations of her feelings or past events were
frequently disbelieved and were attributed to her intellectual deficits. Thus, she
grew up extremely sensitive to anyone questioning a statement that she has
made…
1 found this characteristic to be extremely entrenched in Ms. [T.].54
Thus the expert evidence very clearly situated at least part of the complainant’s
“inability” to be cross-examined as rooted in pervasive societal discrimination against
a young woman with disabilities. Her oppositional responses were in part a protective
mechanism that allowed the complainant to cope with years of rejection. To then
exclude her from participation in the criminal trial process only compounds that
discrimination both by denying her the equal protection of the law and by reinforcing
her experiences of marginalization and exclusion. In a very real sense, the state did
“create this witness” by combining social tolerance for discrimination against persons
with disabilities with a process based on blind faith in the importance of repeatedly
accusing women of lying about sexual assault as a means of getting at the “truth”.
The stay of proceedings makes this complainant rapable with impunity so long as
there are no witnesses or other corroborating evidence, such as physical injuries. The
accused in this case had known the complainant for many years and her disabilities
50 Cited in ibid. at para. 32 [emphasis omitted].
51 Cited in ibid. at para. 16.
52 Cited in ibid. at para. 21.
53 Ibid. at para. 26.
54 Cited in ibid. at para. 26.
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must have been apparent to him. Yet we never get to consider what steps he took to
ensure that this woman was in fact consenting, or what thought he gave to her wishes,
because we cannot get past her “inability” to be cross-examined. This is not to say
that the accused should have to testify, but rather that there would have been a tactical
burden on the accused to respond if the complainant had been able to give evidence
that she had been assaulted.
Surely, at a minimum, there is an obligation on the Crown and on the police to
ensure that a thorough effort is made to obtain useful and potentially credible
evidence from the complainant. While it is not reasonable to expect Canadian courts
simply to accept untested evidence-in-chief as sufficient for conviction, there may
have been other ways that the complainant’s direct evidence could have been tested.
Might the defence have formulated a list of questions to be explored with the
complainant by someone she trusted and knew well? Could the disputed areas have
been explored in a manner that was not perceived as confrontational by the
complainant? At a minimum, these questions should have been fully considered well
in advance of trial. The complainant has the right to the accommodation of her
disabilities within the limits of a fair trial.
C. Corroboration
It may be that the effect of the British Columbia Court of Appeal decision in
Wyatt is to require corroborating evidence to offset the complainant’s inability to be
cross-examined. Presumably, some sort of independent witness or perhaps physical
injury might have been enough to allow the trial to proceed, though the court never
acknowledges this explicitly, and such evidence was not always helpful in other cases
that we reviewed.55 If so, this hearkens back to the rule that the jury should be
cautioned against convicting the accused of rape solely on the basis of the
complainant’s testimony. This common law rule was abolished by statute in the 1982
amendments to the Code.56 Of course, the abolition of the corroboration requirement
does not mean that corroborating evidence is no longer useful or important. For
example, in the Supreme Court’s decision in Khan, the presence of corroborating
physical evidence (a semen stain on the child’s shirt) was important (though not
required) to the assessment of reliability in terms of the admissibility of hearsay
evidence. 7
Yet we have found that even where complainants with mental disabilities are able
to give direct evidence-in-chief and to be cross-examined, some judges appear keen
to find corroborating evidence, especially where it is “objective” or is supplied by a
55 See e.g. Harper, supra note 20.
56 An Act to amend the Criminal Code in relation to sexual offences and other offences against the
person and to amend certain other Acts in relation thereto or in consequence thereof S.C. 1980-8 1-
82-83, c. 125, s. 19, amending R.S.C. 1970, c. C-34 [1982 amendments].
57 Supra note 36.
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witness who does not have a disability. There is no doubt, for example, that the
teenage complainant in B.M was assisted considerably by the presence of a
disinterested adult bystander who, walking by the complainant’s school at lunchtime,
heard her cries for help while she was being sexually assaulted by three young men.58
While this tendency does not revive the common law rule that the jury should be
cautioned against conviction in the absence of confirmatory evidence, it does indicate
that the credibility of women’s claims of sexual assault are still suspect, even where
those claims are unshaken by the supposedly crucial practice of cross-examination.
In those cases where it is found or assumed that the complainant does not have
the capacity to consent, the inability of the complainant to give evidence-in-chief and
to be cross-examined by conventional means seemed less important. For example, in
R.R., the twenty-one-year-old complainant experienced severe emotional distress
after the sexual assault and was institutionalized. After a Khan voir dire, the court
admitted into evidence a videotape of her statements to the police and to her mother.
The accused, the complainant’s fifty-seven-year-old neighbour, was convicted despite
the absence of corroborating physical or other evidence. 9
Taken together, these cases leave us with the impression that the complainant
may be in a better position if she is unable to testify at all than if she can give some
evidence. In the latter instance, the hearsay evidence may be excluded and the direct
evidence rejected because of their perceived deficiencies. It may be that a woman’s
inability to testify renders her childlike and asexual in the eyes of the court, and thus
“innocent”, actually enhancing her credibility.
D. Sexual History Evidence
The first Code provisions restricting the use of sexual history evidence were
enacted in 1976.60 Prior to that time, evidence of the complainant’s general reputation
for promiscuity or a lack of chastity could be introduced to undermine her credibility
and to support the accused’s claim that the complainant consented. 6
, Promiscuity was
broadly defined, and questions about whether the complainant was using birth
control, had ever had an abortion, or was a prostitute were routinely asked, without
any evidentiary foundation or direct relevance to the issues at trial. Such evidence
was permitted based on the belief that an immoral woman was more likely to lie on
the stand. In this way, sexual history was used to attack general credibility. Although
evidence of sexual history could also be used to support a claim of consent, this
58 Supra note 18 at para. 5. That said, despite the bystander’s evidence of her clear expressions of
nonconsent, the sexual history of the complainant was nevertheless put under a microscope at trial.
See Benedet & Grant, supra note 4 at 267-68.
59 Supra note 15 at para. 7.
60 Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93, s. 8, amending R.S.C. 1970, c. C-
61 See e.g. R. v. Moulton (1979), 19 A.R. 286, 51 C.C.C. (2d) 154 (C.A.).
34,s. 142.
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tended to be a subsidiary use since nonconsent was typically measured in terms of
observable resistance.62
The first sexual history provisions in the Code were not especially useful for
protecting women’s equality in the criminal trial process, since they made the
complainant a compellable witness at the voir dire and relied on a general test of
relevance to determine admissibility. Judges tended simply to repeat the sexist
assumption that past sexual experience was relevant to credibility and would admit
the evidence. The fact that the evidence was typically of a general reputation for
unchastity, rather than for specific sexual acts, made it even harder for the Crown to
rebut.63
the accused
Subsequent amendments made all sexual history evidence with persons other
inadmissible, with four exceptions.64 As a result of these
than
amendments, the complainant was no longer compellable on the voir dire. The
Supreme Court declared these provisions unconstitutional in R. v. Seaboyer,65 finding
that the use of fixed exceptions violated the section 7 right of the accused to make full
answer and defence by excluding relevant evidence. In an influential dissent, Justice
L’Heureux-Dub6 exposed the sexist stereotypes that continue to fuel the myth that
sexual history evidence is relevant to consent and credibility.
Parliament responded by enacting new provisions that closely follow the
Seaboyer guidelines. The current law makes no categorical exclusions, but instead
provides a list of factors for the trial judge to consider in balancing probative value
against prejudicial effect.66 The complainant remains noncompellable on the voir dire.
Significantly, the current provisions also extend to evidence of past sexual activity
with the accused, thus making them broader in their potential application than their
predecessor.
In the cases of sexual assault against women with mental disabilities that we
reviewed, evidence of sexual history sometimes appeared to have been admitted as
part of an inquiry into the complainant’s knowledge of sexual matters without a
formal section 276 application. Presumably, the Crown may do this if it seeks to place
in issue the capacity of the complainant to consent to sexual intercourse, since the
Crown is not required to submit sexual history evidence to a voir dire.6 1 It is
disturbing, however, that this evidence was also present in cases in which capacity
was not in issue, again without a formal section 276 application. This evidence is
62 See e.g. R. v. P (1976), 32 C.C.C. (2d) 400 at paras. 18-21 (Ont. H.C.J.). See also Alan W. Bryant,
“The Issue of Consent in the Crime of Sexual Assault” (1989) 68 Can. Bar Rev. 94 at 107.
63 See e.g. R. v. Moulton, supra note 61. Evidence of specific sexual acts was inadmissible as it
would have violated the collateral fact rule. See ibid.
64 Criminal Code, supra note 12, s. 246.1, as am. by 1982 amendments, supra note 56.
65 [1991] 2 S.C.R 577, 83 D.L.R. (4th) 193 [Seaboyer].
66 Criminal Code, supra note 12, s. 276(3), as am. by An Act to amend the Criminal Code (sexual
assault), S.C. 1992, c. 38, s. 2.
67 See ibid., s. 276(2) (referring specifically to evidence “adduced by or on behalf of the accused”).
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often used in highly suspect ways that reinforce the stereotype of hypersexuality
identified earlier. This was sometimes done in an offhanded way, for example by
describing the complainant as “overly friendly”, a label that was used in a number of
the cases we considered.6″ The cases do not really explain how it is that a person can
be too friendly, or what that might have to do with her claims of nonconsensual
sexual touching. Does the use of such a label suggest that the accused’s responsibility
is mitigated because the complainant “led him on” or that he might have had a belief
in consent as a result?
touching
took place,
the court heard evidence
Sexual history evidence was used in other cases that we reviewed in situations
where its utility seems nonexistent. In R. v. McPherson,69 where it seems to have been
assumed that the complainant was incapable of consent and the only issue was
whether any sexual
that the
complainant had received some education in sexual matters from her mother and that
she “loved””7 to watch a film that depicted people having sex (apparently because she
had watched the film at least once in the three-month period prior to the alleged
assault). The complainant’s understanding of sexual matters and the vocabulary she
might use to communicate about them were at issue in the case, but reference to the
complainant’s “love[]” of sexually explicit films (on scant evidence) is prejudicial
and also plays into the stereotype that women with disabilities are oversexed.7′ The
evidence had no real connection to the specifics of the alleged assault; the accused
was a bare acquaintance of the family who had stopped by to pick up mail belonging
to a mutual friend.
Similarly, in R.R., the accused, a neighbour of the complainant and her family, led
evidence in support of his defence of mistaken belief in consent that the complainant
had behaved in a sexually forward way with his teenaged sons.”2 He testified that the
complainant, a young woman with developmental disabilities, once tried to climb into
bed with his son and would frequently talk about wanting to have a baby. As in
McPherson, it appears that no voir dire was held to test the admissibility of this
evidence.
68 R. v. Chin, [1989] B.C.J. No. 539 (C.A.) (QL) [Chin]. See also Harper, supra note 20 at para. 16,
where the expression “too friendly” is used.
69 [1999] B.C.J. No. 518 (S.C.) (QL) [McPherson].
70 Ibid. at para. 39.
71 For a similar situation, see R. v. GAM, [1993] O.J. No. 476 (Ct. J. (Gen. Div.)) (QL), where the
fourteen-year-old complainant alleged that her uncle had intercourse with her on a number of
occasions. The complainant, who was described as having a significant learning disability, testified
that she had never had sex before and did not know what was happening. Presumably in response to
this testimony, the accused was permitted to cross-examine the complainant on her use of birth control
pills to regulate her period, in an apparent attempt to show that she was sexually active or
knowledgeable. The relevance of this evidence was not apparent, since the accused was arguing that
the sex never took place.
72 Supra note 15 at para. 8.
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In R.R., this evidence was held to be admissible on the basis that it formed the
evidentiary foundation for the expert testimony about the complainant’s capacity to
its
consent, not to support an
admissibility does not eliminate its prejudice. This is just the kind of evidence that
was used in damaging and discriminatory ways prior to the enactment of the sexual
history provisions, and whose use is now strictly limited by section 277.7′ The latter
section provides that evidence of sexual reputation is not admissible to show that the
complainant is generally less credible or more likely to have consented.
that she actually did consent.73 Yet
inference
In R.R., the court correctly recognized that this evidence actually proved that the
accused was well aware of the complainant’s disability and saw her behaviour as an
opportunity for exploitation.75 However, there is a danger that the judge or jury may
to conclude that the complainant was eager to
equally rely on such evidence
participate in any sexual activity proposed to her. In most cases, it should be possible
to settle the issue of capacity without a review of the complainant’s sexual history.
is judged
This is particularly
situationally by reference to the specifics of the alleged assault and the characteristics
of the accused.76
if, as we have argued elsewhere, capacity
true
In other cases, evidence that the complainant may have engaged in sexual activity
in the past in the hope of gaining social acceptance or male interest is admitted for the
purpose of undermining her assertions of nonconsent. This is precisely what
happened in B.M. ,7 where the trial judge permitted wide-ranging evidence about the
complainant’s reputation for casual oral sex with groups of boys at her high school.
Even though almost none of this so-called reputation evidence could actually be
substantiated, it was introduced at tremendous cost to the complainant, who was
portrayed as oversexed. 78 The reputation evidence almost overshadowed the clear
evidence of nonconsent to the acts at issue. The court never squarely confronted
whether any previous encounters, if they in fact took place, might also have been
coerced, or whether taking advantage of a young woman’s desire for approval and
73 It is also possible that such evidence could be admitted on the basis that it is not evidence of
“specific instances of sexual activity” (Criminal Code, supra note 12, s. 276(2)(a)) but is instead
evidence merely of conversations about sexual matters or expressions of interest in sexual activity.
74 Criminal Code, supra note 12, as am. by An Act to amend the Criminal Code and the Canada
Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 13.
75 Supra note 15 at paras. 58-59.
76 In an earlier article, we argued that the capacity to consent to sexual activity may depend not only
on the complainant’s intellectual abilities, but on the nature of the sexual activity involved and the
relationship (or lack thereof) between her and the accused. See Benedet & Grant, supra note 4 at 286-
87.77 Supra note 18.
78 Ibid. at para. 105. A similar result was obtained in R. v. D., [2000] O.J. No. 3645 (Sup. Ct.) (QL),
where the court held that s. 276 had no application on a bail hearing, and received evidence that the
teenage complainant was known to have had sex with groups of boys at her high school some five
years prior to her alleged abduction and group rape.
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social acceptance is exploitative. It is certainly not a phenomenon that is unique to
those young women who are considered to have mental disabilities.79
The apparent willingness of courts to consider the sexual history of women with
mental disabilities can have a devastating effect where that “history” includes one or
more recanted prior allegations of sexual assault, as in the Parsons case described
above.8″ In that case, the judge admitted (through a section 276 voir dire) evidence
that the complainant had, on four prior occasions, made allegations to her mother or
to police that she had been sexually assaulted by men other than the accused. In each
of these instances, the complainant later retracted the allegation. This evidence was
relied on by
the credibility of the
complainant. As a result of this history, it would have been almost impossible for this
complainant to be believed in the absence of strong corroborating evidence.
to completely undermine
the trial judge
Yet the trial judge in Parsons ignored important considerations that differentiated
the prior allegations from the charge before him. First, after the sexual activity at
issue in the trial, a police officer noted a large quantity of blood on the outside of the
complainant’s pants. 8’ Apparently, no record was retained of the “rape kit”
examination conducted on the complainant. Second, the complainant called the police
numerous times after the incident to report that she had seen the accused driving in
his truck and another vehicle. Based on this information, the police were able to pick
up the accused, who later admitted to sexual intercourse with the complainant.8 2
Finally, unlike in the other cases, the complainant did not recant or even substantially
modify her testimony throughout the proceedings.
In addition, the Crown did not lead any evidence about the possibility that the
complainant may previously have been pressured to recant falsely because of fear,
shame, or embarrassment. Or, if some of the allegations were indeed false, it may be
that they were made in response to leading questions that played to the complainant’s
tendency to give the answers that she thought her mother wanted to hear. If those
factors were not present in this case, which seemed to involve a spontaneous
allegation by the complainant when she first sought help in a convenience store, her
allegations could still be believable notwithstanding the prior recantations. It might
have been wise for the Crown to try and lead expert evidence to help the trial judge
make sense of this history.
The admission of sexual history evidence is generally problematic for sexual
assault complainants, but it is women with mental disabilities who are at particular
risk of seeing this evidence brought in “informally”, even by the Crown, as a way of
determining the complainant’s capacity. There is a real danger that this evidence will
79 See Michelle Oberman, “Turning Girls Into Women: Re-Evaluating Modern Statutory Rape Law”
(1994) 85 J. Crim. L. & Criminology 15.
80 Supra note 14 at paras. 34-39.
“81
Ibid. at para. 3.
82 Ibid. at para. 5.
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invoke stereotypes about the sexuality of women with mental disabilities that will
diminish their credibility as witnesses.
E. Third-Party Records
Another source of stereotyping about the sexuality of women with mental
disabilities is the introduction into evidence of records in the hands of third parties.
Women with mental disabilities often live heavily documented lives, with records
kept by health care workers, support services, group homes, schools, adapted work
placements, and counsellors. These women usually have no opportunity to read what
is written about them in these files, nor do they have an opportunity to correct or
supplement their own records. When they complain of sexual assault, a whole new set
of records may be generated by doctors, counsellors, and other individuals and
institutions involved in their care.
The evidentiary status of these records is connected to the issue of sexual history
evidence because as restrictions on the use of sexual history evidence increased in the
1990s, some defence lawyers turned to cross-examination on therapeutic and other
records (often maintained by third parties) as a way of impeaching the complainant’s
credibility. “Records” include psychiatric and medical records, counselling records,
diaries and journals, and school and employment records, among others.83 The
purposes for which the records were introduced often relied on the same myths and
stereotypes about women that had supposedly been discredited through tightening the
use of sexual history evidence and abolishing the discriminatory evidentiary rules of
corroboration and recent complaint.84
In cases where the alleged assault took place many years prior to the complaint
being made, defence lawyers might try to show that the assault was a recent
fabrication or “false memory”85 induced by the therapist. In other cases, they would
look for prior inconsistent statements by the complainant that she felt guilty or
responsible for what had happened.86 In a more general sense, evidence that the
complainant had received therapy or psychiatric treatment could be used to suggest
that she was an unreliable witness, prone to exaggeration, fabrication, or delusion,
83 The Criminal Code includes these in the definition of record, which also extends to any other
document that records personal information for which a person has a reasonable expectation of
privacy (supra note 12, s. 278.1, as am. by An Act to amend the Criminal Code, S.C. 1997, c. 30, s. 1).
84 See Lise Gotell, “The Ideal Victim, the Hysterical Complainant, and the Disclosure of
Confidential Records: The Implications of the Charter for Sexual Assault Law” (2002) 40 Osgoode
Hall L.J. 251 at 283-90.
“85 R. v. E.FH., [1994] O.J. No. 452 at para. 44 (Ct. J. (Gen. Div.)) (QL), aff’d 105 C.C.C. (3d) 233
(Ont. C.A.); R. v. J. WM., [1995] O.J. No. 3589 at para. 9 (Ct. J. (Gen. Div.)) (QL); R v. GD.D., [1995]
N.S.J. No. 529 (S.C.) (QL).
86 See e.g. R. v. Osolin, [1993] 4 S.C.R. 595, 109 D.L.R. (4th) 478, 162 N.R. 1 [Osolin cited to
S.C.R.].
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and so not worthy of belief.87 Sometimes school or work records were also sought to
show that the complainant was a delinquent or a problem student who could not be
trusted to tell the truth.8g
As the number of sexual assault cases using records began to increase, some rape
crisis centres, counsellors, and others began to resist or deny requests to produce such
records, citing confidentiality and the need to protect the interests of their women
clients.89 Since the Code was silent on the availability or use of such records, there
was confusion about when, if ever, they might be producible to the defence and who
might have standing to oppose the application.
The Supreme Court attempted to resolve this uncertainty in 1995 in R. v.
O ‘Connor.9” The Court developed a three-stage common law procedure for defence
applications for such records in the hands of third parties. First, where the judge
considered the records to be “likely relevant” to an issue at trial, he or she would
order their production to the court for review.9′ Second, after weighing the right of the
accused to make full answer and defence with the right of the complainant to privacy,
the judge would analyze the record and make a decision as to whether it should be
disclosed to the accused. Finally, and if they are disclosed, their admissibility at trial
would then be determined during the course of the trial according to the standard
rules of probative value and prejudicial effect.9″ Third parties,
including the
complainant and the record holder, were given standing to oppose the application.
Records already in the possession of the Crown were to follow the rule in R. v.
Stinchcombe`3 and be disclosed to the defence if they were likely relevant. 94 Sexual
assault complainants’ therapeutic records did not attract a class privilege and were not
to be treated differently than other records, a point made in A.(L.L.) v. B.(A).”
The O’Connor test was criticized for being too expansive and for failing to take
into account the equality rights of sexual assault complainants. The initial threshold
for production was low, on the assumption that the complainant’s privacy was not
compromised by mere production to the trial judge. In addition, the analysis adopted
by the majority of the Supreme Court failed to recognize that the complainant’s
equality rights were also at stake, forcing consideration of competing constitutional
values, not merely adjudicating a lopsided “contest” between the complainant’s
87 See e.g. R. v. Nickerson (1993), 121 N.S.R. (2d) 314, 21 C.R. (4th) 262, 81 C.C.C. (3d) 398
(C.A.); R. v. Manios (1999), 67 C.R.R. (2d) 138 at 140, 103 O.T.C. 73 (Sup. Ct.).
88 See e.g. R. v. R.D., [2002] S.J. No. 427 (Q.B.) (QL); R. v. N.P, [2001] O.J. No. 1828 (Sup. Ct.);
John DeMont, “Not Guilty: A jury acquits Gerald Regan of eight sex-related charges” Maclean s (28
December 1998) 56.
89 See e.g. R. v. Carosella, [1997] 1 S.C.R. 80 at 81, 142 D.L.R. (4th) 595, 207 N.R. 321.
9″ [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1 [O’Connor cited to S.C.R.].
91 Ibid. at para. 137.
92 Ibid. at paras. 15-34.
9′ [1995] 1 S.C.R. 754, 162A.R. 269, 178 N.R. 157.
94 O ‘Connor, supra note 90 at paras. 13-14.
9’ [ 1995] 4 S.C.R. 536 at 579, 130 D.L.R. (4th) 422, 190 N.R. 329.
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feelings of embarrassment and the accused’s right to a fair trial. In dissent once again,
Justice L’Heureux-Dub6 argued that the majority’s approach was too broad and that
the interests of the complainant needed to be considered before the records were
produced for review.
Parliament responded to the decision in O’Connor with a statutory regime for the
production and disclosure of third-party records that more closely followed the
dissent. While the three stages of production, disclosure, and admissibility were
retained, the complainant’s right to privacy and equality was to be considered at the
first stage of production (as well as at subsequent stages). In addition, the Code
specified a long list of reasons that were not, in and of themselves, sufficient to
support an order for production or disclosure.96 The statutory regime was upheld
against constitutional challenge in R. v. Mills.97
A review of cases on third-party records decided since Mills shows a number of
things. First, the kinds of records sought by the defence are not limited to counselling
and other therapeutic records. Defence counsel have in various cases sought access to
school records, records kept at addiction treatment centres, pharmacy records, records
of youth centres and child protection agencies, group-home disciplinary records,
poetry, and personal diaries. 98 Second, there is still a tendency on the part of some
judges to fail
to account for the adverse impact on the complainant of mere
production to the judge.99 Finally, judges also seem to have difficulty articulating the
nature of the equality interest of the complainant in the nondisclosure of such records,
or identifying the potential for stereotypical and discriminatory use of such evidence
inherent in many records applications. Few cases do more than refer in passing to
these rights in general terms.”‘0
Not surprisingly, applications for access to records have a differential adverse
impact on groups of women whose lives are more likely to be heavily documented,
including women with mental disabilities. Such women are likely to have had
multiple encounters with medical practitioners, counsellors, therapists and support
workers, and residential or drop-in programs, all of which produce documents. In
most cases in which records are sought, the complainant will never have seen the
records and will have had no opportunity to contribute to, correct, or dispute their
contents before they are produced to the judge or disclosed to the defence.
Women with mental disabilities are vulnerable
third-party-records
that may prompt
stereotypes
to particular discriminatory
applications. Women with
96 Supra note 12, s. 278.3(4).
“97 [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1,248 N.R. 101 [Mills].
98 See e.g. R. v. WA.O., [2002] S.J. No. 783 (Q.B.) (QL) (medical, therapy, and pharmaceutical
records); R. v. R.D., supra note 88 (alcohol treatment centre records, school disciplinary records, and
Child and Family Services records); R. v. M.H., 2005 BCCA 419, 201 C.C.C. (3d) 47, 216 B.C.A.C.
74 (medical and therapy records, as well as poetry written by the complainant).
99 See e.g. Gotell, supra note 84 at 278-81.
100 See e.g. ibid. at 279.
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developmental disabilities or brain injuries are treated as childlike and therefore
unreliable. Women with psychiatric illness are seen as prone to lying or fantasizing
and are also considered unreliable.
This does not mean that records are invariably ordered, produced, or disclosed.
There are numerous cases involving complainants with mental disabilities where
applications for records are denied on the basis that the accused has made no more
in a fishing
than a bare assertion of relevance and
expedition.”” What is troubling, however, is that it is hard to discern any predictable
pattern in judicial decision making with respect to such applications. The judges who
do order production at times seem unmoved by the clear equality interests engaged.
is effectively engaging
For example, in Hundle,”0 2 the accused was a bus driver for a transportation
service for adults with disabilities. The complainant was a twenty-four-year-old
woman who used the service to travel from a college art course to her group home.
She had autism and bipolar disorder. She alleged that Hundle did not drive her
directly home, and instead took her to two different parking lots and sexually
assaulted her by touching her breasts. Hundle admitted to the activity, but said that it
was initiated by the complainant, that it was consensual, and that he terminated it
when he realized that it was inappropriate.
Hundle sought access to the records of the complainant’s psychiatrist (who
testified as a witness at the preliminary inquiry), records of a former treating
psychologist, records of the complainant’s family physician, and records of the
complainant’s group home showing any discipline for inappropriate sexual activity.
He also sought access to any other records of the transportation service concerning
the complainant, based on information he received from another driver that the
complainant had, nine months earlier, touched the other driver’s leg and tried to kiss
him without his consent and that he had reported this incident to his supervisors.
The trial judge held that there was no reasonable expectation of privacy in the
transit service records; as such, they were not subject to the Code regime and should
be produced.’ 3 The group home records were also relevant as potentially disclosing
discipline meted out for the earlier complaint by the other bus driver.”14 Finally, the
trial judge ordered that the records of the psychiatrist be produced because he was
called as a witness and the defence was entitled to see the documents on which his
opinion was based.’0 5
The conclusion that these records were likely relevant seems to have little
connection to the nature of the allegation or the accused’s asserted defence. If the
complainant did attempt to have consensual contact (a kiss) with another bus driver
101 See e.g. R. v. Sutherland, [2001] 156 C.C.C. (3d) 264, 146 O.A.C. 53 (C.A.).
102 Supra note 18.
103 Ibid. at para. 42.
104 Ibid. at para. 9.
“‘ Ibid. at para. 63.
20071 J. BENEDET& I. GRANT- EVIDENTIARYAND PROCEDURAL ISSUES
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nine months earlier outside her residence, this is hardly probative of whether the
complainant in fact “initiated”” 6 the touching of her own breasts by the accused in a
parking lot on the latter occasion. It is in fact evidence of past sexual history, tendered
to show the likelihood of consent, that should have been subject to scrutiny under
section 276.
In addition,
the psychiatrist’s
testimony that four years earlier, when the
complainant experienced her one severe manic episode, she had delusions that she
had once been married and had miscarriages, was not really supportive of his
conclusion that she had “delusions … [of a] sexual nature …
107 It certainly had
nothing to do with her encounter with the accused, which he admitted had taken
place. Instead, the decision to produce the records appears to have had much more to
do with generalized concerns that the complainant’s psychiatric disorder made her
delusional and not credible and that her history of discipline for “inappropriate”’00
sexual activity gave her a motive to lie. The actions of the group home, if indeed they
included punishment for the earlier incident, are further evidence of how the sexuality
of women with mental disabilities is often judged and tightly controlled by others.
Overall, we did not have a large number of decisions on records applications in
our sample. We did, however, find a number of cases in which the content of facility
records were discussed and relied on by the judge without any reference to a formal
section 278.1 application having been made. For example, in Harper, the trial judge
referred to a letter in the nursing home’s file on the complainant about her interactions
with men.’0 9 In R. v. GH.S., the complainant was cross-examined on a nurse’s note in
her medical file that stated she was “very manipulative”.”‘ The file was created when
she went to the hospital after a suicide attempt.,”‘ In none of these cases does it
appear that the records were the subject of an application, even though the Code
regime applies to records in the hands of both the Crown and third parties.
In the same way that sexual history evidence is admitted almost automatically in
some cases where the complainant has a mental disability, it appears that sometimes
evidence from private records is simply admitted without any consideration of its
prejudicial effect. It may be that some judges and lawyers fail to recognize that even
heavily documented complainants, or complainants whose disabilities are profound,
have a right to privacy and are harmed when private information, speculation, and
conclusions are used to distort their abilities and experiences.
106 Ibid. at para. 1.
107 Ibid. at para. 20.
108 Ibid. at para. 9.
109 Supra note 20 at para. 16.
‘0 2001 BCSC 766, [2001] B.C.J. No. 1425 at para. 53 (QL).
1 Ibid. at paras. 51-53.
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F. Credibility
The credibility of the complainant is closely intertwined with the evidentiary
issues discussed above. The accused introduces sexual history evidence, for example,
to undermine the complainant’s credibility. Credibility also operates at a more general
level, however, setting the tone for a consideration of consent and mistake of fact and
playing into the reasonable doubt calculation. Sexual assault prosecutions often pit
the accused against the complainant in a contest of credibility because there are rarely
other witnesses. Any claim by the accused that the sexual contact did not happen, or
that it was consensual, is inherently an attack on the credibility of the complainant: if
the accused is correct, the complainant is lying, absent a finding of mistake of fact.
There is a long history of trying to impeach the credibility of sexual assault
complainants by invoking misogynist stereotypes about women.” 2 In the context of
our adversarial system, and of the requirement of proof beyond a reasonable doubt,
the accused need not be believed to be successful. If the trier of fact has a reasonable
doubt that the accused is telling the truth, the accused is entitled to an acquittal. What
is especially disconcerting, however, is how the fact of disability itself can be used in
a discriminatory manner to cast doubt on the complainant’s credibility. As we have
seen above, if she cannot be swom, her testimony carries less weight. In other cases,
memory or communication problems may raise a reasonable doubt about the
believability of the complainant.
It is not unusual in cases involving complainants with mental disabilities to see
inconsistencies in, or a certain amount of confusion regarding, some details of their
testimony. Such inconsistencies might raise issues of credibility if the complainant
did not have a disability. But in cases involving complainants with mental disabilities,
trial judges should carefully examine the real significance of those inconsistencies to
the essence of the
the legal
complainant’s testimony. In some cases, for example, the complainant may be easily
influenced by the nature of the questions or may not fully understand them. Trial
judges must be cautious not to dismiss too easily all of the complainant’s testimony
because some of the details may be unreliable.
issues at stake, with a view to understanding
In R. v. Gadway,”3 for example, though the judge did have a reasonable doubt
based on some of the complainant’s testimony about the day on which the assault was
alleged to have taken place, he nonetheless recognized that issues of credibility need
to be seen in the context of the complainant’s disability:
While
the answers
[of the complainant] would normally place
the
credibility of any witness beyond repair, in dealing with mentally handicapped
witnesses or children, the Court[‘]s assessment of credibility must be attuned to
the experience, and intellectual development of the witness.” 4
112 See generally Seaboyer, supra note 65, LUHeureux-Dub& J., dissenting.
113 [1993] Y.J. No. 69 (Terr. Ct.) (QL) [Gadway].
114Ibid. at para. 31.
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In Gadway, the complainant maintained throughout her testimony that the accused,
an activity coordinator for persons with disabilities, had raped her in her apartment on
a Saturday. The trial judge found that this was impossible based on the undisputed
timing of other events. It was, however, possible that the assault took place on
Sunday, when
the complainant’s apartment. Gadway
demonstrates that, even when the courts treat complainants with disabilities with
respect, limitations in their evidence may prevent a conviction. Where timing is a
crucial factor, the inability of the witness to remember dates or the sequence of events
may pose a very real barrier to justice.
the accused also visited
1. Disability Undermining Credibility
difficulty
forming
complainant might have
There are several ways in which disability itself is used to undermine credibility:
the
long-term memories,” 5
communicating information to people in authority, or communicating effectively on
the witness stand.” 6 She might be overly suggestive to ideas put to her in questions” 7
or unduly influenced by caregivers or parents. “‘ The pressures of cross-examination
may result in apparently conflicting testimony by a complainant with a mental
disability.’ 9 Sometimes these limitations are real, and police and courts must
accommodate their processes accordingly. However, there is a fine line between
actual cognitive and communicative limitations on the one hand, and assumptions
about such limitations on the other:
There is no straightforward relationship between intellectual impairment
and memory. Individuals process, remember and communicate information
more or less well, depending on numerous variables involved in the situation
and the individual. It is possible to assess these on an individual basis.’ 20
In Harper,’2′ the complainant, who was living in a nursing home, notified nurses
using her emergency bell and described a sexual assault against her by a relative of
another resident who was subsequently found in the hall, severely intoxicated. She
was found with her clothes in disarray and a strong smell of alcohol in the room.
Physical injuries supported her claim of sexual assault. The complainant had well-
established problems forming long-term memories but, instead of looking to her
statements
immediately following the alleged assault, the court applied more
115 See e.g. Parrott, supra note 37; Harper, supra note 20.
t16 See e.g. R. v. Young (1994), 113 Nfld. & P.E.I.R. 219 (Nfld. S.C. (T.D.)).
117 See e.g. Gadway, supra note 113 at para. 27 (complainant and roommate both highly prone to
suggestion in questioning).
118 See e.g. Chin, supra note 68 (caregivers); McPherson, supra note 69 (mother).
“119 See e.g. R. v. K.R., [1998] O.J. No. 181 at paras. 20-37 (Ct. J. (Prov. Div.)) (QL).
120 Charlene Senn, Vulnerable: Sexual Abuse and People with an Intellectual Handicap
(Downsview, Ont.: The G Allan Rocker Institute, 1988) at 70, cited in Gadway, supra note 113 at
para. 42. This report was prepared under contract to the Family Violence Prevention Division, Health
and Welfare Canada.
121 Supra note 20.
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traditional indicators of credibility. For example, in assessing the complainant’s
credibility as a witness, the judge commented on the fact that the complainant did not
know the floor or room number in which she lived on the date of the sexual assault.
She also had difficulty saying whether the assault took place in fall, winter, or spring.
information (that was of limited
The fact that someone cannot retain such
significance in her life) does not mean that she would make false allegations of sexual
assault immediately after an alleged assault. The trial judge in Harper recognized that
the focus on more typical indicators of credibility was problematic in this case:
Cases such as this are probably the most difficult that courts have to face.
They are stressful for the complainant, her family and the staff at [the
residence]. The criminal law is of necessity an after the fact process and
confronts the frailty of the human memory and our ability to determine what
really happened in any given case. There is no doubt that the vulnerable
members of our society have a diminished ability to make their case even when
their hearsay evidence is admitted. 122
While there was clear evidence in Harper that the complainant’s ability to form
new long-term memories was almost nonexistent, there was no evidence that her
immediate recall of events was not reliable or that she was likely to lie. Given this
knowledge base, the focus should have been on her statements made to the
institution’s staff immediately following the alleged sexual assault and on whether
evidence of her statements to her caregivers could have been admitted under Khan as
both reliable and necessary, without the need to subject her to a futile cross-
examination.
The inability to form long-term memories is made all the more problematic by the
long delays between an alleged assault and trial. Often, the complainant will have
gone through several interrogations and, by the time of trial, it may be very difficult
to sort out what her explanation of events really was.’23 Sometimes, the police will
have thought to make a videotaped statement while the information was still fresh
enough in the mind of the complainant.’24 In Gadway, the court noted that
[w1hile all memories fade in time, some mental handicaps may so severely
restrict long term memory that a delayed trial may effectively preclude their
testimony. Precluding such testimony may allow the guilty to elude justice, and
for the innocent to avoid unjust convictions. 125
In cases like Harper, however, where the complainant’s memory was particularly
limited, even the delay involved in setting up a videotaped interview may preclude
the opportunity of getting the complainant’s story documented. In Harper, the only
basis for the trial judge’s reasonable doubt about nonconsent was the complainant’s
122 Ibid. at para. 72.
123 See Gadway, supra note 113 at para. 17ff. for a thoughtful discussion of some of the difficulties
in obtaining evidence from complainants or witnesses with serious memory impairments.
124 See e.g. R. v. B.(K.G), [1993] S.C.R. 740,79 C.C.C. (3d) 257, 19 C.R. (4th) 1.
125 Supra note 113 at para. 42.
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memory deficit.
notwithstanding the corroborating evidence of nonconsent present in this case.
that made a conviction
It was her disability
impossible,
2. Credibility of Caregivers and Parents
The fact that complainants with mental disabilities may have to rely on the
evidence of support persons or parents may also be destructive of credibility,
particularly where those persons are seen as advocates for their children or as
harbouring some hostility to the accused (or indeed to any potential sexual partner of
the complainant). For example, in Chin,”‘ a nurse testified that she saw the accused
doctor touching the breasts of the fifteen-year-old complainant who was confined to
hospital for treatment for epilepsy. The British Columbia Court of Appeal ruled that
her evidence should not have been relied upon because the nurse had discussed her
evidence with her husband, a counsellor at the complainant’s school who was aware
of earlier allegations of sexual assault against Dr. Chin by another student. The
nurse’s evidence was important because
the Court of Appeal found that the
complainant’s evidence was highly suspect given her limited memory, confusion due
to her epilepsy, and highly suggestible nature.
In McPherson,’27 the trial judge rejected the Crown’s application to introduce
statements made by the twenty-nine-year-old complainant to her mother and aunt
alleging that she had been sexually assaulted by a family acquaintance who had
stopped by to pick up some mail. The trial judge noted that there was no physical
evidence to support the allegation of sexual assault and that the evidence given by the
complainant’s aunt and mother was suspect because they believed that the accused
had assaulted the complainant when they saw him leave her room in a crouching
fashion.
The complainant in that case was described as having the intellectual ability of a
preschool child due to complications from childhood meningitis. She was described
as “cheerful”, “eager to please”, and as often giving inappropriate answers
to
questions.’28 Her evidence was further complicated by the fact that she did not speak
English and testified in Tagalog through an interpreter. As a result, the complainant’s
statements were seen as being elicited by the mother’s and aunt’s questioning and
were neither spontaneous nor reliable. Her interview with the police was also ruled
inadmissible because of her suggestibility.
On a practical level, it is unlikely that witnesses who are deemed confused and
suggestible by the court are going to be able to give credible evidence on their own.
Without physical corroboration, there is little choice but to supplement their evidence
with statements made to parents (usually mothers) and caregivers. These persons are
usually not disinterested observers, and it is hardly surprising that if they thought they
126 Supra note 68.
127 Supra note 69.
128 Ibid. at para. 5.
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had just witnessed an assault, they would ask “leading” questions of their daughter or
client rather than waiting around for a spontaneous outburst. The trial judge’s
repeated reference to the complainant’s mother in that case as “hysterical”” 29 is itself a
stereotypical label with a long history of use to dismiss wrongs done to women.’3
Certainly, the accused’s explanation-that he had let himself into the house to get
the mail at 8 a.m., without waking either the complainant or her brother, and then was
in the complainant’s room watching television-strains credulity. This is especially so
given that the accused did not have a close relationship with the family (he was an
employee of the mother’s friend), and that two witnesses saw him leave the bedroom
in a crouching position.
The role of the mother as destructive of credibility is also evident in Parsons.131
In that case, the complainant’s mother was influential in encouraging her both to
make and later recant several prior allegations of sexual assault against men other
than the accused. This evidence was extremely destructive of the complainant’s
credibility, leading the court to find that she was a person who was prone to
fabricating complaints of sexual assault. This led the judge to discount several notable
differences between the past case and the case before him. Unfortunately, the Crown
failed to lead any evidence about false recantation by women with disabilities who
have been sexually assaulted,’32 and the trial judge failed to consider the possibility
that some or all of the previous allegations could be true. Certainly, it is not at all
inconceivable that a woman with physical and mental disabilities could be sexually
assaulted multiple times by different men.
III. Discussion
In this paper, we have argued that the failure of courts to guarantee substantive
equality to women with mental disabilities manifests itself not only in the way courts
interpret and apply the substantive offence of sexual assault, but also in the form of
evidentiary and procedural barriers to full participation as witnesses in the criminal
justice system. Thus far, we have identified some of the specific areas of law that
create barriers for complainants with mental disabilities in sexual assault trials. The
cumulative impact of these barriers has a potentially devastating impact on the
likelihood of a successful prosecution. Although beyond the scope of this study, it
would not be surprising if Crown counsel decided in many such cases not to pursue
prosecution because of these obstacles.
129 Ibid. at paras. 36, 41.
130 See Jonette Watson Hamilton, “The Use of Metaphor and Narrative to Construct Gendered
Hysteria In the Courts” (2002) 1 J.L. & Equality 155; P. Chodoff, “Hysteria and Women” (1982) 139
American Journal of Psychiatry 545.
131 Supra note 14.
132 See e.g. R. v. S.GR., [1993] O.J. No. 610 (Ct. J. (Prov. Div.)) (QL).
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real
conditions,
loss,
In this section, we attempt to integrate our legal analysis with our understanding
of (and assumptions about) disability both to clarify the barriers for women with
mental disabilities and to suggest potential accommodations. The legal analysis
demands an understanding of disability that takes into account both the biomedical
diagnosis and the social construction of disability. While women with mental
disabilities have
that necessitate
accommodation in the criminal justice system, our social construction of disability
also creates barriers. For example, delays in the criminal justice system may “disable”
a complainant from participating as a witness who might otherwise have been able to
give evidence. Yet the greatest impediment to accommodating complainants with
mental disabilities lies in our assumptions about what is necessary to ensure a fair
trial for an accused. We suggest that a more nuanced understanding of what a fair trial
requires would facilitate a more effective utilization of existing accommodations as
well as the development of new ones.
as memory
such
Many of the evidentiary rules and procedures that have evolved in the sexual
assault context exist to provide a mechanism for the accused to demonstrate that the
complainant is lying, either in her assertion of nonconsent or in her claim that sexual
activity took place at all. While these rules can reflect stereotyped assumptions about
women and make successful prosecution of sexual assault difficult in any context,
they are particularly damaging in the context of complainants with mental disabilities.
It is simply unrealistic to expect many women with developmental disabilities to be
able to live up to the demands of the perfect witness who gives a detailed, consistent
account of a highly traumatic event in increasingly public and hostile forums,
possibly years after the alleged assault. And while these demands are onerous for
many other sexual assault complainants as well, the issues of the ability to be sworn
and to be cross-examined may be unique for this group of women.
These problems demonstrate the tension between a model of disability that sees it
as a biomedical condition that creates real barriers to participation and a social model
of disability that characterizes those barriers as being created by norms of behaviour
and ability that are socially constructed.133 There is little doubt from our study that
both of these models have explanatory value in addressing problems in the criminal
justice system facing sexual assault complainants with mental disabilities.
In the case of evidentiary and procedural norms, many of the barriers are socially
constructed by the assumptions about the necessary procedure for a criminal trial.
How do we know that someone who takes an oath or affirmation is more likely to tell
the truth than someone who does not? Similarly, we assume that a vigorous,
confrontational cross-examination of a sexual assault complainant is the best way to
get at the truth, whatever the cost to the complainant and no matter what her
disabilities. Likewise, in line with widespread socially accepted stereotypes about
133 See Benedet & Grant, supra note 4 at 253-55 for a more detailed discussion of these models.
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women’s sexuality, sexual history evidence is wrongly assumed to be relevant to
issues such as consent and credibility.
from biomedical
conditions. Deficits
At the same time, we need to acknowledge that, in the case of procedural rules,
there are many ways in which the barriers for women with mental disabilities flow
directly
in memory, problems with
communication, and inability to estimate time or to place events in sequence may all
be very real challenges for many women with mental disabilities. These difficulties
require particular accommodations in the criminal trial process in order for these
women’s stories to be heard. We cannot simply conclude that all women with mental
disabilities have their autonomy enhanced by being allowed to sink or swim in the
current system. Nor can we assume that they are somehow insurmountable if the
accused is to be guaranteed a fair trial.
Real reform in this area will require examining the rules we take for granted in
the criminal justice process in order to identify which are useful and necessary, and
which act as unfair barriers to sexual assault complainants with mental disabilities.
We are not suggesting that we jettison the fundamental tenets of a fair trial whenever
the complainant has a mental disability, but rather that we question unchallenged
assumptions about the centrality of certain tenets if those tenets render some women
rapable with impunity because their disability prevents them from being “typical”
witnesses. We also need to challenge the assumption that the routine portrayal of
women as lying or promiscuous facilitates the pursuit of truth.
Women with mental disabilities are guaranteed the equal protection of the law
under section 15 of the Canadian Charter of Rights and Freedoms.134 All players in
the criminal justice system have a duty to maximize the extent to which women with
mental disabilities can have their claims heard effectively in criminal courts. A
substantive equality approach would require all best efforts that are not inconsistent
with the right of the accused to a fair trial to accommodate the complainant’s
participation in the system. Identifying these accommodations is complicated by the
fact that different complainants need different types of accommodations. We must
resist the temptation to treat all women in this group as if they are the same. Thus, to a
great extent, accommodations will need to be assessed on a case-by-case basis.
Efforts must be made at the earliest possible stage of the criminal justice process to
identify
to which
complainants with mental disabilities can participate in the process. This may require
involving persons familiar with the complainant, her abilities, and her limitations in
formulating a strategy. In some of the cases in our study, it was not until well into the
types of supports necessary
to maximize
the
the degree
134 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 [Charter].
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trial itself that such limitations were addressed, even though the disability was clearly
evident at the investigatory stage and preliminary inquiry. ’35
There are some limited accommodations for complainants with disabilities
already in the Code, mostly derived from provisions that apply to children. Section
715.2, for example, provides for the admission of a videotaped interview made within
a reasonable time after the alleged offence where a complainant is unable to testify
because of a disability. The videotape does have to be adopted by the complainant,
though in cases dealing with the analogous provision for children, the Supreme Court
has acknowledged that the complainant need not remember the contents of the
videotape. 136 Subsection 486(1.2) allows a child under fourteen or a person with a
disability to have a support person close by when testifying. And subsection 486(2.1)
allows for a complainant under eighteen or with a disability to testify outside the
courtroom or from behind a screen, blocking her view of the accused yet allowing the
accused and other participants in the trial to see her.1 37 While we would urge caution
in comparing women with mental disabilities to children, we recognize that some of
these procedures are useful for particularly vulnerable complainants. We were
surprised, therefore, to see how rarely these options were utilized or discussed in our
sample of cases.
We have already suggested that some women may require accommodations
including limits on cross-examination, a flexible interpretation of the hearsay rule,
and rigorous application of the rules prohibiting inappropriate use of sexual history
evidence. In the latter two examples, the problems lie not in the law itself but in its
application. There are, for example, already limits in section 276 of the Code on the
allowable uses of sexual history evidence, which accused persons are sometimes able
to circumvent where the complainant has a mental disability.’ 38 Courts must be
rigorous about preventing evidence of sexual history from slipping in the back door
as part of an inquiry into capacity to consent or testimonial competence, where it is
ultimately used to taint all of the complainant’s evidence. Trial judges need to be
especially careful that the jury is warned about such misuse of evidence even when it
is introduced by the Crown without a formal application.
Perhaps more controversially, it may also be necessary to rethink the focus of
cross-examination with a view
less confrontational for some
complainants. This could be done, for example, through a list of questions read by
someone familiar to the complainant or by some other mechanism. We recognize that
the right of the accused person to confront his accuser by way of cross-examination is
part of the right to full answer and defence and has been constitutionalized by section
to making
it
135 See e.g. Wyatt, supra note 11; R. v. N.JD. (1990), 112 N.B.R. (2d) 271 (C.A.); R. v. S.G(I),
[1998] O.J. No. 2584 (Ct. J. (Gen. Div.)) (QL).
136 SeeR. v. F(C.C.), [1997] 3 S.C.R. 1183, 154 D.L.R. (4th) 13,220 N.R. 362.
137 This safeguard has been upheld as constitutional in the context of child complainants. See R. v.
Levogiannis, [1993] 4 S.C.R. 475, 85 C.C.C. (3d) 327, 18 C.R.R. (2d) 242.
138 See Part I1.D, above.
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7 and subsection 11(d) of the Charter.39 We also recognize that a majority of the
Supreme Court has tipped the balance toward prioritizing an unencumbered right of
full answer and defence over the equality rights and rights to security of the person
for sexual assault complainants. 4 Radical reform of the criminal justice system to
enhance the participation of complainants with mental disabilities appears unlikely
within our current constitutional framework. As John McInnes and Christine Boyle
have noted:
This reality may lead us to an uncomfortable recognition that whatever the
purpose of criminal law is in our present stage of social evolution, it is
irretrievably inimical to equality and that trying to use it as an equality-
promoting tool may be much like trying to douse a fire with gasoline. A truly
egalitarian society may require a regime of criminal law that to us would be
virtually unrecognizable, and we question whether it is possible within the
limited range of our present armament of constitutional arguments and
procedures to even begin the necessary transformations.141
However, even in privileging the accused’s right to full answer and defence over
to stereotypes and
equality, the Supreme Court has cautioned against resort
assumptions about sexual assault complainants. As noted in Osolin:
for the purposes of showing consent or
Cross-examination
impugning
credibility which relies upon “rape myths” will always be more prejudicial than
probative. Such evidence can fulfil no legitimate purpose and would therefore
be inadmissible to go to consent or credibility. 142
More recently in Shearing, the majority stated:
The courts have recognized, no doubt belatedly, that certain techniques of
cross-examination traditionally employed in sexual assault cases have distorted
rather than advanced the search for truth.
143
While in most instances the adversarial process allows wide latitude to
cross-examiners to resort to unproven assumptions and innuendo in an effort to
crack the untruthful witness, sexual assault cases pose particular dangers.
Seaboyer, Osolin and Mills all make the point that these cases should be
decided without resort to folk tales about how abuse victims are expected by
people who have never suffered abuse to react to the trauma … 144
139 See Osolin, supra note 86 at 665.
140 See e.g. R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at paras. 107-52, 214 D.L.R. (4th) 215
[Shearing].
141 John McInnes & Christine Boyle, “Judging Sexual Assault Law Against a Standard of Equality”
(1995) 29 U.B.C. L. Rev. 341 at 349.
142 Supra note 86 at 671, Cory J. This passage is cited with approval by Binnie J. in Shearing, supra
note 140 at para. 108.
“143 Shearing, ibid. at para. 119. See also R. v. Lyttle, 2004 SCC 5, [2004] I S.C.R. 193 at para. 44,
235 D.L.R. (4th) 244 (trial judge has a responsibility to ensure that cross-examination is not used
inappropriately to taint the reputation of the witness).
“144 Shearing, ibid. at para. 121.
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We would suggest that, even in our existing constitutional framework, the content
given to full answer and defence must be examined in context. Particularly when
dealing with complainants with mental disabilities, there will be cases where the
opportunity to cross-examine in the traditional way does not further the truth-seeking
process and serves only to taint the overall credibility of the complainant because of
her disability. Where, for example, the complainant’s mental disability renders her
suggestible or highly traumatized by confrontation, the traditional style of cross-
examination may actually be counterproductive in seeking the truth. Just as we must
avoid rape myths about sexual assault complainants generally, so too must we avoid
myths about the sexual availability and the veracity of women with mental
disabilities. It may be inevitable that limits on cross-examination will affect the
weight given to the complainant’s evidence. We would argue, however, that this is for
the trier of fact to assess and that a judicial stay of proceedings usurps that role.
One danger in providing accommodations to facilitate hearing the stories of
complainants with mental disabilities
is that the accommodation could further
perpetuate stereotypes and undermine the very credibility that the accommodation is
designed to protect. The allegations of a woman who does not testify may well be less
likely to be believed. A more flexible use of the Khan hearsay exception could help
the stories of women with mental disabilities be heard in court, but would it
undermine their credibility at the same time? Trial judges will need to be vigilant in
cautioning jurors about drawing unwarranted assumptions
fact of
accommodation itself.
from
the
We acknowledge that there may be a small group of sexual assault complainants
whose disabilities are so severe that, in the absence of other witnesses, a fair trial
cannot be held. It will be difficult, for example, to prosecute an accused where the
complainant has no means of communicating with others about what may have
happened, unless the Crown has persuasive corroborating evidence of sexual
assault.145 However, this group of complainants is small and this conclusion should
never be reached with respect to a particular woman without first exhausting all
possible accommodations to enable her meaningful participation in the process.
Conclusion
Existing evidentiary rules and trial procedures disadvantage women with mental
disabilities who complain of sexual assault. Much of the discrimination faced by
complainants with mental disabilities is common to all women who complain of
sexual assault, but women with mental disabilities often experience it in distinct and
particularly devastating ways. While we see more real differences between these
groups of women on the evidentiary or procedural side, and more commonality on the
substantive application of the sexual assault offence,1 46 we must try to transcend the
145 See e.g. Chin, supra note 68.
146 See Benedet & Grant, supra note 4 at 271, 289.
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sameness/difference debate in pursuit of a more substantive equality that is alive to
discrimination at the intersection of the grounds of sex and disability.
The solutions, where they exist, are varied. Some of the problems we have
identified could be addressed simply with a greater understanding of this group of
complainants. Cultivating such understanding might require more targeted training
for police, prosecutors, and judges, including perhaps the designation of special
prosecution teams or dedicated courts that do not simply lump these complainants in
with children or leave them to sink or swim on their own.
At the same time, there is a need to recognize the heterogeneity of this group of
women, not to mention the imprecise boundaries of the group itself. It is a real
challenge to tailor individual proceedings to different kinds and levels of disability.
Moreover, there is no easy way to define which women should bear this label. This
may call for a self-identification threshold or at least caution in labelling women in
this way. At a minimum, we argue that it does not meet the sex equality rights of
women with mental disabilities to burden them with the stigma, stereotypes, and
failure of accommodation that we have seen in so many of the cases, and to make so
few efforts to recognize their particular needs, aptitudes, and challenges.
This is especially important because the cost of participating in the criminal
justice system can be very high for women with mental disabilities. We have stressed
that freedom from sexual violence is a necessary precondition for sexual autonomy.
Women with mental disabilities who have been sexually assaulted may find, however,
that they are subjected to increased segregation and control after the assault, and that
any autonomy they might have been permitted prior to the assault is jettisoned in
favour of protection. Adult women still living with their parents may find they are
discouraged or prevented from having male friends and may have their independence
limited even further; women living in group homes may be subject to increased
surveillance
fewer “privileges”. Women who have been participating
independently in the community may, like other victims of sexual assault, self-
segregate.
and
We conclude by asking a deceptively simple question: in a legal sense, what do
we want for women with mental disabilities who complain of sexual assault? In many
respects, the answer is common to all women. We want them to be believed and
respected. Many women with disabilities have been taught to trust those in authority;
that trust is betrayed when they are sexually assaulted by their caregivers or others in
relationships of trust. It is further debased when the criminal justice system rejects
these women as inadequate to participate in its processes. We want the criminal
justice system to recognize and reject, rather than replicate, the stereotypes and
pervasive social disadvantage experienced by this group of women.
