Winner of the Legal 500 - 'Criminal, Fraud & Licensing Law Firm of the Year'
"One of, if not the best, criminal specialist firms in the country" (Legal 500)
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.
Latest News
Teacher Convicted of Sex Offences | Kangs Sexual Offences Defence Solicitors
A school teacher, who is a British National, has recently been convicted at Kingston Crown Court in respect of sexual offences against two children at a school in the United Arab Emirates. Amandeep Murria of Kangs Solicitors outlines the circumstances. The Team at...
Sexual Harm Prevention Order Quashed | Court of Appeal | Kangs Sexual Offences Defence Solicitors
In January 2022 the Court of Appeal heard an appeal against the imposition of a Sexual Harm Prevention Order (‘SHPO’) upon the Appellant which was due to run for a period of five years. The offensive material was seized in October 2017 but the Appellant was not...
Delighted Client | Sexual Harm Prevention Order Varied | Guildford Crown Court
Kangs Solicitors has successfully represented a client before Guildford Crown Court who wished to obtain the variation of a Sexual Harm Prevention Order which was imposed in October 2015. Helen Holder of Kangs Solicitors reports on the circumstances. The Circumstances...
Sexual Offences Arrests | Kangs Sexual Offences Defence Solicitors
It has recently been reported that nineteen men have been arrested for alleged offences involving rape and sexual assault committed over a period of twenty years. Following their interviews, they have all been released on bail pending further police enquiries....
Delighted Client | Unanimous ‘Not Guilty’ Verdict | Kangs Sexual Offences Defence Solicitors
Kangs Solicitors has successfully defended a client tried at Worcester Crown Court for alleged rape. The trial, which concluded on 1 July 2021, has been reported in the press and can be followed on the following links: Worcester Barman Cleared of RapeWorcester Barman...
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
Birmingham
34 St Paul's Square,
Birmingham, B3 1QZ
0121 449 9888
London
Level 1, Devonshire House, One Mayfair Place
Mayfair, London, W1J 8AJ
020 7936 6396
Manchester
76 King Street
Manchester, M2 4NH