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The Sexual Offences Act 2003 and people with mental disorders

  • Martin Curtice (a1) and Emma Kelson (a1)
Summary

The Sexual Offences Act 2003 repealed and revamped almost all of the existing statute law in relation to sexual offences. The purpose of this was to strengthen and modernise the law in this area. Incorporated within the Act were new and specific offences providing for ‘Offences against persons with a mental disorder impeding choice’ and offences involving ‘Inducement, threat or deception to procure sexual activity with a person with a mental disorder’. Psychiatrists may be involved in such cases to provide assessment and opinion as to whether the alleged victim had a mental disorder and because of this lacked the capacity to consent to sexual activity. Knowledge of the intricacies and implementation of these offences against people with mental disorder can aid clinicians who may be asked to provide expert written and oral evidence and opinion for court cases.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Martin Curtice (mjrc68@doctors.org.uk)
Footnotes
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Declaration of interest

None.

Footnotes
References
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1 Home Office Communication Directorate. Setting the Boundaries: Reforming the Law on Sex Offences, Volume I. Home Office, 2000.
2 Home Office Communication Directorate. Consultation Paper on the Review of Part 1 of the Sex Offenders Act 1997. Home Office, 2001.
3 Home Office. Protecting the Public: Strengthening Protection against Sex Offenders and Reforming the Law on Sexual Offences (Cm 5668). TSO (The Stationery Office), 2002.
4 Home Office. Guidance on Part 1 of the Sexual Offences Act 2003. Home Office Circular 2004; 021 (http://www.homeoffice.gov.uk/about-us/home-office-circulars/circulars-2004/021-2004/).
5 R v. Perera (Harry Maximus) [2007] EWCA Crim 3277 (CA (Crim Div)).
6 R v. Bradford (Christopher) [2006] EWCA Crim 2629 (CA (Crim Div)).
7 Hulme v. Director of Public Prosecutions [2006] EWHC 1347 (Admin).
8 R v. C [2009] UKHL 42.
9 R v. C [2008] EWCA Crim 1155.
10 Re MB (Medical Treatment) [1997] 2 FLR 426.
11 NHS Trust v. T (adult patient: refusal of medical treatment) [2004] EWHC 1279 (Fam).
12 Stevenson, K, Davies, A, Gunn, M. Blackstone's Guide to the Sexual Offences Act 2003. Oxford University Press, 2004.
13 Attorney General's Reference (No.106 of 2005), Re [2006] EWCA Crim 510.
14 Attorney General's Reference (No.75 of 2007), Re [2007] EWCA Crim 2266 (CA (Crim Div)).
15 R v. D (Donald David) [2005] EWCA Crim 1459 (CA (Crim Div)).
16 R v. Adcock (Peter) [2010] EWCA Crim 700 (CA (Crim Div)).
17 Jones (David William) [2006] 2 Cr App R (S) 18.
18 X City Council v. MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam).
19 Local Authority X v. (1) MM (by her litigation friend the Official Solicitor) (2) KM [2007] EWHC 2003 (Fam).
20 Selfe, D. Sentencing of persons with mental disorder. Crim Lawyer 2008; 184: 25.
21 Lovett, K. Sexual abuse of patients by psychiatrists (letter). Psychiatr Bull 2006; 30: 352.
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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The Sexual Offences Act 2003 and people with mental disorders

  • Martin Curtice (a1) and Emma Kelson (a1)
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eLetters

What if both, the victim and the perpetrator lack capacity

Prabhat Mahapatra, Consultant Psychiatrist
06 July 2011



Psychiatrists, especially those working in learning lisabilities, may encounter a situation where two patients engaging in sexual contact both lack capacity. It may be that the contact is consensual - but it could be argued that the contact between such patients is in itself an offence, as both parties lack capacity. However, to construe the act as an offence would be tantamount to asserting that patients lacking capacity should not engage in sexual contact, and this could be seen as an infringment of their human rights. There is no simple answer to such a situation: the sexual contact might be grounds for initiating safeguarding procedures if there is a power imbalance between the concerned persons. Where the act is consensual, clinicians are faced with a dilemma, and need to balance the patient's autonomy against the professional duty of care to protect patients. A best interests meeting might help to resolve the issues and arrive at a consensus of opinion of all professionals involved. ... More

Conflict of interest: None Declared

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