NCJ Number
114556
Date Published
1988
Length
55 pages
Annotation
This report examines current law relating to sexual offenses in Victoria, Australia, with particular reference to procedural and evidentiary issues relating to offenses against individuals with impaired mental functioning.
Abstract
Substantive law relating to rape, indecent assault, and other sexual offenses is reviewed with respect to the mentally impaired individual's capacity to consent, test of capacity, and the offender's awareness of capacity or lack of it. The need for special offenses such as unwanted sexual relations, sexual exploitation, or breach of trust owed to families is considered. Also discussed are situations in which protection should be given, who should be protected, what sexual acts should be forbidden, defense to charges, and the need for corroboration. Procedural issues relate to reporting requirements for offenses against the mentally impaired, police investigation procedures, and the priority accorded to prosecution of sexual offenses against the impaired. Evidentiary issues include the victim's competency to testify, jury presence during assessment of competency, and restrictions on sexual history cross-examination. It is recommended that consent be retained with the present test of capacity as a major element in sexual offenses against the impaired, that reporting decisions be made by the capable mentally impaired individual or by a guardian if the individual is incapable of making an informed decision, and that special restrictions and guidelines be enacted to cover sexual offenses against residents of facilities for the mentally impaired. It also is suggested that there should be no statutory requirement of corroboration, that police interviews be recorded, and that sexual offenses against the impaired be given priority. Finally, a new test for assessing competency to testify is proposed. Footnotes.