Sexual offences against persons who are mentally diasabled

Question 1

How does the Act define a “person who is mentally disabled” ?

Answer 1

A “person who is mentally disabled” refers to an individual affected by any mental disability, disorder, or impairment to the extent that, at the time of the alleged offence, they were:

• Unable to appreciate the nature and reasonably foreseeable consequences of a sexual act;
• Able to appreciate the nature and consequences of the act but unable to act in accordance with that understanding;
• Unable to resist the commission of the act; or
• Unable to communicate their unwillingness to participate in the act.

Question 2

Can a mentally disabled person legally consent to a sexual act ?

Answer 2

No, according to Section 57(2) of the Act not withstanding anything to the contrary in any law contained, a person who is mentally disabled is incapable of consenting to a sexual act.

Question 3

What is the significance of the S v Pullen case ?

Answer 3

• The magistrate ruled that the complainant was mentally disabled as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, meaning she could not legally consent under Section 57(2).
• The appellant had an automatic right to appeal under Section 309(1) of the Criminal Procedure Act, but the court rejected his defense, finding that he knew about her mental disability and that his version was false.