The success of such a law ‘lives and dies’ on the balancing of adequate protection from sexual exploitation and the right to legal capacity and sexual autonomy enjoyed by people with a cognitive impairment. It is imperative that the law does not demand that people with a cognitive impairment trade their right to legal capacity for the protection of the law from sexual exploitation or abuse. This is a challenge which the South Australian Attorney-General tackled largely by conducting significant public consultation with both the disability sector and other key stakeholders.
The case for the need to protect people with a cognitive impairment from sexual exploitation and abuse is clear. However, their right to legal capacity and sexual autonomy can be overlooked in providing such protection. Article 12 of the Convention for the Rights of Persons with Disabilities provides that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. This includes the capacity to consent to sexual intercourse and retain full sexual autonomy. Clearly, laws proposing to regulate the circumstances under which a person with a cognitive impairment can engage in sexual activity are at risk of denying this human right. This is where South Australia becomes a pioneer.
Section 51 creates two offences; first, ‘to obtain either sexual intercourse or indecent contact through undue influence between a service provider and a person with a cognitive impairment. Secondly, the performance of an indecent act by a service provider without the consent of a person with a cognitive impairment or obtaining their consent to the act by undue influence… The offences exclude spouses or domestic partners.’ The caveat of ‘undue influence’ and exclusion of spouses and domestic partners preserves the right to legal capacity to consent to sexual intercourse while still protecting people with cognitive impairment from sexual exploitation or abuse from those in a position of authority.
In the Second Reading Speech, the Attorney-General gave an example of section 51’s application to the provision of services such that ‘a regular established transport provider to a person with a cognitive impairment is likely to be in a position of trust, power or authority and undue influence will be deemed to exist in obtaining or procuring sexual conduct unless the accused can establish that it was not.” It is clearly in the provision of these everyday services that protection is most needed, in addition to service providers of specific disability services.
The true equaliser of section 51 is the requirement of ‘undue influence’. At law, the person with a cognitive impairment retains their legal capacity except where there is undue influence. This pulls away from the infringement on the right to sexual autonomy and legal capacity. This is an important step toward the recognition of people with disabilities being equal before the law but also protected by it.
NATALIE WADE is co-Convenor of Australian Lawyers for Human Rights in South Australia.