S31. Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity
Date Updated: January 2012
Title: Sexual Offences
Offence: Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity
Legislation: Sexual Offences Act 2003 - S31
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 degree of seriousness applies whether an offender causes an act to take place, incites an act that actually takes place, or incites an act that does not take place only because it is prevented by factors beyond the control of the offender.
The same starting points apply whether the activity was caused or incited and whether or not the incited activity took place, but some reduction will generally be appropriate when the incited activity does not, in fact, take place.
Where an offender voluntarily desists from any action taken to incite a sexual act or personally, and of their own volition, intervenes to prevent from taking place a sexual act that he or she has incited, this should be treated as a mitigating factor.
The effect of the incitement is relevant to the length of the sentence to be imposed. A court should take into account the degree to which the intended victim may have suffered as a result of knowing or believing that an offence would take place.
Aggravating & Mitigating Factors
Aggravating
- Offender ejaculated or caused victim to ejaculate
- History of intimidation or coercion
- Use of drugs, alcohol or other substance to facilitate the offence
- Threats to prevent victim reporting the incident
- Abduction or detention
- Offender aware that he or she is suffering from a sexually transmitted infection
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 one of the following aggravating factors: abduction or detention; offender aware that he or she is suffering from a sexually transmitted infection; more than one offender acting together; abuse of trust; offence motivated by prejudice (race, religion, sexual orientation, physical disability); sustained attack
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: 7 years custody
Sentencing ranges: 5 - 10 years custody
Type/nature of activity: Contact between naked genitalia of offender and naked genitalia of victim, or causing two or more victims to engage in such activity with each other, or causing victim to masturbate him/herself
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 causing two or more victims to engage in such activity with each other
Contact with naked genitalia of victim by offender using part of the body other than the genitalia or an object, or causing two or more victims to engage in such activity with each other
Contact between either the clothed genitalia of offender and naked genitalia of victim, between naked genitalia of offender and clothed genitalia of victim, or causing two or more victims to engage in such activity with each other
Starting points: 2 years custody
Sentencing ranges: 1 - 4 years custody
Type/nature of activity: Contact between part of offender's body (other than the genitalia) with part of victim's body (other than the genitalia)
Starting points: 26 weeks custody
Sentencing ranges: 4 weeks - 18 months custody
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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