If the alleged victim has mental capacity to take a view that they have been abused, they will also be capable of deciding whether the police should be involved.
Where the person is of less than full capacity, and where the alleged abuser is not a client of the authority and is to all intents and purposes not him or herself mentally impaired, we can think of no reason why the police should not be involved in all such cases, at least to commence an investigation.
Even if the alleged abuser is the mentally impaired person’s main carer, services ought to be able to be put in place to cover any absence of the carer necessitated by police enquiries.
What should be done when the activities in question have taken place between two clients, both mentally impaired, say in a residential or supported setting?
When focusing on the person with the lower mental capacity, (on the working assumption that that person will not in general have initiated the activity) a view as to the capacity of that person to give informed consent to the act in question, should determine whether the authority
a) does anything to dissuade him or her from ‘allowing’ it to happen again, or
b) actually acts to prevent it happening again, or,
c) in addition, takes steps to inform the police.
Assuming lack of capacity to consent, on the part of the victim, then a crime has been committed whenever touching of any kind other than the most inadvertent has occurred. But we do not think it is likely that the authority would want to involve the police in every single case of minor sexual relations short of actual sexual intercourse having occurred. If that is correct, we would suggest that it should be the seriousness of the consequences in terms of physical injury or distress that should be the determinant of whether the authority merely tries to prevent it happening again, or involves the criminal law.
Are we suggesting taking a blind eye just because two clients are involved?
Definitely not. These decisions need to be taken at a high level, and be accountable and reasoned and documented if suggestions of a cover-up are to be avoided. In practice, if the initiator of the activity also lacks capacity to understand the significance of the other’s consent, there is little risk that the police would take the matter any further, but authorities need to be aware of the dangers of making assumptions in this regard based on a social care ethic.
We think that the caring and responsible relationship hopefully pertaining between the authority and the individual would tend against involving the police, if a night in a cell for an already vulnerable person, is all that is going to come out of raising the issue on behalf of the other person concerned. The reason in law justifying such a stance is that people cannot be found guilty of most sexual offences which depend on knowledge or recklessness as to consent, if they ‘did not know and had no reason to suspect’ the ‘victim’ to be suffering from severe mental handicap, or that the other person would be subjected to force to which they were not consenting, or the incapacity of that other to give effective consent to the particular activity.
We are of the opinion that evidence of a moderate to severe degree of learning disability could give the perpetrator this statutory defence and that it is acting in the best interests of that person not to expose them to the criminal justice system and all that it entails, so long as there is a second, independent professional opinion as to their incapacity to understand that the ‘victim’ counted as so severely incapacitated as to be incapable under a statute of consent, or could not in fact understand the nature of what was involved, or did not in fact consent.
Staff abusers
Please note, if the alleged perpetrator is a member of staff (of either sex) in a position of trust there can be no question of not involving the police because by definition, the victim’s incapacity will be known to the staff member, which means that a defence open in theory to persons having sex with mentally impaired persons would not be available to them.
See s82 Care Standards Act for the duties of the employer to refer the person to the Secretary of State’s Register for the Protection of Vulnerable Adults in a case where dismissal for misconduct is considered.