Crown Prosecution Service guideline on Sexual offences by Care workers.

“Offences by care workers against persons with a mental disorder (sections 38-41)

The purpose of these offences relates to the protection of those who have the capacity to consent, but who, for reasons associated with their mental disorder, may agree to sexual activity solely because they are influenced by their familiarity with and/or dependency upon the carer. 

“Charging practice

Sections 38 and 39 carry a high maximum penalty because it is designed as a ‘catch all’ offence. The prosecution is not required to prove (sections 38-41) that the victim has either ‘an inability to refuse’ or has been given an inducement, threat or deception. Where these elements cannot be proved or are difficult to prove and the defendant is in a position of care, these offences should be charged. ”

Section 38. Care Worker: sexual activity with a person with a mental disorder.

If a professional (Psychiatrist, Psychologist, psychiatric nurse or any other MH professional) with a duty of care over B touches B in a manner that B believed it to be sexual and B is believed to be suffering from a mental disorder at the time of the incidents the professional would be committing a criminal offence under this section of the act. The touching includes penetration.

Section 39. Care Worker: causing or inciting sexual activity with a person with a mental disorder.

If a professional (Psychiatrist, Psychologist, psychiatric nurse or any other MH professional) with a duty of care over B causes or incites B to engage in sexual activity and B is believed to be suffering from a mental disorder at the time of the incidents the professional would be committing a criminal offence under this section of the act. This could include sending text messages or any kind of communication that could incite or cause B to engage in any kind of sexual activity.

Section 40. Care Worker: sexual activity in the presence of a person with a mental disorder

If a professional (Psychiatrist, Psychologist, psychiatric nurse or any other MH professional) with a duty of care over B engages in any kind of sexual activity where B can observe and B is believed to be suffering from a mental disorder at the time of the incidents the professional would be committing a criminal offence under this section of the act.

Section 41. Care Worker: causing a person with a mental disorder to watch a sexual act.

If a professional (Psychiatrist, Psychologist, psychiatric nurse or any other MH professional) with a duty of care over B causes B to watch another person (including images of a person) engaging in any kind of sexual activity and B is believed to be suffering from a mental disorder at the time of the incidents the professional would be committing a criminal offence under this section of the act.

Sexual Offences (Scotland) Act 2009

Section 46. Sexual abuse of trust of a mentally disordered person.

If a professional (Psychiatrist, Psychologist, psychiatric nurse or any other MH professional) engages in a sexual activity with or directed towards a mentally disordered person B  and the professional is a person providing care for B or it is employed by an organization taking care of B or is a manager of an organization in which B is given medical treatment at the time of the incidents the professional would be committing a criminal offence under this section of the act.

The Sexual Offences (Northern Ireland) Order 2008

Section 51. Care Worker: sexual activity with a person with a mental disorder. SAME AS SECTION 38 SEXUAL OFFENCES ACT 2003 (SOA) ENGLAND AND WALES

Section 52. Care Worker: causing or inciting sexual activity with a person with a mental disorder. SAME AS SECTION 39 SOA ENGLAND AND WALES

Section 53. Care Worker: sexual activity in the presence of a person with a mental disorder. SAME AS SECTION 40 SOA ENGLAND AND WALES

Section 54. Care Worker: causing a person with a mental disorder to watch a sexual act. SAME AS SECTION 41 SOA ENGLAND AND WALES

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