Sexual Activity with a Person with a Mental Disorder Impeding Choice / Causing or Inciting Such a Person to Engage in Sexual Activity (Sections 30-31 Sexual Offences Act 2003)

Sexual Activity with a Person with a Mental Disorder Impeding Choice is an offence under s.30 Sexual Offences Act 2003, and Causing or Inciting such a person to Engage in Sexual Activity is an offence under s.31. A person (A) commits the s.30 offence if he intentionally touches another person (B), the touching is sexual, B is unable to refuse because of or for a reason related to a mental disorder, and A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse (s.30(1)). The s.31 offence is in the same terms where A intentionally causes or incites B to engage in an activity that is sexual (s.31(1)). B is unable to refuse if he lacks the capacity to choose whether to agree to the touching or activity (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A (ss.30(2), 31(2)). Maximum sentence: where the touching or the activity caused or incited involved penetration of a kind listed in s.30(3) or s.31(3), on conviction on indictment, imprisonment for life; 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 14 years (ss.30(3) and (4), 31(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.30(3) or s.31(3) is involved the penalty is given on conviction on indictment only. The charging decision rests with the CPS (not police). 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).