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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Care workers for persons with a mental disorder
Article 51: Care workers: sexual activity with a person with a mental disorder
Article 52: Care workers: causing or inciting sexual activity
Article 53: Care workers: sexual activity in the presence of a person with a mental disorder
Article 54: Care workers: causing a person with a mental disorder to watch a sexual act

7.118.Like the previous two sets of offences, these Articles 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 Article 2(9); the definition of sexual activity is at Article 4. The relationships of care that are covered by these offences are set out at Article 55. The offences are divided according to the different types of sexual activity involved. The division is the same as for Article 43 to 46 and what is said in the notes for those Articles 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. Paragraph (2) of each Article 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.

Section 55: Care workers: interpretation

7.119.This Article defines a relationship of care for the purposes of Articles 51 to 54. An example of a relationship covered by paragraph (2) is where A is a member of staff in a care home and B is a resident there. An example of a relationship covered by paragraph (3) is where A is a receptionist at the clinic that B attends every week. Paragraph (4) covers any situation where A provides care, assistance or services to B in connection with B's mental disorder. An example of a relationship covered by paragraph (4) is where A takes B on outings every week or treats B for his learning disability with complementary therapies in B's own home. In all cases, A must have, or be "likely to have", regular face to face contact with B. The "likely to have" limb is to cover persons who provide care to B in these situations from day one of their involvement with B.

Article 56: Articles 51 to 54: exception for spouses and civil partners

7.120.This Article provides A with a defence to the offences under sections 51 to 54 if he proves he was lawfully married or a civil partner to B at the time of the sexual activity and B was over 16.

Article 57: Articles 51 to 54: sexual relationships which pre-date care relationships

7.121.This Article provides A with a defence to the offences under Articles 51 to 54 if he proves that his sexual relationship with B pre-dated his relationship of care with B. But the sexual relationship must have been lawful for this defence to apply. So if A and B had a lawful sexual relationship before B developed his mental disorder and A started caring for him, A would not commit an offence by continuing that sexual relationship.

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