Understanding disability and the law

Family violence intervention orders under the Family Violence Protection Act 2008 (Vic), can include orders against people who provide care for a person with disability, whether that care is paid or unpaid.

The types of acts contemplated include:

• physical or sexual abuse;
• emotional or psychological abuse;
• economic abuse;
• coercion or control and domination that makes the person fear for their safety and wellbeing. Paid care can include supports funded by the NDIS or in a residential service under the Disability Act.

The DRC concluded that sexual violence occurs disproportionately against people with disability, stating that: “Women with disability experience 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.

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)).