• Lewis Waring

Consent, Mental Illness, and Honest but Mistaken Belief - Gladys Holmes


When accounts of sexual consent conflict, legal disputes will ensue. The case of R. v. K.G.P evaluates the validity of an honest but mistaken belief that the complainant, who in a dissociated state, gave consent.[1] This case comment contends that the analysis of evidence and ensuing holding was fair and just, however relays an alternative theory to be considered that may raise reasonable doubt. To set the foundation for this alternative theory, the facts of the and holding of the case will be presented, and followed by a concurring opinion analysis.


Facts of the Case


The accused and the complainant had been neighbours since December 2017, wherein neighbourly interactions led to an eventual relationship. At that time, the complainant was in bad health and under the care of Dr. Thomas. She had been explicit about her mental health struggles to the accused, describing the episodic onset of behavioural changes and sensations of dissociating that she would experience.


Through text messages, the claimant would discuss the process of “switching,” (formally diagnosed as Dissociative Disorder) where she described a sudden onset of paranoia, psychosis, and seizure. One such incident led the complainant to self-admit to hospital after the accused filmed her to reveal to her how she presents while in a “switched” state. While hospitalized, the accused had visited on multiple occasions. On one of those visits, the accused had filmed another video on his cellphone of the occasion. His grim habit of filming the complaint in times of vulnerability continued, as on the evening of May 13, 2018, a final video was filmed.


The evening began with the complainant intending to stay overnight at the accused’s dwelling. Her body began to seize and afterward she told the accused a dissociation was imminent. In this moment of dissociation, the accused had started filming the sexual assault, little of which the complainant can remember. They briefly discussed the event, in which the complainant clarified she was not herself but in a state of dissociation, therefore, had not consented. At this point, the accused had made the complainant aware of the video he had filmed. Her attempts to take possession of the phone were unsuccessful. As a result of this information, the complainant contacted the police.


The video was clear; the complainant’s disposition was vastly different from her normal state. She spoke in the third person, and her tone of voice was drastically altered. The accused had an explicit understanding through his past experiences with the complainant while she was in a state of dissociation and would have been well aware of her altered mental state. The attending officer, Sgt. MacDonald, believed the voice in the video did not match that of the complainant from when he took her statement. The accused confirmed to Sgt. MacDonald that the tone of voice only occurs in her altered mental state, indicating his awareness of her episodic state of dissociation.


In the beginning, the recorded video relays audio that would seem to denote initiation and consent by the complainant. However, her altered state of consciousness while in a dissociative episode is paramount to the analysis of consent, proven through a subjective actus reus test for the sexual assault. The fact that the sexual act occurred is not in dispute, but the issue of consent is. The court references R. v. Ewanchuk,[2] wherein consent must be given freely, furthered by R. v. A(J),[3]requiring a capable and operating mind. Given the combination of testimony, evidence, and expert medical opinion confirming the complainant’s altered mental state, the Crown had established beyond a reasonable doubt there was no consent.


The possible defence to lack of consent arises from honest but mistaken belief. The accused presented this defence. Aware of the precedential effect that sexual encounters may be limited for individuals with a Dissociative Identity Disorder, McCarthy J. clarifies that the decision is to apply to the specific facts presented at bar.[4] Cases yet to be heard will need the same case-by-case, fact-specific approach to not convict all people with Dissociative Identity Disorder as vulnerable and in need of protection.


In light of the evidence and circumstances on May 13, 2018, the accused was found not to have taken reasonable steps to ascertain consent and instead “took [it] as an opportunity to exploit her vulnerability. At the very least, he was reckless or wilfully blind.”[5]


Holding


The defence of honest but mistaken belief fails. As a result, the accused was found guilty of sexual assault.


Roadmap


I will begin my comment by addressing my own subjective beliefs and biases. Following my proclamations, I will offer a different theory that deserves weight within the analysis of McCarthy J, though will ultimately conclude that the court’s approach to the presented case was correct.


Analysis


In my original reading of the evidence, I construed some of the accused statements as very dismissive. I interpreted the accused asking if she had been taking her meds, saying “that’s crazy,” and suggesting that “maybe [she] has a multiple personality” as trivializing her condition. Based on the evidence that he was initially “very supportive, helpful and outreaching,” my preconceived notion that developing fatigue and resentment from being in a position of support became apparent. Upon furthering my analysis and introspection, I believe it is important to remember that tone is often misinterpreted through the exchange of text messages. I appreciate that the decision did not evaluate these messages and give meaning to them as I initially did. While the evidence presented may seem objective, the interpretation is more subjective and open to bias and implied meaning.


Though I agree with the final holding as a way of respecting personal autonomy within the specific circumstances, I believe that there should be some weight in evaluating the medical evidence differently. By accepting that the complainant was in a dissociative state experiencing an alternate personality, in a sense the accused had consent from the other personality. It is a further step to say those separate personalities are not in and of itself reasonable people of sound mind. This theory alone could raise reasonable doubt if an accused was a stranger to the complainant.


The facts presented R. v. K.G.P. negate this doubt, as this was not a new encounter for the accused. He was not a stranger to the complainant, and he was very familiar with her symptoms. At one point he was so concerned to film a dissociative event to show her, leading to her hospitalization. In my view, the accused was well aware of the concerns that the complainant had towards her alternate personality while in a dissociative state. Additionally, but for the accused’s familiarity with the complainants’ symptoms, he could not have obtained consent nor a successful claim of honest but mistaken belief. I agree with McCarthy J that the accused was wilfully blind to his awareness based on his numerous past exchanges with her. The accused had a history of filming interactions of the complainant in a highly vulnerable state as a testament to his concerns surrounding her state of mind. It is very apparent that based on the facts, the accused had taken advantage of the complainant’s dissociative state, eradicating any possible defence of honest but mistaken belief.


Conclusion


Changing judicial mentalities and understanding how mental illness can manifest has been pivotal to respecting individual dignity. The onset of episodic symptoms from a Dissociative Identity Disorder and subsequent guilty holding for lack of consent to a sexual act is one such achievement. The accused in R. v. K.G.P. was familiar with the complainant’s sound mind desires, and familiar with how her symptoms from Dissociative Identity Disorder displayed. I contend that McCarthy J should have been more express in weighing this familiarity factor to not raise reasonable doubt. In conclusion, I believe given the familiarity aspect between the accused and the complainant, that the holding was just and fair.

[1] R. v. K.G.P., [2020] M.J. No. 226 at para 1. [2] R. v. Ewanchuk, [1999] 1 S.C.R. 330 [3] R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 [4] Supra note 1 at para 52. [5] Ibid at para 59.