Sexual offences against people with a cognitive impairment or mental illness

Definitions of cognitive impairment and mental illness

Section 52A of the Crimes Act states that cognitive impairment includes impairment due to mental illness, intellectual disability, dementia or brain injury.

Section 4 of the Mental Health Act 2014 (Vic) states that a mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

Offences

Under section 52B of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual penetration with them. This crime is punishable by up to 10 years imprisonment.

Under section 52C of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual touching with them that is contrary to community standards of acceptable conduct.

Under section 52D of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual activity in front of the person with the impairment or illness.

Under section 52E of the Crimes Act, it is an offence for a worker to cause a person with a cognitive impairment or mental illness to be present while they engage in sexual activity with another person.

The above mentioned behaviour must be contrary to community standards of acceptable conduct. Whether the behaviour is contrary to these standards depends on a range of circumstances (e.g. the purpose of the sexual activity, or whether the worker gets sexual gratification from engaging in the activity in the presence of the person with the impairment or illness). It does not matter if the person with the cognitive impairment or mental illness consents.

Each of these crimes is punishable by up to five years imprisonment.

Exceptions

Under the Crimes Act, the above sexual offences against people with a cognitive impairment or mental illness are not offences:

a if sexual penetration occurs during a procedure carried out in good faith for medical or hygienic purposes (s 52F Crimes Act);

b if, at the time of the act, the person was married to, or reasonably believed they were married to, the person with a cognitive impairment or mental illness and this marriage is recognised as valid under the Marriage Act; or the couple are domestic partners (s 52G, 52H Crimes Act);

c if, at the time, the person reasonably believed that the other person did not have a cognitive impairment or mental illness (s 52I Crimes Act).

Making a mistake is not a defence to sexual offences against people with a cognitive impairment or mental illness. For more information, see section 52K of the Crimes Act.