Under section 51 of the Criminal Law Consolidation Act 1935 (SA) there are two specific sexual offences where the victim has a cognitive disability:

Sexual intercourse or indecent contact

Under section 51(1) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to, by undue influence, have sexual intercourse or indecent contact with that person.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty: 10 years imprisonment

Indecent manner

Under section 51(2) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to behave in an indecent manner in the presence of that person without the person’s consent.

There is no consent if the consent was only obtained by undue influence.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty:

First offence - 3 years imprisonment

Subsequent offence – 5 years imprisonment

What is a cognitive impairment?

For these offences cognitive impairment includes:

[Criminal Law Consolidation Act 1935 (SA) s 51(5)]

Undue influence

Undue influence is about improperly taking advantage of another person’s weakness to get them to agree to something.

Undue influence is defined in these offences as including the abuse of a position of trust, power or authority [Criminal Law Consolidation Act 1935 (SA) s 51(5)].

Evidence – reverse burden of proof

For the purpose of these offences a defendant who is in the position of power, trust, or authority, to the alleged victim is presumed to have obtained consent of the victim by undue influence.

This is the case unless the defendant proves, on the balance of probabilities, that they did not get consent in that way [Criminal Law Consolidation Act 1935 (SA) s 51(4)].

Evidence - victim or witness with cognitive impairment

The court can also make special arrangements for protecting vulnerable witnesses, which includes a victim or witness with a cognitive impairment, giving evidence in criminal proceedings [see further Evidence Act 1929 (SA) ss 13A, 14A]. For more information see Evidence of vulnerable witnesses.

Partner exception

The offences do not apply to a person who is legally married to, or the domestic partner of, the person with a cognitive impairment [Criminal Law Consolidation Act 1935 (SA) s 51(3)].

However other criminal laws apply in relation to rape, assault, and other offences, even if the people are legally married or in a de facto relationship [see further the sections in the handbook on family violence, rape, compelled sexual manipulation, indecent assault].

Further information

The Legal Services Commission runs community legal education programs for people living with a disability and workers – see the page on Disability Justice.