Schedule 1 Amendment of Crimes Act 1900
(Section 3)
[1] Section 61H Definition of “sexual intercourse” and other terms
Insert after section 61H (1):(1A) For the purposes of this Division, a person has a cognitive impairment if the person has:(a) an intellectual disability, or(b) a developmental disorder (including an autistic spectrum disorder), or(c) a neurological disorder, or(d) dementia, or(e) a severe mental illness, or(f) a brain injury,that results in the person requiring supervision or social habilitation in connection with daily life activities.
[2] Sections 61J (2) (g), 61M (3) (e), 61O (3) (d), 66C (5) (f) and 80A (1) (paragraph (g) of the definition of “circumstances of aggravation”)
Omit “serious intellectual disability” wherever occurring.Insert instead “cognitive impairment”.
[3] Section 61Q Alternative verdicts
Insert after section 61Q (4):(5) Question of consent regarding cognitive impairment
If on the trial of a person for an offence under section 61I, 61J or 61JA, the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 66F, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
Omit the section. Insert instead:66F Sexual offences—cognitive impairment
(1) Meaning of “person responsible for care”
For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person:(a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or(b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment.The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision.
(2) Sexual intercourse: person responsible for care
A person:(a) who has sexual intercourse with a person who has a cognitive impairment, and(b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse),is guilty of an offence.Maximum penalty: imprisonment for 10 years.
(3) Sexual intercourse: taking advantage of impairment
A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence.Maximum penalty: imprisonment for 8 years.
(4) Attempts
A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence.(5) Consent not a defence for sexual intercourse
The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)–(4).(6) Consent not a defence for indecent assault or act of indecency
The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if:(a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or(b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment.(7) Defences
It is a defence to a charge for an offence under subsection (2)–(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection:(a) if, at the time of the conduct constituting the offence:(i) the accused did not know the person to whom the charge relates had a cognitive impairment, or(ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or(b) if the act constituting the offence was carried out for any proper medical or hygienic purpose.(8) Approval of Attorney General for prosecution
A prosecution for any of the following offences may not be commenced without the approval of the Attorney General:(a) an offence under subsection (2)–(4),(b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection.
[5] Section 77 Consent no defence in certain cases
Omit “66F,” from section 77 (1).
[6] Section 80C Meaning of “circumstances of aggravation”
Omit “serious intellectual disability” from section 80C (b).Insert instead “cognitive impairment (within the meaning of Division 10)”.
[7] Schedule 11 Savings and transitional provisions
Insert at the end of the Schedule with appropriate Part and clause numbering:Part Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008
An amendment made to this Act by the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008 does not apply in respect of an offence committed before the commencement of the amendment.