Content Warning: This content deals with sensitive topics such as sexual offences involving mentally ill individuals, particularly sexual assault, abuse, or violence. It may include graphic descriptions or references to these experiences. We advise reader discretion.
This article will discuss Sections 52A to 52F of the Crimes Act 1958 Victoria which provides for the rules and penalties for sexual offences involving mentally ill individuals. The crimes under these sections are:
- Sexual penetration of a person with a cognitive impairment or mental illness (52B)
- Sexual assault of a person with a cognitive impairment or mental illness (52C)
- Sexual activity in the presence of a person with a cognitive impairment or mental illness (52D)
- Causing a person with a cognitive impairment or mental illness to be present during sexual activity (52E).
Section 52A: Definitions
Before proceeding to the discussion on sexual offences involving mentally ill individuals and their penalties, let us first tackle the following definitions under Section 52A of Crimes Act Victoria:
- Cognitive impairment – includes impairment because of intellectual disability, dementia, neurological disorder, or brain injury.
- Intellectual disability – in relation to a person over the age of 5 years, means the concurrent existence of:
- significant sub-average general intellectual functioning; and
- significant deficits in adaptive behaviour—each of which became manifest before the age of 18 years (Disability Act 2006)
- Mental illness – a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. (Mental Health and Wellbeing Act 2022)
- Treatment or support services – any of the following delivered in a professional capacity:
- mental health treatment;
- medical treatment;
- therapeutic services;
- personal care or support services.
To better understand the elements pertaining to sexual offences involving mentally ill individuals, you must refer to these definitions.
Section 52B: Sexual Penetration
Under section 52B, sexual penetration of a person with a cognitive impairment or mental illness is a punishable offence. If the court convicts the offender, he or she may be liable to 5 years imprisonment. The elements of this crime are the following:
Element 1: A person (A) intentionally:
- Sexually penetrates another person (B);
- Causes or allows another person (B) to sexually penetrate A;
- Causes B to:
- to sexually penetrate themselves; or
- to sexually penetrate another person (C) or an animal; or
- to be sexually penetrated by C or by an animal; and
Element 2: The victim (B) has a cognitive impairment or mental illness.
Element 3: The offender (A) provides treatment or support services to B or is a worker for a service provider that provides treatment or support services to B.
Exceptions
Section 52F of this Act provides for some exceptions. The crime of sexual penetration of a person with a cognitive impairment or mental illness is not punishable if:
- the sexual penetration is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes; or
- the sexual penetration is of an animal and is caused by A to be done in the course of a procedure being carried out in good faith for veterinary or agricultural purposes or scientific research purposes.
An example scenario would be: Andrei is a support worker assisting Joe on a farm. Joe assists in birthing a calf. During this process, Andrei causes Joe to insert Joe’s hand into the cow’s private parts. Here, Andrei did not commit an offence against section 52B(1).
Further, Section 52G also provides for an exception: marriage or domestic partnership. This provision states that A does not commit this offence if, at the time at which the offender commits the offence:
- A and the person who has a cognitive impairment or mental illness are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or
- A is the domestic partner of the person who has a cognitive impairment or mental illness.
Section 52C: Sexual Assault
One of the sexual offences involving mentally ill individuals is the crime of sexual assault of a person with a cognitive impairment or mental illness. The penalty for this offence is also 5 years imprisonment. Under section 52C, a person commits this offence if the following elements exist:
Element 1: A person (A) intentionally performs the following acts –
- touches another person (B); or
- causes or allows B to touch A; or
- causes B to:
- touch, or to continue to touch, themselves; or
- touch, or to continue to touch, another person (C) or an animal; or
- be touched, or to continue to be touched, by C or by an animal.
Element 2: B has a cognitive impairment or mental illness.
Element 3: The offender (A) provides treatment or support services to B or is a worker for a service provider that provides treatment or support services to B.
Element 4: The touching is sexual and contrary to community standards of acceptable conduct. In this element, whether or not the touching is contrary to community standards of acceptable conduct depends on the circumstances.
The circumstances that element 4 pertains to include the following:
- the purpose of the touching; and
- whether A seeks or gets sexual arousal or sexual gratification from the touching.
The exception under section 52G applies to this provision.
Section 52D: Sexual Activity
Another crime in relation to sexual offences involving mentally ill individuals is the crime of performing sexual activity in the presence of a person with cognitive impairment or mental illness. The liability of an offender under this provision (52D) is also 5 years imprisonment.
The elements of this crime are the following:
Element 1: The offender (A) commits this offence if:
- A intentionally engages in an activity.
- The activity is sexual.
- Another person (B) is present when A engages in the activity.
- A knows that B is, or probably is, present when A engages in the activity.
- B has a cognitive impairment or mental illness.
- A provides treatment or support services to B or is a worker for a service provider that provides treatment or support services to B.
- Engaging in the activity in the presence of B is contrary to community standards of acceptable conduct.
To determine whether engaging in such activity is contrary to the standards, the judge will look at the circumstances of the crime. The circumstances include:
- the purpose of the activity; and
- whether A seeks or gets sexual arousal or sexual gratification from engaging in the activity or from the presence of B.
However, the circumstances do not include:
- whether B gave his or her consent to:
- being present when A engages in the activity
- A engaging in the activity
- whether A believes that B consents to:
- being present when A engages in the activity
- A engaging in the activity
Again, the exception under section 52G applies to this provision.
Section 52E: Presence of a Cognitively Impaired or a Mentally Ill Person
One of the sexual offences involving mentally ill individuals is stated under Section 52E. Section 52E also holds liable an offender of this crime for 5 years imprisonment. Here, a person (A) commits an offence if:
- Another person (B) engages in an activity; and
- The activity is sexual; and
- Another person (C) is present when B engages in the activity; and
- A intentionally causes or allows C to be present when B engages in the activity; and
- C has a cognitive impairment or mental illness
- A provides treatment or support services to B or is a worker for a service provider that provides treatment or support services to B.
Sexual offences involving mentally ill individuals are heinous crimes that no person should ever be a victim of. In real life, victims of violence are significantly more likely to have mental illnesses than those who commit them. Sexual offences involving people suffering from mental illness do happen, nevertheless.
Get Advice from a Criminal Defence Lawyer
If you’re facing any criminal charges regarding sexual offences involving mentally ill individuals in Victoria, Australia, getting advice first from a legal expert is a must.
JB Solicitors is a group of experienced lawyers who can guide you through the entire criminal procedure and advise you on the best step to take during this time.
Contact us today for a consultation.