In R v Morgan (1970), the Supreme Court of Victoria stated that for incapacity to consent to be proved it must be shown that a person “has not sufficient knowledge or understanding to comprehend (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connexion as distinct from one of totally different character.” It is my contention that this standard of knowledge is insufficient to allow a person to protect themselves against the commonly recognised consequences of sexual acts, namely pregnancy and sexually transmitted diseases. Although the literature suggests that increasing the benchmark of knowledge to encompass these facts would mean that many persons with intellectual disability would be deemed incapable of consent, I argue that consent that is not based on a standard of knowledge sufficient to allow an individual to safeguard their own interests cannot be considered valid consent. Law reform is required so that consent to sexual acts more closely resembles the informed consent required for medical treatment. Moreover, the provision of adequate sex education, repeated as required, would assist many people with intellectual disability to achieve understanding of both the nature and consequences of sexual acts. The proposed reforms would also allow people who, even after education, are unable to meet the requisite standard more certain legal protection than is currently the case.
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