The issue of Mental Capacity

In the spirit of taking on an anti-oppressive lens for this blog, as discussed earlier, we decided to examine many issues in which certain groups have been over looked in the policy. The first issue we will examine is mental capacity as it relates to the issue of consent. We chose to look at mental capacity in two forms; the issue of if a person is mentally challenged, and the issue of if the person is inebriated for some reason, for example through the means of alcohol or drugs.

The Criminal Code of Canada states that all people in a “position of trust or authority” or people in a “relationship of dependency” with a person with a mental or physical disability have a responsibility to that person. Therefore, if someone in one of these relationships in any way counsels or incites, for a sexual purpose, the person with the disability to touch his or her body without their consent, then they are guilty of an offence and could face up to five years imprisonment. The concern I have here, is that there is nothing else mentioned in regards to mental capacity relating to disabilities. For example, what if a mentally disabled female was physically 19 years old, but mentally was functioning at the age of 10. Does this girl have the ability to give consent to sex? One could argue that biologically she will feel the same hormones and urges that other 19 year olds have, however if she is only functioning at the age of 10, then she may not understand the repercussions from engaging in sexual activity. There is no guidance in how to proceed with this situation in this law, and that has the potential to be incredibly harmful for the complainant.

As well, there is very little mentioned in the law about the issues of inebriation. The Code states that a defendant cannot use the defence that he/she believed the complainant consented if the defendant was intoxicated. However nothing is mentioned of the complainant’s mental awareness. For example, if a girl was drugged and date raped, then the perpetrator would be guilty of drugging her and assaulting her; however if the girl was at a party and was drunk of her own volition, there is no mention of if she would be able to give consent. One could argue that she was temporarily intoxicated and therefore could not make an educated decision of whether or not to consent to sex. Although one could also argue that she knowingly got drunk and put herself in that position and therefore willingly gave up the ability to give consent. Note I am not supporting either argument, but both would be possible outcomes from this situation.

These issues of mental capacity definitely need more addressing in the criminal code because as is, there are a lot of loop holes where certain groups of people are being ignored and therefore could be incurring greater harm than they deserve. Also, while this issue is addressed in the Criminal Code of Canada, there is no mention of mental capacity in the actual policy dealing with age of consent (aside from the mention of a person in a relationship of dependency). Therefore, this issue needs to be addressed in a clearer method, not only in the criminal code, but also in the policy itself.

-P