R v P, LB

The accused was charged with one count of rape, one count of unlawful sexual intercourse, and one count of indecent assault. The trial was heard by the Supreme Court of Victoria. The key issue before the court was whether the complainant, who was intellectually disabled, could give valid consent to the sexual acts in question. The prosecution argued that the complainant was either unable to consent due to her intellectual disability, or that she did not consent at all. The accused claimed that the sexual acts were consensual.

The court determined that the complainant was significantly intellectually disabled and therefore her capacity to give consent was impaired. The court noted that the complainant's evidence was unsworn due to her inability to understand the obligation to be truthful entailed in giving sworn evidence. The court held that the prosecution had failed to prove beyond reasonable doubt that the complainant did not consent to the sexual acts or that she was incapable of giving valid consent. The court acquitted the accused of all three charges.

The court held that the prosecution had failed to prove the required subjective elements of each of the three offences charged. The court emphasised that the criminal law does not prohibit, outright, acts of sexual intercourse with an intellectually disabled adult person. In order to make out a criminal offence, the prosecution must prove beyond reasonable doubt each of the elements of the relevant offence including any subjective elements. The court acquitted the accused of all three charges.