New South Wales Consolidated Acts

CRIMES ACT 1900 - SECT 66F

66F Sexual offences-cognitive impairment

(1) Meaning of “person responsible for care” For the purposes of this section, a person is responsible for the care of a person who has a cognitive impairment if the person provides care to that person:

(a) at a facility at which persons with a cognitive impairment are detained, reside or attend, or

(b) at the home of that person in the course of a program under which any such facility or other government or community organisation provides care to persons with a cognitive impairment.

The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision.

(2) Sexual intercourse: person responsible for care A person:

(a) who has sexual intercourse with a person who has a cognitive impairment, and

(b) who is responsible for the care of that person (whether generally or at the time of the sexual intercourse),

is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

(3) Sexual intercourse: taking advantage of impairment A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence.

Maximum penalty: imprisonment for 8 years.

(4) Attempts A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence.

(5) Consent not a defence for sexual intercourse The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4).

(6) Consent not a defence for indecent assault or act of indecency The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if:

(a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or

(b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment.

(7) Defences It is a defence to a charge for an offence under subsection (2)-(4) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection:

(a) if, at the time of the conduct constituting the offence:

(i) the accused did not know the person to whom the charge relates had a cognitive impairment, or

(ii) the accused was married to the person to whom the charge relates or was an established de facto partner of that person, or

(b) if the act constituting the offence was carried out for any proper medical or hygienic purpose.

(8) Approval of Attorney General for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General:

(a) an offence under subsection (2)-(4),

(b) an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection.