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Protecting or Restraining: Incapacity to Consent - Audrey Bews


Section 273.1(2)(b) of the Criminal Code seemingly establishes a straightforward and logical safeguard against exploitative sexual assault, as it deems consent unattainable in situations where the complainant is incapable of consenting. The issue of capacity to consent was at the forefront of the September 2020 Manitoba Court of Queen’s Bench decision in R v K.G.P. In what appeared to be a progressive ruling for female victims of sexual assault, Justice McCarthy held the accused guilty of sexual assault on the basis that the complainant was incapable of consenting due to her dissociative state. However, Janine Benedet and Isabel Grant, critical feminists and disability theorists, complicate this optimistic perception of capacity to consent in their article “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief.”


R v K.G.P. was a fairly conventional case of sexual assault, a female claimant with a complex mental health history was victimized by her neighbor with who she had formerly had extensive relations. The claimant persisted that she did not consent and alleged little memory of the assault until she woke up naked, alone and with sore genitals.


Justice McCarthy J. began her decision by analyzing whether the actus reus of sexual assault was satisfied, whether there was sexual touching without consent. When satisfied that the component of sexual touching, vaginal and anal intercourse, had undisputedly occurred, Justice McCarthy J. focused the majority of her decision on the contentious aspect of this case which was the consent component. While conceding that the complainant in the abstract appeared to have consented to both sexual acts through remarks such as “we love to fuck you,” “why don’t you pull that sad old dick out and fuck us?” and “you make us roll over,” it was held the claimant did not have the necessary capacity to consent.


Incapacity was concluded based on testimonies of the complainant’s subjective prior mental experiences, video evidence of the offence and opinions of physicians with expertise in the area of psychiatrics. This evidence confirmed the claimant was in a dissociative state during the sexual encounter. Psychiatric evidence which corroborated the cognitive impact of dissociative episodes, unconventional personality, impaired memory, impeded perception, lack of bodily control and detached voice, led Justice McCarthy J. to conclude the claimant was not mentally and emotionally capable of consenting, and thus per 273.1(2)(b) no consent was obtained. Justice McCarthy J. outright rejected the defendant’s defense that consent could be obtained from one of the complainant’s identities while in a dissociative state.


Once satisfied that the actus reus was met, Justice McCarthy then addressed the pertinent mens rea component of consent, the defendant’s defence of honest mistaken belief, whether in the accused’s mind he honestly believed the complainant had consented. Justice McCarthy, held, as per Barton, that an analysis as to how the accused would have perceived the actual communicative behaviour is required to determine if the accused honestly believed the claimant consented. Evidence that the defendant had sufficient prior knowledge of the claimant’s mental conditions, the history of anal intercourse being refused, the defendant’s presence while the claimant had a seizure and the fact that the defendant was warned of the ensuing dissociative attack, proved it was reasonable for the defendant to conclude that the complainant was not in a suitable mental state and thus did not have the capacity to consent. Therefore, the defendant in taking the complainant’s words at face value exploited her vulnerability by neglecting his subjective knowledge which would have indicated that the consent was compromised. Justice McCarthy clarified that this did not require the defendant to know of and understand the diagnostic but rather to take sufficient steps based on his subjective knowledge to ascertain true consent.


While capacity to consent provided a favourable outcome for the complainant in R v K.G.P., Janine Benedet and Isabel Grant’s article casts doubt on whether this sexual assault provision benefits all women. The article’s main thesis argues that the substantive law on sexual assault fails to protect women with mental disabilities, which they define as developmental, psychiatric or other chronic non-episodic mental conditions. While this categorization excludes the claimant in R v K.G.P, it is important to weigh the benefits that the capacity to consent analysis offers some women like the victim in R v K.G., against the drawbacks it precipitates for others, the demographic at focus in this article. The failure of sexual assault laws for women with mental disabilities is extremely troubling as this demographic lacks control over their sexuality and can be anywhere from two to ten times more likely to be victims of sexual assault than women without disabilities. The authors demand alteration to these laws to accommodate women with mental disabilities rejecting parliament’s adopted solution, s. 153.1 which created a special offence prohibiting those in positions of authority or dependency to have sexual relations with persons with disabilities without consent. Their dissatisfaction with this provision stems from its inapplicability as it re-criminalizes what was already criminalized with added requirements of proof and as it perpetuates the stereotype that disability is a fixed state in which sexual violence is experienced differently than other victims.


Janine Benedet and Isabel Grant contend that the principal component of sexual assault protection that needs amending was what won the case for the claimant in R v K.G.P, the approach to consent. The authors demonstrate that ascertaining consent based on the complainant’s state of mind is problematic for women with mental disabilities as it is complicated by issues of compliance and it includes the dangerous capacity to consent analysis. They argue that judges tend to treat capacity to consent as a static condition, an individual is either capable of consenting to any sexual activity or none at all. The difficulty of setting the standard of capacity reflects the mixed views of society on the sexual nature of women with disabilities and the conflicting dichotomic goals of sexual assault laws, protecting women from sexual exploitation while promoting sexual autonomy of women. A high standard of capacity in place to protect the vulnerability of women with mental disabilities is rooted in pity and an asexual stereotype and can result in criminalizing all sexual relationships for these women. However, a lower standard respects sexual autonomy of these same women at the compromise of reproducing the dominant dangerous stereotypes of heterosexuality and offering less protection against exploitation.


Justice McCarthy in her cognizant decision demonstrated she was aware of the complexity of the dichotomy associated with capacity to consent. She acknowledged that for individuals with dissociative identity disorders a decision for the claimant could create uncertainty about their ability to ever give consent, yet a ruling for the accused could dangerously undermine the protection of the vulnerability of those with dissociative identity disorders. Thus, Justice McCarthy makes it very clear that the precedential value of this decision is minor, as the case was decided on the subjective facts and evidence. The authors agree that a situational approach to capacity is preferred as it implies that situational circumstances give rise to different capacities to consent. However, they argue a more suitable approach would be to rid of the capacity inquiry, since it does not analyze the ability to perceive deception or exploitation, allows interrogation of a complainant’s sexual history, creates a false binary of ability to consent and focuses on a “defect” of the complainant over the manipulative behaviour of the accused.


Alternatively, the authors advocate for an approach entirely different from a capacity analysis. One approach the authors propose is to focus on finding non-consent rather than the harmful incapacity. Finding non-consent would not require an in-depth analysis into capacity, as the capacity required to withhold consent is significantly lower than to grant. The authors do affirm there are special situations where consent should be automatically nullified unless evidenced to the contrary, such as sexual relations where there is evidence of abuse.


The second method the authors suggest is a consent inquiry focused on the voluntariness requirement. This would allow courts to analyze whether the complainant perceived withholding consent as an option, a consideration critical for women with mental disabilities. Therefore, when the sexual act was not wanted but obliged based on a perceived obligation to participate, there is no voluntary consent. This approach to consent would, as the authors argue, shift sexual assault laws in a much needed way, towards focusing on the coercive behaviour of men taking advantage of women with disabilities rather than focusing on the complainant’s ability to communicate her wishes.


Canada’s sexual assault laws, especially provisions on consent, have progressed substantially in providing justice to victims, as proven in R v K.G.P. However, the important critical work by Janine Benedet and Isabel Grant challenges this outlook. Canada’s substantive sexual assault laws may be adept for some demographics of women over others and provide protection at the expense of women’s sexual autonomy.




Endnotes.............................

1 Criminal Code, RSC 1985, c C-46, s 273.1(2)(b).

2 R v K.G.P, 2020 MBQB 138 at para 45 [R v K.G.P].

3 Ibid at para 2.

4 Ibid at paras 29, 34.

5 Ibid at para 43.

6 Ibid at paras 4, 43.

7 Ibid at paras 40, 43, 45.

8 Ibid at para 25.

9 Ibid.

10 Ibid at paras 37, 38, 46, 45.

11 Ibid at para 45.

12 Ibid at para 49.

13 Ibid at para 55, 59.

14 Ibid at paras 11,

15 Ibid at paras 55, 59.

16 Ibid at para 60.

17 Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief” (2007) 52: McGill LJ 243 at 258.

18 Ibid at 256.

19 Ibid at 249

20 Ibid at 250, 255.

21 Ibid at 262.

22 Ibid at 269.

23 Ibid at 245, 287.

24 Ibid at 253, 270.

25 Ibid.

26 R v K.G.P, supra note ii at para 51.

27 Ibid at para 52.

28 Benedet, supra note xvi at 269.

29 Ibid at 273, 286, 287.

30 Ibid at 270.

31 Ibid.

32 Ibid at 285.

33 Ibid at 282.

34 Ibid.

35 Ibid at 284.

36 Ibid at 265, 282.



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