Sexual offences against people with a cognitive impairment or mental illness
TRIGGER WARNING: Please note that this chapter (and pages it links to) contains information about sexual assault and violence that may be triggering to victim/survivors.
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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 providing treatment or support services 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.
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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 (Crimes Act s 52F);
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 (Crimes Act ss 52G, 52H);
c if, at the time, the person reasonably believed that the other person did not have a cognitive impairment or mental illness (Crimes Act s 52I).
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.
Sexual offences against people with a cognitive impairment or mental illness
Chapter: 3.3: Sexual offences
Contributor: Suzan Gencay, Family Violence and Victims Legal Service Coordinator, South-East Monash Legal Service
Current as of: 2 September 2024
Law Handbook Page: 144
Next Section: Sexual harassment
