Literature Review on Provision of Appropriate and Accessible ...

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incapacity should be specific to the task at hand; if incapacity is
understood as a general condition, a finding of incapacity could
result in criminalising all sexual relationships for that woman
(Benedet <strong>Literature</strong> & Grant, <strong>Review</strong> 2007). on Provision of Appropriate and Accessible
Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy
• It has been argued that the situational aspect of capacity can be
applied to sexual relationships, i.e. an individual may be capable
of consenting to some forms of sexual contact with a certain
individual in a particular setting but not to other forms of sexual
contact with the same, or other, individuals in other settings
(Niederbuhl and Morris, 1993).
• There may be differences in capacity depending on the nature
of the relationship, particularly where the accused is in a
relationship of trust with or position of authority over the
complainant.
• US case law has been critiqued for overly focusing the inquiry on
the nature of a woman’s disability and associated mental capacity
instead of gathering evidence of non consent (Benedet and Grant,
2007).
• Benedet and Grant (2007) observed that consent cannot be
implied from silence, passivity, or ambiguous behaviour,
because it is the complainant’s state of mind that is at issue
(R v Ewanchuk). 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.
Protective legislation
• Protective legislation can be analysed under the following
framework: laws that prohibit sex with people deemed unable
to consent to sex; laws that incorporate a functional approach to
assessment of capacity to consent to sexual relations; generic
laws applying to sex without consent; and laws that prohibit
specific sexual relationships.