These sections protect persons with a mental disorder, whose mental impairment is not so severe that they are unable to refuse but who are vulnerable to inducement, threat or deception i.e. the victim purports to agree to the activity, but she/he has a mental disorder, the defendant knows or could reasonably be expected to know that and the agreement to the activity is obtained by the defendant by means of an inducement, threat or deception.

Section 34 – inducement, threat or deception to procure sexual activity.

Section 35 – causing engagement or agreement to engage in sexual activity by inducement, threat or deception.

Section 36 – engaging in sexual activity in the presence of a person with mental disorder procured by inducement, threat or deception.

Section 37 – causing a person with mental disorder to watch a sexual act by inducement, threat or deception.

These sections protect those who have the capacity to consent, but who, for reasons associated with their mental disorder, agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon their care worker.

Section 38 – intentional sexual touching.

Section 39 – causing or inciting to engage in sexual activity.

Section 40 – engaging in sexual activity in the presence of a person with a mental disorder.

Section 41 – causing a person with a mental disorder to watch a sexual act.

This section defines the relationship of care, e.g. if the victim is accommodated and cared for in a care, community, voluntary or children’s home and the offender performs functions in the home in the course of employment which brings or is likely to bring him or her in face-to-face contact.

This applies to a National Health body, a private agency and to people in their own home.

There is no requirement that the involvement should be by way of paid employment and volunteers are equally liable.

The definition of mental disorder is taken from the Mental Health Act 1983 as:

“Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.”

Offences under sections 30, 31, 34, and 35

• if the offence involves penetration, the charge is indictable only and will be heard in the Crown Court where the maximum sentence is life imprisonment.
• if there is no penetration, the charge can be heard in either the Magistrates’ or the Crown Court with the maximum sentence being is fourteen years imprisonment.

Offences under sections 32, 33, 36 and 37

These offences may be heard either in the Magistrates’ Court or the Crown Court with the maximum penalty being ten years imprisonment.

Offences under sections 38 and 39

• offences involving penetration are indictable only, heard before a Crown Court and carry a maximum sentence of fourteen years.
• where there is no penetration, the offences may be tried either before a Magistrates’ Court or a Crown Court with a maximum period of imprisonment of ten years.

Offences under sections 40 and 41

These offences may be tried either before a Magistrates’ Court or a Crown Court with a maximum period of imprisonment of seven years.

It is imperative that you instruct an experienced solicitor as soon as you are made aware of an allegation being made.

Crucially, it is always important to have a solicitor present in interview at the police station whether it is an interview by appointment or under arrest.