Responding to the sexual assault of women and adolescent girls with mental disabilities in the criminal trial
About the project
This project considers research addressing the sexual assault of women (age 18+) and adolescent girls (12-17) with mental disabilities (disabilities that affect cognition and decision-making, including intellectual disabilities present from birth, dementia, brain injury and certain psychiatric conditions). These women and girls are targeted for sexual violence at rates even higher than for women generally. Police officers, judges, lawyers and service providers are becoming increasingly aware of the seriousness of these crimes. Yet when these women report abuse to authorities, the criminal trial process struggles to provide them with justice, while the consequences of disclosure can be severe and participation in the criminal justice process particularly traumatizing for them.
We identify what barriers exist in the legal system and insights the existing social science research can offer in helping to overcome them. We also identify significant gaps in this research and suggest future directions for scholarly inquiry.
Our research examined case law from all Canadian provinces and territories as well as Canadian legal and social science research from 2012-2022, in addition to key resources from select comparator jurisdictions. We included ̴̴ 90 articles and 89 cases in our report. We used judicial decisions as a way of identifying the issues for sexual assault complainants who access the criminal trial process, plus as an indicator of the kinds of cases that are making it to court. This allowed us to consider whether these issues are being addressed by researchers, and whether the existing research is influencing judicial decision-making and trial procedure.
Key findings
- The case law reveals that sexual assaults against these women are often crimes of opportunity. The majority of perpetrators do not themselves have disabilities, and are much older men who have access to the complainant through being a trusted neighbour, a father figure, their caregiver, a cohabiting tenant, an employer or occasionally a stranger.
- As with sexual assault generally, many of these crimes take place in the home, although intimate partners were largely absent from this case law sample. The power differentials based on age, sex, a relationship of trust and ability are particularly striking.
- When women with mental disabilities report sexual assaults, they face additional barriers in accessing the criminal justice system.
- The criminal law does not fully appreciate how consent and capacity are a function of the situation rather than an all-or-nothing measurement.
- These women also face intrusive inquiries by experts into their intellectual functioning, inquiries that can serve to infantilize them, violate their privacy and devalue their evidence in the eyes of the court. The role that expert witnesses play in these cases is not scrutinized. Equating these women with children is still widespread in the criminal justice system.
- While the standard for competence to testify as a witness is not high, inquiries into competence can be used as a pretext for demeaning and unnecessary questions that can then undermine the credibility and reliability of a woman’s evidence.
- Most of the existing testimonial accommodations were designed for children and there is a reluctance to re-evaluate standard techniques of cross-examination, although in one case a communication intermediary was used, an accommodation specifically designed for disability rather than childhood.
- Existing studies also tend to aggregate physical and mental disability as well as sexual and physical violence, making the extraction of targeted data more difficult. Nonetheless, the available data makes clear that women with mental disabilities are targeted for sexual violence at extremely high rates.
- There is very little research that attempts to investigate the perpetrators of these offences, and in particular what strategies are most effective for thwarting sexually assaultive behaviour. This is consistent with the lack of research on perpetrators of sexual violence more generally.
- The existing research is focused on measuring the incidence of such violence and best practices for supporting survivors. Some research is skeptical about the use of legal processes for this group of victims.
Policy implications
- A focused inquiry into sexual violence against people with disabilities, with a distinct stream of inquiry considering cognitive, intellectual and psychiatric disabilities, is badly needed in Canada. The Australian Royal Commission on Violence, Abuse, Neglect and Exploitation of Persons with Disabilities is an excellent template.
- Collaborative and interdisciplinary research between legal scholars, criminal justice system professionals, social scientists, disability rights organizations, self-advocates and the women’s anti-violence movement is needed to improve access to justice for women with mental disabilities who are sexually assaulted.
- Judicial education programs targeted at the dangers of infantilizing witnesses with disabilities, the importance of power dynamics in assessing consent and capacity, and access to more effective accommodations in the trial process would be beneficial. Training for other justice system participants, such as police officers and lawyers, is also needed.
- Prevention of sexual assaults against women and girls with mental disabilities needs to be a high priority. Best practices for education programs, institutional policies and protocols, and effective prosecution of offenders should be developed and monitored.
Further information
Contact the researchers
Dr. Janine Benedet, Professor of Law, Peter A. Allard School of Law, The University of British Columbia: benedet@allard.ubc.ca
Prof. Isabel Grant, Professor of Law, Peter A. Allard School of Law, The University of British Columbia: grant@allard.ubc.ca
Members of the research team: J.D. students Cléa Catona, Sarah Chetney, Keving Doering, Harlan Dohm, Mariah Friedrich, Zosia Larrivée and Avery Pasternak.
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