"Power and its use or abuse are pivotal issues in both sexual assault and institutionalization."1
Women with mental disabilities are subject to sexual assault at a significantly higher rate than other women.2 Yet there is a surprising paucity of case law involving [End Page 439] women with mental disabilities as complainants. One can only assume that women with mental disabilities are sexually assaulted much more often than their assailants are prosecuted.3 While the subject of this comment, R. v Alsadi, presents an unusual fact situation, the issues that it raises go to the core of our understanding of what it means to "voluntarily agree" to engage in sexual activity with another person when there is a profound imbalance of power between the two individuals.4
The doctrine of consent has been at the centre of sexual assault law for many decades. Yet there was no statutory definition until 1992 when section 273.1(1) of the Criminal Code was enacted, defining consent as the "voluntary agreement to engage in the sexual activity in question."5 It was not until 1999 that a focus on the complainant's perspective of whether she wanted the sexual activity to take place was integrated into the fabric of our law.6 Janine Benedet and I have argued elsewhere that the current understanding of consent and the focus on what the complainant was thinking at the time, while positive for many women, has been problematic for some women with mental disabilities, in part because it fails to incorporate into the definition of consent the factors of sexual exploitation and coercion that are so pervasive in these women's lives.7 No case demonstrates this better than Alsadi.
The Criminal Code has at least two provisions that are particularly relevant for sexual assaults involving complainants with mental disabilities. Section 153.1 of the Criminal Code creates an offence of sexual exploitation of a person with a disability when the accused is in a position of trust or authority with respect to the person with a disability and he counsels or incites that person into sexual touching without consent.8 Section 273.1(2)(c) provides that no consent is obtained where the complainant was induced to engage in the activity by abuse of a relationship of trust, power, or authority.9 This provision is general and not limited to persons [End Page 440] with disabilities. Both of these sections were at issue in Alsadi. The accused was charged under section 153.1, but this charge was virtually subsumed by the sexual assault charge and will not be the subject of this comment.10 The focus in this comment will be on the approach taken to section 273.1(2)(c) and its relationship to the doctrine of voluntariness. This comment will demonstrate that, in Alsadi, section 273.1(2)(c) was applied in a manner that has the potential to exclude many women with mental disabilities from its protection.
The comment argues that, in general, many courts are not taking the correct approach to the relationship between consent and section 273.1(2)(c) and, more specifically, that even if the accused's evidence was accepted in its entirety in Alsadi, there were no factual findings that could have led to a finding of voluntary consent and thus an acquittal. While the easiest way to reach this result would have been through the proper application of section 273.1(2)(c), the same result could have been reached through an analysis of voluntariness. The abuse of "trust, power or authority" is one specific way in which an agreement to engage in sexual activity is not voluntary. Where there is a significant power imbalance, it is essential that courts go beyond whether there was a simple "yes" to sexual activity and consider whether that yes was free from coercion.
In Alsadi, the accused was charged with sexual assault and sexual exploitation of a person with a disability.11 The complainant was a forty-nine-year-old woman who was hospitalized in the psychiatric ward at Vancouver General Hospital. The British Columbia Court of Appeal described her as having had schizophrenia...