This is part of a wider consultation on a new guideline for sentencing sexual offences.
This section considers a number of offences designed to protect some of society’s most vulnerable adults who have a mental disorder. The Sexual Offences Act 2003 overhauled previous legislation in this area and introduced a number of new offences, for example, offences committed by care workers.
The offences against those with a mental disorder are split into three categories.
offences against a person with a mental disorder impeding choice. This covers individuals whose mental functioning is so impaired at the time of the sexual activity that they are unable to refuse;
offences against those who have the capacity to consent to sexual activity but have a mental disorder which makes them vulnerable to inducement, threat or deception;
offences by care workers against those with a mental disorder.
This is a complex area due to the different levels of mental disorder which need to be established before a particular offence can be charged. There is a very small number of these offences prosecuted but this may belie the fact that many more offences occur than are reported to the police and lead to prosecution.
The guideline addresses those cases where there has been a conviction and, because of the low volume of offences, it is important that sentencers are given appropriate guidance.
The legislation does not intend to criminalise all sexual activity that someone with a mental disorder might engage in and is not intended to restrict the right of a person to engage in sexual relationships; it seeks to protect vulnerable people when this sexual activity is founded on exploitation and abuse.