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By Jennifer Nguyen

Understanding consent is integral to understanding sexual abuse. The parameters of consent and capacity are especially blurred in some instances of elder sexual abuse where questions of who can consent and when it is meaningful often arise. The issue is especially complex for older adults who experience mental incapacity or dementia, and will be the focus of this piece. This blog post looks at this unsettled field and some of the recent legal developments that have arisen.

It is important to point out that this is a subset of elder abuse that revolves around cognitive disability and its effect on consent, and is not trying to say that older adults cannot consent. Older adults are able to have sex at their pleasure and privacy, and it is not for the government or the legal system to step in and say that they shouldn’t. However, it becomes difficult when older adults are also patients in long term care facilities or similar settings, their living spaces no longer fully private spaces.

Another facet to this discussion is the role of consent in already sexually intimate couples and how to, or even if it is possible to, establish consent when one partner has become mentally incapable of expressing it. While this topic has not been readily broached, it will be an increasingly relevant issue as the population ages.

Statute
Section 153.1 (1) of the Criminal Code states that:
Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of

  • (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
  • (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.1
  • The legally relevant circumstance of this offence revolves around the idea of consent, which this section defines as “the voluntary agreement of the complainant to engage in the sexual activity in question.”2

    Further, consent cannot be obtained if:

    1. 153.1(3)(b) the complainant is incapable of consenting to the activity; or (c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority.3

    The Criminal Code makes it explicitly clear that there is no such thing as substitute or implied consent for sex. If somebody loses their capacity to consent, they lose their ability to have sex. Courts have accepted this interpretation of the statute as well.

    The courts have additionally narrowed the scope of The Defence Of Honest Belief In Consent. Section 273.2 of the Criminal Code says that the defence is not available when the belief arose from the accused's recklessness or willful blindness or where the accused failed to take reasonable steps to ascertain whether the complainant was consenting.4

    Case Law

    Canada
    There is a noticeable lack of case law about elder sexual abuse—and even less concerning older adults’ ability to consent to sexual activity due to mental incapacity. Rather, the majority of existing Canadian cases on the matter concern women under the age of 50. However, I believe that what the courts say about consent in these cases can be aptly applied to cases of elder abuse as well.

    A recent case, R. v. Comeau, arising from the Nova Scotia Supreme Court held that an employee at a continuing care facility was guilty of the sexual assault of a patient who suffered from dementia. The court found that the complainant (Ms. W) did not have the capacity to consent to the sexual activity. Expert testimony by one of the patient’s doctor states:

    Ms. W. could not provide informed consent as she lacked insight, judgment and reasoning necessary to make a safe decision to engage in sexual activity. She had no short-term memory and her midterm memory was impaired. These are functions that are necessary to make safe decisions and therefore she believes that Ms. W. would not understand the consequences of engaging in sexual activity. Dr. Meehan's opinion is that Ms. W's lack of capacity to provide informed consent to sexual activity existed in May 2015, being the time of the alleged offence.5

    The courts further dismissed the defence that the accused believed that the complainant consented to the activity because the accused was fully aware of the circumstances and of the complainant’s lack of capacity. The judge writes:

    In the totality of the circumstances that Mr. Comeau was aware of including the characteristics of the residents on Ms. W's unit, of Ms. W's memory, her social deficits, and her apparent mental health issues it was incumbent on Mr. Comeau to take reasonable steps to ensure that Ms. W. had the capacity to provide informed consent to the sexual activity that the couple engaged in. He did not do this. He made no reasonable inquiries that were clearly indicated to be necessary by the circumstances as he knew them.6

    They found that the accused was wilfully blind—and thus chose to remain ignorant—to the fact that the complainant lacked the mental capacity to consent. In Canada, courts have been increasingly willing to use wilful blindness as a substitute for knowledge. This seems to suggest that the courts are taking greater strides to protect the exploitation of elders, and people generally, with mental incapacities.

    Across the Border
    A recent case from the United States sheds some light onto consent in previously established sexually intimate relationships where one of the partners has a mental incapacity. In 2014, former Iowa legislator, Henry Rayhons, was charged with sexual abuse of his wife who suffered from Alzheimer despite warning from her doctors that she could no longer consent7. State prosecutors accused Rayhons of having sex with his wife while she was incapacitated to do so. They had to prove that (1) Rayhons had sexual conduct with his wife, and if so, (2) that his wife was not capable of consenting to it.

    Ultimately, the jury acquitted Rayhons—it is unclear whether it was because of the question that any sexual activity occurred, or if there was meaningful consent. However this case asks a difficult question that will need to be addressed more frequently as the population ages: When is a previously consenting spouse suffering from dementia no longer able to say yes to sex?8

    Where do we go from here?
    Canadian law sees the importance of recognizing consent and capacity in regards to sexual abuse and violence. The statutory scheme set forth in the Criminal Code talks a lot about consent being vitiated when people cannot meaningfully consent due to mental incapacity or the like, but are purposely vague about what constitutes “incapacity.” While recent case law shown how courts are willing to deal with dementia and other mental illnesses that might affect older people, there are still glaring gaps and no definitive answer of how to define mental capacity to consent.


    1-Criminal Code, RSC 1985, c C-46, s 153.1.
    2- Ibid.
    3- Ibid.
    4- Department of Justice, A Definition of Consent to Sexual Activity (Ottawa: Department of Justice, 2015), online: <http://www.justice.gc.ca/eng/cj-jp/victims-victimes/def.html.>
    5- R v Comeau, 2017 NSSC 62 at 24, 2017 CarswellNS 223
    6-Ibid. at 82
    7- Sarah Kaplan, “In an Iowa courtroom, an astonishing case of sex and Alzheimer’s,” The Washington Post (April 5, 2015), online: <https://www.washingtonpost.com/news/morning-mix/wp/2015/04/07/in-an-iowa-courtroom-an-astonishing-case-of-sex-and-alzheimers/?postshare=1821429757814649&utm_term=.53f75edc80ed.>
    8- Ibid.

     

     

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