Sexual Offences Against People with a Mental Disorder Flashcards
Definition of ‘Mental Disorder’
The relevant definition of a ‘mental disorder’ is that of s. 1(2) of the Mental Health Act 1983 which defines mental disorder as meaning any disorder or disability of the mind, so a person with learning difficulties finds protection in the Act.
Sexual Activity with a Person with a Mental Disorder—Sexual Offences Act 2003, s. 30
- If involves penetration of victim’s anus or vagina, of victim’s mouth with defendant’s penis, or of defendant’s mouth by victim’s penis—triable on indictment; life imprisonment
- Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 30 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally touches another person (B),
(b)
the touching is sexual,
(c)
B is unable to refuse because of or for a reason related to a mental disorder, and
(d)
A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Sexual Activity with a Person with a Mental Disorder
A person is unable to refuse if:
- he/she lacks the capacity to choose whether to agree to the touching (whether because of a lack of sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason); or
- he/she is unable to communicate such a choice to the defendant (s. 30(2)).
You must show that the defendant knew or could reasonably have been expected to know both that the victim had a mental disorder and that because of it (or for a reason related to it) he/she was likely to be unable to refuse. In Hulme v DPP [2006] EWHC 1347 (Admin), the Divisional Court examined a decision reached by a magistrates’ court in relation to a complainant who was a cerebral palsy sufferer with a low IQ (aged 27). The magistrates’ court had decided that the complainant was unable to refuse to be touched sexually; the Divisional Court agreed and the conviction against the defendant (who was 73) was upheld.
If the defendant obtains the victim’s agreement to sexual touching by means of any inducement (offered or given), or a threat or deception for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 34. An example would be where the defendant promises to give the victim some reward in exchange for allowing sexual touching. If the defendant uses an inducement, threat or deception to cause the victim to engage in or agree to engage in sexual activity, there is a further specific offence (similarly punishable) under s. 35.
In these specific cases of inducements, threats or deception, there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.
Causing or Inciting a Person with a Mental Disorder to Engage in Sexual Activity—Sexual Offences Act 2003, s. 31
- If the activity involves causing or inciting penetration of victim’s anus or vagina, of victim’s mouth with defendant’s penis, or of defendant’s mouth by victim’s penis—triable on indictment; life imprisonment
- Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 31 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally causes or incites another person (B) to engage in an activity,
(b)
the activity is sexual,p. 566
(c)
B is unable to refuse because of or for a reason related to a mental disorder, and
(d)
A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Causing or Inciting a Person with a Mental Disorder to Engage in Sexual Activity
Section 31 covers the situation where A causes or incites B to engage in sexual activity, for example where A causes B to have sexual intercourse with A’s friend or incites him/her to do so, even if the incitement does not result in B engaging in sexual activity. As that is an ‘incomplete’ or unfinished offence (as to which, see chapter 1.3), it is not necessary to prove that the sexual activity took place.
Sexual Activity in Presence of a Person with a Mental Disorder—Sexual Offences Act 2003, s. 32
- Triable either way
- 10 years’ imprisonment on indictment
- Six months’ imprisonment and/or a fine summarily
The Sexual Offences Act 2003, s. 32 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally engages in an activity,
(b)
the activity is sexual,
(c)
for the purpose of obtaining sexual gratification, he engages in it—
(i)
when another person (B) is present or is in a place from which A can be observed, and
(ii)
knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d)
B is unable to refuse because of or for a reason related to a mental disorder, and
(e)
A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Sexual Activity in Presence of a Person with a Mental Disorder
For the requirements in proving the victim’s inability to refuse, see the previous offence under s. 30.
‘Observation’ includes direct observation or by looking at any image (s. 79(7)).
If the victim agrees to be present or in the place referred to in s. 32(1)(c)(i) because of any inducement (offered or given), or a threat or deception practised by the defendant for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 36. For instance, where the defendant pays the mentally disordered person to stay in a particular place while the activity occurs. In these specific cases of inducements, threats or deception, there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.
Causing a Person with a Mental Disorder to Watch a Sexual Act—Sexual Offences Act 2003, s. 33
- Triable either way
- 10 years’ imprisonment on indictment
- Six months’ imprisonment summarily
The Sexual Offences Act 2003, s. 33 states:
(1)
A person (A) commits an offence if—
(a)
for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b)
the activity is sexual, and
(c)
B is unable to refuse because of or for a reason related to a mental disorder, and
(d)
A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
Causing a Person with a Mental Disorder to Watch a Sexual Act
The above offence is concerned with intentionally causing a person with a mental disorder to watch a third person engaging in such activity or to look at an image of a person engaging in such activity. ‘Image’ includes a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image (s. 79(4); it also includes images of an imaginary person (s. 79(5))).
If the victim agrees to watch or look because of any inducement (offered or given), or a threat or deception practised by the defendant for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 37. For example, where the defendant (with the appropriate motive) deceives the mentally disordered person into watching a film which is actually a live video feed of sexual activity. In these specific cases of inducements, threats or deception, there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.
