Page:Sexual Offences Act 2003.pdf/24

18 Part 1—Sexual Offences 29 Sections 25 and 26: sexual relationships which pre-date family relationships

(1) Conduct by a person (A) which would otherwise be an offence under section 25 or 26 against another person (B) is not an offence under that section if—
 * (a) the relation of A to B is not within subsection (2) of section 27,
 * (b) it would not be within that subsection if section 67 of the Adoption and Children Act 2002 (c. 38) did not apply, and
 * (c) immediately before the relation of A to B first became such as to fall within section 27, a sexual relationship existed between A and B.

(2) Subsection (1) does not apply if at the time referred to in subsection (1)(c) sexual intercourse between A and B would have been unlawful.

(3) In proceedings for an offence under section 25 or 26 it is for the defendant to prove the matters mentioned in subsection (1)(a) to (c). Offences against persons with a mental disorder impeding choice 30 Sexual activity with a person with a mental disorder impeding choice

(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.

(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 to a fine not exceeding the statutory maximum or both;
 * (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.