Section 285/2: Aggravated penalty where the victim cannot protect themselves

Firm annotation

Section 285/2 is an aggravating provision: it adds one third to the punishment prescribed by the section under which the offender is convicted, and creates no offence and no penalty of its own. It applies to Section 276, Section 277, Section 277 bis, Section 277 ter, Section 278 and Section 279, and it is engaged where the offence was committed against a person unable to protect himself or herself by reason of disability, mental defect, mental illness or unsoundness of mind, sickness, old age, pregnancy, or being in a state in which he or she cannot distinguish right from wrong. Those conditions are the reason for the inability, so the question is whether the condition deprived the person of the ability to protect themselves in the circumstances, not whether the condition exists in the abstract. The section sits alongside two other one-third uplifts on the same group of offences: Section 285, based on the offender's relationship to or power over the victim, and Section 280/1, based on the offender recording the act in order to obtain an unlawful benefit. Section 285/2 also has a procedural effect that is easy to overlook. Section 281(2) excludes an offence under Section 278 from compounding where it was committed against a person described in Section 285 or Section 285/2, so a case that could otherwise have been settled cannot be.