Literature Review on Provision of Appropriate and Accessible ...

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laws generally require that courts determine three factors in assessing a
victim’s capacity to consent:
• Knowledge of relevant facts
Victim’s awareness of the nature and consequences of sexual
activity, which can be interpreted by the courts either narrowly
(basic understanding of the physiological aspects of sexual
contact) or broadly (awareness of the moral, ethical, and
emotional dimensions of sexual contact).
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• Intellectual ability
Evaluation of the victim’s ability to comprehend and rationally
evaluate the risks and benefits of engaging in sexual activity.
• Voluntariness
Assessment of the victim’s vulnerability to coercion and level of
understanding of the fact that she may choose to engage in or
refrain from sexual activity (Reed, 1997; Stavis, 1991).
The lowest threshold for capacity is evident for New Jersey, where in
order to be capable of providing consent, the complainant only needs
to know the physical nature of the sexual act and that she has the right
to refuse it. At the other extreme, courts in seven states, [67] including
New York, have held that the complainant must not only understand the
physiological aspects of sex, but also be able to consider its potential
consequences, (such as pregnancy or sexually transmitted diseases) and
the moral dimension of choosing to engage in sexual activity (Benedet
and Grant, 2007). In one Canadian case, R v A.A. (2001), [68] which
dealt with the issue of capacity, a test similar to the middle ground
prevailing in most US states was adopted, which is that the complainant
understands the physiological aspects of sex as well as its potential
consequences of pregnancy and disease transmission (Benedet and
Grant, 2007). However, in addition, the trial judge in the case recognised
that capacity includes an understanding of the absolute right to choose
67 Highest threshold states include Alabama, Colorado, Hawaii, Idaho, Illinois,
New York, and Washington. Denno, D.W. (1997) ‘Sexuality, Rape, and Mental
Retardation’ University of Illinois Law <strong>Review</strong>. 315.
68 R. v. A.A. (2001), 144 O.A.C. 382, 155 C.C.C. (3d) 279, 43 C.R. (5 th ) 272 [A.A.].