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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    17

 

 35    Inciting a person with a mental disorder or learning disability to engage in

sexual activity

     (1)    A person (A) commits an offence if—

           (a)           he intentionally incites a person (B) to engage in an activity,

           (b)           the activity is sexual,

5

           (c)           B is unable to refuse because of a mental disorder or learning disability,

and

           (d)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability and that because of it B is likely to be

unable to refuse.

10

     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to engaging in the

activity incited (whether because he lacks sufficient understanding of

the nature or possible consequences of the activity, or for any other

reason), or

15

           (b)           he is unable to communicate such a choice to A.

     (3)    A person guilty of an offence under this section is liable, on conviction on

indictment, to imprisonment for life.

 36    Engaging in sexual activity in the presence of a person with a mental disorder

or learning disability

20

     (1)    A person (A) commits an offence if—

           (a)           he intentionally engages in an activity,

           (b)           the activity is sexual,

           (c)           for the purpose of obtaining sexual gratification, he engages in it in the

presence of another person (B), knowing or believing that B is aware, or

25

intending that B should be aware, that he is engaging in it,

           (d)           B is unable to refuse because of a mental disorder or learning disability,

and

           (e)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability and that because of it B is likely to be

30

unable to refuse.

     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to being present

(whether because he lacks sufficient understanding of the nature of the

activity, or for any other reason), or

35

           (b)           he is unable to communicate such a choice to A.

     (3)    A person guilty of an offence under this section is liable, on conviction on

indictment, to imprisonment for a term not exceeding 10 years.

 37    Causing a person with a mental disorder or learning disability to watch a

sexual act

40

     (1)    A person (A) commits an offence if—

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging in

an activity,

45

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    18

 

           (b)           the activity is sexual,

           (c)           B is unable to refuse because of a mental disorder or learning disability,

and

           (d)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability and that because of it B is likely to be

5

unable to refuse.

     (2)    B is unable to refuse if—

           (a)           he lacks the capacity to choose whether to agree to watching or looking

(whether because he lacks sufficient understanding of the nature of the

activity, or for any other reason), or

10

           (b)           he is unable to communicate such a choice to A.

     (3)    A person guilty of an offence under this section is liable, on conviction on

indictment, to imprisonment for a term not exceeding 10 years.

Inducements etc. to persons with mental disorder or learning diability

 38    Inducement, threat or deception to procure sexual activity with a person with

15

a mental disorder or learning disability

     (1)    A person (A) commits an offence if—

           (a)           with the agreement of another person (B) he intentionally touches that

person,

           (b)           the touching is sexual,

20

           (c)           A obtains B’s agreement by means of an inducement offered or given,

a threat made or a deception practised by A for that purpose,

           (d)           B has a mental disorder or learning disability, and

           (e)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability.

25

     (2)    Section 76 applies to an offence under this section.

     (3)    A person guilty of an offence under this section is liable, on conviction on

indictment—

           (a)           where subsection (4) applies, to imprisonment for life;

           (b)           in any other case, to imprisonment for a term not exceeding 14 years.

30

     (4)    This subsection applies if the touching involved—

           (a)           penetration of B’s anus or vagina with a part of A’s body or anything

else,

           (b)           penetration of B’s mouth with A’s penis,

           (c)           penetration of A’s anus or vagina with a part of B’s body, or

35

           (d)           penetration of A’s mouth with B’s penis.

 39    Causing a person with a mental disorder or learning disability to engage in

sexual activity by inducement, threat or deception

     (1)    A person (A) commits an offence if—

           (a)           by means of an inducement offered or given, a threat made or a

40

deception practised by him for this purpose, he intentionally causes a

person (B) to engage in an activity,

           (b)           the activity is sexual,

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    19

 

           (c)           B has a mental disorder or learning disability, and

           (d)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability.

     (2)    Section 76 applies to an offence under this section.

     (3)    A person guilty of an offence under this section is liable, on conviction on

5

indictment—

           (a)           where subsection (4) applies, to imprisonment for life;

           (b)           in any other case, to imprisonment for a term not exceeding 14 years.

     (4)    This subsection applies if the activity caused involved—

           (a)           penetration of B’s anus or vagina,

10

           (b)           penetration of B’s mouth with a person’s penis,

           (c)           penetration of a person’s anus or vagina with a part of B’s body or by

B with anything else, or

           (d)           penetration of a person’s mouth with B’s penis.

 40    Causing a person with a mental disorder or learning disability to agree to

15

engage in sexual activity by inducement, threat or deception

     (1)    A person (A) commits an offence if—

           (a)           by means of an inducement offered or given, a threat made or a

deception practised by him for this purpose, he intentionally causes a

person (B) to agree to engage in an activity,

20

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

           (d)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability.

     (2)    A person guilty of an offence under this section is liable, on conviction on

25

indictment, to imprisonment for life.

 41    Engaging in sexual activity in the presence, procured by inducement, threat or

deception, of a person with a mental disorder or learning disability

     (1)    A person (A) commits an offence if—

           (a)           he intentionally engages in an activity,

30

           (b)           the activity is sexual,

           (c)           for the purpose of obtaining sexual gratification, he engages in it in the

presence of another person (B), knowing or believing that B is aware, or

intending that B should be aware, that he is engaging in it,

           (d)           B agrees to be present because of an inducement offered or given, a

35

threat made or a deception practised by A for the purpose of obtaining

that agreement,

           (e)           B has a mental disorder or learning disability, and

           (f)           A knows or could reasonably be expected to know that B has a mental

disorder or learning disability.

40

     (2)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    20

 

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

10 years.

 42    Causing a person with a mental disorder or learning disability to watch a

sexual act by inducement, threat or deception

     (1)    A person (A) commits an offence if—

5

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging in

an activity,

           (b)           the activity is sexual,

10

           (c)           B agrees to watch or look because of an inducement offered or given, a

threat made or a deception practised by A for the purpose of obtaining

that agreement,

           (d)           B has a mental disorder or learning disability, and

           (e)           A knows or could reasonably be expected to know that B has a mental

15

disorder or learning disability.

     (2)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

20

10 years.

Care workers for persons with mental disorder or learning disability

 43    Care workers: sexual activity with a person with a mental disorder or learning

disability

     (1)    A person (A) commits an offence if—

25

           (a)           he intentionally touches another person (B),

           (b)           the touching is sexual,

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 48.

     (2)    Where in proceedings for an offence under this section the defendant proves

30

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)    Section 76 applies to an offence under this section.

35

     (4)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

7 years.

40

 44    Care workers: causing sexual activity

     (1)    A person (A) commits an offence if—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    21

 

           (a)           he intentionally causes a person (B) to engage in an activity,

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 48.

     (2)    Where in proceedings for an offence under this section the defendant proves

5

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)    Section 76 applies to an offence under this section.

10

     (4)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

7 years.

15

 45    Care workers: inciting sexual activity

     (1)    A person (A) commits an offence if—

           (a)           he intentionally incites a person (B) to engage in an activity,

           (b)           the activity is sexual,

           (c)           B has a mental disorder or learning disability, and

20

           (d)           A is involved in B’s care in a way that falls within section 48.

     (2)    Where in proceedings for an offence under this section the defendant proves

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

reasonably have been expected to know that the other person had a mental

25

disorder or learning disability.

     (3)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

30

7 years.

 46    Care workers: sexual activity in the presence of a person with a mental

disorder or learning disability

     (1)    A person (A) commits an offence if—

           (a)           he intentionally engages in an activity,

35

           (b)           the activity is sexual,

           (c)           for the purpose of obtaining sexual gratification, he engages in it in the

presence of another person (B), knowing or believing that B is aware, or

intending that B should be aware, that he is engaging in it,

           (d)           B has a mental disorder or learning disability, and

40

           (e)           A is involved in B’s care in a way that falls within section 48.

     (2)    Where in proceedings for an offence under this section the defendant proves

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    22

 

     (2)    reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

5

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

7 years.

 47    Care workers: causing a person with a mental disorder or learning disability

to watch a sexual act

     (1)    A person (A) commits an offence if—

10

           (a)           for the purpose of obtaining sexual gratification, he intentionally causes

another person (B) to watch a third person engaging in an activity, or to

look at a photograph or pseudo-photograph of any person engaging in

an activity,

           (b)           the activity is sexual,

15

           (c)           B has a mental disorder or learning disability, and

           (d)           A is involved in B’s care in a way that falls within section 48.

     (2)    Where in proceedings for an offence under this section the defendant proves

that he did not know that the other person had a mental disorder or learning

disability, he is not guilty of the offence unless it is proved that he could

20

reasonably have been expected to know that the other person had a mental

disorder or learning disability.

     (3)    A person guilty of an offence under this section is liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

25

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

7 years.

 48    Care workers: interpretation

     (1)    For the purposes of sections 43 to 47, a person (A) is involved in the care of

another person (B) in a way that falls within this section if any of subsections

30

(2) to (4) applies.

     (2)    This subsection applies if—

           (a)           B is accommodated and cared for in a care home or children’s home,

and

           (b)           A, in the course of employment, performs any functions in the home in

35

the course of which he has regular face to face contact with B.

     (3)    This subsection applies if B is a patient for whom services are provided—

           (a)           by a National Health Service body or an independent medical agency,

or

           (b)           in an independent clinic or an independent hospital,

40

            and A, in the course of employment, performs any functions for the body or

agency or in the clinic or hospital, in the course of which he has regular face to

face contact with B.

     (4)    This subsection applies if—

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    23

 

           (a)           B lives in his own home, and

           (b)           A, whether or not in the course of employment, regularly provides

personal care to B.

     (5)    In this section—

                    “care home” has the meaning given by section 3 of the Care Standards Act

5

2000 (c. 14);

                    “children’s home” has the meaning given by section 1 of that Act;

                    “employment” means any employment, whether paid or unpaid and

whether under a contract of service or apprenticeship, under a contract

for services, or otherwise than under a contract;

10

                    “independent clinic”, “independent hospital” and “independent medical

agency” have the meaning given by section 2 of the Care Standards Act

2000;

                    “National Health Service body” means—

                  (a)                 a Health Authority,

15

                  (b)                 a National Health Service trust,

                  (c)                 a Primary Care Trust, or

                  (d)                 a Special Health Authority.

 49    Sections 43 to 47: marriage exception

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

20

sections 43 to 47 against another person (B) is not an offence under that section

if they are lawfully married at the time.

     (2)    In proceedings for such an offence it is for A to prove that he and B were

lawfully married at the time.

 50    Sections 43 to 47: sexual relationships which pre-date care relationships

25

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

sections 43 to 47 against another person (B) is not an offence under that section

if, immediately before A became involved in B’s care in a way that falls within

section 48, a sexual relationship existed between A and B.

     (2)    Subsection (1) does not apply if at that time sexual intercourse between A and

30

B would have been unlawful.

     (3)    In proceedings for an offence under any of sections 43 to 47 it is for the

defendant to prove that such a relationship existed at that time.

 51    Sections 43 to 47: existing sexual relationships

     (1)    Conduct by a person (A) which would otherwise be an offence under any of

35

sections 43 to 47 against another person (B) is not an offence under that section

if, immediately before the commencement of that section, a sexual relationship

existed between A and B.

     (2)    Subsection (1) does not apply if at that time sexual intercourse between A and

B would have been unlawful.

40

     (3)    In proceedings for an offence under any of sections 43 to 47 it is for the

defendant to prove that such a relationship existed at that time.

 

 

 
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