Testimony of the most vulnerable women is undermined by a process that infantilizes and hypersexualizes them. The trial system must be reformed.

Women who have a psychiatric or intellectual disability are four to five times more likely than other women to be sexually assaulted. Yet discussions of “rape culture” do not typically address why these women are targeted for sexual violence with such frequency, and the MeToo movement has been largely silent on sexual abuse of women with mental disabilities. When these cases do get to court, the criminal justice system does not serve these women well. Their credibility can be undermined by expert evidence, they are simultaneously hypersexualized and infantilized, and they are subjected to cross-examination, the dominant purpose of which is to confuse.

The sex-based power of men over women is augmented when it intersects with other grounds of discrimination and oppression such as disability and age, as well as forms of social power that come from formal roles such as employer, service provider or caregiver. These imbalances of power both facilitate the imposition of sexual acts upon others and are part of what makes these acts “sexual” for the offender. Further, perpetrators are aware that women with mental disabilities are less likely to be believed by police, judges and juries when a criminal justice process is pursued.

Until 1983, the offence of “carnal knowledge” of an “idiot or imbecile” (not amounting to rape) persisted in the Criminal Code. But the offence, which might have offered some protection to women who had been labelled with one of these offensive and demeaning terms, was seldom prosecuted and, when prosecuted, rarely resulted in convictions. Any ostensible protection that might have been offered by this offence was offset by the accused’s ability to argue that the complainant had consented out of “animal passion.” People labelled intellectually disabled were confined to sex-segregated institutions and subject to forced sterilization until the 1970s. Even after eugenics legislation was repealed, guardianship law was sometimes used to authorize the sterilization of women with a mental disability. All of these practices were rooted in attitudes that saw these women not as victims of violence particularly targeted by exploitative men, but rather as women who were sexually indiscriminate and perpetually willing participants whose impulses needed to be controlled.

Given the significant reform of laws and policies affecting both women and people with mental disabilities and the widespread nature of men’s sexual offending against them, one would expect that the criminal justice system today would be designed to foreground the experience of this group of women and to accommodate the realities of their lives. While we see progress in some cases, too often evidence of disability continues to be used against women with mental disabilities, often in contradictory ways. On the one hand, women with mental disabilities are often infantilized and given labels that equate them with children. Thus a woman might be described as operating at “a mental age of a three to five year old child” despite her years of lived experience. Yet when we are considering whether she actually gave consent, her vulnerability disappears and instead she is portrayed as desperate for male attention or as overly friendly. Too often, these women get the disadvantages that come from being described as childlike but are denied the protections from the legal system that their increased vulnerability to exploitation warrants.

Of course, unlike children, most women with mental disabilities are capable of affirmative and voluntary consent in many contexts and are entitled to the same sexual self-determination that other women are supposed to have. But this fully realized understanding of sexual self-determination is different than a thin notion of “sexual autonomy” that ignores the very real effects of power and authority on meaningful choice.

This infantilization is frequently facilitated by the fact that the lives of women with mental disabilities are often medicalized, and their experiences are filtered through the knowledge of experts, such as social workers, doctors and psychologists. For a complainant with a mental disability, every aspect of her life is likely to already have been highly documented and subject to expert reports or evaluations. This profound lack of privacy is often perpetuated by the criminal justice system. For example, the Criminal Code provides a process to prevent the impermissible use of sexual history evidence to taint the credibility of a sexual assault complainant. For a woman with a mental disability, by contrast, evidence of her prior sexual experiences or communications about sexual matters may be admitted without resorting to this protective process in order to demonstrate that she understood what sex is. While the evidence may be admitted under the guise of an assessment of her legal capacity to consent, it inevitably also undermines her credibility as a witness.

Expert reports that portray women as having childlike levels of intelligence, verbal ability, self-care or even mathematical skills are used to undermine their credibility as witnesses in ways that would be impermissible for other women. Expert opinion should be admissible in court only on matters that are directly relevant to the narrow legal questions of capacity to consent or competence to testify. Expert opinion should not be allowed to describe aspects of a woman’s life that are irrelevant to these legal tests, such as whether she “confabulates” or is “suggestible.” There is significant variation in these traits in the general population. Allowing such evidence to be used against women with mental disabilities, when no other witness is subjected to similar scrutiny, is discriminatory and premised on the false stereotype that women with mental disabilities are more likely to lie, exaggerate or make things up.

Cross-examination is often said to be the best vehicle for getting at the truth. The reasoning is that rigorous challenging of witnesses will bring to light dishonesty and inaccuracies in their testimony. In fact, cross-examination is often confrontational and accusatory, relying on leading questions that are designed to confuse and intimidate a complainant and to provoke contradictory testimony. It rewards those who are quick, are verbally agile and have strong memories. For many women with intellectual disabilities, a rigorous cross-examination obscures rather than uncovers truth. We have suggested elsewhere that courts should use a support person who can actively participate as an intermediary to ensure that a witness understands questions being asked of her and can communicate what happened to her, a practice that has been used successfully in other jurisdictions. Such an accommodation could assist with this problem while maintaining the constitutional right of an accused to a fair trial.

A disability should never be a reason to disbelieve a woman’s testimony that she was sexually assaulted. This discriminatory reasoning may be disguised as a concern about her reliability as a witness, but it operates to attack her credibility because her disability means her evidence cannot be trusted to be true. We need to reform the criminal trial process to facilitate the testimony of these witnesses rather than creating extra hurdles to be surmounted.

Effective reform requires that in some situations we remove the additional barriers for women with mental disabilities, and treat them like any other witnesses. In other situations, accommodations may be required to ensure full participation. These must be more than just token adaptations to the traditional trial through accommodations that have been analogized from those used for child witnesses. Instead, we must design a criminal trial process with the needs of women with disabilities in mind. We must also identify and reject the myths and stereotypes about sex and disability that intersect to place unique, discriminatory burdens on women with mental disabilities, burdens that we do not impose on any other witnesses.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Shutterstock by Nutlegal Photographer


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