Have you been Charged with Sexual Assault of a Person with Cognitive Impairment or Mental Illness?

What must the prosecution prove?

1. “A” intentionally engaged in some form of physical contact involving “B” or causing “B” to engage in physical contact.

This can include:

• “A” touching “B” (sexual touching).
• Causing or allowing “B” to touch “A.”
• Causing “B” to touch themselves, another person, or an animal, or be touched by another person or animal.

2. “B” must have a cognitive impairment or mental illness that makes them particularly vulnerable.

This condition is a crucial factor in determining whether “B” can consent or understand the nature of the interaction.

3. The accused (“A”) must be someone who provides treatment or support services to “B” or works for a service provider that provides these services. This places “A” in a position of trust or authority over “B,” making the offence more serious.
4. The touching must be sexual in nature and must violate community standards of acceptable conduct.

This means the touching is viewed as inappropriate by societal norms, especially in the context of “A” having a professional or caregiving relationship with “B.”

Whether the touching is contrary to community standards is determined based on factors like:

• The purpose of the touching.
• Whether “A” seeks or gains sexual arousal or gratification from the act.

What does cognitive impairment mean?

Cognitive impairment is defined in Section 52A of the CA as an impairment because of intellectual disability, dementia, neurological disorder or brain injury.

Penalties for Sexually Penetrating a Person with a Cognitive Impairment:

If found guilty under subsection (1), the offender is subject to severe penalties, including up to 10 years of imprisonment (level 5 imprisonment).

The law recognises the vulnerability of individuals with cognitive impairments and seeks to protect them from exploitation, particularly by those in positions of trust or care.

Penalties for Sexually Assaulting a person with a Cognitive Impairment:

A person found guilty of this offence can face level 6 imprisonment, with a maximum sentence of 5 years.

Factors and Defences to consider:

1. Exception: Medical, Hygienic, Veterinary, Agricultural, or Scientific Purposes (s52F)

This section provides that the offence of sexual penetration of a person with a cognitive impairment or mental illness does not apply if the act in question was carried out for legitimate medical, hygienic, veterinary, agricultural, or scientific purposes. These purposes must be lawful and conducted appropriately in the context of the person’s care.

And/or

2. Exception: Marriage or Domestic Partnership (s52G)

Under Section 52F, the offence does not apply if, at the time the alleged offence occurred:

• (a) ‘A’ and the person with a cognitive impairment or mental illness were married to each other, and the marriage was legally recognised under the Marriage Act 1961 (Commonwealth).
• (b) A was the domestic partner of the person with a cognitive impairment or mental illness.

And/or

3. Defence: Reasonable Belief in Marriage or Domestic Partnership (s52H)

It is a defence for the accused to prove, on the balance of probabilities, that at the time of the conduct constituting the alleged offence, they reasonably believed that:

• (a) They were married to the person with a cognitive impairment or mental illness, and the marriage was recognised as valid under the Marriage Act 1961.
• (b) They were the domestic partner of the person with a cognitive impairment or mental illness.

And/or

4. Defence: Reasonable Belief That the Person Did Not Have a Cognitive Impairment or Mental Illness (s52I)

It is a defence for the accused to prove, on the balance of probabilities, that at the time of the alleged offence, they reasonably believed that the person with whom they engaged in sexual penetration did not have a cognitive impairment or mental illness. This defence relies on the accused’s genuine and reasonable understanding of the person’s condition at the time.

And/or

5. Defence: Reasonable Belief That the Service Provider Did Not Provide Treatment or Support Services (s52J)

If the accused is a worker for a service provider, it is a defence to prove, on the balance of probabilities, that at the time of the alleged offence, they reasonably believed that the service provider was not providing treatment or support services to the person with a cognitive impairment or mental illness. This defence focuses on the relationship between the accused and the service provider in relation to the victim.

Consent from “B” or “A’s” belief that “B” consented is not a defence. The law recognises that due to the cognitive impairment or mental illness, “B” may not be capable of giving informed consent, and any consent they give is not legally valid in these situations.