1. Introduction 

Adults who do not have capacity to consent to sexual relations may be sexually active. They are unlikely to use contraception and concern about confidentiality remains the biggest deterrent to seeking advice.

Sexual crime and the fear of sexual crime, has a profound and damaging effect on the lives of individuals, their families and the community in general. It is therefore important that any staff or volunteers who work with adults who may be at risk of abuse or neglect are aware of their responsibilities when dealing with these issues. It is crucial to get the balance right between safeguarding individuals from sexual abuse, and ensuring that they are also able to access advice and treatment about contraception, sexual and reproductive health, including choice and control over fertility and when or if to start a family.

Staff and volunteers who work with adults at risk therefore need to be informed about the legality of sexual relationships and understand where they can access advice and support for those adults at risk who are unable to give consent.

2. The Sexual Offences Act 2003

The Sexual Offences Act 2003 (the Act) came into force on 1st May 2004 and applies to all offences committed on or after that date.

Under this Act, the legal age for people of any gender to consent to have sex is 16 years, whatever their sexual orientation is.

Sexual activity with adults who lack capacity is always illegal, as they can never legally give their consent. There should always be contact with the Police and a Referral made under the Safeguarding Adults Procedures in these circumstances.

Under the Sexual Offences Act 2003, adults who are vulnerable still have a right to confidential advice on contraception, condoms, pregnancy and abortion.

The Act states that, a person is not guilty of aiding, abetting or counselling a sexual offence against an adult who lacks capacity where they are acting for the purpose of:

  • Protecting an adult without capacity from pregnancy or sexually transmitted infection;
  • Protecting the physical safety of an adult without capacity;
  • Promoting an adult without capacity’s emotional well-being by the giving of advice.

This exception, in statute, covers not only health professionals, but anyone who acts to protect the adult without capacity, for example social care workers or family members.

There are three categories of offences to give extra protection from sexual abuse to those with a learning disability or mental disorder. This includes protecting those who have the capacity to consent, but are vulnerable to exploitive behaviour from their carers or others:

  • Causing or inciting a person with a mental disorder impeding choice to engage in sexual activity;
  • Engaging in sexual activity in the presence of a person with a mental disorder impeding choice;
  • Causing a person with a mental disorder impeding choice to watch a sexual act.

3. What is Sexual Abuse?

Sexual abuse can be direct or indirect involvement in sexual activity without consent.

Consent to a particular activity may not be given because:

  • A person has capacity and does not want to give it;
  • A person lacks capacity and is therefore unable to give it;
  • A person feels coerced into activity because the other person is in a position of power, trust and authority (also known as PiPoT – People in Positions of Trust).

Non-contact sexual abuse includes: inappropriate looking, forced to look at pornographic material including magazines, videos or images on the internet, forced to take part in pornographic activity either through photography, mobile phone pictures or on the internet, indecent exposure, harassment, serious teasing or innuendo including through mobile phone texting.

Contact sexual abuse includes: touching of personal areas (breast, buttocks, inner thighs, genitals and mouth), masturbation of either or both persons.

Penetration or attempted penetration of vagina, anus, mouth with or by penis, fingers or objects.

4. Recognition

In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved. Power imbalances are very important and can occur through differences in size, age and development and where gender, sexuality, race and levels of sexual knowledge are used to exert such power. For example age may be a key indicator in relationships in that age often brings with it status and power and it is the misuse of this power that is abusive, rather than the age difference itself.

Also relevant is whether the person has a communication difficulty that could hinder their capacity to communicate easily that they have been abused.

There may also be an imbalance of power if the Adult at Risk’s sexual partner is in a position of trust or authority in relation to them (also called PiPoT – Person in a Position of Trust).

In order to determine whether the relationship presents a risk to the Adult at Risk, the following factors should be considered:

  • Whether the adult is competent to understand and consent to the sexual activity;
  • The nature of the relationship, particularly if there are age or power imbalances;
  • Whether there was overt aggression, coercion or bribery and whether alcohol or drugs were used to facilitate the activity;
  • Whether the adult’s own behaviour (for instance the use of drugs or alcohol) means they are unable to make an informed choice;
  • Any attempts to secure secrecy by the sexual partner beyond what is usual in relationships;
  • Whether the sexual partner is known to agencies to have concerning relationships with other Adults at Risk/vulnerable children;
  • Where the person denies or minimises the concerns of carers, family or friends;
  • Presence of sexually transmitted infection in the Adult at Risk;
  • Where the relationship involves behaviours considered to be ‘grooming’ in the context of sexual exploitation.

5. Response/Action

Adults at Risk have the same right to confidentiality as other adults however this right is not absolute. Where there are serious concerns about the health and safety of an Adult at Risk, staff and volunteers have a Duty of Care to report these concerns. Concerns of a sexual nature are no exception, and it is essential that information is shared in order to identify the issues and safeguard the individual, if necessary.

Where staff have concerns that an Adult at Risk is being sexually abused, the Police must be contacted immediately, consideration should also be given to a referral to the Sexual Assault Referral Centre (SARC). The Police will usually arrange this but professionals can also make a referral directly to this service in cases where the individual and or their advocate does not wish to pursue a criminal prosecution. It is the role of the Police to engage in any criminal investigation in relation to the alleged perpetrator.  Section 2: Safeguarding Procedures relating to Adults at Risk must also be instigated to begin the process of sharing of information and safeguarding the alleged victim. The priority for the Police is the identification and investigation of illegal sexual activity where the relationship is abusive, either by being intra-familial in nature, or where there is a significant age/power gap between the parties involved which may constitute lack of consent.

The priority of the safeguarding process is the safety and well-being of the alleged victim.

Where the sexual relationship is considered consensual and not abusive, health or social care workers should ensure that the Adult at Risk receives appropriate advice regarding sexual health and contraception.