Sexual offences
Care workers: sexual activity in presence of person with mental disorder
Sexual Offences Act 2003, ss.40–41
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Either way
- Maximum penalty
- 7 years’ custody
Actus reus
- Same presence/observation structure as s.32, but B has a mental disorder and A is involved in B’s care in a way that falls within s.42 (SOA 2003, s.40). Inability to refuse is not an element.
- s.41 is causing a person with a mental disorder to watch a sexual act. Check the section. Marriage/civil-partnership and pre-existing sexual-relationship exceptions are in ss.43–44.
Mens rea
- Intention as to the activity; sexual-gratification purpose; knowledge/belief/intent as to B’s awareness.
- A knows or could reasonably be expected to know that B has a mental disorder. If the disorder is proved, that knowledge is presumed unless sufficient evidence is adduced to raise the issue (s.40(2)).
Defences
A not involved in B’s care (s.42) · Did not know and could not reasonably be expected to know of the mental disorder · ss.43–44 exceptions if they apply · Activity not sexual / not for sexual gratification
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 2 years’ custody.
At the police station
Do not import the s.32 “unable to refuse” test. Care role and knowledge of the disorder are the usual issues.
When to involve a rep or solicitor
Police station advice is free under legal aid and is not means-tested. For this allegation we would normally want a solicitor involved early.
Authoritative sources for this page
Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.