Decision means carers who help people with disabilities to visit sex workers will not be committing a criminal offence
Council care workers can help disabled people meet prostitutes without breaking the law, a judge has confirmed in a landmark ruling.
A judge in the Court of Protection – a specialist court which considers issues relating to people who are deemed to lack capacity to make certain decisions – ruled that carers who facilitate adults with learning disabilities to visit sex workers will not be committing a criminal offence.
Under the Sexual Offences Act 2003, a care worker who “intentionally causes or incites” someone in their care with a “mental disorder” to engage in sexual activity can be jailed for a maximum of 10 years.
However, in a ruling published on Thursday, Mr Justice Hayden said the Act is “structured to protect vulnerable adults from others, not from themselves”.
He said that “those with mental health disorders have, in the past, effectively been prevented, by the law, from engaging in sexual relations…[but it is] no longer the objective of the law to prevent people with mental disorders from having sexual relationships”.
Rather it is to criminalise the exploitation and abuse of such adults by those with whom they are in a relationship of trust,” he added.
In a separate judgment, also published on Thursday, Mr Justice Hayden granted the Secretary of State permission to appeal against his ruling at the Court of Appeal.
The judge was asked to rule on whether carers for a 27-year-old man with autism, known only as C – who had been diagnosed with autism spectrum disorder and also had Klinefelter syndrome, a genetic disorder which results in men having an additional X chromosome – would be breaking the law if they helped him visit a sex worker.
who lives with carers in supported accommodation, thought his prospects of finding a girlfriend were very limited and wanted to be able to have sex with a sex worker, the court was told.
The man was assessed as lacking capacity to decide where to live, what care and treatment to receive and decide his financially affairs, but does have capacity to engage in sexual relations and decide to visit a sex worker.
The local authority, which has responsibility for C’s care, asked the Court of Protection to decide “whether a care plan to facilitate C’s contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003”.
Mr Justice Hayden, a High Court judge who is also vice president of the Court of Protection, said in his ruling that the Sexual Offences Act “criminalises care workers who are found to be ‘causing or inciting sexual activity”‘.
The judge said the purpose of the Act is to prevent the “exploitation of vulnerable” and to “criminalise a serious breach of trust”.
But, Mr Justice Hayden said, in C’s case “the wish to experience sex is articulated clearly and consistently by C himself”.
C has made “the utilitarian calculation that if he is to experience sex, which he strongly wishes to do, he will have to pay for it”, a desire he has consistently expressed to his carers over the last three years, the judge added.
Mr Justice Hayden said there is “clear and cogent evidence that he (C) has the capacity to engage in sexual relations and to decide to have contact with a sex worker”.
Lawyers representing Justice Secretary Robert Buckland argued that interpreting the Sexual Offences Act as having “rendered lawful a carer’s assistance to C in securing the services of a sex worker” would be wrong.
But Mr Justice Hayden said that “the position of the Secretary of State on this point (is) logically unsustainable”.
The judge said there is “a logical paradox in the reasoning of the Secretary of State”, adding: “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, in this instance, finds himself in the invidious position of trying to discourage, by guidelines and policy, that which the law allows.”
Mr Justice Hayden concluded: “This application does not raise any issues about the legality of, or social attitudes towards, sex work or, as it is termed in the criminal law, prostitution.
“Whilst some activities surrounding prostitution are criminalised, the act itself is not.
“At this hearing and in this judgment, I am not considering any plan for C to visit a sex worker.
“That decision will be for another day when a comprehensive risk assessment has been undertaken and a care plan devised which will illuminate whether and, if so, how such a visit may be arranged.”