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.
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.”