Literature Review on Provision of Appropriate and Accessible ...

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• Offences where the defendant is in some form of care
relationship with the complainant; these offences may be
committed regardless of consent (Sections 38 – 41 (discussed
below)).
A person is unable to refuse if she ‘lacks the capacity to choose whether
to agree to the touching (whether because she/he lacks sufficient
understanding of the nature or reasonably foreseeable consequences
of what is being done or any other reason)’ or is unable to communicate
such a choice. [71] Capacity to consent is articulated in terms of
functional capacity (and not by a diagnostic or status approach) to
understand the nature and consequences of the act and a person with a
mental disorder’s ability to communicate his/her choice.
<strong>Literature</strong> <strong>Review</strong> on Provision of Appropriate and Accessible
Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy
Sufficient understanding of the nature and reasonably foreseeable
consequences might include knowing that sexual activity is different from
personal care and that some sexual activities can lead to pregnancy or
the transmission of disease. Other reasons why a person may be unable
to refuse might include not understanding that they had a choice through
institutionalisation, or because they suffered from a condition that might
affect the ability to make a choice. [72]
It is a requirement of the offences under Sections 30 – 33 that the
offender knew or could reasonably have been expected to know that
because of a mental disorder the person was likely to be unable to
refuse.
The Sexual Offences Act 2003 introduces a new offence of ‘obtaining
sexual activity by inducement, threat or deception with a person who
has a learning disability or mental disorder’. This offence is aimed at
individuals who both deliberately and repeatedly target people with
learning disabilities because of their vulnerability to sexual exploitation
(McCarthy and Thompson, 2004). In these offences there is no need
to prove that the ‘victim’ is unable to refuse. This offence is intended
to protect individuals with learning disabilities who with other people
71 Section 30 of the Sexual Offences Act 2003.
72 Guidance on Part 1 of the Sexual Offences Act, 2003.