25.68 Specific offences have been enacted to address the particular vulnerabilities to sexual assault of people with a cognitive impairment. These specific offences may supplement other sexual offences where offending against a victim with a cognitive impairment is an aggravating factor. The offences often regulate people in a particular position, for example those who have a role in caring for the person, or are providers of medical or therapeutic services or special programs.
25.69 The additional complexities surrounding sexual assault of adults with a cognitive impairment are particularly evident with respect to the issue of consent. In some jurisdictions, where the accused is a person responsible for the care of the person with the cognitive impairment, or where sexual intercourse was conducted with the intention of taking advantage of that person, consent is not a defence to the charge.
25.70 In the case of sexual assault in a family violence context, the key question with respect to the construction of offences is one of balance—reconciling the need to protect people with a cognitive impairment from sexual exploitation while at the same time acknowledging their agency.
25.71 While legislative amendments have addressed some problematic areas in the engagement of victims of sexual assault with a cognitive impairment with the criminal justice system, the key issues appear to arise in relation to barriers to reporting sexual assault and in the tendency for crimes against people with a cognitive impairment to be ‘dealt with by administrative’ rather than legal channels, particularly within an institutional setting. In light of this, and in the absence of any significant stakeholder comment on this issue, the Commissions do not make any recommendations with respect to specific sexual offences against persons with a cognitive impairment.
 Crimes Act 1900 (NSW) s 66F; Crimes Act 1958 (Vic) ss 51–52; Criminal Code (Qld) s 216; Criminal Code (WA) s 330; Criminal Law Consolidation Act 1935 (SA) s 49(6); Criminal Code (Tas) s 126; Criminal Code (NT) s 130. See also Standing Committee of Attorneys-General, Model Criminal Code (1st edn, 2009) pt 5.2, div 5.
 Crimes Act 1900 (NSW) s 66(F)(2); Criminal Code (Tas) s 126.
 Crimes Act 1958 (Vic) s 51.
 Ibid s 52; Criminal Code (NT) s 130.
 See, eg, Crimes Act 1900 (NSW) s 66F(5)–(6); Crimes Act 1958 (Vic) ss 52–52; Criminal Code (Tas) s 126(2).
 J Pestersilia, ‘Crime Victims with Developmental Disabilities: A Review Essay’ (2001) 28 Criminal Justice and Behavior 655. See Ch 26 for further discussion of the barriers faced by victims of sexual assault who have a cognitive impairment. See also, S Murray and A Powell, Sexual Assault and Adults with a Disability: Enabling Recognition, Disclosure and a Just Response (2008), prepared for the Australian Centre for the Study of Sexual Assault. Several inquiries and reports have examined the response of the criminal justice system to sexual assault of people with a cognitive impairment, see for example: Criminal Law Review Division Attorney General’s Department (NSW), Intellectual Disability and the Law of Sexual Assault: Discussion Paper (2007); Victorian Law Reform Commission, Sexual Offences: Final Report (2004) Ch 6; Melbourne Disability Discrimination Legal Service, Beyond Belief, Beyond Justice: The Difficulties for Victims/Survivors with Disabilities when Reporting Sexual Assault and Seeking Justice: Final Report (2003); J Keilty and G Connelly, ‘Making a Statement: An Exploratory Study of Barriers Facing Women with an Intellectual Disability When Making a Statement about Sexual Assault to Police’ (2001) 16(2) Disability and Society 273.