Literature Review on Provision of Appropriate and Accessible ...

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Submissions received by the Law Reform Commission on its Consultation
Paper (LRC, 2005) highlighted the fact that Section 5 of the 1993 Act
should be expanded to include all forms of unwanted sexual contact
rather than <strong>Literature</strong> being confined <strong>Review</strong> to on attempted Provision of and Appropriate actual sexual and Accessible intercourse,
buggery and Support acts of to gross People indecency with an Intellectual between males. Disability who are
Experiencing Crisis Pregnancy
3.11.4 Other jurisdictions using diagnostic criteria
In England and Wales there was a diagnostic criterion in place in the
Sexual Offences Act, 1956 & 1967 in that people with severe intellectual
disabilities were considered not able to consent in law, i.e. it was not
lawful to have sex with someone who was a ‘mental defective’ or had
‘severe mental handicap’ (Gunn, 1996; Gunn, Bellhouse, Clare, Holland
and Watson, 2001).
Western Australia
The Western Australian Criminal Code, S. 330 (1) contains a similar
provision to that contained in Section 5 of the 1993 Act, with a reference
to an incapable person being one who is incapable of understanding
the nature of the sexual act, or of protecting themselves against sexual
exploitation. Any sexual act with such a person may be the subject of a
charge under the legislation (Graydon, Hall and O’Brien Malone, 2006:
160).
United States
Wacker et al. (2008) note that forty-five states in America specify that
individuals with so-called mental deficiencies [66] are incapable of legally
consenting to a sexual act (Sexual Assault Statutes, 2006). According
to Benedet & Grant (2007) the threshold for incapacity seems to be
much higher in the United States (compared to Canada), where there
have been high conviction rates of men who have exploited people with
intellectual disability and where complainants are routinely found to be
incapable of consent. The authors note that most US state penal statutes
have a provision that explicitly criminalises sexual activity with women
labelled as mentally disabled. Wacker et al. (2008) reported that state
66 States typically define mental deficiencies to include developmental disabilities
and mental retardation.