Literature Review on Provision of Appropriate and Accessible ...

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Section 17 of the Crimes (Sexual Offences) Act 2006 covers offences
against residents of residential facilities. It is an offence for a worker
at a facility to take part in an act of sexual penetration with a person
with cognitive impairment, or to commit or to be in any way party to the
commission of an indecent act with a person with a cognitive impairment
who is residing in the facility or attending the facility to take part in a
programme, and who is not his or her spouse or domestic partner.
Support to People with an Intellectual Disability who are
Accessible
and Appropriate of Provision on <strong>Review</strong> <strong>Literature</strong>
Experiencing Crisis Pregnancy
The Victorian Law Reform Commission’s final report on sexual offences
(2004) discussed the issue of allowing a defence of consent, with the onus
on the accused to demonstrate that consent was not obtained through
the abuse of trust or professional authority. The authors considered
that the defence of consent would be inconsistent with the policy goal of
protecting people with cognitive impairment from exploitation through
these offences. They argued that allowing a defence of consent in these
circumstances would invariably raise the issue of capacity, which would
lead to difficulties in prosecution, as discussed earlier. They did not
therefore recommend adopting a capacity definition for the purpose
of these offences, which apply regardless of whether the complainant
consented to taking part in sexual activities.
In Canada, Section 153.1 of the Criminal Code makes it an offence to
have sexual contact with a person with a disability in circumstances in
which there is a relationship of authority or dependency between the
accused and the person with a disability, and where the person with
the disability does not consent to the contact (Benedet & Grant, 2007).
Consent means the voluntary agreement of the complainant to engage
in the sexual activity in question. Proof of non consent is required. The
provision has rarely been used since its introduction, a fact the authors
argue is related to trying to satisfy the dual goals of protection from harm
and the promotion of sexual autonomy in contradictory ways. The authors
argue that Section 153.1 does nothing to add to this area of law, as the
crime of sexual assault already criminalises sex without consent, without
requiring proof of ‘disability’ and one of the listed power relationships. If
Section 153.1 had simply criminalised sex with a person with a disability
where one of the specified power relationships existed it would, they
argue, have added something to the law on sexual offences (Benedet &
Grant, 2007).