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Arrest involving sex and mental disorder

Arrest involving sex and mental disorder

SKU: 8.25
  • Advice

    Here a person commits an offence if they know the other does not have the mental capacity to give consent, the level of protection under the Act covers the following

    • Physical contact
      • From simple touching to full penile penetration.
    • Facilitation
      • It is an offence for a person to encourage or facilitate such abuse from a third party
    • Watching
      • It is an offence to gain sexual gratification watching someone have sex with a person with a mental impairment.
    • Causing a view
      • The act states that having sex knowing that a person with a mental impairment is watching is also against the Act (whether there was an inducement or not).


    These are covered in sections 30 to 37 of the Act; similar rules apply to care workers (sections 38 to 44).


    Because the potential accuser does not have mental capacity, they would also lack the capacity to give what we would accept to be a full and clear record of the events, this then reverts to being more evidence, rather than testimonial based. There is a truth that some residents of care homes get confused, especially when being given personal care which may include cleaning the genital area and may think that something is wrong, the problem is obvious when it involves “touching”, the carer may need to touch their genitals to clean them, where the offence is far more serious, such as being accused of penetration then a medical would be required, again however there would be a delay in this as the person cannot give consent. Sadly, abuse in the care industry does occur and proving that it happened is difficult. We would strongly suggest that anyone with a loved one in care checks to see that their care is managed by someone they feel comfortable with, on the flip side we would suggest all care home providers ensure personal care is done by properly trained staff, working as a pair. This will negate any such claims as there would be a staff member to witness any claimed abuse.


    What to do if arrested

    If you are arrested then you should not feel compelled to help the police obtain a nice quick conviction. In such situations, you have a right to inform someone of your arrest. More importantly, you have a right to access free independent legal services when you request them. If this is ever in doubt, inform the police officer that you are allowed help under Section 58(1) of the Police and Crime Evidence Act 1984. Moreover, if you are eventually interviewed in the absence of legal services, you should remember that you neither have to answer the question posed to you nor can you be compelled to do so. You can simply choose to stay silent.


    It is worth noting that once you request legal representation, you cannot be interviewed until you have access to suitable representation. Also, if you are already being interviewed after indicating that you did not require legal advice, once you request for it, even during the interview, the police will have to postpone the interview until you have been given the advice.


    Whilst in custody you have certain rights:

    • To get legal advice;
    • To tell someone where you are;
    • To get medical help, and to see a copy of the rules the Police must follow (Codes of Practice).


    After being arrested we would strongly advise you to simply confirm your details and not rise to any of their quips or questions which are designed to solicit an admission of guilt, hence making their quest for a conviction a lot easier, instead simply state that you will not answer any questions until you have received legal guidance. Remember, simply saying “sorry” is classed as an admission of guilt, if you give an investigating officer the slightest chance, they will exploit it to the maximum.


    If you cannot afford legal representation, you will be offered free and independent legal advice, however, you should not assume that the duty solicitor appointed for you will keep your details private, after all, they have the same paymaster and the solicitor will be extremely familiar (and thereby friendly) with the police officers and not want to cause them any inconvenience. In our opinion, this creates a dangerous situation as regards legal confidentiality. Our representatives are totally independent and would not disclose any part of your conversation with them to the police. If you are seeking alternative legal help, we strongly suggest you use a private solicitor and do not rely on the duty solicitor for reasons already stated.


    How we can help

    We would suggest that you inform the police that you would like professional representation at the very earliest convenience, getting representation after you have already given (or been tricked into) a confession (or terms that may be interpreted as such) causes a multitude of problems. To gain our assistance you need to open a case, this is done by taking advantage of our free consultation service, activated by the link at the top of the page, should you wish to start a case the caseworker will send you the suitable payment link.


    Your caseworker would immediately assign someone to meet with you as soon as possible. Because we are internet-based, we may not have our own actual solicitor in your area and may have to use a local one who is expertly qualified in his field. Their costs for attending may be more than our standard charge, if this is the case then your caseworker will discuss this with you. The solicitor will guide you through all aspects of the arrest and would not carry the same risks to you as using a duty solicitor.


    Please note your caseworker can only give generic advice, their role is to prepare your details for handling by our legal team and to act as your point of contact, they will also issue you with your Password and PIN, these will be needed to log onto your client dashboard. From your dashboard

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