Sexual Offences against People with a Mental Disorder Flashcards
What is the definition of mental disorder?
The relevant definition of a ‘mental disorder’ is that of s1(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
What is the offence of sexual activity with a person with a mental disorder?
The Sexual Offences Act 2003, s30 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
What is the sentence for sexual activity with a person with a mental disorder?
If involves penetration- triable on indictment; life imprisonment
Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
What is this offence about?
This offence is about intentional sexual touching where V has a disorder that affects their ability to refuse that touching.
When is a person unable to refuse?
A person is unable to refuse if:
- he 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 is unable to communicate such a choice to the defendant (s. 30(2))
What must you show to prove the offence?
- Intentional sexual touching by D and
- Show that D knew or could reasonably have been expected to know:
(i) V had a mental disorder AND
(ii) because of the mental disorder (or for a reason related to it) he was likely to be unable to refuse
Case- sexual activity with a person with a mental disorder?
Hulme v DPP [2006]- Divisional Court examined a Mag Court decision in relation to a complainant who had cerebral palsy with a low IQ (aged 27). D was unaware of her impairment. Case centred on whether V had the capacity to refuse the sexual touching because of her mental disorder.
Mag Court decided the complainant was unable to refuse to be touched sexually and she had limited mental capacity. She couldn’t communicate her refusal to D in a way that a woman of her age would do in similar circumstances.
Divisional Court agreed and conviction against D (aged 73) was upheld
What if D obtains V’s agreement to sexual touching by means of any inducement?
If D obtains V’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 s34. An example would be where the defendant promises to give the victim some reward in exchange for allowing sexual touching.
What do you need to prove differently when proving specific cases of inducements, threats or deception?
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.
Does the inducement have to be given?
The inducement does not actually have to be given over. A promise to reward the victim would be enough.
What is the offence of causing or inciting a person with a mental disorder to engage in sexual activity?
Sexual Offences Act 2003, s31
(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,
(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
What is the sentence for causing or inciting a person with a mental disorder to engage in sexual activity?
If the activity involves causing or inciting penetration of V’s anus or vagina, of V’s mouth with D’s penis, or of defendant’s mouth by V’s penis—triable on indictment; life imprisonment
Otherwise triable either way; 14 years’ imprisonment on indictment
What does s31 cover?
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, it is not necessary to prove that the sexual activity took place
Does the sexual activity need to be with D? Do you need to prove the sexual activity occurred?
The sexual activity need not be with the defendant and it is not even necessary to prove that the sexual activity actually occurred.
What is essential for an offence to be proved under s31?
Essential that V is unable to refuse because of a mental disorder and D knows or could reasonably be expected to know that V has such a disorder affecting their ability to refuse.
What is the offence of sexual activity in the presence of a person with a mental disorder?
Sexual Offences Act 2003, s32
(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
What is the sentence of sexual activity in the presence of a person with a mental disorder?
Triable either way
10 years’ imprisonment on indictment
What is needed to satisfy the offence?
- V needs to have an inability to refuse because of a mental disorder.
- Intentional sexual activity by D that is engaged in for the purposes of sexual gratification when V is either:
(a) present directly or
(b) at least able to observe D (perhaps by watching images) - D either knows or is reasonably expected to know that D has this mental disorder making them unable to refuse
What does observation include?
‘Observation’ includes direct observation or by looking at any image (s. 79(7))
What if D is induced, threatened or deceived into viewing sexual activity?
If V 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 D for that purpose, D commits a specific (and similarly punishable) offence under s. 36.
There is still a need to prove that D knew (or could reasonably have been expected to know) of V’s mental disorder but no need to prove that V was unable to refuse
What is the offence of causing a person with a mental disorder to watch a sexual act?
Sexual Offences Act 2003, s33:
(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
What is the sentence for Causing a Person with a Mental Disorder to Watch a Sexual Act?
Triable either way
10 years’ imprisonment on indictment
What is the offence concerned with?
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
Examples of this offence
V being given money to watch a pornographic film in order for D to watch V’s reaction and obtain sexual gratification for it or V being deceived into watching what he believes is a children’s film but is in fact a live video feed of sexual activity with D getting sexual gratification from V’s reaction.
