(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.
Cases considering section 38 5
[2026] EWCA Crim 203 · 10 February 2026Interprets
The court interprets section 38, read with section 42(3), as covering a care worker on sick leave where the statutory conditions are met. The offence concerns abuse of a position of trust, not merely contemporaneous work activity. (see paras [28], [32]-[44], [47])
The court interprets subsection (1) as making liability depend on intentional sexual touching, the complainant’s mental disorder and the defendant’s involvement in care under section 42. (see paras [28], [34])
The court interprets the word is in paragraph (e) as requiring the defendant’s involvement in the patient’s care to be contemporaneous with the sexual activity. The required functions need not be performed contemporaneously. (see paras [34]-[36])
[2019] EWCA Crim 286 · 21 February 2019
The court treated the count as charging repeated sexual activity by a care worker with a person with a mental disorder. Its Category 1 harm, Category A culpability and aggravating features formed part of the totality assessment. (see paras [1]; [18]; [27])
[2012] EWCA Crim 1509 · 11 July 2012Defines
The offence may be committed by sexual touching, but attracts a greater maximum penalty where it involves penetration of the vagina, anus or mouth. The distinction framed the issues in Bennett’s trial. (see paras [75]; [78])
What each judgment says about section 38 is in the case-law panel in the full Act.
68.Like the previous two sets of offences, these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder. The difference here is that A and B must be in a relationship of care. There is no need to prove that B is unable to refuse. The definition of mental disorder is at section 79(6); the definition of sexual activity is at section 78. The relationships of care that are covered by these offences are set out at section 42. The offences are divided according to the different types of sexual activity involved. The division is the same as for sections 30 to 33 and what is said in the notes for those sections about the different types of sexual activity covered applies here too. The prosecution must prove, in addition to the other requirements, that the defendant knew or could reasonably have been expected to know that B had a mental disorder. Subsection (2) of each section puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of B’s mental disorder, it is presumed that he did know or could reasonably have been expected to know of this.