Criminal Law Consolidation (Sexual Offences – Cognitive Impairment) Amendment Bill
03/12/2014
The Hon. K.L. VINCENT: I will just briefly indicate that Dignity for Disability strongly supports this bill. We have been very pleased to work constructively with the government on this issue and other issues pertaining to the Disability Justice Plan for some time now, but I also indicate that we understand that this is something of a vexed issue.
As other members have illustrated, we have a very difficult tightrope to walk in terms of protecting those who are potentially vulnerable due to their disability and subsequent reliance on services and those who are, as has been said, adults who should reserve the right to participate in consensual, meaningful sexual relationships.
We will support the bill and I will later move a minor amendment to do with the wording as to who is covered by the bill. It is a very minor amendment that I vow to circulate to members. I urge their consideration and, with that, commend the bill to the chamber.
The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) ( 11:43 ): I wish to thank members for their second reading contributions and support for this bill. I particularly wish to highlight the valuable contribution made to the formulation and progress of this bill by the Hon. Kelly Vincent. As the Attorney-General made clear in the other place, it is a credit to the parliament that we can all speak with one voice on such a sensitive and important area as this.
As the Hon. Kelly Vincent just stated, it is indeed a very finely-balanced path that we walk in ensuring that we get everyone’s rights and responsibilities in the right balance. It is especially fitting that this bill will pass parliament this week, given that today is the International Day of People with Disability. There are strong concerns about the vulnerability of persons with a cognitive impairment to sexual exploitation and abuse, especially from those in a position of power, trust and authority. Disturbing recent revelations in Victoria highlight just how acute this problem is. The government is committed to the Disability Justice Plan and linked legislative and other changes to improve the position of persons with an intellectual disability throughout the justice system, and the Criminal Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill is part of that process.
The bill introduces two new offences to deter predators and to protect a person with cognitive impairment from sexual exploitation and abuse. The bill aims to strike that elusive balance between protection and paternalism, namely, to protect persons with a cognitive impairment from undue influence and sexual exploitation, especially where the other party occupies a position of trust, power or authority over them, but crucially to respect the sexual autonomy of persons with a cognitive impairment.
The bill draws on both the suggested approach of the Model Criminal Code Offences Committee 2001 and the approach in Canada. The Model Criminal Code Officers Committee identified the focus of any offence as the presence of undue influence. This is consistent with the Canadian model. The bill uses the concept of undue influence from a wide Canadian definition of rape and applies it not to alter the scope or definition of rape in South Australia but to the specific situation of sexual conduct between providers of a service and persons with a cognitive impairment.
The bill defines ‘undue influence’ as including the exercise and abuse of a position of trust, power or authority. Where a person who is a service provider is found to be in a position of trust, power or authority, there is a presumption in the bill that this person exercised undue influence to obtain the relevant consent to sexual conduct from a person with a cognitive impairment. This presumption can be displaced on the balance of probability, with consent as a defence, but only where ‘the consent of the person was not obtained by reason of undue influence by the defendant’.
The presumption is consistent with other statutory presumptions, such as under the Controlled Substances Act 1984 where, as here, the means to rebut the presumption particularly lie within the knowledge of the accused. Service providers who occupy a position of trust, power or authority in relation to a person with a cognitive impairment should be held to higher levels of accountability than other service providers. In a relationship of trust, power or authority, vulnerability is inherent to the relationship itself, and any purported consent needs to be carefully scrutinised. The bill fairly balances the conflicting interests in this sensitive area and is an important and welcome step forward.
Bill read a second time.
Committee Stage
In committee.
Clauses 1 to 3 passed.
Clause 4.
The Hon. K.L. VINCENT: I move:
Amendment No 1 [Vincent–1]—
Page 3, line 29 [clause 4, inserted section 51(5), definition of cognitive impairment, (e)]—
Delete paragraph (e) and substitute:
(e) mental impairment;
As I said to members earlier, this amendment is very simple in its intent. It is really, on the surface, a linguistic change, I guess you could say, in changing the context of clause 4 talking about ‘severe mental illness’ (I think it was) in the original copy of the bill, to ‘mental impairment’, or order to signify that there are certain vulnerabilities which exist outside of mental illness but also to talk about conditions, I guess you could say, which make people potentially vulnerable even when an illness is not present.
I believe that this is quite simple and noncontroversial in its intent. I thank the government for its indication of support for this amendment to remove the stigmatising term of ‘severe mental illness’ and use a broader term of ‘mental impairment’, both to indicate that there are potential vulnerabilities which exist outside of mental illness and to remove the stigma of saying that those living with mental illness or with other mental health conditions are something of a special case. It is a simple amendment; it is important in terms of removing a stigma, and I urge honourable members to support it.
