the New South Wales Probation and Parole Service about appropriate programs for an offender with an intellectual disability and to order that an offender attend such a program as a condition of the sentence. [See paras 8.60-8.61]
INTRODUCTION
8.1 Chapters 5, 6 and 7 made recommendations in the areas of fitness to be tried, the defence of mental illness and giving evidence in court. This chapter continues to consider the position of a person with an intellectual disability appearing before the courts and considers a number of unrelated legislative amendments, all of which aim to correct other identified difficulties in this area. These amendments affect victims (sexual offences and victims’ compensation) or offenders (sentencing), or both (Apprehended Violence Orders).
Sexual offences against people with an intellectual disability Background to the recommendations
8.2 Chapter 2 discussed the particular vulnerability of people with an intellectual disability to sexual exploitation or assault. Few of these assaults result in sanctions for the offender, or even reach court. For example, according to the New South Wales Council for Intellectual Disability, the Royal North Shore Hospital Sexual Assault Unit received approximately 50 allegations of sexual assault on people with an intellectual disability in 1994, but only one person was charged with an offence.1 Reforms to overcome the difficulties faced by people with an intellectual disability in pursuing sexual offenders in court require a combination of training, procedural and legislative changes - as with many other areas in this Report, statutory reform alone is likely to be unsuccessful. Many of these issues have already been considered in the New South Wales Women’s Co-ordination Unit’s report on sexual assault of people with an intellectual disability and a later report on access to services for women with disabilities and deaf women.2 In this Report, Chapter 4 considered recommendations to overcome the difficulties faced by victims and witnesses at the investigation stage, through their contact with the police, and Chapter 9 will consider the need for training and information for criminal justice personnel.
8.3 This chapter considers the legislative provisions which govern the court’s consideration of sexual offences involving people with an intellectual disability. Such charges can be brought both under the general sexual offences3 and under the specific sexual offences relating to people with an intellectual disability found in s 66F of the Crimes Act 1900 (NSW). Intellectual disability is a relevant factor in the general sexual assault provisions, for example, intellectual disability can be a “circumstance of aggravation” under the aggravated sexual assault offences.4 This has been a particularly difficult area for the Commission, with a dearth of submissions and information about many aspects. Accordingly, in DP 35 the Commission outlined a list of questions for discussion rather than proposals for reform.5 The Commission has limited its recommendations in this Report to those provisions which specifically affect people with an intellectual disability, rather than the general law of sexual assault.
Consent
8.4 In New South Wales the general offence of sexual assault prohibits a person from having sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent (or is reckless about the consent) to the sexual intercourse.6 Though consent is no defence for some sexual offences,7 generally the issue of capacity to consent and actual consent raises particular difficulties for victims with an intellectual disability. Capacity to consent to a sexual act involves having sufficient knowledge or understanding to comprehend the physical nature of the sexual act and to appreciate the difference between that act and an act of a different character, such as a medical examination.8 The majority of people with an intellectual disability would have the capacity to consent,9 though people with a more severe level of intellectual disability would lack this capacity. If lack of capacity is established then the intercourse is in fact without consent10 and the Crown then needs to establish that the accused knew of (or was reckless about) that lack of capacity. If the person has the
capacity to consent, the denial of consent must be established, or the circumstances that vitiated consent.11
8.5 The Victorian Law Reform Commission (“VLRC”) recommended (for all sexual offences) that the present position for capacity to consent be retained. The VLRC rejected a proposed alternative test (namely, that a person lacks the capacity to consent if incapable of appreciating the nature and significance of sexual intercourse), on the ground that it would unduly restrict peoples’ sexual rights.12 Alternatively, a report prepared by a number of disability interest groups recommended that the level of understanding required for sexual intercourse be reduced (and therefore the test for capacity widened) so that “a person is capable of consenting to sexual intercourse provided that he or she understands the physical act of sexual intercourse, without necessarily understanding the nature and consequences of sexual intercourse”.13
8.6 A variety of viewpoints were recognised in the few submissions which considered this issue, revealing the difficult balancing act involved in providing protection for some people with an intellectual disability but not impinging on the sexual freedoms of others. Like the disability organisations referred to above, the Illawarra Disabled Persons’ Trust supported a widening of the test for capacity for consent to include understanding the nature of the act of sexual intercourse but not including understanding the consequences of the act, “as this may restrict the ability of people with intellectual disabilities from engaging in sexual relationships”.14 By comparison, the New South Wales Council for Intellectual Disability and the New South Wales Sexual Assault Committee agreed with the VLRC that the present law should be retained.15 The Commission’s research and consultations have not revealed sufficient justification to recommend changes to the law of capacity to consent.16
Discussion of the Commission’s recommendations Recommendation 32: Aggravated sexual offences
8.7 The general sexual assault provisions include “aggravated” sexual offences, namely, aggravated sexual assault, aggravated indecent assault and aggravated act of indecency.17 If an aggravated offence is proved, the legislation provides for substantially heavier maximum gaol sentences than otherwise, for example, sexual assault has a maximum penalty of 14 years, but aggravated sexual assault has a maximum of 20 years. The consequences of proving a circumstance of aggravation are therefore potentially very significant for the offender. The offence of aggravated sexual assault is as follows:
61J. Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 20 years.
(2) In this section, “circumstances of aggravation” means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or
(c) the alleged offender is in the company of another person or persons; or (d) the alleged victim is under the age of 16 years; or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or
(f) the alleged victim has a serious physical disability; or (g) the alleged victim has a serious intellectual disability.
The other offences are in similar terms. “Circumstances of aggravation” for the offences are varied but all include the “serious intellectual disability” of the victim or the fact that the victim is “under the authority of the alleged offender”,18 which may also be relevant for people with an intellectual disability.
8.8 Aggravated offences (in their present form) were introduced in 1989. The provisions were designed to simplify and extend the pre-existing aggravating categories. The policy behind aggravated sexual offences appears to be that there should be a higher sentence for certain factors in crimes which the community sees as especially abhorrent, such as when the victim is particularly vulnerable.19 There has been limited judicial comment on the provisions. Inquiries of the Director of Public Prosecutions (“DPP”) and the New South Wales Bureau of Crimes Statistics have revealed only a few cases where intellectual disability as a circumstance of aggravation has been successfully argued, and all the cases the Commission is aware of involved a guilty plea, and therefore provide little insight into the
interpretation of the sections. The Commission’s research and consultations have revealed a number of areas of uncertainty in the sections, in particular: who is covered by the reference to a victim with a “serious intellectual disability”; and what level of knowledge must the alleged offender have about the victim’s disability.
8.9 Definitions. The lack of definition of “serious intellectual disability” for the purposes of these aggravated offences has been criticised. According to the Second Reading Speech of the then Attorney General, the term was not defined, as “[t]his is a matter for the courts”.20 It is unclear, however, what level of intellectual disability is considered to be “serious”, when the usual terms employed to
differentiate levels of disability are “borderline”, “mild”, “moderate”, “severe” and “profound”. It could be argued that any intellectual disability is “serious” in that it involves, by definition, a significantly below average level of intellectual functioning. (See Chapter 3.) However, if it is argued that “serious” cannot include a mild level of intellectual disability, then, as the majority of people with an intellectual disability fall within this category, this section will have limited application. There is no case law on the point. 8.10 A variety of amendments have been suggested, though all recognised the need for greater clarity in this area. The Attorney General’s Committee stated that either amending the sections to replace “serious” with a more meaningful term or defining the word “serious” in this context should be
considered.21 The New South Wales Sexual Assault Committee called for the removal of the reference to “serious” intellectual disability as this term was not used professionally and excludes people with a less severe disability, preferring instead a reference to the particular vulnerability of the victim.22 The Law Society of New South Wales and the Intellectual Disability Rights Service also supported the removal of the “serious” qualification.23 The Commonwealth Office of Disability also thought that “serious intellectual disability” should be replaced by a more general category, in line with Australian Bureau of Statistics classifications.24 The New South Wales Women’s Co-ordination Unit Report recommended that the Attorney General (through the Criminal Law Review Division) take advice from disability organisations and the Department of Community Services and develop a clear definition of this term.25 By comparison, the New South Wales Council for Intellectual Disability recommended that circumstances of aggravation be a matter for sentencing, rather than a category of sexual assault.26 8.11 Even if the definition difficulty can be overcome, the question must be asked why the
circumstances of aggravation are limited to people with a serious intellectual or physical disability. It appears anomalous not to include people with a mental illness or other forms of mental impairment such as senility or brain injury. There are obvious difficulties, however, in attempting to list all the relevant circumstances which may make a victim particularly vulnerable.
8.12 Knowledge. Apart from the issue of which victims should be included in the circumstances of aggravation, there is still the problem of whether the offender knew that the victim had the defined
disability. Knowledge by the accused of the existence of the victim’s disability (and that the disability was “serious”) is not stated to be an element of the offence. It has been queried whether knowledge could be assumed to be necessary, particularly as the requirement for knowledge is clearly spelt out in s
66F(5).27 Circumstances of aggravation relating to the offender, such as whether the offender
threatened to inflict actual bodily harm, are clearly known by the offender. Most of the “circumstances of aggravation” relating to the victim also would be necessarily within the knowledge of the offender, for example whether the victim was under the offender’s authority, and whether the victim had a serious physical disability. But a person’s intellectual disability may not necessarily be obvious to the ordinary person, particularly if there is no pre-existing relationship between the offender and the victim. (Similar difficulties arise with the aggravating circumstance that “the alleged victim is under the age of 16 years”.) It might be argued that the word “serious” is meant to imply “obvious”, but this would be a difficult argument to sustain. It can probably be assumed, despite the absence of case law on this issue, that knowledge is required for the operation of the section so that the accused satisfies the mental element (mens rea) of the offence.28 If so, is the accused required to have the same understanding as a psychologist of the victim’s intellectual disability and to know that it was a “serious” one? The community in general does not have a very sophisticated understanding about intellectual disability. It is unclear what the prosecution must actually prove to satisfy the offence. In the absence of a guilty plea it may be virtually impossible for the prosecution to overcome the difficulties referred to above.
8.13 The few submissions which considered this issue have generally considered that knowledge of the victim’s intellectual disability should be an element of the offence.29 The Commission also believes that knowledge of the victim’s relevant aggravating factor (in this case the person’s intellectual disability) by the offender should be an element of the aggravated sexual offences. The Commission considers that possible alternatives to knowledge, such as “recklessness” or “awareness of likelihood” are
inappropriate. As discussed above, the aggravated offences involve much higher potential sentences for the offender. It appears unjust that such penalties should be imposed unless the offender was aware of the aggravating factor. Without a knowledge requirement, an offender who also had an intellectual disability could be brought under the provisions, which does not appear to reflect the policy behind them. However, as discussed, a knowledge requirement will make the offence extremely difficult to prove, unless there is a significant pre-existing relationship between the victim and the offender.
8.14 It seems clear that the aggravated offences relating to intellectual disability are not used often in practice. Even if used, it is unlikely that a sentence above the maximum for general sexual assault (14 years) would be given. The Commission believes that the difficulties involved in the intellectual disability limbs of the aggravated offences are impossible to overcome while remaining fair to the offender, considering the potentially much more severe penalty involved. It is also anomalous to limit the section to people with an intellectual disability, rather than people with other mental impairments. Why should a few categories of vulnerable victims be singled out if the policy is designed to protect vulnerable victims in general? There are also disadvantages in making the person’s disability a part of the offence which must be proved. For example, the DPP argued that:
By alleging aggravating features, more latitude appears to be given to the defence in relation to access to documents [such as medical records], often causing more personal embarrassment for the complainant in some matters that are unrelated to the charges, all because the Crown alleged circumstances of aggravation.30
8.15 The Commission therefore recommends that this limb of each of the aggravated offences be abolished. The Commission notes that, even without the “serious intellectual disability” limb, all the aggravated offences retain an “under the authority of the offender” limb. In many cases where the offender actually knew of the victim’s intellectual disability, this limb would also be applicable. The victim’s intellectual disability or other vulnerability would remain a matter which could be taken into account by the sentencing judge to set a sentence at the more severe end of the spectrum.31 Recommendation 33: Specific sexual offences - s 66F
8.16 It has been recognised that the general sexual assault offences, which are “designed to protect freedom of choice in sexual connections” may not provide sufficient protection where the victim is “not
capable of making a mature and rational choice of this kind”.32 This concern has led to specific offences prohibiting sexual intercourse with people below certain ages and people with an intellectual disability. For such offences consent is generally not a defence because, it has been argued, the victim has a lower “capacity to evaluate sexual persuasion” than the general adult community.33 However, whether or not specific offences for people with an intellectual disability are appropriate is a matter of some controversy because, by removing the issue of consent, limits are arbitrarily imposed on their sexual rights. The VLRC commented in relation to people with a mental impairment, including intellectual disability:
The law must balance two competing interests - protecting people with impaired mental functioning from sexual exploitation, and giving maximum recognition to their sexual rights. The difficulty for the legal system in striking an appropriate balance between these interests is compounded by the considerable diversity of people with mental impairment in terms of extent of impairment, living circumstances, and sexual interest and knowledge.34 The international human rights principles outlined in Chapter 1 accepted that there may be a need for restriction of the rights of people with an intellectual disability, for example, whenever they are unable, because of the severity of their disability, to exercise all their rights in a meaningful way.35
8.17 The arguments against specific offences for people with an intellectual disability include:
there is sufficient protection provided by the general law, for example, if the person lacks capacity to consent, then the intercourse is without consent;
specific offences limit the sexual freedoms of people with an intellectual disability; and
people with an intellectual disability should not be singled out in this way from, for instance, people with some other form of impaired mental functioning.
8.18 Arguments in favour of retaining such offences refer to the particular vulnerability of people with an intellectual disability to sexual exploitation. It is also argued that the general provisions are difficult to prosecute successfully, particularly in the area of proving lack of consent, and are therefore insufficient to protect people with an intellectual disability. For example, it has been commented:
Targeted abuse of vulnerable persons is real and lack of access and justice as victims of