Sexual Offences and Mental Capacity
| DOI | 10.1350/jcla.2010.74.2.621 |
| Date | 01 April 2010 |
| Author | Dave Powell |
| Published date | 01 April 2010 |
| Subject Matter | House of Lords |
House of Lords
Sexual Offences and Mental Capacity
R v C [2009] UKHL 42
Keywords Sexual touching; Mental capacity; Ability to communicate
D1 and D2 were crack cocaine addicts. V was a young woman who was
diagnosed as having a schizo-affective disorder, an emotionally unstable
personality disorder and an IQ of less than 75. This combination of
mental disorders left her prone to delusions, hallucinations, severe
disturbances of mood and become upset without rational cause.
D1 met V and took her to D2’s home. They gave her crack cocaine. D1
asked V to perform oral sex on him and she felt unable to escape or
refuse. He placed his penis in her mouth and told her what to do. She
complied. D2 then gave her more crack cocaine and then took his
clothes off. V again felt unable to escape and also took her clothes off. D2
then had vaginal sexual intercourse with her.
Both D1 and D2 were charged with rape, but before the case came to
trial these charges were replaced by charges under s. 30 of the Sexual
Offences Act 2003, which provides:
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental
disorder, and
(d) A knows or could reasonably be expected to know that B has a
mental disorder and that because of it or for a reason related to it
B is likely to be unable to refuse.
(2) B is unable to refuse if—
(a) he lacks the capacity to choose whether to agree to the touching
(whether because he lacks sufficient understanding of the nature
or reasonably foreseeable consequences of what is being done, or
for any other reason), or
(b) he is unable to communicate such a choice to A.
(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 life.
The judge had directed the jury in the following terms:
Now [the complainant] would be unable to refuse if she lacked the capacity
to choose whether to agree to the touching, in other words the sexual
activity, for any reason, for example, an irrational fear arising from her
mental disorder or such confusion of mind arising from her mental dis-
order, that she felt that she was unable to refuse any request the defendants
104 The Journal of Criminal Law (2010) 74 JCL 104–108
doi:10.1350/jcla.2010.74.2.621
To continue reading
Request your trial