S30. Sexual Activity with a person with a mental disorder impeding choice
Date Updated: January 2012
Title: Sexual Offences
Offence: Sexual Activity with a person with a mental disorder impeding choice
Legislation: Sexual Offences Act 2003 - S30
Commencement date: 1/05/2004
Mode of Trial: If penetration involved indictment only. If not either way.
Statutory Limitations & Maximum Penalty:
- On Indictment if penetration involved life imprisonment. If not 14 years.
- Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability and Harm
The maximum penalty for non-consensual offences involving victims with a mental disorder is high, indicating the relative seriousness of such offending behaviour.
In line with the thinking relating to the protection of children under 13, the fact that the victim has a mental disorder impeding choice should always aggravate an offence, bearing in mind that it will have been proven that the offender knew, or could reasonably have been expected to know, that the victim had a mental disorder impeding choice.
The starting points for sentencing for offences involving victims with a mental disorder impeding choice should be higher than in comparable cases where the victim has no such disability.
The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence.
The principle that if consensual sexual activity took place between the complainant and offender on the same occasion and immediately before the offending it can reduce culpability does not apply to this offence given the victims inability to give consent except in cases where the mental capacity or maturity of the offender is also impaired.
The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm. Within any indeterminate sentence, the minimum term will generally be half the appropriate determinate sentence. The starting points will be relevant, therefore, to the process of fixing any minimum term that may be necessary.
The starting points for sentencing for a sexual offence should be the same whether the victim has a mental disorder impeding choice, or has a mental disorder that makes him or her vulnerable to inducement, threat or deception.
The same starting points apply whether the activity was caused or incited. Where an offence was incited but did not take place as a result of the voluntary intervention of the offender, that is likely to reduce the severity of the sentence imposed.
Aggravating & Mitigating Factors
Aggravating:
- Background of intimidation or coercion
- Offender ejaculated or caused the victim to ejaculate
- Use of drugs, alcohol or other substance to facilitate the offence
- Threats to prevent the victim from reporting the offence
- Abduction or detention
- Offender aware that he or she is suffering from a sexually transmitted infection
Mitigating:
- Relationship of genuine affection
- Offender had a mental disorder at the time of the offence that significantly affected his or her culpability.
Relevant Sentencing Council Guideline (if any)
- Guidelines effective for offences sentenced on or after the 14th May 2007.
- The starting points are for an adult offender, of previous good character who was convicted after trial.
Type/nature of activity: Penetration with any of the aggravating factors: abduction or detention; offender aware that he or she is suffering from a sexually transmitted infection; more than one offender acting together; offence motivated by prejudice (race, religion, sexual orientation, physical disability); sustained or repeated activity
Starting points: 13 years custody
Sentencing ranges: 11 - 17 years custody
Type/nature of activity: Single offence of penetration of/by single offender with no aggravating or mitigating factors
Starting points: 10 years custody
Sentencing ranges: 8 - 13 years custody
Type/nature of activity: Contact between naked genitalia of offender and naked genitalia of victim
Starting points: 5 years custody
Sentencing ranges: 4 - 8 years custody
Type/nature of activity: Contact between naked genitalia of offender and another part of victim's body or naked genitalia of victim by offender using part of his or her body other than the genitalia Contact between clothed genitalia of offender and naked genitalia of victim or naked genitalia of offender and clothed genitalia of victim
Starting points: 15 months custody
Sentencing ranges: 36 weeks - 3 years custody
Type/nature of activity: Contact between part of offender's body (other than the genitalia) with parts of victim's body (other than the genitalia)
Starting points: 26 weeks custody
Sentencing ranges: 4 weeks - 18 months custody
Relevant Sentencing Case Law
R v Adcock [2010] EWCA Crim 700 - D aged 62 no convictions, many character references. Late plea to sexual activity with a person with a mental disorder. D was visiting a care home where his wife was a patient. He was found with another resident and pleaded guilty to fondling her breasts on three or four occasions, rubbing her vagina and inserting his finger into it on two occasions. It was accepted that V initiated the contact. HELD 4 years appropriate after a trial, with the plea 3 years.
R v Clements [2009] EWCA Crim 504 - D 59 irrelevant convictions. Guilty plea to three counts of sexual activity with a person with a mental disorder. He visited a care home with his wife whose father was a patient. Over a 6 week period made excuses not to join them on walks but visited V another resident. Various sexual activity took place including oral sex and two attempts at intercourse. Without his admissions he was unlikely to be charged. The PSR concluded he tended to blame the victim and there was evidence of some pre-planning. He was remorseful and regretted it. 6 years for the first two offences (committed on same occasion) with 8 year concurrent for oral sex although 'stern' was upheld. (Starting point 12 years after trial).
Ancillary Orders
- Notification (S83 to 96 Sexual Offences Act 2003)
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
- Where the defendant is aged 18 or over he or she is automatically barred from engaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006).
Consider Also
- Dangerous Offender provisions apply. Sentences for public protection must be considered.
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