Sexual offences
Sexual activity with a person with a mental disorder impeding choice
Sexual Offences Act 2003, ss.30–31
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Indictable only
- Maximum penalty
- Life imprisonment (if penetration involved), otherwise 14 years’ custody
Actus reus
- Intentionally touches B; the touching is sexual; B has a mental disorder and is unable to refuse because of it (lacks the capacity to choose whether to agree, or is unable to communicate such a choice) (SOA 2003, s.30). s.31 is causing/inciting. 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 and that because of it B is likely to be unable to refuse.
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 · Touching not sexual
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 19 years’ custody Where the offence involved penetration these are Schedule 19 offences for the purpo.
At the police station
Capacity evidence is medical and factual. This is not the care-worker offence (ss.38–41), which does not require 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.