Commentary on Sections Part 1: Sexual Offences Section 44: Sections 38 to 41: sexual relationships which pre-date care relationships
71.This section provides A with a defence to the offences under sections 38 to 41 if he proves that his sexual relationship with B pre-dated his relationship of care with B. But the sexual relationship must have been lawful for this defence to apply. So if A and B had a lawful sexual relationship before B developed his mental disorder and A started caring for him, A would not commit an offence by continuing that sexual relationship.