Sexual offences
Care workers: sexual activity with a person with a mental disorder
Sexual Offences Act 2003, ss.38–41
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Indictable only
- Maximum penalty
- 14 years’ custody (if penetration involved), otherwise 10 years’ custody
Actus reus
- Intentionally touches B; the touching is sexual; A is involved in B’s care in a way that falls within s.42; B has a mental disorder (SOA 2003, s.38). ss.39–41 are related care-worker limbs — check the section.
Mens rea
- Intention as to the touching. A knows or could reasonably be expected to know that B has a mental disorder. Inability to refuse is not an element of s.38.
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 · Marriage/civil-partnership / sexual-relationship exceptions in ss.43–44 if they apply · Touching not sexual
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 10 years’ custody.
At the police station
Care role and knowledge of the disorder are the usual issues. Do not import the s.30 “unable to refuse” test unless that is the charge.
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.