Scottish Law Commission discussion paper on rape and other sexual offences

Alzheimer Scotland's response submitted 27 April 2006

1. A constituent element of offences of sexual assault should be the lack of consent by the victim.

Agreed, as long as there is a broad definition of consent. Taking part in sexual activity with another person involves a decision, whether tacit or explicit.

4.Should consent as a constituent element of sexual assaults be defined as:
(a) 'free agreement'; or
(b) positive cooperation in act or attitude pursuant to an exercise of free will; involving persons acting freely and voluntarily and with knowledge of the nature of the act in question'?

(a) is too vague. (b) is good. ‘Appropriate’ or ‘adequate’ knowledge or ‘knowledge appropriate to their intellectual abilities’ might help to cover the situation of a mentally impaired person, who may not have ‘knowledge’ in the usual sense of the word, but may nevertheless engage in a sexual relationship ‘knowingly’.

6. A non-exhaustive statutory list of factual situations which indicate that a person has not consented to sexual activity should include the following:
(a) where at the time of the act the person was subject to force or violence or the threat of force or violence against him or her;
(b) where at the time of the act the person was subject to force or violence or the threat of force or violence against another person;
(c) where the person was unconscious or asleep;
(d) where the person had taken or been given alcohol or other substances and as a result lacked the capacity to consent;
(e) where the person was deceived or mistaken about the nature of the activity;
(f) where the person was deceived into thinking that the other person was someone known to him or her;
(g) where the person was unlawfully detained;
(h) where expression of consent was made by someone other than the person

The list is comprehensive. The only circumstance missing is the person showing sexual disinhibition. The words ‘mistaken about the nature’ in 6(e) might prohibit some not unreasonable sexual activities by people with mental impairments. The ‘mistake’ may be no more than vagueness. Would ‘significance’ or ‘nature or significance’ be better than ‘nature’? Or might the reference to ‘mistaken’ in 6(e) be put in a different category, where valid consent may not be considered to have been given. If it was, a ‘mistaken’ clause might be added to 6(f), for people with dementia may try to enter sexual relationships with others whom they misidentify as their usual sexual partner (covered by example 8 in 3.66 – the situation is not always so clear-cut in dementia).

8. The giving of consent to one sexual act does not by itself constitute consent to a different sexual act.

Agreed

9. A person who has consented to a sexual act may at any time up until completion of that act indicate that he or she no longer consents, and if the act continues to take place it does so without that person's consent.

Agreed

22.Should the name of the offence be
(a)sexual assault;
(b)sexual touching;
(c)sexual assault by touching;
(d)sexual molestation; or
(e)something else?

‘Sexual molestation’ preferred. ‘Sexual assault’ is better used as an overall term.

24. Should the test for the accused's belief that the victim was consenting be:
(a)the subjective test that he honestly held that belief;
(b)the objective test that he held the belief and that there were reasonable grounds for doing so; or
(c)the test that he held the belief but subject to the qualification that the belief must be reasonable having regard to all the circumstances (including steps taken by the accused to ascertain whether the victim did consent)?

In relation to people with dementia who might be accused of sexual offences, (b) or (c) would be more appropriate. A mentally impaired person might believe wrongly that consent had been obtained.

27. In addition to the general consent model proposed in Part 3, should there continue to be special provisions relating to sexual activity involving children, persons with mental disorder, and persons otherwise open to sexual exploitation?

As long as absence of consent (clearly defined) is the criterion, there should be no need for separate legislation with regard to vulnerable adults including those with dementia. There may be a need for guidance on the meaning of ‘consent’ for practitioners. Some appear to believe that an inability to consent is only caused by intellectual impairment, whereas it may also be due to disorders of affect, of belief (delusions), or of the ‘executive’ function.

The statement is made in 5.6 on page 60 that “certain forms of mental disorder clearly preclude the giving of consent to sexual activity but not all do”. This does not give the correct balance. In general, having a mental disorder should not be a bar to consenting sexual activity; people with mental disorders should as far as reasonably possible be enabled to continue to live their lives, which includes their sexual lives. Only under certain circumstances should there be limitations on this. There is a danger that any sexual activity by people with mental disorder can be seen as abnormal.

51. Should there be a separate offence of taking advantage of the condition of a person with a mental disorder which prevents that person from guarding against sexual exploitation?

The particular position of vulnerable adults in the care of others requires special consideration. On balance, it would seem best to retain a provision to protect persons with mental disorders against sexual exploitation.

62. It should be a defence to the offence in relation to a person with a mental disorder that a sexual relationship existed between the parties at the time when the relationship of trust between them was constituted.

Agreed

66. It should be an offence for a person to expose his or her genitals with the intent of causing alarm or distress to someone else.

Exposure is one of the more common allegations of sexual offences made about people with dementia. It is reasonable that this should be defined as an offence, on the understanding that assessment under the Criminal Procedure Act may be appropriate.

71. Should the requirement of corroboration be removed for proof of sexual offences? If so, for which offences?

No comment on whether corroborative evidence should be required. But it should be noted that for people with dementia the only valid evidence may be ‘corroborative’.

General Comments

Dementia can increase the vulnerability of a person to sexual assault by others because of a variety of the effects of the illness. Intellectual impairments may lead to lack of understanding, impaired communication and misidentification of other people. Damage to the frontal lobe ‘executive’ functions of the brain may lead to ‘facility’ or disinhibition. There may also be a loss of conscience, of personal standards or of motivation to protect oneself. Unlike intellectual impairments, these ‘frontal’ lobe changes are often very subtle and difficult to assess in any quantitative way.

There may be considerable difficulties in establishing that a sexual offence involving a person with dementia has taken place; the person may not recall the events, or may have misinterpreted them in some way. Assessment of nonverbal behaviour, especially distress, can help in determining whether a sexual offence has taken place. This relates to point 7.27 “corroboration by distress''.

People with dementia may already be in a long-standing sexual relationship when the illness begins, or may have other patterns of sexual relationship. As far as reasonable, it should be possible for these relationships to continue despite the illness, if that is the wish of the person with dementia. Lack of consent can be an issue, both for a person with dementia who might change his or her attitude to a partner as a result of the illness, as well as to a partner who may feel that they do not wish to continue the relationship, despite the demands of the person with dementia. Coarsening of all sorts of social behaviour is a not uncommon aspect of dementia. For example, incontinence, off-putting habits or general challenging behaviours, such as shouting and verbal aggression in early onset dementia may affect the caregiving partner's interest in the sexual relationship.

A person who has lost sexual partnerships, whether through death, legal separation, or physical separation by being in care, may nevertheless continue to have sexual needs. This can lead to problems within care settings, which are not always well handled by staff. Clearly, indiscriminate or predatory sexual demands cannot be tolerated, but some sensitivity, imagination and understanding are required to accommodate an inappropriate expression of sexual needs within a care setting. Similarly, workers involved with house-bound or otherwise isolated people with dementia at home may be at risk of sexual demands, as might be the house-bound people, who through reduced mobility/physical strength might be unable to avert a sexual offence. There is also the need for physical contact and affection, which may not be sexual, and may sometimes be misinterpreted by staff.

People with dementia are on occasion accused of sexual misdemeanours, though there may be a tendency for the police to ‘turn a blind eye’ to some minor offending. Sexual disinhibition, loss of personal conscience and misinterpretations may contribute to this. This may be due partly to the sexual behaviour itself not being inappropriate but the context, e.g. a public place. The document talks about sexual gratification in the presence of a child. Would this apply to someone with dementia engaging in masturbation, whilst lacking awareness of the child's presence?

Particular problems arise when a person with dementia forms a new sexual relationship, or thinks of marriage to someone – especially when the object of their interest also suffers from dementia, or when there is a suggestion that that person might be wishing to exploit the person with dementia. However, we understand that the criteria for considering sexual exploitation are different when both parties have dementia.

There is very little research evidence on sexual behaviour and dementia, especially physiological changes set against normal changes in sexual physiology with age, notably slowing down of sexual response in both sexes and erectile difficulties. In dementia the experience is more often of loss of sexual interest rather than increase, the latter being more relevant to this discussion paper. Sexual problems associated with dementia have been classified accordingly.

a) Within an existing relationship e.g. a male spouse is unsure as to whether his wife is consenting to sexual contact by failing to dissent. The relationship may be experienced by the caregiving spouse as unbalanced due to the care needs of the partner and thus an abuse of the relationship. Assessment of the premorbid sexual relationship and general relationship can help to determine this.

b) Within a new relationship e.g. in care home. This is more contentious, given the absence of a premorbid relationship between the couple and so more difficult to determine whether the person with dementia is being exploited. This is usually thought of in terms of a female being exploited by a non-dementing male, or (less frequently reported) a male with dementia being exploited by a non-dementing male, owing to concerns about penetration. However, the exploitation of a male with dementia by a female or male also needs to be considered e.g. through unsolicited/unwanted fondling of genitalia.

Care staff have concerns about their position in law and when to intervene. Anecdotal evidence shows that the principles of the Adults with Incapacity Act are often evoked to determine capacity to consent to sexual contact, although not actually covered by the Act.

There is some research in residential settings on determining the person's understanding of the sexual relationship in question, which could be extended to determining whether an offence has taken place. Hence, there are implications for training.

Inappropriate sexual behaviour by a person with dementia may not be entirely due to the condition but to an interaction between premorbid sexual patterns/attitudes and dementia. Appendix B in the discussion paper discusses legislation on sexual history evidence

N.B. page 21 point 3.5c may relate to misidentification of the perpetrator e.g. thinking it is the victim's spouse. Conversely, in principle a person with dementia could perpetrate an offence through misidentification e.g. thinking his daughter is his wife.

Part 4 - example given above of the sexual molestation of a person with dementia. Given involvement of frontal lobes and therefore difficulty in 'shifting set' it could be hypothesised that a person with dementia might have difficulty reading the nonverbal cues and shift by complainer from initial consent/encouragement of physical contact to lack of desire/ consent to proceed to sexual activity.