The Bigger Picture on the issue of sexual abuse of people with learning difficulties
By Janet Snell
Plans to tighten up the law to protect vulnerable people from sexual abuse have prompted fears among people with learning difficulties that their right to a sex life may be infringed. See news story.
Following a review of existing sex offences legislation by a home office team a new Sexual Offences Bill has been drafted and is now going through parliament.
The bill was put forward in the House of Lords in February by home office minister Lord Falconer. He told peers that the current law needed to be changed as it is based on the sexual offences acts of 1956 and 1967 which have been described as “ramshackle” and outdated (the legislation refers to people with learning difficulties as “defectives’).
Lord Rix, the chairperson of Mencap, put forward his own private members bill on the issue last October with the aim of pressurising the government to act. His move followed the publication in 2001 of the report ‘Behind Closed Doors’, by Mencap, Respond and Voice UK, on sexual abuse of people with learning difficulties. This claimed that abuse may be as much as four times higher for people with learning difficulties compared to the rest of the population. But it is estimated that out of around 1,400 cases of sex abuse each year only one per cent ever reach conviction.
The home office will be publishing guidance to accompany the new legislation, and Mencap is keen to see clarification of the issue of consent to sex by people with learning difficulties. Lord Rix told the Lords: “A functional test of capacity should draw on the Law Commission’s statutory definition of capacity to consent and the proposed definitions also set out in the joint British Medical Association and Law Society proposals. …. I seek assurances that we shall have a statutory test of capacity in time for the implementation of the bill.”
But the idea of a “test” has met with opposition from user groups. The National Forum of People with Learning Difficulties, which advises the department of health, has condemned the idea. Forum members are sceptical that a meaningful test to determine informed consent can be devised. They also claim the proposed changes, including plans to introduce life imprisonment for those who have sex with people with learning difficulties, could lead to a clamp down by professionals who may try to prevent clients from having relationships “in case” it contravenes the law.
However, Mencap argues that the new measures are aimed at protecting the very vulnerable and are not an attempt to stop genuinely consenting adults from having sexual relationships. The charity has voiced concern that the bill currently talks about “people with a learning disability”, and it is urging that the wording be changed to “people with a profound learning disability”.
Clauses 33 to 47 deal with sexual activity with a person with a mental disorder or learning disability.
Section 33 states that person A commits an offence against person B if:
- he intentionally touches that person the touching is sexual
- person B is unable to refuse because of a mental disorder or learning disability
- person A knows, or could reasonably be expected to know, that B has a mental disorder or learning disability ,and that because of it B is likely to be unable to refuse.
Currently having forced sex with a person with learning difficulties is punishable by two years in prison.
Under the proposed changes there will be a maximum sentence of life imprisonment.
For care workers the sentence was proposed to be increased to seven years, but following lobbying from charities it was increased further to 14 years.
“Animal instinct” and the Jenkins Case
This case arose after a woman in a residential unit for people with learning difficulties became pregnant. DNA tests revealed that the father was a support worker at the home called Jenkins. The woman’s IQ was said to be equivalent to that of a three-year-old child. In tests she was not able to distinguish pictures of sexual intercourse from other pictures. But the defence argued that she had
consented to sex due to her “animal instinct”. The judge agreed saying: “The victim showed no dislike of the defendant and was comfortable in his presence.” Jenkins, who admitted having sex with her, was cleared of the charge of rape.
Previous Community Care articles
Planning for Sex
Dec 19 2002
Learning to love safely
Mar 28, 2002