s52B Sexual Penetration of a Person with a Cognitive Impairment or Mental Illness?

Have you been charged with Sexual Penetration of a Person with a Cognitive Impairment or Mental Illness?

This charge is designed to protect people with disabilities from being taken advantage of by their respective carers or support workers. It is a very serious charge.

There are a number of things to consider if you have been charged with this offence.

• Can the prosecution make out their case?
• Did you commit an act of sexual penetration with a person with a cognitive impairment or mental illness?
• Were you engaged in work that provided support services or treatment to that person at the time?

The Crimes Act 1958 stipulates that a mistaken but honest and reasonable belief that the defendant did not provide treatment or support services to the victim or was not a worker for a service provider is not a defence.

Please read below for more information relating to this charge. Or follow this link for more information on sex offences generally.

The offence

Section 52B of the Crimes Act 1958.

The prosecution must prove that:

1. The defendant intentionally:
   • sexually penetrated another person;
   • caused or allowed a person to sexually penetrate them; or
   • caused a person to sexually penetrate themselves, another person, animal or be sexually penetrated by someone else or an animal; and
2. The victim has a cognitive impairment or mental illness; and
3. The defendant provides treatment or support service to the victim; or
4. The defendant worked as a provider of treatment or support to the cognitively impaired or mentally ill persons.

The maximum penalty

Level 5 imprisonment being a maximum of 10 years

Where will my case be heard?

Sexual Penetration of a Person with a Cognitive Impairment or Mental Illness cases can be heard in the Magistrate’s Court or the County Court of Victoria.

Questions to consider

Do you have a defence?

If you are pleading guilty, what can you do to minimise your sentence?

What to do Next

Now is the time to make sure that you have a lawyer who can give you sound advice, who can help you prepare your evidence and discuss what is to be addressed in this matter. Arrange a time to see one of our experienced sex offence criminal lawyers.

Preparation is critical to the success of any matter, ensure that you prepare appropriately by seeking quality legal advice. If you have been charged with Sexual Penetration of a Person with a Cognitive Impairment or Mental Illness, make an appointment to see one of our lawyers as soon as is practical.

The Legislation

Section 52B Sexual penetration of a person with a cognitive impairment or mental illness

(1) A person (A) commits an offence if—

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; or

(iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C) or an animal; or

(C) to be sexually penetrated by C or by an animal; and

(b) B has a cognitive impairment or mental illness; and

(c) A—

(i) provides treatment or support services to B; or

(ii) is a worker for a service provider that provides treatment or support     services to B.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Notes

1     Exceptions apply to this offence—see sections 52F and 52G.

2     Defences apply to this offence—see sections 52H, 52I and 52J.

3     A mistaken but honest and reasonable belief of certain matters is not a defence against this offence—see section 52K.