Sexual offences
Sexual activity in presence procured by inducement (mental disorder)
Sexual Offences Act 2003, ss.36–37
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 able to observe, knowing or believing that B is aware (or intending that B should be aware) (SOA 2003, s.36).
- B agrees to be present because of an inducement, threat or deception practised by A for the purpose of obtaining that agreement. B has a mental disorder. s.37 is causing B to watch by inducement, threat or deception.
Mens rea
- Intention as to the activity; sexual-gratification purpose; knowledge/belief/intent as to B’s awareness.
- The inducement, threat or deception is for the purpose of obtaining B’s agreement to be present. A knows or could reasonably be expected to know that B has a mental disorder.
Defences
No inducement, threat or deception · Did not know and could not reasonably be expected to know of the disorder · Activity not sexual / not for sexual gratification · B did not agree to be present as charged
Sentencing Council
Sentencing Council guideline effective 1 April 2014. Offence range: Community order – 6 years’ custody.
At the police station
This is not s.32 (unable to refuse) and not the care-worker pair. The vice is the inducement/threat/deception plus knowledge of the disorder.
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.