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Care workers: sexual activity with a person with a mental disorder

Sexual offences — practical elements, sentencing links and station notes for accredited reps in England & Wales.

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.

View definitive guideline ↗

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.

More in Sexual offences

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Sources & further reading

Links are to official publishers (legislation, gov.uk, CPS, LAA, Sentencing Council). Case law on this site is limited to entries in our verified case-law registry. Always confirm the current version before relying on it in live advice.