The Law Handbook 2024

786 Section 8: Disability, mental illness and the law sexual violence and abuse at higher rates than women without disability and men with disability. For instance, 29 per cent of women aged 18 to 64 with disability have experienced sexual assault since the age of 15.” They are: • nearly twice as likely as women without disability (15 per cent) to have been sexually assaulted and; • more than three times more likely as men with disability (7.7 per cent) to have been sexually assaulted. For this reason it is crucial that lawyers supporting clients with disability understand the legislation intended to provide better protections for victims. Offences relating to sexual behaviours by disability supports There are specific offences in the Crimes Act 1958 (Vic) (‘ Crimes Act’ ) concerning a person who provides treatment or a support service to a person with cognitive impairment or mental illness (a ‘client’): • it is a crime to engage in acts involving sexual penetration with a client (s 52B); • it is a crime to engage in sexual touching with a client (s 52C); • it is a crime to engage in sexual activity in the presence of a client (s 52D); • it is a crime to cause a client to be present when someone engages in sexual activity (s 52E). Giving evidence The prevention of abuse of people with cognitive impairments has been hindered by difficulties with the requirements for a witness to give evidence. While the law assumes competence, many people with cognitive impairment need support to be able to give evidence in court proceedings, and for their communication needs to be accommodated. Some important protections apply to a witness with a cognitive impairment: • a person with cognitive disability can simply use the words, ‘I promise to tell the truth’ rather than a full oath or affirmation when being sworn in as a witness (s 21(6) Evidence Act); • a person with cognitive disability giving evidence about certain types of offences is allowed to give their evidence by audio or audiovisual recording rather than in a courtroom (s 367 CP Act ); • where a person with intellectual disability is the victim of an alleged sexual offence, all evidence must be given at a special hearing unless the person wishes otherwise. This includes them not being in the same room as the person accused of the offence when giving evidence, and only authorised people being present in the courtroom when evidence is given (s 370 CP Act). There are additional requirements about this type of witness being cross-examined or re-examined (s 376(1)). Criminal justice system • The DRC reported on serious issues with equity and outcomes for people with disability in relation to the criminal justice system. The DRC stated: • “The statistics are stark. ...It is clear people with disability – particularly those with cognitive disability – are disproportionately represented in criminal justice settings, across all stages, from police contact and arrest, through to court processes and correctional settings. The disproportionate rate of imprisonment of people with disability is not the result of any inherent relationship between disability and crime. Rather, it reflects the disadvantages experienced by many people with disability, such as poverty, disrupted family backgrounds, family violence and other forms of abuse, misuse of drugs and alcohol, unstable housing and homelessness.” • For this reason it is crucial that any lawyer representing a client with disability in relation to the criminal charges has a solid understanding of their rights and the options available. These rights include: – the right to legal advice, assistance and representation for victims, witnesses, alleged offenders, offenders and prison inmates at all levels of the criminal justice system; – the right to treatment at all levels within the criminal justice system (including by police, courts, corrections) that is free from discrimination on the basis of disability (EO Act; DD Act) and that meets the specific disability-related needs of the person; – the right to report a crime and to have such assistance as is necessary to do so ( Police Operating Procedures , ITPs);