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This is a Bill, not an Act. For current law, see the Acts databases.
Crimes Amendment (Cognitive
Impairment--Sexual Offences) Bill
2008
No , 2008
A Bill for
An Act to amend the Crimes Act 1900 with respect to offences of a sexual nature
committed against persons who have a cognitive impairment; and to amend the
Criminal Procedure Act 1986 in relation to the giving of evidence by cognitively
impaired persons.
Clause 1 Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes Amendment (Cognitive Impairment--Sexual 3
Offences) Act 2008. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Amendment of Crimes Act 1900 No 40 7
The Crimes Act 1900 is amended as set out in Schedule 1. 8
4 Amendment of Criminal Procedure Act 1986 No 209 9
The Criminal Procedure Act 1986 is amended as set out in Schedule 2. 10
5 Repeal of Act 11
(1) This Act is repealed on the day following the day on which all of the 12
provisions of the Act have commenced. 13
(2) The repeal of this Act does not, because of the operation of section 30 14
of the Interpretation Act 1987, affect any amendment made by this Act. 15
Page 2
Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Amendment of Crimes Act 1900 Schedule 1
Schedule 1 Amendment of Crimes Act 1900 1
(Section 3) 2
[1] Section 61H Definition of "sexual intercourse" and other terms 3
Insert after section 61H (1): 4
(1A) For the purposes of this Division, a person has a cognitive 5
impairment if the person has: 6
(a) an intellectual disability, or 7
(b) a developmental disorder (including an autistic spectrum 8
disorder), or 9
(c) a neurological disorder, or 10
(d) dementia, or 11
(e) a severe mental illness, or 12
(f) a brain injury, 13
that results in the person requiring supervision or social 14
habilitation in connection with daily life activities. 15
[2] Sections 61J (2) (g), 61M (3) (e), 61O (3) (d), 66C (5) (f) and 80A (1) 16
(paragraph (g) of the definition of "circumstances of aggravation") 17
Omit "serious intellectual disability" wherever occurring. 18
Insert instead "cognitive impairment". 19
[3] Section 61Q Alternative verdicts 20
Insert after section 61Q (4): 21
(5) Question of consent regarding cognitive impairment 22
If on the trial of a person for an offence under section 61I, 61J or 23
61JA, the jury is not satisfied that the accused is guilty of the 24
offence charged, but is satisfied on the evidence that the accused 25
is guilty of an offence under section 66F, it may find the accused 26
not guilty of the offence charged but guilty of the latter offence, 27
and the accused is liable to punishment accordingly. 28
Page 3
Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Schedule 1 Amendment of Crimes Act 1900
[4] Section 66F 1
Omit the section. Insert instead: 2
66F Sexual offences--cognitive impairment 3
(1) Meaning of "person responsible for care" 4
For the purposes of this section, a person is responsible for the 5
care of a person who has a cognitive impairment if the person 6
provides care to that person: 7
(a) at a facility at which persons with a cognitive impairment 8
are detained, reside or attend, or 9
(b) at the home of that person in the course of a program under 10
which any such facility or other government or community 11
organisation provides care to persons with a cognitive 12
impairment. 13
The care of a person with a cognitive impairment includes 14
voluntary care, health professional care, education, home care 15
and supervision. 16
(2) Sexual intercourse: person responsible for care 17
A person: 18
(a) who has sexual intercourse with a person who has a 19
cognitive impairment, and 20
(b) who is responsible for the care of that person (whether 21
generally or at the time of the sexual intercourse), 22
is guilty of an offence. 23
Maximum penalty: imprisonment for 10 years. 24
(3) Sexual intercourse: taking advantage of impairment 25
A person who has sexual intercourse with a person who has a 26
cognitive impairment, with the intention of taking advantage of 27
that person's cognitive impairment, is guilty of an offence. 28
Maximum penalty: imprisonment for 8 years. 29
(4) Attempts 30
A person who attempts to commit an offence under subsection 31
(2) or (3) is guilty of an offence and liable to the penalty provided 32
for the commission of the offence. 33
(5) Consent not a defence for sexual intercourse 34
The consent of a person who has a cognitive impairment is not a 35
defence to a charge for an offence under subsection (2)-(4). 36
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Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Amendment of Crimes Act 1900 Schedule 1
(6) Consent not a defence for indecent assault or act of indecency 1
The consent of a person who has a cognitive impairment is not a 2
defence to a charge for an offence under section 61L, 61M (1), 3
61N (2) or 61O (1A) (or under section 61P in connection with 4
such an offence) if: 5
(a) the accused was responsible for the care of that person 6
(whether generally or at the time of the conduct 7
constituting the offence), or 8
(b) the accused engaged in the conduct constituting the 9
offence with the intention of taking advantage of that 10
person's cognitive impairment. 11
(7) Defences 12
It is a defence to a charge for an offence under subsection (2)-(4) 13
or an offence referred to in subsection (6) in which the 14
prosecution relies on the operation of that subsection: 15
(a) if, at the time of the conduct constituting the offence: 16
(i) the accused did not know the person to whom the 17
charge relates had a cognitive impairment, or 18
(ii) the accused was married to the person to whom the 19
charge relates or was an established de facto partner 20
of that person, or 21
(b) if the act constituting the offence was carried out for any 22
proper medical or hygienic purpose. 23
(8) Approval of Attorney General for prosecution 24
A prosecution for any of the following offences may not be 25
commenced without the approval of the Attorney General: 26
(a) an offence under subsection (2)-(4), 27
(b) an offence referred to in subsection (6) in which the 28
prosecution relies on the operation of that subsection. 29
[5] Section 77 Consent no defence in certain cases 30
Omit "66F," from section 77 (1). 31
[6] Section 80C Meaning of "circumstances of aggravation" 32
Omit "serious intellectual disability" from section 80C (b). 33
Insert instead "cognitive impairment (within the meaning of Division 10)". 34
Page 5
Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Schedule 1 Amendment of Crimes Act 1900
[7] Schedule 11 Savings and transitional provisions 1
Insert at the end of the Schedule with appropriate Part and clause numbering: 2
Part Crimes Amendment (Cognitive 3
Impairment--Sexual Offences) Act 2008 4
Amendments 5
An amendment made to this Act by the Crimes Amendment 6
(Cognitive Impairment--Sexual Offences) Act 2008 does not 7
apply in respect of an offence committed before the 8
commencement of the amendment. 9
Page 6
Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Amendment of Criminal Procedure Act 1986 Schedule 2
Schedule 2 Amendment of Criminal Procedure Act 1
1986 2
(Section 4) 3
[1] Section 76 Recordings of interviews with vulnerable persons 4
Omit "intellectually impaired persons" from the note to the section. 5
Insert instead "cognitively impaired persons". 6
[2] Section 91 Witness may be directed to attend 7
Omit "an intellectually impaired person" from section 91 (7A). 8
Insert instead "a cognitively impaired person". 9
[3] Section 185 Recording of interviews with vulnerable persons 10
Omit "intellectually impaired persons" from the note to the section. 11
Insert instead "cognitively impaired persons". 12
[4] Section 306M Definitions 13
Insert in alphabetical order in section 306M (1): 14
cognitively impaired person means a person who has a cognitive 15
impairment. 16
[5] Section 306M (1), definition of "intellectually impaired person" 17
Omit the definition. 18
[6] Section 306M (1), definition of "vulnerable person" 19
Omit "an intellectually impaired person". 20
Insert instead "a cognitively impaired person". 21
[7] Section 306M (2) (including the note) 22
Omit the subsection. Insert instead: 23
(2) For the purposes of this Part, a cognitive impairment includes 24
any of the following: 25
(a) an intellectual disability, 26
(b) a developmental disorder (including an autistic spectrum 27
disorder), 28
(c) a neurological disorder, 29
(d) dementia, 30
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Crimes Amendment (Cognitive Impairment--Sexual Offences) Bill 2008
Schedule 2 Amendment of Criminal Procedure Act 1986
(e) a severe mental illness, 1
(f) a brain injury. 2
Note. See section 306P as to the application of this Part to the giving of 3
evidence by cognitively impaired persons. 4
[8] Section 306P Application of Part 5
Omit "intellectually impaired persons" from section 306P (2). 6
Insert instead "cognitively impaired persons". 7
[9] Section 306P (2) 8
Omit "an intellectually impaired person". 9
Insert instead "a cognitively impaired person". 10
[10] Section 306R Evidence to which this Division applies 11
Omit "intellectually impaired persons" from section 306R (2). 12
Insert instead "cognitively impaired persons". 13
[11] Section 306T Wishes of vulnerable person to be taken into account 14
Omit section 306T (1) (b). Insert instead: 15
(b) in the case of a cognitively impaired person--the person's 16
cognitive impairment. 17
[12] Section 306ZK Vulnerable persons have a right to presence of a 18
supportive person while giving evidence 19
Omit "intellectually impaired person" from the note to the section, wherever 20
occurring. 21
Insert instead "cognitively impaired person". 22
[13] Schedule 2 Savings, transitional and other provisions 23
Insert at the end of clause 1 (1) of the Schedule: 24
Crimes Amendment (Cognitive Impairment--Sexual Offences) 25
Act 2008, but only to the extent to which it amends this Act 26
Page 8
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