Part 5Abuse of position of trust

Mentally disordered persons

46Sexual abuse of trust of a mentally disordered person

1

If a person (“A”)—

a

intentionally engages in a sexual activity with or directed towards a mentally disordered person (“B”), and

b

is a person mentioned in subsection (2),

then A commits an offence, to be known as sexual abuse of trust of a mentally disordered person.

2

Those persons are—

a

a person providing care services to B,

b

a person who—

i

is an individual employed in, or contracted to provide services in or to, or

ii

not being the Scottish Ministers, is a manager of,

a hospital, independent health care service or state hospital in which B is being given medical treatment.

3

References in this section to the provision of care services are references to anything done by way of such services—

a

by,

b

by an employee of, or

c

in the course of a service provided or supplied by,

a care service, whether by virtue of a contract of employment or any other contract or in such other circumstances as may be specified in an order made by the Scottish Ministers.

4

In this section—

  • “care service” has the meaning given by subsection (1)(a), (b), (e), (g), (h), (k) and (n) as read with subsections (2), (3), (6), (9), (10), (16) and (27) of section 2 of the Regulation of Care (Scotland) Act 2001 (asp 8),

  • “hospital” and “independent health care service” have the meanings given in section 44, and

  • “state hospital” means a hospital provided under section 102(1) of the National Health Service (Scotland) Act 1978 (c. 29).

47Sexual abuse of trust of a mentally disordered person: defences

1

It is a defence to a charge in proceedings under section 46 that A reasonably believed—

a

that B did not have a mental disorder, or

b

that A was not a person specified in section 46(2).

2

It is a defence to a charge in proceedings under section 46—

a

that B was A’s spouse or civil partner, or

b

in a case where A was—

i

a person specified in section 46(2)(a), that immediately before A began to provide care services to B, a sexual relationship existed between A and B,

ii

a person specified in section 46(2)(b), that immediately before B was admitted to the hospital (or other establishment) referred to in that provision or (where B has been admitted to that establishment more than once) was last admitted to it, such a relationship existed.