If you are suspected or charged with a criminal offence, such as sexual activity with a person who has a mental disorder impeding choice, you need to act quickly.
The prosecution must prove the defendant knew about the mental disorder and that it made the person unable to refuse. A mental disorder can include dementia and severe learning difficulties. For an offence, the mental disorder must impede choice.
There are three categories:
- First, the mental functioning is so impaired that they are unable to refuse to be part of the sexual activity.
- Second, the mental disorder makes the person open to ‘inducement, threat or deception’.
- Third, the person has the capacity to agree to be involved in sexual activity, but is affected by a mental disorder and is dependent on a carer.
All the above types of complainant are regarded in law as being unable to refuse and therefore unable to give proper consent to sexual activity. Sexual activity involves touching of a sexual nature.