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Further Information : Sex and the law

Abusing a position of trust

Capacity to consent

Discrimination against disabled people

Female genital mutilation (FGM)

Forced marriages

The legal age for sex

Sexual discrimination

Sex work

Touching clients

 

Abusing a position of trust It is illegal for someone to have sex with a person over whom they are in a ‘position of trust’, even where there is consent and both parties are over 16. This law applies to teachers of those under 18, carers and doctors, who people trust to look after them. The law currently also applies to people with learning and mental health difficulties who become mentors for their peers.

Capacity to consent Not everyone has the capacity to consent. With those who may not have this capacity, an assessment should be made as to whether the sexual expression in question is in the best interests of the client; there should be documention to prove their best interest has been carefully considered by those professionals involved. Capacity can often vary over time and should be re-assessed regularly.  If a person does have capacity to consent, and does consent to sexual activity, then their right to sexual expression and to consensual sex (when in private) should not be restricted. Guidance on these issues can be found at www.guardianship.gov.uk.

Discrimination against disabled people is illegal. This means that disabled people must be treated in the same manner as others and provided with the same opportunities, including making reasonable adjustments to allow them to be treated equally. This law over-rides any other law which stops disabled people enjoying the same privileges as other people.

Female genital mutilation (FGM) is illegal and a serious crime. It is sexual abuse which must be reported. The NSPCC has recently launched a 24-hour helpline on 0800 028 3550 offering advice, information or support for anyone concerned that a child’s welfare is at risk because of FGM fgmhelp@nspcc.org.uk Anyone with information about those at risk of FGM, people believed to be carrying out FGM, or any information relating to offences of FGM should call 020 7161 2888 or Crimestoppers (which can offer anonymity) on 0800 555 111.

Forced marriages are illegal. People with learning disabilities and children may be forced into marriage through harassment, trickery, assault, kidnapping and blackmail; forced marriage is also often a precursor to domestic violence including rape. The motives behind forcing people with learning disabilities to marry include an effort to find a carer, a means of obtaining a visa and a belief that marriage will “cure” learning disabilities. The charity Respond is currently campaigning to bring forced marriage to wider public attention and to improve official responses to it.

The legal age for sex is 16 for both gay and heterosexual people. ‘Sex’ means penetrative sex, oral sex or masturbation, but the definition of sexual assault in criminal law also covers any touching which could be regarded as sexual. Many young people in Britain behave in ways regarded as sexual below the age of consent, and so technically risk prosecution. Some policies encourage safer sex and contraception rather than condemning sexual activity, unless one of the partners is much older than 16. Police do sometimes prosecute youngsters for sexual activity, as some areas/forces have a more restrictive policy, depending upon CPS lawyers.

Sexual discrimination is illegal. The Equality Act 2010 protects all those who have a “protected characteristic” including orientation, which includes lesbians, gays, bisexuals and transsexuals. ‘Trans’ is defined as people suffering from gender dysphoria, diagnosed as such, and either starting or planning to start, treatment for same. The Act does not include transvestites or people who are intersex (born with both or no gender/sex organs).

Sex work is legal. Both the buying and selling of sex are, and always have been, legal in Britain. Hence it is legal for care staff and personal assistants to the disabled to order an established, professional sex worker on behalf of a client who is unable to do so on their own. However, there are many laws controlling the selling of sex: brothels are illegal although massage parlours and saunas are not, unless they are fronts for brothels; soliciting on the street is illegal; kerb crawling is illegal; it is illegal to pay for sex with a sex worker who has been trafficked.

Touching clients Consent is a complicated concept, legally speaking. Generally clients should not be touched without their consent; to do so may be judged a battery (often referred to as an assault). But there are situations in which the law implies that people generally consent, such as touching someone to gain their attention, or to reassure or support them. There are also situations where it is not possible or practical to obtain consent, such as emergencies. Qualified medical and nursing professionals may touch their patients within these boundaries but not in a sexual way. When restrictions are not adhered to, those who breach them may be convicted of criminal offences.Sexual Respect Tool Kit copyright © Outsiders Trust 2013