S32. Engaging in sexual activity in the presence of a person with a mental disorder impeding choice
Date Updated: January 2012
Title: Sexual Offences
Offence: Engaging in sexual activity in the presence of a person with a mental disorder impeding choice
Legislation: Sexual Offences Act 2003 - S32
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:
- On Indictment - 10 years imprisonment
- Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability & 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 sentences for public protection must be considered in all cases of engaging in sexual activity in the presence of another person. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.
These offences involve intentionally, and for the purpose of obtaining sexual gratification, engaging in sexual activity in the presence of a person under 16, or a person with a mental disorder, knowing or believing that person to be aware of the activity.
The guidelines are predicated on the principle that the more serious the nature of the sexual activity a victim is forced to witness, the higher the sentencing starting point should be.
These offences will potentially be serious enough to merit a custodial sentence. In an individual case the court will need to consider whether there are particular mitigating factors that move the sentence below the custodial threshold.
Aggravating & Mitigating Factors
Aggravating
- Background 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
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: Consensual intercourse or other forms of consensual penetration
Starting points: 2 years custody
Sentencing ranges: 1 - 4 years custody
Type/nature of activity: Masturbation (of oneself or another person)
Starting points: 18 months custody
Sentencing ranges: 12 months - 2 years 6 months custody
Type/nature of activity: Consensual sexual touching involving naked genitalia
Starting points: 12 months custody
Sentencing ranges: 26 weeks - 18 months custody
Type/nature of activity: Consensual sexual touching of naked body parts but not involving naked 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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