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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-11-18 Daily Xml
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Criminal Law Consolidation (Sexual Offences - Cognitive Impairment) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

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) (16:14): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

There is overwhelming evidence that people with a cognitive impairment are particularly vulnerable to sexual exploitation and other abuse, especially from those in a position of trust, power and authority. The existing law in South Australia is widely perceived as inadequate.

The Criminal Law Consolidation (Sexual Offences-Cognitive Impairment) Amendment Bill 2014 is intended to address this inadequacy. The intention of the Bill is to protect persons with a cognitive impairment from sexual abuse and exploitation, especially by those in a position of trust, power or authority, whilst respecting the sexual autonomy of such persons.

The Bill introduces two new offences to the Criminal Law Consolidation Act 1935. First, to obtain either sexual intercourse or indecent contact through undue influence between a service provider and a person with a cognitive impairment. Secondly, the performance of an indecent act by a service provider without the consent of a person with a cognitive impairment or obtaining their consent to the act by undue influence. The penalty will depend upon the nature of the sexual activity. The offences exclude spouses or domestic partners.

If the service provider occupies a position of trust, power or authority, the presumption is that the offender exercised undue influence to obtain any consent from the person with a cognitive impairment. This presumption can be displaced on the balance of probabilities but only where 'the consent of the person was not obtained by reason of undue influence by the defendant.' The Bill uses the model of undue influence, drawing on the suggested approach of the Model Criminal Code Officers Committee, to define the offences.

Increasing access to justice for all South Australians is an important priority for the Government. In particular the Government has a proud history of supporting people with disability. The Government in June 2014 released its Disability Justice Plan with the aim 'to make the criminal justice system more accessible and responsive to the needs of people with disability.' The Plan provides for a comprehensive approach to improve access to the justice system for people with disability and provide increased support both in and outside court.

The Criminal Law Consolidation (Sexual Offences-Cognitive Impairment) Amendment Bill is intended to operate with other forthcoming legislative reforms and operational, cultural and training changes as part of the Disability Justice Plan to improve the position of persons with disability in the justice system and help ensure their equal treatment before the law.

The Bill draws on the extensive and fruitful consultation undertaken as part of the Disability Justice Plan, notably with the disability sector, and strikes a careful balance of the conflicting interests in this sensitive area.

Policy

Any offence to protect persons with a cognitive impairment from sexual abuse is inherently difficult to draft and needs to be carefully defined in light of the conflicting interests that arise. Whether or not specific offences to protect people with a cognitive impairment are appropriate is sensitive because, by removing the issue of consent, limits are arbitrarily imposed on their sexual rights. The aim of the Bill is to better protect the vulnerable in society, but to also respect the sexual autonomy of persons with a cognitive impairment.

The need to find this balance was highlighted by the Model Criminal Code Officers' Committee in 2001. This was a committee of experts including judges, prosecutors, defence lawyers, academics and lawyers from various Attorney-General's departments. The Committee received many submissions from interested parties and the disability sector.

The Committee emphasised the need to respect the sexual autonomy of persons with a cognitive impairment but accepted that in certain circumstances a specific offence was justified, namely where there was an inherent power imbalance between a person with a cognitive impairment and the offender and the breach of trust inherent in any sexual contact in this situation. The Committee suggested the focus of any offence in this area should be the exercise of undue influence.

The Bill draws on the views of the Victorian Law Reform Commission and the Committee and also the extensive consultation and comment, especially from the disability sector.

The underlying policy of the Bill is to protect persons with a cognitive impairment from undue influence and sexual abuse and exploitation, especially where the other party occupies a position of trust, power or authority over them, but crucially does so in a manner that does not undermine the sexual autonomy of persons with a cognitive impairment.

The Bill in Detail

The Bill introduces two new offences under the Criminal Law Consolidation Act 1935.

First, the Bill provides that a person who provides a service (whether for remuneration or not) to a person with a cognitive impairment is guilty of an offence if he or she obtains or procures by undue influence either sexual intercourse or indecent contact with that person.

Second, the Bill provides that a person who provides a service (whether for remuneration or not) to a person with a cognitive impairment is guilty of an offence if he or behaves in an indecent manner in the present of that person without the person's consent; or with the person's consent where that consent was obtained by undue influence.

This second offence is intended to reflect the offence of committing an act of gross indecency in the presence of a child. This second offence in the Bill covers the situation where there is no direct physical contact but the service provider performs an indecent act in the presence of the person with a cognitive impairment.

The Bill applies to the provider of any service to a person with a cognitive impairment, whether for payment or not. The Bill excludes spouses and domestic partners.

The Bill draws on the approach of undue influence suggested by the Committee but the Bill is not confined to carers given the problems and ambiguities with the modern usage of that term, especially in the disability sector. It applies to any service provider to a person with a cognitive impairment whether or not for remuneration. For example it would cover both the regular established transport provider to persons with a cognitive impairment as well as the one off transport provider such as a taxi or bus.

The Bill defines undue influence as 'including the abuse of a position of trust, power or authority.'

It is unhelpful to try and define undue influence any further. The presence of undue influence will be a question of fact and judgement in each case. It is inappropriate to rely on views as to what constitutes undue influence in the very different context of equity and civil law. Rather undue influence should be approached according to its plain and ordinary meaning having regard to the underlying policy of the Bill, namely to protect persons with a cognitive impairment from sexual exploitation or abuse while respecting their sexual autonomy.

It will be a question of fact in each case whether sexual intercourse, indecent contact or consent to the performance of an act of indecency has been either obtained or procured through the exercise of undue influence. Whether any influence exerted by a service provider amounts to undue influence will depend on the nature and degree of the cognitive impairment and the nature and degree of the influence or persuasion applied by the service provider.

If the service provider occupies a position of trust, power or authority, the presumption in the Bill is that the offender used undue influence to obtain or procure the sexual conduct in question. This presumption can be displaced on the balance of probabilities but only where 'the consent of the person was not obtained by reason of undue influence by the defendant.'

This presumption recognises that certain service providers by virtue of their status or the nature of their connection with a person will be particularly situated to exploit their situation and procure or obtain sexual conduct through undue influence. Such service providers should be held to higher standards than others.

The presumption of undue influence, drawing on the Canadian approach, will apply from the exercise and abuse of a position of trust, power or authority. The existence of a relationship of trust, power or authority is a question of fact in each case for the court and all of the circumstances of the relationship must be examined to determine the existence of an element of trust or power or authority, including the status of the accused, the age difference between the two parties, the evolution of the relationship and the circumstances under which the alleged offence was committed. The nature and extent of the cognitive impairment of the complainant will also be important in approaching this question under the Bill.

An example of the Bill's operation may be a taxi or bus driver. A one off transaction between such a service provider and a person with a cognitive impairment is highly unlikely to amount to a position of trust, power or authority and any offence under the Bill will only be committed if on the facts any sexual conduct has been obtained or procured by undue influence. But the regular established transport provider to a person with a cognitive impairment is likely to be in a position of trust, power or authority and undue influence will be deemed to exist in obtaining or procuring any sexual conduct unless the accused can establish that it was not.

The Bill does not need to make specific provision for particular service providers.

The Bill takes a flexible and inclusive approach to what will constitute a cognitive impairment. The Bill provides a non-exclusive list of conditions that might amount to a cognitive impairment. This approach was also suggested by the Model Criminal Officers Committee. This approach is to be preferred rather than relying on a narrow definition of 'cognitive impairment' to define the terms of the offences. By firmly placing the focus of the offence on the exercise of 'undue influence', it is unnecessary to define or limit the offences by reference to the type and degree of disability or impairment to be covered.

The maximum penalty, consistent with the comparable general sexual offence, will depend upon the nature of the sexual activity.

Different and sincere views will be held as to how far this Bill should or should not go. The Government has drawn on the views expressed during the extensive consultation process, notably from the disability sector. The Bill strikes a careful balance to better protect the vulnerable in society while not impinging on the sexual autonomy of people with disability. The Bill strikes the proper balance in this sensitive area.

I would like to thank the Honourable Kelly Vincent and her office for making themselves available for consultation during the drafting process of this Bill.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of section 51

This clause inserts new section 51 into the Criminal Law Consolidation Act 1935 that creates 2 new offences in relation to the sexual exploitation of persons with a cognitive impairment.

Firstly, in proposed subsection (1), a person who provides a service (whether for remuneration or not) to a person with a cognitive impairment will be guilty of an offence if he or she obtains or procures, by undue influence, sexual intercourse or indecent contact with that person. This offence will be punishable with a maximum penalty of imprisonment for 10 years.

Secondly, in proposed subsection (2), a person who provides a service (whether for remuneration or not) to a person with a cognitive impairment will be guilty of an offence if he or she behaves in an indecent manner in the presence of that person either without the person's consent or with the person's consent where that consent was obtained by undue influence. This offence will be punishable with a maximum penalty of imprisonment for 3 years (in the case of a first offence) or 5 years (in the case of any subsequent offence).

Cognitive impairment is defined as including the following:

(a) an intellectual disability;

(b) a developmental disorder (including an autistic spectrum disorder);

(c) a neurological disorder;

(d) dementia;

(e) a severe mental illness;

(f) a brain injury.

For the purposes of both offences, a defendant who is, at the time of an alleged offence, in a position of power, trust or authority in relation to the victim of the offence, will be presumed to have obtained the consent of the victim by undue influence unless the defendant proves the contrary on the balance of probabilities.

The offences will not apply in relation to a person who is legally married to the person with a cognitive impairment or is the domestic partner of that person.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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