Literature Review on Provision of Appropriate and Accessible ...

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Meanwhile, the authors found that, in general, knowledge related to
pregnancy, sexually transmitted diseases, basic gender differences,
sexual conduct and personal safety were rated as most important,
while biological issues (such as the meaning of ovulation, impotence,
menopause) and moral issues were rated as far less important (Kennedy
& Niederbuhl, 2001).
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Experiencing Crisis Pregnancy
3.7 Critique of models of capacity assessment
McCarthy (2003: 38) has critiqued models of capacity assessment in
relation to consent to sexual activity, which focus on assessing an
individual’s ability to give consent and the conditions which need to be
in place: capacity (the aptitude to acquire knowledge) and information
(weighing up the pros and cons of a decision). She argues that such
approaches tend to look at individuals at specific moments in time and
not at the overall social context in which they are placed. Little attention
is paid to gender-based inequalities in peer and intimate relationships.
From her experiences of working with women with learning difficulties
she concluded that in many cases the women’s ability to give free and
informed consent to sex had been compromised by some particular
factors that had to do with their learning difficulties, but also by factors
that had to do with their being women in unequal relationships with men.
Benedet & Grant (2007), meanwhile, argue for rethinking capacity to
consent under its current binary definition (i.e. the complainant can
consent to all sexual activity or none at all). They note that the issue of
capacity to consent rarely arises in sexual assault cases in Canada and
that it is rarely argued by the Crown or addressed in anything more than
a passing reference by trial judges. It is assumed in the majority of sexual
assault cases that the adult complainant is capable of giving consent,
unless there is evidence of mental disability. Expert evidence may be
given in such cases but it is not required. Benedet and Grant (2007)
contend that rather than assessing capacity on a situational basis, judges
tend to treat capacity as a static and absolute condition: one is capable of
consenting to any sexual activity or to none at all.
Similarly, Stavis and Walker-Hirsch (1999), writing in the US context,
suggest that it is incorrect to consider capacity to consent to sexual
activity as an all-or-nothing ability. Instead, they argue, some activities