Sex, brain injury and a shortcoming in our legal system
September 29, 2020
I have this issue in a current case and it raises what, to my mind, is a shortcoming in our legal system. The client is a woman in her fifties with a severe brain injury. She has been assessed by an expert instructed by her local authority as having the capacity to consent to and engage in sex.
Her litigation friend puts it this way, she has lost so much by reason of her brain injury, she misses her previous life wherein she enjoyed her sex life, she misses the sense of being touched affectionately, she misses her femininity.
She has been assessed as understanding the mechanics of the sex act, what is required for safe sex, and that she would be paying for sex from a sex worker, she understands also that she has the right at anytime not to consent to the sexual act continuing.
Her litigation friend and her case manager hope that if she were permitted to proceed as she wishes, her confidence and self-image would all improve and her engagement in life which is low at the moment, would be encouraged and enhanced.
The problem arises because the client cannot organise the safe provision of the service herself, if she could then like every other person she would be free to do so. Where others have to assist then the problem is the Sexual Offences Act 2003 and sections 39,42 and 53A
“ a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence.”
In Lincolnshire County Council v AB 2019 EWCOP 43 the local authority applied to the Court of Protection for a declaration that they were entitled not to facilitate a man with a moderate learning disability’s wish to have sex with a sex worker, either in this country or abroad. Keehan J. granted the declaration as firstly not in the individual’s best interest on the facts of that case, but secondly on the basis that he had no power to grant a declaration contrary to the criminal law.
“ If a care worker who looked after P were to facilitate such activity, they would be committing a criminal offence and any declaration by me would not alleviate their liability to be prosecuted.”
Section 42(4) (a) defines care worker (A) in very wide terms to be someone “whether or not in the course of employment, the provider of care, assistance or services to B in connection with B’s mental disorder.” This subsection would therefore include gratuitous care providers such as family members.
Our advice has had to be that we cannot advise the issue be pursued further, which in our case may be to deprive the Claimant of the opportunity to have a meaningful experience and enhance the quality of her life which otherwise might have proved the catalyst for fuller engagement by the client in life opportunities generally. Sections 39 and 42 prevent us from realizing the potential of more fully returning the client to her pre-accident condition. Whilst the wish to have such a relationship is always risky in general, and the client’s vulnerability to exploitation by others to be guarded against, the chances of a positive outcome in this case leaves one regretting the advice that had to be given. Amendment to the Sexual Offences Act to allow access to a sex worker in the circumstances above is needed.
There are organisations that provide guidance to clients in this situation and readers may wish to research further what help can be provided for example by the TLC Trust, and the Outsiders Club.
I know from fellow practitioners’ experiences that some have contacted their local Police force and asked for advice, some helpful, some indicating they would have to prosecute. It should not depend on the discretion of the local Police force.
Whilst there is legislation to pray in aid – The Human Rights Act, The Equality Act, the European Convention, there is no decisive legislation to pray in aid of our cause as far as I am aware. The appetite to pursue the case via the courts on this point within the context of a personal injury claim is not surprisingly weak. Change must come via our politicians righting this wrong by amendment to the Sexual offences Act 2003.