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Offences Committed On Those With Mental Disorders

The Legislation

Sexual Offences Act 2003 (‘the Act’).

Sections 30 to 33: deal with sexual activity with a person with a mental disorder impeding choice.

Sections 34 – 37: deal with offences where there are inducements, threats or deceptions to a person with a mental disorder.

Sections 38 – 41: cover offences by care workers against persons with a mental disorder.

The Act draws a distinction between those persons:

  • who have a mental disorder impeding choice; persons whose mental functioning is so impaired at the time of the sexual activity that they are unable to make any decision about their involvement in that activity, i.e. they are ‘unable to refuse’
  • who have the capacity to consent to sexual activity but who have a mental disorder that makes them vulnerable to inducement, threat or deception, and
  • who have the capacity to consent to sexual activity, but who have a mental disorder and are in a position of dependency upon their carer.

Sections 30 – 33: Sexual Activity With A Person With A Mental Disorder Impeding Choice

These offences reflect the nature of the sexual activity:

Section 30 – intentional sexual touching.

Section 31 – causing or inciting to engage in sexual activity.

Section 32 – engaging in sexual activity in the presence of a person with a mental disorder.

Section 33 – causing a person with a mental disorder to watch a sexual act. 

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Sections 34 – 37: Inducements, Threats Or Deceptions To A Person With A Mental Disorder

These sections protect persons with a mental disorder, whose mental impairment is not so severe that they are unable to refuse but who are vulnerable to inducement, threat or deception i.e. the victim purports to agree to the activity, but she/he has a mental disorder, the defendant knows or could reasonably be expected to know that and the agreement to the activity is obtained by the defendant by means of an inducement, threat or deception.

Section 34 – inducement, threat or deception to procure sexual activity.

Section 35 – causing engagement or agreement to engage in sexual activity by inducement, threat or deception.

Section 36 – engaging in sexual activity in the presence of a person with mental disorder procured by inducement, threat or deception.

Section 37 – causing a person with mental disorder to watch a sexual act by inducement, threat or deception.

Sections 38 – 41: Offences By Care Workers Against Persons With A Mental Disorder

These sections protect those who have the capacity to consent, but who, for reasons associated with their mental disorder, agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon their care worker.

Section 38 – intentional sexual touching.

Section 39 – causing or inciting to engage in sexual activity.

Section 40 – engaging in sexual activity in the presence of a person with a mental disorder.

Section 41 – causing a person with a mental disorder to watch a sexual act.

Section 42: The Relationship of Care

This section defines the relationship of care, e.g. if the victim is accommodated and cared for in a care, community, voluntary or children’s home and the offender performs functions in the home in the course of employment which brings or is likely to bring him or her in face-to-face contact.

This applies to a National Health body, a private agency and to people in their own home.

There is no requirement that the involvement should be by way of paid employment and volunteers are equally liable.

What Is A Mental Disorder?

The definition of mental disorder is taken from the Mental Health Act 1983 as:

Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.

The Court Procedure

Offences under sections 30, 31, 34, and 35

  • if the offence involves penetration, the charge is indictable only and will be heard in the Crown Court where the maximum sentence is life imprisonment.
  • if there is no penetration, the charge can be heard in either the Magistrates’ or the Crown Court with the maximum sentence being is fourteen years imprisonment.

Offences under sections 32, 33, 36 and 37

These offences may be heard either in the Magistrates’ Court or the Crown Court with the maximum penalty being ten years imprisonment.

Offences under sections 38 and 39

  • offences involving penetration are indictable only, heard before a Crown Court and carry a maximum sentence of fourteen years.
  • where there is no penetration, the offences may be tried either before a Magistrates’ Court or a Crown Court with a maximum period of imprisonment of ten years.

Offences under sections 40 and 41

These offences may be tried either before a Magistrates’ Court or a Crown Court with a maximum period of imprisonment of seven years.

Who Can I Contact For Advice & Help?

It is imperative that you instruct an experienced solicitor as soon as you are made aware of an allegation being made.

Crucially, it is always important to have a solicitor present in interview at the police station whether it is an interview by appointment or under arrest.

Contact

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

Helen Holder
hholder@kangssolicitors.co.uk
0121 449 9888 | 07989 521210

Fran Murray
fmurray@kangssolicitors.co.uk
020 7936 6396 | 07989 521210

Cagin Husnu
chusnu@kangssolicitors.co.uk
0121 449 9888 | 07989 521210

Birmingham

2 Wake Green Road, Moseley
Birmingham, B13 9EZ

0121 449 9888

London

9 Carmelite Street, City of London
London, EC4Y 0DR

020 7936 6396

Manchester

Pall Mall Court 61-67 King Street
Manchester, M2 4PD

0161 618 1098