Section 38 Care workers: sexual activity with a person with a mental disorder

(1)

A person (A) commits an offence if—

(a)

he intentionally touches another person (B),

(b)

the touching is sexual,

(c)

B has a mental disorder,

(d)

A knows or could reasonably be expected to know that B has a mental disorder, and

(e)

A is involved in B’s care in a way that falls within section 42.

(2)

Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.

(3)

A person guilty of an offence under this section, if the touching involved—

(a)

penetration of B’s anus or vagina with a part of A’s body or anything else,

(b)

penetration of B’s mouth with A’s penis,

(c)

penetration of A’s anus or vagina with a part of B’s body, or

(d)

penetration of A’s mouth with B’s penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(4)

Unless subsection (3) applies, a person guilty of an offence under this section is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b)

on conviction on indictment, to imprisonment for a term not exceeding 10 years.