Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 21

PROTECTION FROM SEXUAL EXPLOITATION AND ABUSE

The current position

1. Part XI of the 1984 Act contains a number of provisions designed to protect people, who may be vulnerable by reason of mental disorder, from sexual exploitation. There are also some related provisions in the general criminal law.

2. Section 106 is designed to protect women with learning disabilities from sexual exploitation. Section 13 of the Criminal Law Consolidation (Scotland) Act 1995 is intended to protect men with learning disabilities from sexual exploitation by other men. Section 107 of the 1984 Act is intended to protect women and men with mental disorders from abuse by male staff. Section 105 is not specifically directed at sexual exploitation, but could be so used. It makes it an offence for any individual to ill treat or wilfully neglect a person suffering from mental disorder who is in his custody or care. We have discussed s105 in Chapter 19.

3. Of course, people with mental disorders are also protected by the general criminal law concerning sexual offences. Many of these are based in common law, such as the crime of rape. As we go on to discuss, the way in which these offences are defined can make it difficult to secure a conviction in the case of a victim with a mental disorder.

Protection of people with learning disabilities-the current law

4. Section 106 of the 1984 Act makes it an offence for a man to have sexual intercourse (outwith marriage) with a woman who is 'suffering from a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning'. This definition applies to women with learning disabilities, and would not include women with mental illness, dementia, or acquired brain injury. The Act does not define 'significant impairment'.

5. It is not a defence that the woman consented to sexual intercourse. The crucial question is whether the woman comes within the protected category. There is a defence, if the man can show that he did not know and had no reason to suspect that the woman was so disabled.

6. Section 106 also includes a prohibition against procuring or encouraging a woman covered by the above definition to have unlawful sexual intercourse.

7. The maximum prison sentence for a conviction under the above provisions is two years. We note that, by comparison, the common law offences which apply more generally, such as rape and indecent assault, can result in sentences of any length, up to and including life imprisonment.

8. Section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 provides that a male homosexual act⁵, which would not otherwise be an offence, will be a crime if one of the parties is 'suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation'⁶. As with s106, the maximum prison term on conviction is two years, and there is a defence if the other male can prove that he did not know and had no reason to suspect the man to be suffering from such mental deficiency.

Criticisms of the current law regarding people with learning disabilities

9. There are a number of problems with the law. These can result in some vulnerable people not being protected, while others may find their right to enter into a sexual relationship unduly restricted.

10. The law creates a category of people who are deemed never to be able to consent to a sexual relationship, because they have a learning disability. It does not consider the person's capacity or wish to have a sexual relationship, or whether there is exploitation involved.

11. The law is unequal in its application to men and women. There is no protection against sexual abuse by women.

12. Section 106 does not protect against assault by boys. It states that 'woman' includes 'girl', but not that 'man' includes 'boy'.

13. The definitions of prohibited sexual behaviour are inconsistent. Section 106 only covers sexual intercourse, and not other potentially abusive sexual acts, while s13 of the 1995 Act covers a range of homosexual acts.

14. The definition of the protected class of men is different from that of women. The effect of this is not clear.

15. The prohibition on 'encouraging' a sexual relationship in s106 may discourage staff from giving sex education or assisting with contraception.

16. The provisions may be inconsistent with the right to respect for private and family life guaranteed by Article 8 of the European Convention on Human Rights.

The need for special legislation

17. The principles of Non-discrimination and Equality require that any legislation which is specifically directed at protecting people with mental disorders should be justified by reference to a particular difficulty which cannot be met by the normal provisions of the criminal law.

18. The right of adults with learning disabilities to choose to enter into sexual relationships is now widely acknowledged. A number of respondents to our leaflet directed at people with learning disabilities stressed this.

19. One commented:

" I don't think people should be stopped from having sex and I know whether I would want to or not",

and another said

"As an adult with learning disabilities I should have the right to choose who I have sex with".

20. Section 106 of the 1984 Act and s13 of the Criminal Law (Consolidation) (Scotland) Act 1995 would appear to restrict this right, and we believe they must be reformed. Nevertheless, we believe that some form of special legislation is appropriate, if vulnerable people are to be properly protected. Indeed, a failure to provide such protection could, in itself, be a breach of the European Convention on Human Rights. In the case of X and Y v Netherlands⁷, Dutch law was found to breach the Convention, on the basis that it did not protect a woman with learning disabilities who alleged that she had been sexually assaulted.

21. There is considerable evidence that people with learning disabilities are particularly at risk of sexual abuse. Unfortunately, we do not believe it is possible to deal with this abuse solely by using the general law covering sexual offences.

22. The fundamental problem is that most sexual offences concerning adults can only be established if a lack of consent by the victim can be proved. Where a person is severely mentally impaired, it may be difficult to establish such a lack of consent.

23. In rape, for example, the crime is committed where a woman's will is overcome by violence or the threat of violence. If a man has sex with a woman who does not have the capacity to understand what is happening, but who does not actively resist, this legal test may not be met.

24. We understand that some older definitions of rape in Scots law include 'intercourse with a defective'. This terminology is of course out of date and offensive. Even if it were brought up to date, it would still present the same difficulty as s106: that the crime depends on the characteristics of the woman, not the nature of the relationship.

25. The problem is not simply one of possible incapacity to consent, but also one of vulnerability. It may well be possible for a man to coerce a woman with learning disabilities into having a sexual relationship without having to use threats of a degree which would be sufficient to sustain a rape charge.

26. Even where a woman has not in fact consented, proof of this requires corroboration. Such corroboration is often difficult to establish, and may be even more difficult where the victim has a learning disability. In cases where rape has been charged but not established, perhaps because of the problem of showing a lack of consent, it is possible to convict the accused person of an offence under s106 of unlawful sexual intercourse.

27. Section 106 and s13 are not used frequently. We understand that there were eight convictions under s106 between 1994 and 1998. Nevertheless, we have received evidence that the sections are useful, because of the difficulties inherent in proving mainstream sexual offences. We are satisfied that a special offence is required, for the reasons given above.

28. Although the wording of s106 and s13 appears to be highly restrictive of the sexual freedom of people with learning disabilities, the application of the law appears to be more liberal. We are not aware of cases of genuinely consensual relationships involving people with learning disabilities being prosecuted. The Crown will only bring a prosecution when satisfied that to do so is in the public interest. In correspondence with Adrian Ward, a solicitor, the then Lord Advocate said in 1985 that the Crown would have regard to the purpose of the section, namely to protect women from abuse, in deciding whether to prosecute in a particular case. It would also take account of the developments and advances intended to assist people with learning disabilities to live in as normal a way as possible⁸.

29. Nevertheless, the fact that the law is applied sympathetically is not a justification for a bad law. Even if a prosecution is not in fact likely, the fact that a sexual relationship may be seen as illegal because one of the couple has a learning disability (or both have) has the effect of devaluing the rights of a group of citizens. It may also make staff reluctant to assist people to exercise a genuinely free choice in sexual relationships.

30. In particular, the wording of the current prohibition against 'encouraging' a woman to have sex has led to concerns that staff cannot offer contraceptive advice or sex education, or make arrangements, for example for a learning disabled woman to share a room with a man with whom she has formed a relationship. The correspondence which we have earlier referred to sought to dispel some of these fears, but some problems may remain. ENABLE proposed to us that legal protection should be provided for care staff who seek to ensure a normal sexual life for people with learning disabilities, and that there should be a code of practice incorporating the need to provide sex education.

31. We agree that staff should not feel constrained from offering appropriate advice and support in relation to sexual issues. This would not appear to be the intention of the relevant provisions of s106 which could be worded more clearly to avoid its being interpreted as a ban on, or discouragement of, sex education.

A new framework

32. We believe that the law should be amended, so that the offences relate more directly to what is unacceptable about certain types of sexual behaviour, which is that they are in some way abusive or exploitative.

33. We also believe the scope of the law should be widened to cover people with mental disorders generally, and not be restricted to people with learning disabilities. Although people with learning disabilities may often be particularly vulnerable, the same can be said of some people with, for example, dementia or acute mental illness.

34. There are a number of features which we believe should apply to reformed legislation to protect people with mental disorders from sexual abuse.

• It should apply equally to men and women who are vulnerable, and to activities of a heterosexual or homosexual nature, whether engaged in by men or women.
• It should be based on the factors in a situation which may create barriers to true consent, not simply on diagnosis of a mental disorder.
• It should cover sexual intercourse, but also other sexual acts.

A statutory offence of sexual abuse of a mentally disordered adult

35. The new statutory offence, which would replace s106 and s13 of the 1995 Act, would be based on a new test, which should concentrate on one or other of two elements: capacity and exploitation.

Capacity

36. It would be an offence to have a sexual relationship with a woman or man who, because of mental disorder, is unable to understand, or make a decision about, the nature of the act and its consequences at the time when the sexual activity takes place.

Exploitation

37. It would be an offence to have a sexual relationship with someone who is unable to give free agreement to the relationship. Free agreement would be held not to exist where there is a significant degree of mental disorder, and evidence that the other party is in a position of trust or influence over the mentally disordered person and has exploited that position. This would not be restricted to those who may be involved formally or informally in the care of the mentally disordered person, but would include anyone who is in a position to exploit that position of trust or influence in relation to the vulnerable person.

38. So far as learning disabilities are concerned, we understand that psychologists are developing instruments to assess the ability of people with learning disabilities to make sexual choices. We appreciate that there may be practical problems in assessing capacity to consent in relation to some people with mental disorders, for example a person who behaves in a sexually disinhibited way during a hypomanic episode. Ultimately, however, this would be an evidential question in any particular case, and does not affect the principles underlying our recommendations.

39. The wording of our proposed capacity test has been influenced by the recommendations of the Law Commission in England and Wales in their paper 'Consent in Sex Offences'⁹. Guidance on assessing capacity could be given in the Code of Practice. Some of the proposals to the Home Office Review of Sexual Offences gave examples of issues which would be relevant to the assessment of capacity, such as understanding that sex is different from personal care; and that it can lead to pregnancy¹⁰.

40. The 'exploitation' test is more complex, since it requires consideration of the relationship between the parties, not simply the degree of impairment of one party. However, we believe that this is an element in deciding whether to prosecute at the moment, and it should be possible for it to be made more explicit and transparent.

41. In both situations, there would continue to be a defence that the accused person did not know, and could not reasonably have known, of the person's mental disorder. There should also be provision to ensure that couples with a pre-existing relationship are not inappropriately brought within the scope of the offence because one of them develops a mental disorder.

42. Where both parties have a mental disorder, there are additional complications. We do not recommend that such relationships should never be a concern of the criminal law. We heard evidence that people with mental disorders can be perpetrators, as well as victims of abuse. Prosecution may seldom be appropriate, but we do not think the possibility should be ruled out.

43. The law will still require to be applied humanely and with discretion. For example, there will be some people with severe learning disabilities who could not be said to have legal capacity to consent to sexual relationships, yet who may be involved in sexual activity which they enjoy and which is not exploitative. It would be wrong to seek to proscribe such activity by the operation of the criminal law. In responding to our second Consultation, Scottish Human Services commented that there is danger of criminalising behaviour which might be 'foolish and unethical' but not 'malicious or evil'. They suggest that if the risk of exposure is too high, this may lead to denial and cover up.

44. These are matters which rightly fall within prosecutorial discretion. However, it would be desirable to provide reassurance to staff and service users. Although we do not believe that it is necessary for such protection to be spelled out in the Mental Health Act, it would be helpful if guidance could be set out by the Crown Office. This would be an extension and updating of the guidance already given by the then Lord Advocate in 1985.

45. We believe that the offence of 'encouraging' a person with learning disabilities to have sexual intercourse should be abolished. This appears to offer little practical protection and, as we have said, may act to inhibit legitimate education and support. There may, however, be a justification for retaining some protection against 'procuring' a mentally disordered person to have intercourse, although it would seem that prosecutions under this provision are extremely rare.

Sexual relationships with staff and carers

46. Section 107 of the 1984 Act is intended to protect female patients from exploitation by staff. It makes it an offence for someone employed by, or managing a hospital or nursing home, to have sex outwith marriage with a woman receiving treatment for mental disorder as an in-patient or outpatient. It is also an offence for a man to have such intercourse with a woman suffering from mental disorder who is resident in a house provided by a local authority under the Social Work (Scotland) Act 1968.

47. Section 107 protects all women suffering from mental disorder: whether mental illness or learning disability. It also applies to members of staff who are involved in male homosexual acts with patients¹¹.

48. The provisions of s107 now seem arbitrary and inappropriate. It would be an offence under s107 for a male member of staff to have sex with an outpatient in a room at the hospital, but not outside the hospital. Phrases such as 'in the custody and care' of a man, or 'in the care' of the local authority do not have clear meanings. It is not clear whether s107 would include, for example, a supported accommodation project which is funded by the local authority. There is no protection for people using day services, living in hostels, or subject to community care orders.

49. In other respects, it appears too wide in its effect. It makes a crime of any sexual relationship with a women who has a mental disorder and who lives in a house provided under the Social Work (Scotland) Act.

50. Many of the criticisms that can be made of s106 apply equally to s107. In particular, it deals only with sexual intercourse and not other forms of sexual activity, and it does not cover sexual abuse of any kind committed by a woman.

51. The criminal law needs to protect vulnerable people against sexual abuse by staff, because of the unequal power relationship. However the current provisions need to be redrafted to cover the wide variety of situations in which a mentally disordered person may find themselves receiving care. We propose that the law should prohibit sexual relationships between

• a patient with a mental disorder, whether inpatient or outpatient of a hospital, and a member of staff, whether paid or unpaid
• a mentally disordered person in residential care and a member of staff, whether paid or unpaid
• a mentally disordered person and a person employed to deliver care services in the community to that person
• a mentally disordered person and a doctor or therapist involved in a professional relationship with that person.

52. In such situations, it should not be necessary to prove lack of consent, or incapacity to consent. The fact that staff are in a position of trust in relation to clients with mental disorder, which would be breached by a sexual relationship, is enough to justify treating such relationships as criminal offences.

53. There are however particularly complex problems where a person may, because of severe learning disability, or learning disability combined with physical disability, require a high degree of intimate support, involving some physical contact and assistance, if he or she is to be assisted to manage their sexual behaviour. This could be legitimate in the context of a person's individual needs, but there is a danger that providing such physical assistance could fall within a definition of prohibited sexual relationships with staff. The same considerations might apply in some forms of sex therapy by psychiatrists and others.

54. It would be difficult to formulate a statutory defence to encompass such a situation, but it would be desirable for the position to be clarified in guidance in order to protect staff. It should emphasise the need for agreed procedures and the responsibility of employers to set clear guidelines for staff. These guidelines in turn would deal with issues such as multi-disciplinary discussion and proper recording of decisions.

Problems with the general law

55. Several respondents to our consultation identified wider difficulties with the general law relating to sexual offences, and the way in which it is applied, which may contribute to the difficulties in prosecuting the sexual abuse of mentally disordered adults. Some of these problems relate to the way consent is defined. An alternative approach to the special offences discussed above would be to redefine consent generally in relation to sexual behaviour to something closer to 'free agreement'. This approach could avoid the need for special offences to protect people with mental disorders, by bringing abuse of this group within the definition of generally applicable crimes such as rape.

56. This approach has the attraction of being more consistent with the principle of Non-discrimination. It would help to avoid the impression that people with mental disorders, particularly learning disabilities, are in a special position in relation to sexual activity, where such activity is almost assumed to be wrong unless proven otherwise.

57. Nevertheless, we do not recommend such an approach at this stage. It would involve a radical reform to general sexual offences, which would have consequences for a wider group than people with mental disorders. We were not in a position to consider the implications of such a change. If the law concerning sexual offences is reviewed in future, we would hope that consideration would be given to how it applies to people with mental disorders. In the meantime, however, reform to the special offences appears to us to be a more practical way forward.

58. There are also concerns regarding the way in which evidence is taken from victims of abuse. Many people with mental disorders find the court system confusing and intimidating. In such circumstances, it is not surprising if they do not always make convincing witnesses. We consider vulnerable witnesses in Chapter 19 (paragraphs 45-47). We discuss one way of assisting mentally disordered people involved in the criminal justice system, the Appropriate Adult scheme, in Chapter 30. The benefits of an appropriate adult apply equally to victims with mental disorders as they do to suspects.

Sex Offenders Act

59. The Sex Offenders Act 1997 has established a register of sex offenders, and lists a range of offences which require the offender to be placed on the register. The current Mental Health Act offences are not included in this list. We see no reason for their exclusion. The proposed new offences should be included in the list in the Sex Offenders Act.

The information contained on this WWW site is Crown Copyright but may be reproduced without formal permission or charge for personal or in-house use. © 1997-2001. For general enquiries about this section email mentalhealthlawmailbox@scotland.gsi.gov.uk