Crimes Act 1900

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—

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

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.

Sexual intercourse: person responsible for care A person—

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

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

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.

(Repealed)

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) or (3) (or under section 344A in connection with such an offence).

Consent not a defence for sexual touching or sexual act The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61KC, 61KD, 61KE or 61KF (or under section 344A in connection with such an offence) if—

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

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

Defences It is a defence to a charge for an offence under subsection (2) or (3) (or under section 344A in connection with such an offence) or an offence referred to in subsection (6) in which the prosecution relies on the operation of that subsection—

if, at the time of the conduct constituting the offence—

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

the accused was married to the person to whom the charge relates or was the de facto partner of that person, or

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

Approval of Attorney General or Director of Public Prosecutions for prosecution A prosecution for any of the following offences may not be commenced without the approval of the Attorney General or Director of Public Prosecutions—

an offence under subsection (2) or (3) (or under section 344A in connection with such an offence),

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