OVERVIEW
9.1 As discussed in the previous three chapters, once any matter comes before the courts, the difficulties faced by victims (and witnesses in general) with an intellectual disability include:
- delays in bringing the matter to trial, which may affect their recollection of the event;
- lack of understanding of court procedures;
- challenges to their competence to give evidence and then, if allowed to give evidence, to the reliability of that testimony (this is a particular difficulty in sexual assault matters as there may be no other witnesses);
- being unable to make themselves understood when giving evidence and experiencing difficulties in cross-examination;
- being affected by intimidation (real or otherwise) from the accused so as to be unduly fearful of giving evidence in court; and
- the lack of a support person in court.
This chapter considers two further areas of particular concern to the victim with an intellectual disability: sexual offences, in particular the specific sexual offences against people with an intellectual disability found in the Crimes Act 1900 (NSW), and the issue of victim compensation.
SEXUAL OFFENCES AGAINST PEOPLE WITH AN INTELLECTUAL DISABILITY
General issues
9.2 As discussed in Chapter 1, the particular vulnerability of people with an intellectual disability to sexual exploitation or assault was the subject of a 1990 report by the NSW Women’s Co-ordination Unit.1 Submissions to the Commission have repeated many of the concerns raised in that report and stressed the continuing importance of this issue.2 Following that report a set of interdepartmental procedures were prepared “to assist and better co-ordinate the responses, support and follow up of reports of a person with an intellectual disability having been sexually assaulted.”3 The difficulties faced by victims and witnesses at the investigation stage, including issues such as lack of understanding of their rights, the non-reporting of assaults against people with an intellectual disability and difficulties having their story understood and accepted by the police, have already been discussed in the Commission’s Policing Issues Discussion Paper.4 The New South Wales Sexual Assault Committee has commented that much of the focus and efforts of organisations has been on the hurdle of getting cases involving the sexual assault of people with an intellectual disability into the courts.5 There has been less attention paid to the particular problems at the court level as so few cases reach a hearing.
9.3 There are specific sexual offences relating to people with an intellectual disability found in s 66F of the Crimes Act 1900 (NSW), which is concerned with sexual exploitation. The appropriateness of such offences is discussed in this chapter. Before considering these specific offences, however, this chapter will briefly refer to some issues which arise under the general sexual assault provisions,6 as the general offences also apply to victims with an intellectual disability. For example, intellectual disability can be a “circumstance of aggravation” under the aggravated sexual assault offences.7 The difficulties faced by all victims under the general sexual assault provisions have been the subject of much consideration, and it is beyond the scope of this reference to consider this area in detail. The Commission, however, seeks submissions about the areas discussed briefly below, and about any areas of the general sexual assault law which operate unfairly upon people with an intellectual disability.
Consent
9.4 It has been suggested that it is more appropriate to consider how the general sexual offences may be reformed than to create special sexual offences, such as those considered below. One possibility is to reconsider the issue of consent. In New South Wales the general offence of sexual assault prohibits a person from having sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent (or is reckless about the consent) to the sexual intercourse.8 There are also a variety of other sexual offences of greater and lesser severity. Though consent is no defence for some sexual offences,9 the issue of capacity to consent and actual consent raises particular difficulties for victims with an intellectual disability. Capacity to consent to a sexual act involves having sufficient knowledge or understanding to comprehend the physical nature of the sexual act by the accused and to appreciate the difference between that act and an act of a different character, such as a medical examination.10 The majority of people with an intellectual disability would have the capacity to consent,11 though people with a more severe level of intellectual disability would lack this capacity. If lack of capacity is established then the intercourse is in fact without consent12 and the Crown then needs to establish that the accused knew of (or was reckless about) that lack of capacity. If the person has the capacity to consent, the denial of consent must be established, or the circumstances that vitiated consent.13
9.5 In relation to people with an intellectual disability, the Victorian Law Reform Commission (“VLRC”) recommended (for all sexual offences) that the present position for capacity to consent (see above) should be retained. The VLRC rejected a broader test, that such a person lacks the capacity to consent if he or she was incapable of appreciating the nature and significance of sexual intercourse, as unduly restricting peoples’ sexual rights.14 Alternatively, a report prepared by a number of disability interest groups recommended that the level of understanding required for sexual intercourse be reduced so that “a person is capable of consenting to sexual intercourse provided that he or she understands the physical act of intercourse, without necessarily understanding the nature and consequences of sexual intercourse.15 The Commission does not presently support changes to the law of capacity to consent, but seeks submissions on this issue.
Aggravated sexual offences
9.6 The Crimes Act 1900 (NSW) provides for “aggravated” sexual offences.16 If an aggravated offence is proved, the legislation provides for substantially heavier maximum gaol sentences than otherwise, for example sexual assault has a maximum penalty of 14 years, but an aggravated sexual assault has a maximum of 20 years. The consequences of proving a circumstance of aggravation are therefore potentially very significant for the offender. “Circumstances of aggravation”, are varied but include the “serious intellectual disability” of the victim or the victim is “under the authority of the alleged offender”.17 This latter category may also include people with an intellectual disability. The Attorney General stated, when introducing this legislation:
[t]he new offence does not conflict with or replace section 66F. It will arise only where there is an issue of lack of consent to the act of sexual intercourse. Thus, the new laws are not intended to infringe upon the rights of the intellectually or physically disabled to have sexual relations.18
9.7 Aggravated offences (in their present form) were introduced in 1989. The new provisions were designed to simplify and extend the pre-existing aggravating categories. There has been limited judicial comment on the provisions. The policy behind aggravated sexual offences appears to be that there should be a higher sentence for certain factors in crimes which the community sees as especially abhorrent, such as when the victim is particularly vulnerable. According to the Second Reading Speech:
[t]he two categories dealing with serious intellectual or physical disability are also important reforms. They highlight the increased vulnerability of people who are disabled.19
If so, it is questionable why a few categories of vulnerable victim should be singled out, such as a victim with a serious intellectual disability, rather than a general category of vulnerable victims. It may also be argued that circumstances of aggravation should be a matter for sentencing rather than an element of the offence, and that aggravated offences should be abolished. The Commission has not received any submissions to date recommending the repeal of the aggravated sexual offences. There are obviously arguments on both sides, for example the Second Reading Speech stated that the “two-tiered” penalty structure, consisting of a basic offence and an aggravated version, “will greatly simplify the application of the law.”20 Because of the major implications of such a change for sexual assault laws in general, and as the law in this area was changed less than five years ago, the Commission prefers to seek further submissions rather than making a proposal at this stage.
9.8 Leaving aside the issue of the desirability and scope of aggravated offences in general, it is difficult to ascertain how often (if at all) these offences have been used in relation to people with an intellectual disability. Currently available data from the New South Wales Bureau of Crimes Statistics and Research does not indicate the particular “circumstance of aggravation” relied upon for an aggravated sexual offence.21 Indeed, the Commission is unaware whether intellectual disability as a circumstance of aggravation has ever been successfully argued. No submission or person at any consultation has referred to such a case and enquiries of the Office of the Director of Public Prosecutions and the Crown Prosecutors have been unfruitful. Apart from the issue of appropriateness, there are a number of practical difficulties with the sections. Two particular areas have been suggested as requiring re-drafting: first, the reference to a “serious” intellectual disability should be defined or omitted and secondly, knowledge of the person’s intellectual disability should be clearly stated to be part of the offence to avoid any confusion.
9.9 Definitions. As discussed in Chapter 2, there has been criticism of the lack of definition of intellectual disability for the purposes of these sections. The difficulty with the use of the qualifying word “serious” has already been discussed in Chapter 2, para 2.13. “Serious” cannot be equated with either mild, moderate, severe or profound levels of intellectual disability, and it could be argued that any intellectual disability is “serious” in that it means, by definition, a significantly below average level of general intellectual functioning. If it is argued that “serious” cannot include a mild level of intellectual disability, then, as the majority of people with an intellectual disability have such a level of intellectual disability, this section will have limited application. It has also been commented that people with a “serious intellectual disability” will probably not, under the current law in relation to competence be able to give evidence and “without evidence from the victim, a conviction is most unlikely.”22 The Commission is not aware of any report proceeding this amendment which could be taken into account under the Interpretation Act 1987 (NSW) to ascertain what was envisaged to be covered by a “serious” intellectual disability. As it is unclear what level of intellectual disability is anticipated, and there is no case law on the point, a clarifying amendment would be of assistance if the provisions are to be retained. The NSW Women’s Coordination Unit Report recommended that the Attorney General (through the Criminal Law Review Division) take advice from disability organisations and the Department of Community Services and develop a clear definition of this term.23
9.10 Knowledge. Knowledge by the accused of the existence of the victim’s disability (and that the disability was “serious”) is not stated to be an element of the offence. It has been queried whether knowledge could be assumed to be necessary, particularly as the requirement for knowledge is clearly spelt out in s 66F.24 Some of the “circumstances of aggravation” relating to the victim would be necessarily within the knowledge of the offender, for example whether the victim was under the offender’s authority, and whether the victim had a serious physical disability. But a person’s intellectual disability may not necessarily be obvious to the general community. It might be argued that the word “serious” is meant to imply “obvious”, but this would be a difficult argument to sustain. It can probably be assumed, despite the absence of case law on this issue, that knowledge is required for the operation of the section. If so, is the accused required to have the same understanding as a psychologist of a victim’s intellectual disability and that it was a “serious” one? The community in general does not have a very sophisticated understanding about intellectual disability. What if, for example, the accused stated “I knew she was a bit slow, but I didn’t know she had an intellectual disability”, or “I knew he worked at a sheltered workshop but I didn’t think he had a serious intellectual disability - he wasn’t in a wheelchair?” In the absence of a guilty plea it may be almost impossible for the prosecution to overcome the difficulties referred to above.
Specific sexual offences
Desirability of specific offences
9.11 It has been recognised that the general sexual assault offences, which are “designed to protect freedom of choice in sexual connections” may not provide sufficient protection where the victim is “not capable of making a mature and rational choice of this kind.”25 This concern has led to specific offences involving sexual intercourse with people below certain ages and people with an intellectual disability. For such offences consent is generally not a defence because of, for example, the victim’s lower “capacity to evaluate sexual persuasion”.26 Whether or not specific offences for people with an intellectual disability are appropriate is a matter of some controversy, however. The VLRC commented:
The law must balance two competing interests - protecting people with impaired mental functioning from sexual exploitation, and giving maximum recognition to their sexual rights. The difficulty for the legal system in striking an appropriate balance between these interests is compounded by the considerable diversity of people with mental impairment in terms of extent of impairment, living circumstances, and sexual interest and knowledge.27
9.12 The arguments against specific offences for people with an intellectual disability include:
- there is sufficient protection provided by the general law, for example if the person lacks capacity to consent, then the intercourse is without consent;
- specific offences limit the sexual freedoms of people with an intellectual disability; and
- people with an intellectual disability should not be singled out in this way from, for instance, people with some other form of impaired mental functioning.
9.13 Arguments in favour of such offences refer to the particular vulnerability of people with an intellectual disability to sexual exploitation by, for example, their carers. It is also argued that the general provisions are difficult to prosecute successfully, particularly in the area of proving lack of consent, and are therefore insufficient to protect people with an intellectual disability. Other arguments against permitting a relationship between a person with some form of impaired mental functioning (including intellectual disability) and their carer put to the VLRC included:
- people with an intellectual disability might not want the sexual relationship, but find it difficult to refuse; and
- a sexual relationship can exploit a person with an intellectual disability, even if he or she freely wants the relationship.28
9.14 After considering such arguments, the majority of the VLRC recommended that a specific sexual offence against people with “impaired mental functioning” be retained prohibiting “a person who is employed in a facility providing services [residential or non-residential] for mentally ill or intellectually disabled people” from taking part in any sexual act with “a person receiving services at that facility.” The VLRC also recommended that there be no statutory requirement of corroboration and that consent was to be a defence only where the accused was married to, or in a de facto relationship with, the alleged victim.29 Their reasons were to protect such people from unwanted sexual relationships and to protect such people from exploitation, in a broad sense of the term.30 However, the VLRC, while accepting the need for a “carer’s offence”, specifically rejected a general “exploitation offence” as currently exists in New South Wales (see below), on the grounds that:
[t]here is too great a risk that an offence of that type would unduly restrict expression of the sexual rights of people ... The offence should be confined ... to specified situations in which people ... are particularly dependent - and therefore particularly vulnerable. It should be targeted at specified caregivers, as it is reasonable to impose a special prohibition on those people who are responsible for the care and welfare of others.31
9.15 Following that Report, in 1991, the Crimes Act 1958 (Vic) was amended to prohibit sexual/indecent acts between people who provide medical or therapeutic services to people with impaired mental functioning or workers at residential facilities and their clients.32
New South Wales: s 66F
9.16 Section 66F of the Crimes Act 1900 (NSW) was designed to prevent the sexual exploitation of people with an intellectual disability, not just by their carers, but by other people who have knowledge of the person’s intellectual disability and the intention to take advantage of their vulnerability to sexual exploitation. It has only been used, since its introduction in 1987, in a handful of cases.33 Rather than focusing on the issue of consent, it prohibits certain consensual and exploitative sexual relationships. The section replaced the offence of “carnal knowledge of an “idiot” or “imbecile”, which prohibited sexual relations outside marriage.34 It has been commented that “[s]uch laws were discriminatory and obviously restricted the rights of people with an intellectual disability to have normal relationships.”35
9.17 Section 66F states that:
(1) In this section:
“intellectual disability” means an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities.
(2) Any person who has sexual intercourse with another person who:
(a) has an intellectual disability; and
(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person in connection with any facility or programme providing services to persons who have intellectual disabilities,
shall be liable to penal servitude for 10 years. [“the carer’s offence”]
(3) Any person who has sexual intercourse with another person who has an intellectual disability, with the intention of taking advantage of the other person’s vulnerability to sexual exploitation, shall be liable to penal servitude for 8 years. [“the exploitation offence”]
(4) Any person who attempts to commit an offence under this section upon another person who has an intellectual disability shall be liable to the penalty provided for the commission of the offence.
9.18 Section 66F prohibits sexual intercourse in two situations, despite the consent36 of the person with an intellectual disability: first, sexual intercourse between a person with an intellectual disability and a person who has authority over the person “in connection with any facility or programme providing services to persons who have intellectual disabilities” is prohibited (“the carer’s offence”). Secondly, sexual intercourse between any person and a person with an intellectual disability is prohibited if the person has “the intention of taking advantage of the other person’s vulnerability to sexual exploitation” (“the exploitation offence”). The latter offence is not concerned with whether the victim is actually exploited, rather, the focus is on the intention of the accused. Such an intention may be extremely difficult, if not impossible, to prove and may make the section unworkable. Little judicial guidance about the section is available. The cases found by the Commission to date have only involved the exploitation offence, not the carer’s offence, and the only case which appears to have reached the Court of Criminal Appeal involved a guilty plea.37 In that case the Court commented on the difficulties involved in setting an appropriate sentence, even when the defendant pleaded guilty:
It has to be observed that the terms of the count to which the applicant pleaded guilty included a concession on his part that he had an intention of taking advantage of the complainant’s vulnerability to sexual exploitation. One matter that must have been of immense difficulty for the sentencing Judge was that he had before him the two versions of the offence ... [the victim’s and the defendant’s], neither of which casts any real light upon the basis upon which this concession of an ingredient of the offence was made. ...
The matter that must have been of great difficulty for his Honour to assess was the scaling, if I may so put it, of the responsibility for the applicant in relation to his intent to take advantage of the vulnerability of the complainant. ...38
9.19 Level of intellectual disability required. The prohibition, however, is limited by the definition of intellectual disability used, which would probably not include many people with a mild level of intellectual disability. The intention that the section would not apply to all people with an intellectual disability seems clear from the Second Reading Speech:
[i]ntellectual disability is carefully defined to attract the protections afforded by the legislation to those people whose level of disability requires such protection ... The intent of these reforms is to provide protection from sexual exploitation and assault to people with a significant intellectual disability.39 [emphasis added]
It may be suggested, however, that some protection is already provided for people with a significant level of intellectual disability under the capacity to consent test referred to above. It was also suggested by prosecution lawyers in consultations with the Commission that there have been cases where s 66F was appropriate but where it was impossible to obtain sufficient evidence, due to the severity of the victim’s disability.40 Thus limiting the victims to those with a more severe level of intellectual disability, may make the section unworkable, in the absence of a guilty plea.
9.20 The requirements of knowledge and consent of the Attorney General. For both offences two limitations are placed on the section: first, the alleged offender must know that the person has an intellectual disability; and secondly, no prosecution can be brought without the consent of the Attorney General. Both these limitations raise concerns; for example, the difficulty, particularly for the exploitation offence, where there is no necessary pre-existing relationship, in proving that the person knew the person had an intellectual disability.41 Should recklessness about whether or not the person had an intellectual disability be sufficient, and, if so, how should recklessness be defined? The NSW Women’s Co-ordination Unit Report recommended that the requirement of the permission of the Attorney General be removed, as “[t]his appears to be an unnecessary restriction which is only applied to a limited number of other sexual assault offences.”42 It has also been suggested that the need for this requirement to avoid inappropriate prosecutions is no longer necessary, since the establishment of the position of the Director of Public Prosecutions (“DPP”), whose role includes consideration of the appropriateness of prosecutions. This power to consent has in fact been delegated from the Attorney General to the DPP himself/herself.43 The VLRC also considered, but rejected, the need for a requirement that the approval of the Director of Public Prosecutions be obtained before a case could be prosecuted, “particularly in view of the general power of the DPP to determine whether specific prosecution should continue, having regard to evidentiary and other considerations.”44 The Commission does not presently see any overwhelming need to remove this requirement, particularly as some submissions (see below) have been concerned that inappropriate charges may be being brought, even with the additional safeguard of the Attorney General’s approval.
9.21 Other difficulties with s 66F. The New South Wales Sexual Assault Committee, for example, has criticised this section, stating:
advice from solicitors in the DPP as well as defence lawyers is that s 66F ... is badly worded. Inappropriate prosecutions are occurring. The DPP apparently prosecutes under the usual sections of the Crimes Act rather than s 66F if they can.45
It has also been suggested that the carer’s offence, that is the prohibition against sexual intercourse between a person with an intellectual disability and a person who is in authority over them “in connection with any facility or programme providing services to persons who have intellectual disabilities”, could include inappropriate people. This will depend upon how wide an interpretation is given to “in connection with” and to whether the person with an intellectual disability is “under the authority of” such a person. The question has been asked is with whom then can a person with an intellectual disability who resides in an institution have a sexual relationship?
9.22 An alternative which has been suggested is the limiting of this offence to people with custody and control (whether permanent or temporary) over the person with an intellectual disability. Another alternative was suggested by a working party drawn from three groups representing the interests of people with an intellectual disability (the Redfern Legal Centre Intellectual Disability Rights Service, the New South Wales Council for Intellectual Disability and the Australian Society for the Study of Intellectual Disability) which supported, in 1987, the introduction of a “carer’s offence”, where consent was no defence.46 The provisions proposed by those organisations contained a definition of intellectual disability and a broad definition of “facility” and stated:
(a) whosoever being the proprietor of or an employee in a facility and who has sexual intercourse with a person with an intellectual disability who, to the knowledge of the proprietor or employee, is receiving accommodation, care, treatment, education or training in or from that facility shall be guilty of an offence;
(b) whosoever being a person who provides care, treatment, education or training to a person or people with an intellectual disability at a facility where or from which a person with an intellectual disability is receiving accommodation, care, treatment, education or training and who has sexual intercourse with such person, shall be guilty of an offence.
The provision was designed to cover volunteers as well as paid workers, but not situations where both people involved have an intellectual disability or are otherwise both clients of the facility. A carer would not however be caught by the provision if he or she changed jobs before commencing a sexual relationship; the working party stated that it “certainly did not wish to prohibit the development of genuine relationships between workers and people with an intellectual disability.”47 The Commission seeks submissions about the appropriateness of this alternative.
9.23 Conclusions: s 66F. Despite concerns that the sexual freedom of people with an intellectual disability is impeded by this provision, the Commission has not received any submissions recommending that s 66F be repealed. Rather, comments have focussed on difficulties with the current drafting. The NSW Women’s Co-ordination Unit Report also did not recommend its abolition. The provision is an obvious improvement over the former general prohibition against sexual intercourse with a person with an intellectual disability (except in the context of marriage). It appears from submissions and consultations to date that there is a need to protect people with an intellectual disability against exploitation, particularly by their carers through such a provision, but that the present provision needs re-drafting. However, it is difficult to know how re-drafting will overcome some of the fundamental difficulties set out above, particularly in relation to the exploitation offence. The Commission also believes that the question whether such offences should be retained at all needs further consideration. The Commission seeks further submissions in this regard.
Sexual offences
9.24 In this difficult area, and in light of the absence of submissions and information about some issues, the Commission has decided to ask a number of questions, rather than to make specific proposals for reform at this stage.
PROVISIONAL PROPOSALS FOR REFORM
Consent
1. (a) Should the existing test for capacity to consent be retained?
(b) If not, how could it be altered to operate more fairly for the person with an intellectual disability?
Aggravated sexual offences
2. (a) Should the aggravated sexual offences be retained?
(b) If so:
(i) should the phrase “serious intellectual disability” be defined or replaced by a general category of vulnerable victims?
(ii) should knowledge be specified as an element of the offence?
General sexual assault provisions
3. Are there any other areas of the general law of sexual assault which particularly disadvantage people with an intellectual disability?
Specific sexual offences: s 66F
4. (a) Should the specific sexual offences found in s 66F be retained or repealed? What is the purpose of the offences and are they meeting it?
(b) If s 66F is retained:
(i) should the definition of intellectual disability set out in Proposal 1 apply to this section?
(ii) should the section include both a carer’s offence and an exploitation offence?
(iii) if a carer’s offence is retained, should it be amended to prohibit sexual relations between a person with custody and control over the person with an intellectual disability, rather than a person connected with a facility or program?
(iv) if the exploitation offence is retained, how can the difficulties of proving the “intention of taking advantage of the other person’s vulnerability” be overcome, in the absence of an admission or guilty plea?
(v) should recklessness about whether or not the person had an intellectual disability or not be sufficient to establish the knowledge requirement?
(vi) should the Attorney General’s consent be required to commence a prosecution under this section?
COMPENSATION FOR VICTIMS OF CRIME
9.25 The Victims Compensation Tribunal was established on 15 February 1988 under the Victims Compensation Act 1987 (NSW) to provide compensation for victims of “acts of violence” (defined by the legislation) and to recover compensation from offenders and fraudulent claimants. Part 6 of the Victims Compensation Act 1987 (NSW) also allows for compensation to be awarded by a court. The award does not prevent the victim or other “aggrieved person” from seeking civil compensation from the Tribunal. As the Tribunal operates on a civil, not a criminal, standard of proof, acquittals and the failure of a prosecution for any other reason are not conclusive in the determination of whether compensation should be granted to the victim.48 A person may thus apply for compensation even if the alleged offender was acquitted or if the matter was “no-billed”, that is the Director of Public Prosecutions decided not to proceed with the charges. This may be important for a person with an intellectual disability, as “the Tribunal also receives claims by applicants in which the authorities have not prosecuted because of their assessment of the victim’s evidence.”49 The Victims Compensation Tribunal does not hold any statistics about the numbers of complainants who have an intellectual disability.50
9.26 Few submissions have addressed the area of victim compensation in detail. At consultations it was commented that people with an intellectual disability have particular difficulties in this area, for instance they may have trouble showing psychological damage. It was also stated that it was hard for people with more severe disabilities to get compensation, as they are reliant on statements from people around them, and the payouts have generally been low.51 The Redfern Legal Centre Intellectual Disability Rights Service commented in this regard that:
obstacles may arise in determining the amount of damages to be awarded to a person who has high support needs and whose verbal skills are very limited as they will have great difficulty describing the extent of their physical and emotional suffering.52
Concerns have also been raised about people with an intellectual disability receiving an award in a lump sum without a guardian or any financial management assistance, where there are questions about their capability to handle the money. In one matter the Tribunal directed that the person’s solicitor make an application for guardianship.53 If the person is under the age of 18, however, the payment of the sum is supervised by the Public Trustee.54
9.27 If an order for compensation is made, the Victims Compensation Tribunal may, in certain circumstances, seek to recover the sum paid from a person who has been convicted of an offence arising from substantially the same facts as those which led to the order for compensation (“the defendant”).55 Restitution proceedings are commenced by serving a notice on the defendant, and the onus is then on him or her to respond or show cause why such an order should not be made. If such restitution is sought, the amount to be paid is fixed with regard to such matters as the financial means of the defendant and the Tribunal assessment of his or her culpability.56 These restitution proceedings may also create difficulties for a defendant with an intellectual disability - it has been commented that one concern is:
the difficulty some defendants have in understanding the difference between these proceedings and the criminal proceedings. This issue is of further relevance when considering that one of the rationales behind restitution proceedings is that persons should be liable for the consequences to the victims of their actions.57
9.28 The Commission’s Policing Issues Discussion Paper (see Chapter 9) also included a brief discussion of victim compensation issues in the context of police procedures, for example the relevance of delay in reporting a matter to the police, and commented that this issue, including the role of the Tribunal and the difficulties faced by people with an intellectual disability, would be discussed more fully in this Discussion Paper. The Policing Issues Discussion Paper noted that the Victims Compensation Act 1987 (NSW) was recently reviewed by the Attorney General’s Department and a report was prepared by Mr C Brahe, Deputy Chief Magistrate and a former Chairperson of the Victims Compensation Tribunal (the “Brahe Report”).58 As discussed in the Policing Issues Discussion Paper, the Brahe Report made a number of recommendations relevant to the victim with an intellectual disability.
9.29 To implement some of the recommendations of the Brahe Report a Victims Compensation (Amendment) Bill 1994 (NSW) was introduced into Parliament earlier this year, including such amendments as the re-definition of the “act of violence” which may lead to compensation, and the insertion of a new category of injury (psychological trauma) for sexual assault victims. When Parliament rose the Bill had not yet been passed. The Brahe Report recommended that applications for compensation should be lodged within a period of two years from the act of violence but that the Tribunal should have a discretion to accept claims outside that period in exceptional circumstances, including the victim’s intellectual disability.59 This provision is contained within the Bill.60 The Brahe Report also recommended that failure to report the crime to a police officer within a “reasonable time”, or to assist the prosecution, could be excused on grounds including the victim’s intellectual disability.61 In the Bill there is now provision that “in determining whether a matter relating to a victim of an act of violence was reported to a police officer within a reasonable time, the Tribunal may have regard to ... any physical, intellectual or psychiatric disability to which the victim is subject”.62 Other proposed amendments may also assist victims with an intellectual disability. However it is difficult to assess the impact of the proposed amendments until they become law. At this stage, the Commission does not intend to make any proposals in relation to victim compensation issues, but rather to seek submissions about whether the proposed amendments, if enacted will assist people with an intellectual disability and whether there are any other concerns about victim compensation as it impacts on people with an intellectual disability. This area will then be the subject of recommendations in the Commission’s final Report.
FOOTNOTES
1. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990). This Report found that people with an intellectual disability report a higher than average proportion of sexual assault cases. In this study the Department of Health noted disability as a specific data collection item. In the first six months of collection, 55 out of 855 (6.4%) adults referred to the Sexual Assault Service had an intellectual disability. The Report referred, at 11, to a number of overseas studies in this area. Other overseas studies are cited in B McCormack “Sexual Abuse and Learning Difficulties” (1991) 303 British Medical Journal 143 and in D Tharinger, C Burrows-Horton and S Millea “Sexual Abuse and Exploitation of Children and Adults with Mental Retardation and Other Handicaps” (1990) 14 Child Abuse and Neglect 301. See also the following studies:
K Johnson, R Andrew and V Topp Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime (Office of the Public Advocate, Melbourne, 1988) at Appendix 4; and
C Wilson The Incidence of Crime Victimization Among Intellectually Disabled Adults: Final Report (National Police Research Unit, South Australia, 1990).
2. For example New South Wales Sexual Assault Committee Submission (4 June 1993).
3. New South Wales. Parliamentary Debates (Hansard) Legislative Council, 12 December 1991, at 6568, per the Hon V Chadwick MLC, Minister for School Education and Youth Affairs.
4. New South Wales. Law Reform Commission People With An Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993), ch 9.
5. Consultation with the New South Wales Sexual Assault Committee Intellectual Disability Sub-Committee on 23 September 1993.
6. Crimes Act 1900 (NSW) s 61H-80A.
7. Crimes Act 1900 (NSW) s 61J, 61M and 61O.
8. Crimes Act 1900 (NSW) s 61I, 61R.
9. Crimes Act 1900 (NSW) s 77.
10. R v Morgan [1970] VR 337 at 341-342 per Winneke CJ (with whom Little and Starke JJ agreed); K Rosser “Sexual assault” (1989) 3 (4/5) National Council on Intellectual Disability: Interaction 23. See also R v Beserick (1993) 30 NSWLR 510 at 531, per Hunt CJ at CL (with whom Finlay and Levine JJ agreed).
11. Rosser (1989) at 23.
12. R v Barratt (1873) LR 2 CCR 81.
13. Crimes Act 1900 (NSW) s 61R.
14. Law Reform Commission of Victoria Sexual Offences Against People with Impaired Mental Functioning (Report 15, 1988) Recommendation 1 and paras 33-40.
15. J Simpson Sexual Assault Laws and People with an Intellectual Disability (Redfern Legal Centre Intellectual Disability Rights Service, unpublished paper, 6 July 1987) at 2.
16. Sections 61J (aggravated sexual assault), 61M (aggravated indecent assault) and 61O (aggravated act of indecency).
17. According to s 61H of the Crimes Act 1900 (NSW): “For the purposes of sections 61H-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.”
18. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 28 November 1989 at 13571, per the Hon J Dowd QC MP.
19. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 28 November 1989 at 13570, per the Hon J Dowd QC MP.
20. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 28 November 1989 at 13571, per the Hon J Dowd QC MP.
21. New South Wales. Bureau of Crime Statistics and Research Personal Communication (28 October 1993).
22. K Rosser “A particular vulnerability” (1990) 15 Legal Service Bulletin 32 at 34.
23. NSW Women’s Co-ordination Unit, Recommendation 5.2.
24. Mr M Ierace Submission (16 December 1991) at 8.
25. B Fisse Howard’s Criminal Law (5th ed, Law Book Co, Sydney, 1990) at 189.
26. Fisse at 190.
27. VLRC Report 15 at 3. As its title suggests, the Report refers to a broader group of people than people with an intellectual disability; it also included people with mental or psychiatric illness, brain damage or dementia.
28. VLRC Report 15 at para 51.
29. VLRC Report 15, Recommendations 3-7.
30. VLRC Report 15 at paras 62-64.
31. VLRC Report 15 at para 64.
32. Crimes Act 1958 (Vic) s 50-52. Consent is not a defence to either charge unless the accused believed on reasonable grounds that he or she was the spouse or de facto spouse of the other person.
33. According to the Judicial Commission’s Sentencing Information System, for the period January 1990-December 1993, there were only four cases under s 66F(3) (the exploitation offence) and no cases under s 66F(2) (the carers offence). In each case listed the defendant pleaded guilty and, in three of the four cases, received a custodial sentence. According to the New South Wales Bureau of Crime Statistics and Research, there were no s 66F charges during the period January 1988-December 1989: Letter (4 November 1993). Anecdotal reports, however, suggest that there may have been other cases than the four identified - the Commission would appreciate receiving copies of relevant unreported judgments.
34. See s 72A (“carnal knowledge of idiot or imbecile”) and s 78M (“homosexual intercourse with idiot or imbecile”) of the Crimes Act 1900 (NSW), both of which were repealed by the Crimes (Personal and Family Violence) Amendment Act 1987 (NSW), assented to on 4 December 1987.
35. Rosser (1989) at 23.
36. Crimes Act 1900 (NSW) s 77(1).
37. R v Parsons (unreported) Supreme Court, NSW, Court of Criminal Appeal, 17 December 1990, CCA 60014/90.
38. R v Parsons (unreported) Supreme Court, NSW, Court of Criminal Appeal, 17 December 1990, CCA 60014/90, at 3-5 (per Grove J, the other judges agreeing).
39. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 29 October 1987 at 15466, per the then Premier, Mr B Unsworth MP.
40. Consultation with representatives of the DPP, Police Prosecutors, Legal Aid Commission of NSW, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.
41. According to R Watson and H Purnell Criminal Law in New South Wales: Indictable Offences (Loose leaf Service, Vol 1, Law Book Co) at 125: “It has been said that the knowledge of the accused may be established by admissions, by proof of long standing acquaintance, or by the fact that the victim’s appearance made it obvious that he or she was intellectually disabled: the victim’s appearance is a proper matter for the jury to observe and consider”, referring to R v Colgan [1959] SR (NSW) 96; R v Hudson [1966] 1 QB 448; R v Schell [1964] Tas SR 184.
42. NSW Women’s Co-ordination Unit, Recommendation 5.1, at 21-22. (The requirement of the consent of the Attorney General to prosecute also exists for incest and certain homosexual intercourse offences, see s 78F(1), 78T(2).)
43. New South Wales Government Gazette (23 September 1988).
44. VLRC Report 15 at para 88.
45. See New South Wales Sexual Assault Committee Submission (August 1992) at 1.
46. Simpson at 6-7.
47. Simpson at 2.
48. Victims Compensation Tribunal, New South Wales (Registry) Submission (16 March 1994) at 1.
49. Victims Compensation Tribunal, New South Wales (Registry) Submission (16 March 1994) at 2.
50. Consultations with representatives of the Victims Compensation Tribunal and the Victims Advisory Council on 16 March 1994.
51. Consultations with representatives of Redfern Legal Centre Intellectual Disability Rights Service, The New South Wales Council for Intellectual Disability, Disability Council of NSW, New South Wales Sexual Assault Committee and the Brain Injury Association on 10 March 1994.
52. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 13.
53. Consultations with representatives of the Victims Compensation Tribunal and the Victims Advisory Council on 16 March 1994.
54. Consultations with representatives of the Victims Compensation Tribunal and the Victims Advisory Council on 16 March 1994.
55. See Victims Compensation Act 1987 (NSW) Part 5.
56. Victims Compensation Act 1987 (NSW) s 47.
57. Victims Compensation Tribunal, New South Wales (Registry) Submission (16 March 1994) at 2-3.
58. New South Wales. Attorney General’s Department The Review of the Victims Compensation Act (Victims Compensation Tribunal, Attorney General’s Department, March 1993) (the “Brahe Report”). Also in 1993 the New South Wales Bureau of Crimes Statistics and Research prepared an empirical study Criminal Victim Compensation: A Profile of Claims, Claimants and Awards (Legislative Evaluation Series, New South Wales Bureau of Crime Statistics and Research, 1993).
59. The Brahe Report, Recommendation 1(c).
60. Victims Compensation (Amendment) Bill 1994 (NSW) Schedule 1; proposed amendment to s 17 of the Victims Compensation Act 1987 (NSW).
61. The Brahe Report, Recommendation 11(a).
62. Victims Compensation (Amendment) Bill 1994 (NSW) Schedule 1; proposed amendment to s 20 of the Victims Compensation Act 1987 (NSW).
