Engaging in sexual activity in the presence of a person with a mental disorder impeding choiceN.I.
45.—(1) A person (A) commits an offence if—
(a)he intentionally engages in an activity,
(b)the activity is sexual,
(c)for the purpose of obtaining sexual gratification, he engages in it—
(i)when another person (B) is present or is in a place from which A can be observed, and
(ii)knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d)B is unable to refuse because of or for a reason related to a mental disorder, and
(e)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 being present (whether because he lacks sufficient understanding of the nature of the activity, 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 Article 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.