Sexual offences
Sexual activity in presence of person with mental disorder impeding choice
Sexual Offences Act 2003, ss.32–33
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Either way
- Maximum penalty
- 10 years’ custody
Actus reus
- A intentionally engages in a sexual activity, for sexual gratification, when B is present or in a place from which A can be observed, knowing or believing that B is aware (or intending that B should be aware) that A is engaging in it (SOA 2003, s.32).
- B is unable to refuse because of or for a reason related to a mental disorder (s.32(1)(d), (2)). s.33 is causing a person to watch a sexual act — check the section.
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 and that because of it B is likely to be unable to refuse (s.32(1)(e)).
Defences
B was able to refuse · A did not know and could not reasonably be expected to know of the disorder and the likely inability to refuse · Activity not sexual / not for sexual gratification · B was not present or able to observe as charged
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 6 years’ custody.
At the police station
This is presence, not touching (s.30). Care-worker presence is ss.40–41 and does not need inability to refuse.
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.