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Unlawful Sodomy Of An Intellectually Impaired Person

What the law says

Sections 208(c) of the Criminal Code Queensland states:

Any person who

(c) sodomises an intellectually impaired person

is guilty of a crime.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

  1. The complainant was an intellectually impaired person at the relevant time.
    An intellectually impaired person "has a disability"-
    • (a) which is attributed to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and
    • (b) that results in-
      • (i) a substantial reduction of the persons capacity for communication, social interaction or beaming; and
      • (ii) the person needing support
  2. The defendant with his penis actually penetrated the anal orifice of the complainant.
    It is a circumstance of aggravation if the intellectually impaired person is, to the knowledge of the accused-
    • (i) his lineal descendant; or
    • (ii) under his guardianship or care

There is no need for ejaculation to occur or for the penetration to be of any particular depth or to any particular time.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

The Maximum penalty for the offence of Unlawful Sodomy of An Intellectually Impaired Person is 14 years imprisonment. The maximum penalty where there are circumstances of aggravation is life imprisonment.

Which court will hear the matter

This matter is indictable which means it is dealt with in the District Court.

Possible defences

Possible defences to this offence include but are not limited to

  1. Identification i.e. not the accused
  2. The accused believed on reasonable grounds, that the person was not an intellectually impaired person; or
  3. That the act that was the offence did not, in the circumstances, constitute sexual exploitation of the intellectually impaired person.
  4. Duress
  5. Accused did not know he was related where lineal descent is a circumstance of aggravation.
  6. The victim is not in fact intellectually impaired.

Criminal Law Article written by Bill Potts (a Queensland criminal defence lawyer who is experienced in Unlawful Sodomy of An Intellectually Impaired Person matters)

 

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