Literature Review on Provision of Appropriate and Accessible ...

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would be considered able to give their consent to a sexual relationship.
In this regard, McCarthy & Thompson (2004: 238) suggest that it is an
example of a positive development towards striking a balance between
sexual rights <strong>Literature</strong> for people <strong>Review</strong> with on learning Provision disabilities of Appropriate and protection and Accessible from
exploitation. Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy
3.12.2 Other jurisdictions
In most states in Australia, the knowledge required for legal consent to
a sexual act is only that the person understands the nature of the act
(Graydon, 2006) but there is no need to know the consequences. [73]
This decision of the Supreme Court of Victoria, in the case of Morgan
(1970, VR 337) represents a less stringent test (where consideration
of the consequences of sexual acts appears to have been excluded).
It must be proved that the person does not have sufficient knowledge
or understanding to comprehend either that sex may involve physical
penetration of the body or that penetration is an act of sexual connection,
as distinct from an act of a totally different character. According to the
Victorian Law Reform Commission (2001) using this standard most
people with impaired mental functioning will be capable of consenting to
sexual activity. The Morgan standard is lower than that of most American
states, which require understanding of the nature and consequences of
the act (Sundram and Stavis, 1994).
The Morgan direction was elaborated upon in R v Mueller (2005), another
case in which it was alleged that the complainant lacked capacity to
consent. The jury was directed that it was sufficient if the ‘complainant
has knowledge or understanding of what the act comprises, and of its
character ... then she has all that the law requires for capacity to consent
(Graydon, 2006).
An advantage of retaining the Morgan standard is that the sexual
autonomy of persons with intellectual disability would be preserved.
Research has demonstrated that only about half the population with
intellectual disability (in studies carried out in the UK and Australia)
reported having ever received sex education (O’Callaghan & Murphy,
73 The sole exception is South Australia, where the nature and consequences of the
act must be understood (Criminal Law Consolidation Act 1935 S. 49).