WWDA Submission to the Model Criminal Code Committee Discussion Paper ‘Sexual Offences Against the Person’


In 1997, the Model Criminal Code Committee (Attorney General’s Department of the Commonwealth Government) released a Discussion Paper on ‘Sexual Offences Against the Person’. This is a copy of WWDA’s submission to the Model Criminal Code Committee in response to that Discussion Paper. Copyright WWDA 1997.


Women with Disabilities Australia (WWDA)

Women with Disabilities Australia (WWDA) is a federating body of individuals and networks in each state and territory made up of women with disabilities and associated organisations.

WWDA seeks to ensure equal opportunities in all walks of life for all women with disabilities. In this it aims to increase awareness of, and address, issues faced by women with disabilities in the community. It links women with disabilities from around Australia, providing opportunities to identify and discuss issues of common concern.

WWDA works in partnership with other disability organisations and women’s organisations, and generates and disseminates information to women with disabilities, their families and carers, service providers, government and the media. WWDA is inclusive and does not discriminate against any disability.


WWDA and the Model Criminal Code on Sexual Offences Against the Person

Overall WWDA’s concerns in this matter are twofold:

  • firstly, because of the very high levels of sexual offences committed against women (and men) with disabilities and relatively low conviction rate; and
  • secondly because there is a prevalence of misinformation and myths which surround disability and sexuality. WWDA is concerned that these can create an environment in which ‘protection’ are given a high priority, and impinge upon the rights and freedoms of people with disabilities.

Consultation carried out for this submission

In preparing this submission, WWDA consulted with a broad range of groups and individuals. The following groups were consulted, but their inclusion in this list in no way implies their endorsement of the submission:

  • The Deaf Society of (New South Wales, Queensland and Western Australia)
  • National Federation of Blind Citizens of Australia
  • Australian Psychiatric Disability Coalition
  • Australian National Association for Mental Health
  • Mental Health Legal Centre
  • Disability Council of NSW
  • People First, Australian Capital Territory
  • Women Working Alongside Women With Intellectual Disabilities: Sexual Violence Prevention
  • Logan Women’s Health Centre
  • Launceston Community Legal Centre
  • Intellectual Disability Rights Service, Sydney

Division 35 – Sexual Acts Committed Against or with Mentally Impaired Persons

WWDA has carried out limited consultation with women and relevant organisations in the process of developing this submission, particularly in relation to Division 35. A very broad divergence of views emerged out of this process. These views reflected differences in:

  • the type of disability;
  • the degree of disability;
  • the living situation; and
  • the personal experience of the women and organisations consulted.

As it stands, Division 35 has the potential to impact on a very broad range of people. Their lives will be affected differentially by it depending on the type and degree of their disability and life circumstances. For example, the situation of a woman with severe intellectual disability living in an institution, is very different from that of someone with bipolar disorder, who occasionally lives in a refuge.

The central issues of concern in Division 35 are:

  • the definition of carer;
  • the inclusion, or not, of a defence;
  • who is covered by the Division, and
  • which people with disabilities are covered by it.

Basis of Division 35 – ‘ability to give consent’, or ‘vulnerability’?

It is unclear from the discussion paper whether the Division centres around the notion of ‘lack of ability to give consent’, or ‘vulnerability’. The implications of the use of the terms need to be further clarified. WWDA is concerned that if this is not done before finalisation of the Model Code, there is a danger that in the adoption of the Code by States and Territories the two could become interchangeable.

This an important concept to be clear about because of some suggestions put forward to include people under Division 35 whose ‘capacity’ is not in question, but who, due to severe physical disability, are in relationships with carers where the power differential is extreme, thus rendering them ‘vulnerable’.

Where does the problem lie?

Given the potentially restrictive nature of the Division, it is important to be clear about what the problem is, and where it lies. Is the purpose of the Division to make it easier to obtain conviction because of the general lack of understanding which judges and juries have shown about the lives and experiences of people with disabilities? Or is the purpose of the Division to make it easier to obtain a conviction because of an inherently complex relationship between carer and caree, which can only be clarified by placing certain restriction on it?

Options

WWDA understands that some of options which have been put to the Model Criminal Code Committee include:

  • to more broadly define the relationships to which the Division pertains eg to anyone in a relationship of responsibility – this could include cleaners, caterers etc.
  • to remove the defence of ‘consent’; while at the same time restricting the type of relationships to which the Division applies.
  • to remove the defence of ‘consent’; while at the same time maintain a broad, perhaps even broader than the discussion paper currently allows, scope of relationships – thus providing effective ‘prohibition’;.
  • an attempt to resolve the difficulty of including such a broad range of people within the Division, by defining a hierarchy of relationships to which different provisions would apply ie some relationships such as between psychiatrists and patients would be subject to an absolute prohibition, whereas in other carer/caree relationships a modified form of consent could apply.

WWDA’s consultations included women who have been subject to sexual assault form carers, as well as women who are currently in consensual relationships with their carers. Taking both these types of experience into account:

WWDA does not at this stage endorse an absolute prohibition on all relationships of care (ie broadening out the definitions of carer while at the same time removing the defence of consent). Because of the broad range of people who may fall under the definition WWDA feels that this would overly restrict their sexual rights.

Recommendation

WWDA recommends that consideration be given to developing this Division further so that it:

  • distinguishes between different types of relationships; or
  • reduces the scope of people currently included under the definition of ‘mental impairment’;.

We note that there has been some call for separate offences covering ‘psychiatric disability’; and ‘intellectual disability’. While this to some extent probably reflects the particular expertise of the people writing those submissions, it does highlight the problematic nature of a broad definition of mental impairment.

There may also be some women with no mental impairment – purely physical, for whom giving consent is difficult. This would include women with severe communication impairments. There have been some suggestions that these people be included in the Division 35. It was beyond the scope of WWDA’s research resources to consult fully with these women.
Recommendation

WWDA recognises that a broadscale consultation process has been carried out. However, given the particularly controversial nature of division 35, and the implication for the lives of people with disabilities, we recommend that:

  • A comprehensive and appropriately sensitive consultation should be carried out with people with ‘mental impairments’ as defined in the Code.
  • It is important that this consultation process reaches people who will be affected by the Code in either way ie, the consultation process should not focus solely on people who may already be seen to be users of the Code (through legal centres etc). While these perspectives are extremely valuable, the potentially restrictive nature of the Code on the lives of people with disabilities means that those people who may perceive that they will be overly restricted by its provisions should also be consulted.
  • In addition, consultation should also be carried out with people who have severe communication impairments, or severe physical disabilities. This consultation should address the question of whether or not they should be included in Division 35.
  • This consultation process should also include their advocates, carers and families of people with disabilities.

Consent

WWDA agrees to the inclusion of a non-exhaustive list of examples of circumstances in which a person does not consent. People with disability are often in particular power relationships with carers etc, which make them vulnerable to abuse. In addition, the myths surrounding them, and general community attitudes toward them make them targets of violence and abuse. The threat of the removal of essential services is one such vulnerability.

Because of the lack of understanding in the community of the nature of these relationships, we believe that they should be included in the list of examples in some way. This could either be by way of a specific example regarding the threat of removal of services, or by the inclusion of more general provisions such as those in the Acts from either Victoria:

  • “the person submits because of the fear of harm of any type to that person or someone else”

or the ACT:

  • a threat to publicly humiliate or disgrace or to physically or mentally harass the victim or a third person,
  • the abuse of authority over, or professional or other trust in relation to the victim,
  • the victims physical helplessness.

Judicial Education

The experience of women with disabilities is that both judges and juries often have little understanding of their lives and circumstances which may affect their experience of sexual assault.

Recommendation

Education resources should be developed, distributed and effectively provided to the judiciary and juries to give them accurate information about people with disabilities and to counteract prevailing myths which currently inform of their decisions.


Factors of Aggravation

WWDA supports the inclusion of factors of aggravation in the Code. There has been some suggestion that the Division 35 regarding persons with mental impairment be removed and replaced by an aggravating factor for sexual offence against people with disabilities. WWDA does not believe that this should happen, as the issue is not the extra seriousness the crime, but the extra vulnerability and targeting of people with disabilities.

If the offence of incest is to be abolished, then the Aggravating Factors should include both the current ‘person in a position of trust’, and an additional factor covering offenders who are ‘in loco parentis’.

An explanation as to the meaning of torture should be included and judges should be required to direct the jury. The meaning of torture should include torture in the domestic setting.


Incest

Some concern has been raised regarding the proposal to abolish the incest offence, on a number of grounds.

As a preamble, WWDA would like to state that the issue of eugenics, or selective breeding, is completely irrelevant to the decision as to whether or not to abolish the incest offence. The question of any ‘social good’ which may derive from selective breeding whereby there is less chance of a ‘defective foetus’ bears no relevance to a code on ‘Sexual offences against the person’ and WWDA questions the assumption of social good on a number of grounds, but regardless, the Code addresses the sexual assault of victims, and should not concern itself with broader issues such as these. There is therefore no reason to include any discussion of the scientific basis of beliefs about genetics and incest.

Notwithstanding this issue, WWDA supports the abolition of the incest offence. The term ‘incest’ has gained much currency in recent years, and has been useful in highlighting the prevalence and seriousness of, mainly, father-daughter rape. As the commentary in the Discussion Paper points out, the incest offence covers a much broader range of relationships, many of which may be truly consensual.

WWDA is concerned about the possibility of relationships which may have begun when one person was a child, and were not consensual, but continue until both parties are adults. The ‘consent’ which may be given by the younger party once they are an adult is questionable, but it is difficult to see how this situation could be dealt with in law.