Why are these laws in place?
The purpose of this group of offences is to prevent a person who has had sexual activity with a young person or with someone who has a mental disorder from saying that no crime took place because the complainant consented. In a situation where the person accused has a responsibility for the young person, if that person is under 18, consent is generally not a defence. Similarly, it is usually not possible for someone accused of sexual activity with a person who has a mental disorder to claim the defence of consent.
The Law on Abuse of Position of Trust
For the prosecution to prove an offence of abuse of position of trust under section 16 of the Sexual Offences Act, the accused person must first of all be shown to have been in a position of trust according to the legal definition. This has a very wide meaning, but usually means a person who has responsibility for the care of a person under the age of 18, for example a teacher, a care worker, a doctor or other health professional, or in reality anyone who could be considered as looking after the young person in place of a parent or guardian.
The prosecution lawyers have to prove that the defendant touched the young person sexually. They do not have to prove sexual intercourse took place to get a conviction.
If the defendant reasonably believed that the young person was over 18, then the prosecution will not be successful, but it is up to the defendant to raise evidence of this to the jury. This means that the defendant has to provide evidence of his own innocence if they claim they were mistaken about the age of the complainant and to show that this mistake was reasonable. ‘Reasonable' in this sense means according to how other people would generally judge it.
If the complainant was less than 13 years old at the time of the allegation, the defendant cannot claim to have thought he or she was over 18.
Cases of abuse of trust under section 16 of the Sexual Offences Act can be dealt with in the Magistrates' Court or the Crown Court, but it is rare for the Magistrates to agree to keep it in their court in practice. The maximum sentence in the Crown Court is 5 years imprisonment, although sentences of that length are fairly rare. In some cases, a prison sentence may not be inevitable on conviction.
Abuse of Position of Trust - Causing or Inciting a Child to Engage in Sexual Activity
It is also an offence for a person in a position of trust to cause or incite a young person to engage in sexual activity. This law could be used to prosecute a care worker who is accused of providing a young person in his or her care to another person, even if the care worker is not present at the time. It could also be used to prosecute someone who has encouraged a young person to do something sexual in his or her presence, even if there has been no physical contact.
Again, these cases can be heard in both the Magistrates' or Crown Court, but it is actually rare for them to be dealt with in the lower court. Again, the maximum sentence is 5 years, but for an adult offender, if this offence involves a third person, that is such a serious aggravating feature that sentences of anything except custody could be rare. Simple inciting, between two people, and of course not involving physical contact is generally treated as a less serious offence, but could still result in a custodial sentence.
Sexual offences against a person with mental disorder
In a similar category to offences against a young person by a person in a position of trust are allegations of ‘sexual activity with a person who has a mental disorder impeding choice'.
A ‘mental disorder' for the purposes of this offence could be, for example, a mental illness such as dementia or even severe learning difficulties. A sufferer of a mental disorder ‘impeding choice' falls into one of three categories. The first category includes people whose level of mental functioning is so impaired that they are unable to refuse to be part of sexual activity. The second category is people who are vulnerable because of a mental disorder which makes them open to ‘inducement, threat or deception'. The third category of person who is classed as having a mental disorder is someone who has the capacity to agree to be involved in sexual activity, but this is affected by his or her mental disorder and the fact that he or she is dependent on a carer.
All of the above types of complainant suffering from a ‘mental disorder' are regarded in law as being unable to refuse and therefore unable to give proper consent to sexual activity. ‘Sexual activity' means touching of a sexual nature. For the prosecution to succeed, the court must be sure that the defendant knew about the mental disorder and that it made the person unable to refuse.
Causing or Inciting a Person with a Mental Disorder Impeding Choice to Engage in Sexual Activity
This is the same type of offence as the offence of sexual activity with a person with a mental disorder impeding choice, except that it doesn't have to be physical sexual contact that is alleged. Just inciting (a legal word meaning ‘encouraging') somebody with a mental disorder to do something sexual can be enough to make out the offence. ‘Inciting' or ‘causing' could mean that the defendant asked a person to do something sexual in his or her presence, or, much more seriously, that the defendant encouraged the person to do something for a third person. Of course, this second more serious situation would likely result in a significant sentence if it resulted in conviction.
Evidence and Strategy
With a case involving either an abuse of position of trust, or one where the complainant suffers from a mental disorder, as much background information as possible should be obtained about the complainant. Information of any previous allegations, or any other aspect that could have led to either a mistake or an untrue allegation could be important. The sad fact is that some allegations are false, and the abuse of trust solicitors should take an intensive investigative approach to all aspects of the case, including the character of the complainant.
Of course, any allegation should be looked at in close detail. For example, if it is alleged that a teacher had sexual activity with a student on a school trip, witnesses as to what was occurring generally on the trip should be spoken to, or the exact timetable could be examined in detail. False allegations often fall down on the detail, so it is very important that as much of this is filled in by the defence team beforehand. The character of the client is of massive importance. One of the unusual aspects of these cases is that the client in the case is usually a person of excellent standing, often a public servant or professional. This excellent character is something that a jury should hear about before deciding whether or not to believe an accusation, especially if the accusation is not corroborated. It can make the difference between a conviction and a not guilty verdict, and this evidence should take several forms. The defence should speak to witnesses who will come to court for the defence and tell the jury about the client's character, and about whether they have had the slightest reason to suspect him in the past. It is not unknown for work colleagues to be called as witnesses to emphasise the trust and regard they hold him or her in.
The background of the person making the allegation is also very important. Questions that should be asked by the defence and properly investigated will relate to previous allegations, any social services records, medical records, or any other information that could be relevant. Medical records are especially relevant in cases where a mental disorder is alleged, as the precise nature of the illness or incapacity could impact on whether the evidence of the complainant is really credible. Of course, where the complainant is a child or a person with a mental disorder, extreme care should be taken. The approach should be surgical and professional. No prizes go to the defence for attacking the character of an alleged victim of sexual assault without proper evidence.
These cases are complicated, varied and sensitive. They cannot be completely summarised in a short web article. If you or a family member are worried about an investigation or prosecution of this nature, you should always contact a specialist abuse of trust solicitor for initial free legal advice.