Care Workers: Sexual Activity with a Person with a Mental Disorder / Causing or Inciting Sexual Activity (Section 38 Sexual Offences Act 2003)

Care Workers: Sexual Activity with a Person with a Mental Disorder is an offence under s.38 Sexual Offences Act 2003, and Care Workers: Causing or Inciting Sexual Activity is an offence under s.39. A person (A) commits the s.38 offence if he intentionally touches another person (B), the touching is sexual, B has a mental disorder, A knows or could reasonably be expected to know that B has a mental disorder, and A is involved in B's care in a way that falls within s.42 (s.38(1)). The s.39 offence is in the same terms where A intentionally causes or incites B to engage in an activity that is sexual (s.39(1)). A is involved in B's care within s.42 where B is accommodated and cared for in a care home, community home, voluntary home, children's home or premises in Wales providing a secure accommodation service and A has functions in the course of employment there which have brought or are likely to bring A into regular face to face contact with B (s.42(2)); where B is a patient of a National Health Service body, independent medical agency, independent hospital or, in Wales, independent clinic and A has functions for it in the course of employment bringing such contact (s.42(3)); or where A is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B's mental disorder and as such has had or is likely to have regular face to face contact with B (s.42(4)). Where it is proved that B had a mental disorder, A is taken to have known or to have been reasonably expected to know it unless sufficient evidence is adduced to raise an issue (ss.38(2), 39(2)). Maximum sentence: where the touching or the activity caused or incited involved penetration of a kind listed in s.38(3) or s.39(3), on conviction on indictment, imprisonment for a term not exceeding 14 years; in any other case, on summary conviction, imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both, and on conviction on indictment, imprisonment for a term not exceeding 10 years (ss.38(3) and (4), 39(3) and (4)).

In practice

This is an either-way offence: it may be tried at the magistrates' court or the Crown Court, except that where penetration within s.38(3) or s.39(3) is involved the penalty is given on conviction on indictment only. Mode of trial depends on the seriousness and the defendant's election. All suspects must be interviewed by officers trained in sexual offence investigation. Disclosure must be handled in accordance with the Attorney General's Guidelines. Consider a Sexual Harm Prevention Order application. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).