Literature Review on Provision of Appropriate and Accessible ...

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require very little understanding or regulation (apart from mutual
consent), whereas others (e.g. sexual intercourse) require assessment of
capacity according to state laws.
<strong>Literature</strong> <strong>Review</strong> on Provision of Appropriate and Accessible
In relation to Support sexual to assault People cases, with an it Intellectual has been Disability argued that who the are capacity
Experiencing Crisis Pregnancy
inquiry overly focuses on the ‘defects’ of the complainant rather than on
the coercive behaviour of the accused (Benedet and Grant, 2007: 287).
Benedet and Grant contend that a problem with US case law is that the
inquiry into the nature of a woman’s disability and associated mental
capacity can prevent any inquiry into whether there was evidence of non
consent. In some cases, evidence of force and non consent is ignored;
once the complainant is deemed capable, the accused is acquitted, since
non consent is not an element of the special offence (Benedet and Grant,
2007). Similarly, Wacker et al. (2008), writing in the US context, argue that
most states’ sexual assault legislation relating to adults with cognitive
disabilities overly concentrates on the victim’s capacity to consent.
Trials involving victims with mental impairments turn into ‘an exhaustive
evaluation of the victim’s capabilities: the prosecution argues that victims
were not intelligent enough to consent, and the defense argues that
victims were not impaired enough to invalidate their consent’ (2008: 88).
Benedet and Grant (2007) contend that US law may have developed
this focus on incapacity because the understanding of non consent in
that country has not advanced to the level expressed in the Canadian
case of R v Ewanchuk [64], but rather still requires proof of a clear
expression of resistance in the face of force before reaching a finding of
rape. R. v Ewanchuk confirmed that mere compliance does not amount
to consent and that there must be some positive evidence of consent.
Benedet and Grant (2007) observed that consent, therefore, cannot be
implied from silence, passivity, or ambiguous behaviour, because it is
the complainant’s state of mind that is at issue. They note that this is
important for women with mental disabilities as it is typical in these
cases to see compliance in sexual activity along with no real evidence of
affirmative consent.
64 R v Ewanchuk [1999] 1 S.C.R. 330 at para. 23, D.L.R. (4 th ) 193.