Facilitating sex with a sex worker on behalf of a protected party – Part 2

May 26, 2021

Gerard Martin QC

You may recall that I recently expressed my views on this issue in a previous article (see here) and indicated a decision was imminent on the topic.

By a judgment dated 26th April 2021 in a case called A local Authority v C and others 2021 EWCOP 25, Hayden J decided that those who facilitate sex with a sex worker on behalf of a protected party do not run the risk of criminal prosecution under the Sexual Offences Act 2003 section 39 thereof. Section 39 states an offence is committed if a person A intentionally causes or incites another person B to engage in sexual activity where B has a mental disorder which A knows, and A is involved in B’s care within the terms of s42. A person is involved in another’s care if by s42 (4) if he provides care in connection with B’s mental disorder and has regular face to face contact with B. Section 42(4) would therefore catch most care workers.

The application was brought by A local authority who by the instant application queried the lawfulness of a social worker arranging on behalf of C contact with a sex worker.

It was agreed that C lacked capacity with regard to litigation, management of affairs, health and welfare, where to live, and use of the internet and social media. However, it was agreed that C had capacity to engage in sexual relations and to decide to have contact with a sex worker.

The Ministry of Justice were 3rd Respondents to the application and opposed the lawfulness of the proposed activity.

C’s litigation friend sought and was granted leave to file a statement from the Director of the Professional Deputies Forum which organisation represents approx. 50% of all property and affairs solicitor appointed deputyships, an estimated 4500 matters in total. The views of that membership of deputies were canvassed. They are summarised at para 11 of the judgment. The result of the consultation of the deputies emphasised “that such services have proved beneficial for clients and their support teams, particularly where difficult behaviour has been previously exhibited.”

The consultation highlighted that the request was often made by men in their twenties. It must be the case that the wish to have sex is not confined to the male gender or that age group. The case in which I am involved involves a request by a brain injured woman in her fifties who wishes to re-engage in an intimate relationship, as she did before the injury, and accessing a sex worker is the only practical way this can now be achieved.

At para38 the judge stated “The central question is whether the carer is “intentionally causing” or “inciting” C to engage in the activity.”

The judge held at para 44 that the scheme of the legislation was substantially directed towards the protection of those who are sexually vulnerable in relationships which may easily become exploitative and in which inequality may corrode meaningful consent He held that the clear intention of Parliament is revealed when the statute is considered in its entirety and the wording given its literal meaning. At para 52 the judge approached the issue of causation as an issue of fact in which the words cause and incite are given their common-sense construction.

At para 90 the judge held the Act strikes a balance between protecting those with mental disorders whilst enabling independent choices, in this most important sphere of human interaction.

At para 92 he observed that “Here however, the wish to experience sex is articulated clearly and consistently by C himself….C has repeated his wishes to his carers consistently and cogently over the course of the last three years.”

He held at para 93 that s39 is intended to signal unambiguous disapprobation of people in caring roles who cause or incite sexual activity of this nature by a person in their care and criminalises what would be a serious breach of trust. The words of the statute are intended to criminalise those in a position of trust whose “actions are calculated to repress the autonomy of those with a mental disorder. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression. The language of the Act is not apt to criminalise carers motivated to facilitate such expression.”

The 3rd Respondent’s position had been to submit that the words of the section were wide enough to criminalise the contemplated actions of the carers, and that to hold otherwise was to go beyond the intention of the legislature. The judge held at para 94 as follows:

“the proposals here contemplated strike me as being far removed from the identified mischief of the relevant provisions, to interpret them as encompassing the proposed actions of the care workers, requires both a distortion of the plain language of the statute and a subversion of the consistently reiterated objectives of the SOA itself. Indeed, given that the act embraced an evolved understanding of the rights of people with learning disabilities and mental disorder, the more restrictive interpretation … would run entirely counter to its central philosophy. … There is a logical paradox in the reasoning of the Secretary of State. He wishes to discourage prostitution, which many would think to be a laudable objective. Parliament, however, has recognised the futility of seeking to criminalise prostitution and, accordingly it remains legal. Thus, the Secretary of State finds himself in the invidious position of trying to discourage, by guidelines and policy, that which the law allows.”

The judge’s decision is to be commended in my view, it protects the dignity and autonomy of the client in his right to a private life and to engage in sexual activity. The care worker in this situation does not cause or incite the activity.

The 3rd Respondent has been granted permission to appeal.

My hope is that the decision above is upheld. If not, then case managers, support workers, deputies and lawyers who seek to help a client in these circumstances achieve their right to a private life, are all at risk of prosecution!