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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Offences against persons with a mental disorder impeding choice
Article 43: Sexual activity with a person with a mental disorder impeding choice
Article 44: Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity
Article 45: Engaging in sexual activity in the presence of a person with a mental disorder impeding choice
Article 46: Causing a person, with a mental disorder impeding choice, to watch a sexual act

7.111.All the offences in these Articles 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 Article 2(9) to have "the meaning given by Article 3 of the Mental Health (Northern Ireland) Order 1986". In section 1(2) of that Act, subject to section 1(3), mental disorder is defined as "mental illness, mental handicap and any disorder or disability of mind." A person with a "learning disability" would fall within this definition. The definition of sexual activity is at Article 4.Paragraph (2) of each section contains a definition of what is meant by B being unable to refuse.

7.112.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 (Articles 16 to 19).

7.113.Article 43 covers touching, which as Article 2(11) explains, includes any type of physical contact including penetration.

7.114.Article 44 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.

7.115.Article 45 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.

7.116.Article 46 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 Article 2(8).

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