Care staff helping disabled people access sex work services not breaking law, rules court

Ruling finds care plan facilitating man's access to sex worker would not breach law criminalising staff who incite people they support to engage in sex, but government appeals, saying decision encourages prostitution

The Royal Courts of Justice
The Royal Courts of Justice (Photo: Gary Brigden)

Care workers who help disabled people access sexual services are not breaking the law, the Court of Protection has ruled.

In a judgment last month, court vice-president Mr Justice Hayden said that a care plan to facilitate a man’s contact with a sex worker would not be contrary to section 39 of the Sexual Offences Act 2003. This makes it an offence for a care worker to intentionally cause or incite a person they are supporting to engage in a sexual activity.

A subsequent hearing will determine whether the plan would be in the best interests of the man, C, who has Klinefelter syndrome, a genetic disorder that causes developmental delay, requires significant help with independent living and is deprived of his liberty in a supported living setting.

However, the government, which intervened in the case, has been granted a right of appeal, which it lodged on the grounds that it disagreed with the judge’s interpretation of section 39 and that the ruling would encourage prostitution.

Desire to have sex

In 2018, C told his Care Act advocate that he wanted to have a girlfriend but saw his prospects of finding one to very limited. He asked whether he could have contact with a sex worker. When his social worker was informed, the local authority triggered proceedings to determine whether a care plan to facilitate such contact would be lawful.

The judgment found there was “clear and cogent evidence” that C had capacity to engage in sexual relations and to decide to have contact with a care worker, but not to make the practical arrangements to identify a suitable and safe sex worker or to negotiate the financial transaction. What was proposed was for C’s carers to help him make these arrangements.

Legal analysis

For a full legal analysis, see Community Care Inform Adults’ case summary, provided by legal editor Tim Spencer-Lane and available to all subscribers.

Counsel for C and for the local authority argued that this assistance fell outside the scope of section 39, but this was disputed by the government’s counsel, who said it would “amount to an amendment to the law”.

Mr Justice Hayden said a core purpose of the Sexual Offences Act 2003 was to protect “those who are sexually vulnerable in relationships which may easily become exploitative and in which inequality may corrode meaningful consent”. It was not designed to prevent people with learning disabilities or mental disorders from having sex.

While section 39 criminalised care workers who incited or caused sexual activity, in this case “the wish to experience sex is articulated clearly and consistently by C himself”.

‘Protecting vulnerable adults from others, not themselves’

The judge added: “Section 39 is structured to protect vulnerable adults from others, not from themselves. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression.

“The language of the section is not apt to criminalise carers motivated to facilitate such expression. In my judgement, the expanded interpretation of this provision, contended for on behalf of the Secretary of State, requires the language of the section to be distorted and the philosophy of the act to be disregarded.”

The government’s counsel argued that the state should not, through the social care system, facilitate, encourage or promote prostitution, in a context in which it was not a choice for many or most sex workers.

However, Mr Justice Hayden found that this was “logically unsustainable” because prostitution was legal, adding: “The Secretary of State may not obstruct those who wish to participate in lawful transactions nor, logically those who wish to help them be they carers or otherwise.”

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28 Responses to Care staff helping disabled people access sex work services not breaking law, rules court

  1. liz May 7, 2021 at 1:02 pm #

    Sex work?, that is not a language fitting for commodifying bodies, mainly women’s bodies.What about the vulnerable women involved here? has the judge thought about that?
    And, nobody has the right to sex, surely?
    We should be focusing on the abuse of prostituted women here.

    • Lianne May 7, 2021 at 5:45 pm #

      Agree. Personally I would find it completely incompatible with my role to support this. I think anyone working in a social care role has a duty of care that extends beyond the one person they may be directly working with. Allowing or even promoting potential harm to another person isn’t acceptable

    • Pebbles May 7, 2021 at 8:24 pm #

      Absolutely agree with you liz, tge judge has written a blank cheque to tge objectification of women. I’m disgusted at the minds of these people. Women are jit sec objects !! Thus just end orvit will lead to the attack of more innocent women and workers. As some people in care do not have control of their actions.

    • NEO May 20, 2021 at 12:50 am #

      The judge was not asked to rule on the legality of prostitution, nor to consider ways in which sex-workers (men or women) might be protected from exploitation or abuse. The judge simply found that the actions proposed by C were not prohibited by the specific act cited.
      Nothing in this ruling encourages, allows or promotes harm to another person; in fact the judge did nothing other than clarify what the law already says, whilst highlighting that the act mentioned is as much use in preventing C from paying for sex as the Town and Country Planning Act 1990.

      • Craig May 20, 2021 at 1:35 pm #

        Nice try Neo. Firstly, at this stage this is an interpretation not a judgement. I’ll wager it will be overturned on appeal. Also the no harm view you hold is a bit off given the operating dynamics. Your end and the sex workers end of the transaction isn’t neatly symmetrical is it?

  2. Russ May 7, 2021 at 3:43 pm #

    No this is case was brought to the Court of Protection about how the law is applied to care workers when supporting service users to meet their sexual needs. It might seem clinical and uncaring about sex worker but that’s not what the decision is about.

    It is called sex work if a consenting adult is selling sexual services for money and for some it is a job. Sex work is not illegal in the UK although many activities such as keeping a brothel and soliciting are criminal acts. Patriarchy has an impact on women in terms of their ability to sustain employment due to balancing caring responsibilities so they often earn less than men. So there may be sociological factors influencing their decision to go into sex work but this is ultimately the capitalist mantra of supply and demand and Capitalism is based on who control the means of production.

    You can argue that that is patriarchy is at play regulating the sexuality of women and criminalising them for being autonomous in selling sexual services, yet they won’t regulate it and make it safer for women by giving sex workers rights.

    Your statement assumes that all women who sell sex are being abused or being exploited by men (pimps) when that isn’t the case. Everything is turned into a commodity nowadays and many women feel they are empowering themselves by having control over their bodies. Many years ago I knew a woman who chose to be a sex worker working for herself and this paid for her son to go to private school. She had clients with disabilities whose lives were affected in a very positive way as they felt their basic human needs were being fulfilled. And if this was with another consenting adult – then what is the harm?

    Websites like Only Fans which are not specifically for adult content but people are selling explicit video footage of themselves sometimes earning up millions of pounds in a couple of days. Like it or not sex is used to sell everything.

    In the Netherlands they have sex therapists who are academically trained therapists may actually have sex with a client in order to help them resolve problems affecting their sex lives. Prostitution has always existed so in my opinion sex in social care needs to be destigmatised and acknowledged in order to deal with it effectively. The number of safeguarding referrals I’ve seen from residential homes where young men have been reported as as a risk for being aroused when they have no sexual outlet suggests social care is woefully ill equipped to respond to this in a mature and sensitive way. I think your statement reveals more about your attitudes toward sex and the expectations of how women should behave. I agree that forced prostitution and exploitation is not acceptable and a huge problem but that is not the focus of this decison.

    • Sarah Akram May 13, 2021 at 11:09 pm #

      I completely agree with what you are saying. It is the culture and attitudes of society which needs to change. People need/ require sexual release and some level of sexual intercourse. Sex working is not illegal but is frowned upon.

      Why should people who have physical, learning or
      Mental health issues be excluded from this. Why not think about educating people? Teach people about safe sex & positive relationships.
      Reduce the risk of vulnerable people being sexually and financially exploited…or as the term is used “cuckooed”

      • Larry May 16, 2021 at 5:36 pm #

        Do your job then and get the isolated people you work with into a safe space to meet each other and form relationships on their own terms. Why are you so content with people having intimacy only if they can afford to pay for it? Change the complacency and laziness of social workers I say rather than the “attitudes” objecting to the exploitation of sex workers.

  3. Lorraine May 10, 2021 at 8:15 am #

    I agree with Russ. We need to move away from seeing all sex workers male or female as victims. Some are. Some are not. We also need to move away from the perception that adults with disabilities do not have capacity to consent to a very important part of their lives, to feel intimate or have sex with another consenting adult. I think the argument Russ said covers a lot of ground and is a very fair and balanced view of quite a sensitive situation.

  4. Adrian May 10, 2021 at 11:14 am #

    If Lorraine and Russ reply that it would be OK for their son or daughter or relative to become a sex worker, I will revise my opinion that this is the kind of judgement made by comfortable middle class professionals. Rather than sub-letting your responsibility to others why don’t you look at the kind of care and services you offer people you work with. Put in the hard graft to enable people to meet each other so they can form their own relationships on their own intimate terms. Easier to intellectualise responsibility onto other men and women who on your admission may already be exploited though isn’t it. I wonder what your response to a colleague or family member would be if they told you they “visit sex workers”? Why are you so content to pass on the responsibility on how you might enable intimacy and sex to others?

  5. John May 10, 2021 at 11:30 am #

    Well Russ let’s re-frame it this way. How do you ‘feel’ about care workers supporting service users to buy street drugs? Or is it about who is harmed the most in commodified transactions and you are content for prostitutes to take all the risks? Sex for funding private education? You should suggest the ‘sex work’ option to DWP. With benefit sanctions applied if prostitution is not taken up as an employment opportunity obviously.

    • Helen May 11, 2021 at 5:38 am #

      Buying street drugs is illegal. Having consensual sex is not. There is a difference.

      • Anthea May 11, 2021 at 8:44 am #

        Actually possession of cannabis for personal use is not illegal

        • Linda May 11, 2021 at 8:51 am #

          Defining sex in exchange for money consensual when there would be no sex if it wasn’t paid for consensual is a bit of a stretch.

  6. Arthur May 10, 2021 at 1:29 pm #

    Consent which is dependent on money. I thought consent is given not bought.

  7. Carlton May 10, 2021 at 5:21 pm #

    Russ, take a moment to reflect on how offensive it is to tell women you probably don’t know that their comments “reveal” their “attitude towards sex” and “expectations of how women should behave.” They can debate you more effectively than I can but allow me the indulgence to enlighten you that Pretty Woman is not a documentary.

  8. John Nutton May 10, 2021 at 10:24 pm #

    I think if you are paid to facilitate care then that is what you must do. Whether the activities of the S/U are acceptable to you is irrelevant. If you are using a person centred approach to care then that person has the right to be helped to meet all his/her needs.
    I agree the exploitation of Female or male sex workers is not ideal. I as an able bodied person am able, if I choose, to use the services of an escort discreetly so it would be hypocritical of me to deny any man or woman who I care for the same choice. That is what care should be about choice so if what my S/U wants is within the realms of the law I will do my best to sort it. You cannot cherry pick someone elses wants to meet your own moral code. It is not about you its about them

  9. Neil May 11, 2021 at 8:42 am #

    But it is about you. It’s about you doing your job to support the people you work with to have real choices. It’s about you doing the hard bit of getting people to meet people so they can form the kind of relationships that fulfill all aspects of their lives. A person centered approach means you do the work not sub-let it to others. Exploitation not ideal? Perfect encapsulation of the passing the buck morality that expects others to put themselves in potential harms way while appearing oh so shiny and liberal. How interesting that those who commodity feelings and desire on to sex workers are men. As an able bodied person you can join a fascist party and spit racist and anti-semitic bile. Would you sort out membership to Britain First too if asked? Do your jobs as social workers, find ways for people you work with to meet each other and develop personal relationships. If exploitation is merely not ideal then go the whole hog. More money in prostitution apparently.

  10. Cat May 11, 2021 at 3:48 pm #

    Sexworkers strongly reject the views expressed by commenters like Liz, Lianne, Pebbles, John and Linda. In the UK, we are criminalised if we work together, which creates greater risk of violence and give us realsons to fear the police.We are denied civil and labour rights which makes us more vulnerable to exploitation.

    We campaign for laws that protect us and promote respect for our consent to sex – ie full and complete decriminalisation, as practised in New Zealand. (Not the “Nordic model”, sometimes misleadingly presented as decriminalisation of people who sell sex but actually treats our consent to sex as unworthy of respect in law.)

    See organisations like the specialist anti-violence project, Ugly Mugs
    and the global network of sex worker led organisations from over two hundred countries
    to find out more.

    In the UK TLC lists sex workers who welcome clients with visible and invisible disabilities.

  11. Anita May 11, 2021 at 10:01 pm #

    Except that your take Cat is not the view of all sex workers is it? And tafficked women and men aren’t choosing what they are forced into are they? Decriminalisation in New Zealand hasn’t led to de-stigmatisation of prostitution and worse explotation of sex workers by brothel owners is rife with many not empowered to report abuse to police. New Zealand street sex workers still experience violence. Sex workers working for themselves still face prejudice. Women/Men awaiting citizenship face deportation if they engage in sex work, including in clubs. I know this because I was a social worker in New Zealand until 3 years ago.

  12. Anita May 15, 2021 at 11:28 am #

    I appreciate this is not what the article is about but I have to respond to Cat. Prostitution is not the oldest profession, it’s the oldest oppression. Prostitution is the creation of men. Prostitution is not a job like any other work even if prostitution appears on the New Zealand immigration register of “employment skills.” The consequence of that is not the protection for New Zealand citizen prostitutes but on the lives of Asian and other women who are bondaged and trafficked into prostitution by the justification that they are entering into legitimate employment. For every licenced brothel in New Zealand law enforcement officers estimate there are 4 operating illegally with much younger and often trafficked women forced to work in them. Violence against and murder of prostitutes is a fact. The cases sited here are the proof that it’s other legislation that protect women not decriminalisation. If you legalise the buying of sex as just another transaction it cannot be a surprise that the buyer feels entitled to their wants rather than accept the wishes of the seller and turn violent if ‘denied’. If prostitution is just another regular job, if prostitutes are employees or self-employed entrepreneurs than any discussion about or help with exiting prostitution becomes absurd. If a job is a job is a job, than all we can discuss is career pathways and job satisfaction rather than sexual exploitation. The reality is that prostitutes are still killed and abused by punters and pimps in New Zealand, in the Netherlands and the federal German states that have decriminalised prostitution. Legitimising the buying of sex and using the body of a male or female prostitute as a market place for the “clients desire” is exploitation and extortion facilitated the State for its own economic interests. The point is rather well made in the reference to DWP above. I agree with those feminists who argue that if prostitution is “sex work” than rape is ‘merely theft’. Not sure which bit of social work ethics monetises rape John Nutton and Russ, do you?

  13. Gerry May 16, 2021 at 8:38 pm #

    How predicable that some social workers should endorse this judgement. Far easier to intellectualise cash for sex than actually do a bit of graft to enable people to develop relationships on personal and emotional terms. Why bother with all that when you can hide behind a judgement and get others to procure sex for money. Liberal credentials paraded presumably you are not bothered about how people can satisfy their needs if they are unable to pay for sex. Contemporary social worker in a microcosm isn’t it really. All the appearance of championing rights but none of the ownership of the consequences.

  14. Guido May 17, 2021 at 1:38 pm #

    We have many clients who don’t have money to buy things. It’s a fact of life. If clients don’t have the means to pay for sex
    why is that our concern? If some clients can pay for sex, great for them. I know social workers are indoctrinated with Marxist codswallop but you can’t wish away that we are a capitalist society. Money isn’t going away. Either make lots of money to buy what you want or live with your limited choices if you don’t have it. Why should we shield clients from that reality? I am a Libertarian, I leave it up to people themselves to find the means to live the life they want. Social workers need to wean themselves off from Nanny State control. Like drugs, prostitution should be decriminalised. If I could do it legally, I would have no dillemas about getting drugs for clients nor putting them in touch with a sex worker. Actually, clients understand why they can’t have everything they want on tax funded benefits. Social workers should too. Stop pretending you can do anything more to ‘maximise income’. Stop patronising people. Let them live the best life they can with the money they have. Have your “conscience” discussions when you whinge to each other. Some people have more money than others, some social workers earn more than other social workers. Everybody has choices. That’s it.

  15. Meg May 18, 2021 at 2:08 pm #

    A Libertarian who works in one of the more authoritarian branches of the State that rejects free will and individual agency. Hope you haven’t told your Libertarian chums you are a social worker Guido, they might be a bit cross you take the tax funded big State 💸. Should have paid more attention in Sociology class.

  16. Keith May 20, 2021 at 2:06 pm #

    The decision is about enabling procurement by one person of another person for sex NEO. It doesn’t have to mention prostitution to be about prostitution when the outcome is about prostitution. If I told you I love eating fruit while holding an orange, I don’t need to explain orange is fruit.

  17. StandMyGround May 23, 2021 at 10:39 am #

    This is such a disrespectful article. I have a learning disability, and I have a fiance. Not all of us lack the mental capacity to decide who we should have set with, but the very fact that prostitutes are being hired out to have set with people who have disabilities is one of the most degrading things I have heard. Just what the hell is going on in this world anymore? Even if I DID lack mental capacity, I’m pretty certain that I wouldn’t want some random stranger touching my body. What happened to respecting boundaries? I sure hope that this kind of thing doesn’t start happening to cancer patients aswell. There is having empathy, and then there’s taking the complete mick. I’d rather jump off a cliff.