Sexual intercourse - cognitive impairment

[5-1000] Introduction

The following section applies to offences committed after the commencement of the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008, that is, 1 December 2008.

Section 66F Crimes Act 1900 creates two offences. One of having sexual intercourse with a person who has a cognitive impairment where the accused was responsible for the care of that person (either generally or at the time of the sexual intercourse): s 66F(2). The care of a person with a cognitive impairment includes voluntary care, health professional care, education, home care and supervision and includes care provided “in the course of a program” at a facility or at home: s 66F(1).

The other offence is having sexual intercourse with a person who has a cognitive impairment with the intention of taking advantage of that person’s cognitive impairment: s 66F(3).

The amendments made to s 66F by the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008 replace the term “intellectual disability” with the term “cognitive impairment”. “Cognitive impairment” is defined by s 61H(1A), which provides that a person is cognitively impaired if he or she has:

an intellectual disability
developmental disorder (including autism spectrum disorder)
a neurological disorder
dementia
severe mental illness, or
a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.

Somewhat unhelpfully, expressions “supervision” and “social habilitation” are not defined.

It is suggested that the “supervision” of a person, in this context, may be taken to mean the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection.

It is suggested that “social habilitation” may be taken to mean the need to gain the social capacity or skills necessary to function in the community as a self-reliant citizen.

These are suggestions only and judges should consider carefully whether these meanings, which are incorporated in the draft directions below, should be put to the jury.

The consent of a person who has a cognitive impairment is not a defence to a charge under s 66F(2)–(4): s 66F(5).

The consent of a cognitively impaired person is also not a defence to a charge of indecent assault (s 61L), aggravated indecent assault (s 61M(1)), act of indecency (s 61N(2)), aggravated act of indecency (s 61O(1A)) or attempts to commit these offences (s 61P), if the accused:

was responsible for the care of a cognitively impaired person: s 66F(6)(a), or
engaged in the conduct with a cognitively impaired person intending to take advantage of that person’s cognitive impairment: s 66F(6)(b).

Section 66F(7) sets out three defences to a charge arising from s 66F(2)–(4) or (6):

if the accused did not know the person to whom the charge relates had a cognitive impairment: s 66F(7)(a)(i)
the accused was married to the person to whom the charge relates or was their de facto partner: s 66F(7)(a)(ii), or
where the act was carried out for a proper medical purpose: s 66F(7)(b).

As the defence of lack of knowledge is likely to be the most common, the draft directions below deal with that defence only. They will, of course, require modification if another defence is relied on.

[5-1010] Prescribed sexual offences

An offence pursuant to s 66F is a “prescribed sexual offence” as defined in s 3 Criminal Procedure Act 1986. Proceedings for all prescribed sexual offences are subject to the operation of particular provisions of the Criminal Procedure Act and the Crimes Act. For further details of these provisions and their application see Evidence given by alternative means at [1-360] and Closed court, suppression and non-publication orders at [1-349].

[5-1020] Suggested direction — s 66F(2)

[The accused] has been charged with having sexual intercourse with a person who has a cognitive impairment at the time when [he/she] was responsible for the care of that person.

The Crown must establish, beyond reasonable doubt, each of the four ingredients or elements of that offence:

1.: that [the accused] had sexual intercourse with [the complainant], and
2.: that, at the time of that sexual intercourse, [the complainant] was a person who had a cognitive impairment, and
3.: that, at the time of that sexual intercourse, [the accused] knew that [the complainant] had a cognitive impairment, and
4.: that, at the time of that sexual intercourse, [the accused] was responsible for the care of [the complainant].

[Where appropriate

The Crown does not have to establish that [the complainant] did not consent to the sexual intercourse which took place. Consent is not an issue in this case.]

In relation to the various ingredients of the offence, that:

1.

[The accused] had sexual intercourse with [the complainant]. Sexual intercourse means, so far as is here relevant … [insert only those parts of the s 61H definition as are relevant to the particular case. See [5-800]].

2.

At the time of the sexual intercourse, [the complainant] was a person who had a cognitive impairment [refer to the evidence the Crown relies on as it relates to s 61H(1A) quoted above and the accused’s response to it].

The Crown must establish that [the complainant] had a cognitive impairment which meant that the person required supervision or social habilitation in connection with daily life activities.

The supervision of a person in this context means the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection. The social habilitation of a person in this context means the training of that person to gain the social capacity or skills necessary to function in the community as a self-reliant citizen.

The Crown must establish that [the complainant’s] need for supervision or social habilitation resulted from (or was caused by) the cognitive impairment … [refer here to the evidence].

3.

The Crown must prove beyond reasonable doubt that [the accused] knew that [the complainant] had a cognitive impairment. It is not enough if the Crown proves that [the accused] should have known that [the complainant] had a cognitive impairment. The Crown must establish that [the accused] actually knew. It is not a question of what you would have known if you were in the accused’s position, or what a reasonable person would have known. It is a question of what this accused actually knew. Has the Crown proved beyond reasonable doubt that he knew that the complainant had a cognitive impairment which meant that he/she required supervision or social habilitation in connection with daily life activities? In deciding this issue, you may take into account all of the circumstances, including those in which the sexual intercourse took place, in deciding what [the accused’s] state of mind was … [refer to the relevant circumstances].

4.

At the time when [the accused] had sexual intercourse with [the complainant], [the complainant] was under the care of [the accused] in connection with a facility or program providing services for persons who have cognitive impairments. The care of a person includes voluntary care, health professional care, education, home care and supervision. [The accused] may be responsible for the care of the complainant either generally or at the time of the sexual intercourse.

[Refer to the evidence relied upon by the Crown and the accused’s response to it.]

[5-1030] Suggested direction — s 66F(3)

[The accused] has been charged with the offence of having sexual intercourse with a person known by [him/her] to have a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment.

The Crown must establish beyond reasonable doubt each of the four ingredients or elements of that offence:

1.: that [the accused] had sexual intercourse with [the complainant], and
2.: that, at the time of that sexual intercourse, [the complainant] was a person who had an a cognitive impairment, and
3.: that, at the time of that sexual intercourse, [the accused] knew that [the complainant] had a cognitive impairment, and
4.: that [the accused] had sexual intercourse with [the complainant] with the intention of taking advantage of [her/his] cognitive impairment.

[Where appropriate

The Crown does not have to establish that [the complainant] did not consent to the sexual intercourse which took place. Consent is not an issue in this case, and the accused can be found guilty even if the complainant consented to everything which happened between him/her and the accused.]

In relation to the various ingredients of the offence, that:

1.

[The accused] had sexual intercourse with [the complainant]. Sexual intercourse means, so far as is here relevant … [insert only those parts of the s 61H definition as are relevant to the particular case. See [5-800]].

2.

At the time of the sexual intercourse, [the complainant] was a person who had a cognitive impairment [refer to the evidence the Crown relies on as it relates to s 61H(1A)].

The Crown must establish that [the complainant] had a cognitive impairment which meant that [she/he] required supervision or social habilitation in connection with daily life activities.

The supervision of a person in this context means the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection. The social habilitation of a person in this context means the training of that person to gain the social capacity or skills necessary to function in the community as a self-reliant citizen.

The Crown must establish that [the complainant’s] need for supervision or social habilitation resulted from (or was caused by) the cognitive impairment … [refer here to the evidence].

3.

The Crown must prove beyond reasonable doubt that [the accused] knew that [the complainant] had a cognitive impairment. It is not enough if the Crown proves that [the accused] should have known that [the complainant] had a cognitive impairment. The Crown must establish that [the accused] actually knew. It is not a question of what you would have known if you were in the accused’s position, or what a reasonable person would have known. It is a question of what this accused actually knew. Has the Crown proved beyond reasonable doubt that he knew that the complainant had a cognitive impairment which meant that he/she required supervision or social habilitation in connection with daily life activities? In deciding this issue, you may take into account all of the circumstances, including those in which the sexual intercourse took place, in deciding what [the accused’s] state of mind was … [refer to the relevant circumstances].

4.

[The accused] had sexual intercourse with [the complainant] with the intention of taking advantage of [her/his] cognitive impairment. Intention is a state of mind, and you may take into account all of the circumstances in which the sexual intercourse took place in determining what [the accused’s] state of mind was … [refer to the circumstances].

You should consider such things as what [the accused] did or did not do and by what [he/she] said or did not say. You should look at [his/her] actions before, at the time of, and after the alleged offence. All these things may shed light on [his/her] intention at the relevant time.

[5-1040] Sexual intercourse — intellectual disability (offences under s 66F committed prior to 1 December 2008)

The following section deals with the law as it stood prior to the enactment of the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008, that is, 1 December 2008. The amendments made by that Act do not apply in respect of an offence committed before the commencement of the amendment: Crimes Act, Sch 11, Pt 26.

Section 66F Crimes Act created two offences. One of having sexual intercourse with a person known by the accused to have an intellectual disability and who was (at that time) under that person’s authority: s 66F(2). This has been described as “the carer’s offence”.

The other offence was having sexual intercourse with a person known by the accused to have an intellectual disability with the intention of taking advantage of that person’s vulnerability to sexual exploitation: s 66F(3). This has been described as “the exploitation offence”, and it applies to anyone with knowledge of the complainant’s disability. See NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System, Discussion Paper 35, 1994 at [9.18].

For the purposes of s 66F prior to 1 December 2008:

1.: “Intellectual disability” meant “an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities”: s 66F(1).
2.: The phrase “general intellectual function” was not defined. Nor were the expressions “supervision” and “social habilitation” defined.
3.: It is suggested that the “supervision” of a person, in this context, may be taken to mean the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection.
4.: It is suggested that social habilitation may be taken to mean the need to gain the social capacity or skills necessary to function in the community as a self-reliant citizen.

With regard to the phrase “under the authority of” in s 66F(2), reference is to be made to s 61H(2) which provides that, for the purposes of inter alia, s 66F, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person. This definition was considered in R v DH (unrep, 14/07/97, NSWCCA).

Section 66F(5) provided that:

A person does not commit an offence under this section unless the person knows that the person concerned has an intellectual disability.

In the case of a prosecution under s 66F(2), this element should not create difficulty if the Crown establishes, in accordance with s 66F(2)(b), that the intellectually disabled person was under the authority of the accused in connection with any facility or program providing services to persons who have intellectual disabilities.

[5-1050] Suggested direction — s 66F(2) (offence committed prior to 1 December 2008)

[The accused] has been charged with the offence of having sexual intercourse with a person known by [him/her] to have an intellectual disability and who was at the time under [his/her] authority.

The Crown must establish, beyond reasonable doubt, each of the four ingredients or elements of that offence:

1.: that [the accused] had sexual intercourse with [the complainant], and
2.: that, at the time of that sexual intercourse, [the complainant] was a person who had an intellectual disability, and
3.: that, at the time of that sexual intercourse, [the accused] knew that [the complainant] was such a person, and
4.: that, at the time of that sexual intercourse, [the complainant] was under the authority of [the accused] in connection with a facility or program providing services for persons who have intellectual disabilities.

[Where appropriate

Because the offence has been created in order to protect persons who are vulnerable to sexual exploitation, if necessary from themselves, the Crown does not have to establish that [the complainant] did not consent to the sexual intercourse which took place. Consent is not an issue in this case.]

In relation to the various ingredients of the offence, that:

1.: [The accused] had sexual intercourse with [the complainant]. Sexual intercourse means, so far as is here relevant … [insert only those parts of the s 61H definition as are relevant to the particular case. See [5-800]].
2.: At the time of the sexual intercourse, [the complainant] was a person who had an intellectual disability. A person with an intellectual disability is one whose general intellectual functioning is appreciably below the intellectual functioning of the average member of the community, and who, as a result of that disability, requires supervision or social habilitation in connection with that person’s daily life activities.

A person’s general intellectual functioning is the process by which that person knows or understands or reasons what or how to do something, or why to do or not to do something. Members of the community vary greatly in their intellectual functioning, and the Crown must establish that [the complainant’s] intellectual functioning is appreciably below the intellectual functioning of an average member of the community. The Crown must also show that as a result of the disability, [the complainant] requires supervision or social habilitation.

The supervision of a person in this context means the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection. The social habilitation of a person in this context means the training of that person to gain the social capacity or skills necessary to function in the community as a self-reliant citizen.

The Crown must establish that [the complainant’s] need for supervision or social habilitation resulted from (or was caused by) the intellectual disability … [refer here to the relevant lay and expert evidence].

3.: The Crown must prove beyond reasonable doubt that [the accused] knew that [the complainant] had an intellectual disability. It is not enough if the Crown proves that [the accused] should have known that [the complainant] had an intellectual disability. The Crown must establish that [the accused] actually knew. It is not a question of what you would have known if you were in the accused’s position, or what a reasonable person would have known. It is a question of what this accused actually knew. Has the Crown proved beyond reasonable doubt that [the accused] knew that [the complainant] had an intellectual disability which meant that he/she required supervision or social habilitation in connection with daily life activities? In deciding this issue, you may take into account all of the circumstances, including those in which the sexual intercourse took place, in deciding what [the accused’s] state of mind was … [refer to relevant circumstances].
4.: At the time when [the accused] had sexual intercourse with [the complainant], [the complainant] was under the authority of [the accused] in connection with a facility or program providing services for persons who have intellectual disabilities. One person is under the authority of another person if that person is in the care of, or under the supervision or authority, of that other person … [see: s 61H(2)].

[Refer to evidence relied upon by the Crown and the accused’s response to it.]

[5-1060] Suggested direction — s 66F(3) (offence committed prior to 1 December 2008)

[The accused] has been charged with the offence of having sexual intercourse with a person known by [him/her] to have an intellectual disability, with the intention of taking advantage of that person’s vulnerability to sexual exploitation.

The Crown must establish beyond reasonable doubt each of the four ingredients or elements of that offence:

1.: that [the accused] had sexual intercourse with [the complainant], and
2.: that, at the time of that sexual intercourse, [the complainant] was a person who had an intellectual disability, and
3.: that, at the time of that sexual intercourse, [the accused] knew that [the complainant] as such a person, and
4.: that [the accused] had sexual intercourse with [the complainant] with the intention of taking advantage of [her/his] vulnerability to sexual exploitation.

[Where appropriate

The Crown does not have to establish that [the complainant] did not consent to the sexual intercourse which took place. Consent is not an issue in this case, and the accused can be found guilty even if [the complainant] consented to everything which happened between him/her and the accused.]

In relation to the various ingredients of the offence, that:

1.

[The accused] had sexual intercourse with [the complainant]. Sexual intercourse means, so far as is here relevant … [insert only those parts of the s 61H definition as are relevant to the particular case. See [5-800]].

2.

At the time of the sexual intercourse, [the complainant] was a person who had an intellectual disability. A person with an intellectual disability is one whose general intellectual functioning is appreciably below the intellectual functioning of the average member of the community, and who, as a result of that disability, requires supervision or social habilitation in connection with that person’s daily life activities. A person’s general intellectual functioning is the process by which that person knows or understands or reasons what or how to do something or why to do or not to do something. Members of the community vary greatly in their intellectual functioning, and the Crown must establish that [the complainant’s] intellectual functioning is appreciably below the intellectual functioning of an average member of the community. The Crown must also show that as a result of the disability [the complainant] requires supervision or social habilitation.

The supervision of a person in this context means the power to give directions as to that person’s activities or the obligation to keep watch over those activities for that person’s protection. The social habilitation of a person in this context means the training of that person to gain the social capacity or skills necessary to function in the community as a self reliant citizen. The Crown must establish that [the complainant’s] need for supervision or social habilitation resulted from (or was caused by) the intellectual disability.

3.

The Crown must prove beyond reasonable doubt that [the accused] knew that [the complainant] had an intellectual disability. It is not enough if the Crown proves that [the accused] should have known that [the complainant] had an intellectual disability. The Crown must establish that [the accused] actually knew. It is not a question of what you would have known if you were in the accused’s position, or what a reasonable person would have known. It is a question of what this accused actually knew. Has the Crown proved beyond reasonable doubt that [the accused] knew that the complainant had an intellectual disability which meant that he/she required supervision or social habilitation in connection with daily life activities? In deciding this issue, you may take into account all of the circumstances, including those in which the sexual intercourse took place, in deciding what [the accused’s] state of mind was … [refer to relevant circumstances].

4.

[The accused] had sexual intercourse with [the complainant] with the intention of taking advantage of [her/his] vulnerability to sexual exploitation. Again, an intention is a state of mind, and you may take into account all of the circumstances in which the sexual intercourse took place in determining what that state of mind was … [relevant circumstances must be identified].

You decide intention by considering what [the accused] did or did not do and by what [he/she] said or did not say. You should look at [his/her] actions before, at the time of, and after the alleged offence. All these things may shed light on [his/her] intention at the critical time. [The accused’s] intention to take such advantage of [the complainant] may be established by the Crown only if the circumstances have been shown to be such that [he/she] must have had such an intention. The Crown must eliminate any reasonable doubt as to whether [the accused] did have such an intention.

[5-1070] Notes

1.: For a discussion of s 66F prior to the amendments by the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008: see R v Grech [1999] NSWCCA 268; R v Parsons (unrep,17/12/90, NSWCCA) and DPP v WJW (2000) 115 A Crim R 217.

Criminal Trial Courts Bench Book — Sexual assault offences