S39. Care workers: causing or inciting sexual activity
Date Updated: January 2012
Title: Sexual Offences
Offence: Care workers: causing or inciting sexual activity
Legislation: Sexual Offences Act 2003 - S39
Commencement date: 1/05/2004
Mode of Trial: Indictable only if penetration involved, either way in other cases.
Statutory Limitations & Maximum Penalty:
- On Indictment if penetration involved - 14 years, in other cases 10 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.
3. 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.
As with the abuse of trust offences protecting children, these offences primarily relate to ostensibly consensual sexual activity with persons over 16 that is only criminal because of the care worker relationship.
These offences are primarily designed to be charged where victims have the capacity to choose and where there is no clear evidence of inducement, threat or deception. The maximum penalties, therefore, are lower than those arising from the other two groups of 'mental disorder' offences and it follows that starting points for sentencing should be proportionately lower. The maximum penalties, however, are more significant than those for the range of abuse of trust offences, in recognition of the fact that these offences are designed to protect a particularly vulnerable group of victims, and this has been taken into account in the guideline.
The nature of the sexual activity and the degree of vulnerability of the victim will be the main determinants of the seriousness of an offence in these categories.
The period of time during which sexual activity has taken place will be relevant in determining the seriousness of an offender's behaviour but could, depending on the particular circumstances, be considered as either an aggravating or a mitigating factor. The fact that an offender has repeatedly involved a victim in exploitative behaviour over a period of time will normally be an aggravating feature for sentencing purposes. However, in cases involving ostensibly consensual sexual activity with a person over the age of consent who has a low-level mental disorder that does not impair his or her ability to choose, evidence of a long-term relationship between the parties may indicate the existence of genuine feelings of love and affection that deserve to be treated as a mitigating factor for sentencing. As with the abuse of trust offences, each case must be carefully considered on its facts.
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.
The starting points for sentencing are predicated on the fact that these offences are designed to be charged where victims have the capacity to choose and where there is no clear evidence of inducement, threat or deception.
Aggravating & Mitigating Factors
Aggravating:
- History of intimidation
- 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.
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: Basic offence of sexual activity involving penetration, assuming no aggravating or mitigating factors
Starting points: 3 years custody
Sentencing ranges: 2 - 5 years custody
Type/nature of activity: Other forms of non-penetrative activity
Starting points: 12 months custody
Sentencing ranges: 26 weeks - 2 years custody
Type/nature of activity: Naked contact between part of the offender's body with part of the victim's body
Starting points: Community order
Sentencing ranges: An appropriate non-custodial sentence
'Non-custodial sentence' in this context suggests a community order or a fine. In most instances, an offence will have crossed the threshold for a community order. However, in accordance with normal sentencing practice, a court is not precluded from imposing a financial penalty where that is determined to be the appropriate sentence.
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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