Crimes Act 1958 - SECT 51

Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services

51. Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services

(1) A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not take part in an act of sexual penetration with that person.

Penalty: Level 5 imprisonment (10 years maximum).

(2) A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not commit, or be in any way a party to the commission of, an indecent act with that person.

Penalty: Level 6 imprisonment (5 years maximum).

(3) In a proceeding for an offence against subsection (1) or (2) in circumstances in which the services provided by the accused were related to the cognitive impairment of the other person, it is a defence to the charge for the accused to prove on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that the other person did not have a cognitive impairment.

(4) In a proceeding for an offence against subsection (1) or (2) in circumstances in which the services provided by the accused were not related to the cognitive impairment of the other person, it is a defence to the charge for the accused to prove on the balance of probabilities that at the time at
which the offence is alleged to have been committed, the accused was not aware that the other person had a cognitive impairment.

(5) Consent is not a defence to a charge against subsection (1) or (2) unless the accused satisfies the court on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that he or she was the spouse or domestic
partner of the other person.

(6) If consent is relevant to a charge against subsection (1) or (2), the prosecution bears the burden of proving lack of consent.

(a) The accused provided medical or therapeutic services to another person.

(b) The other person had a cognitive impairment.

(c) The other person was not the spouse or de facto of the accused.

(d) The accused took part in an act of sexual penetration with that person or committed or was a party to the commission of an indecent act with that person.

(a) Consent.

(b) Factual dispute.

(c) Identification dispute.