People with mental disabilities are particularly vulnerable to sexual exploitation.
In terms of the Sexual Offences Amendment Act of 2007, a mentally disabled person is someone affected by any disorder or disability of the mind, so that at the time of crime, she was:
- Unable to understand the implications of a sexual act
- Able to understand a sexual act but unable to make a proper decision about it
- Unable to resist a sexual act
- Unable to communicate that she does not want to take part in a sexual act.
Many people may have a mental illness or disability but can still understand the nature and outcomes of a sexual act and can therefore still decide to consent to sexual acts.
It must be respected that people with mental disabilities may and do consent to sexual activity – it is a sexual offence if the person does not agree to the sexual act without coercion.
Crimes that apply to children and mentally disabled people
- Sexual exploitation of mentally disabled people(section 23)
- Sexual grooming of mentally disabled people(section 24).
It would need proof that the victim is mentally disabled for these offences to apply. An expert report is needed from a social worker, psychologist or psychiatrist to explain the type of mental disability and whether the victim is able to give her consent.
For more information on sexual offences against people who are mentally disabled, read the Sexual Offences Amendment Act of 2007 (summarised) booklet.