(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.
61.All the offences in these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder and because of that mental disorder, or for reasons related to it, B is unable to refuse involvement in the sexual activity. ”Mental disorder” is stated at section 79(6) to have “the meaning given by section 1 of the Mental Health Act 1983”. In section 1(2) of that Act, subject to section 1(3), mental disorder is defined as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.” A person with a “learning disability” would fall within this definition. The definition of sexual activity is at section 78.Subsection (2) of each section contains a definition of what is meant by B being unable to refuse.
62.The offences are divided according to the different types of sexual activity (the types of sexual activity covered are the same as for the child sex offences (sections 9 to 12)).
63.Section 30 covers touching, which as section 79(8) explains, includes any type of physical contact including penetration.
64.Section 31 covers the situation where A causes or incites B to engage in sexual activity, for example, where A causes B to have sexual intercourse with A’s friend, or incites him to do so, even if the incitement does not result in B engaging in sexual activity.
65.Section 32 covers the situation where, for the purpose of obtaining sexual gratification, A engages in sexual activity in the presence of B, or in a place from which B can observe him. The offence is only committed, however, where A knows or believes that B is aware of the sexual activity or intends him to be aware of it. B might be aware of the sexual activity because he is watching it at A’s behest or because A is describing what he is doing to B.
66.Section 33 covers the situation where A, for his sexual gratification, causes B to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. "Image" is defined in section 79(4)).