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Social Welfare Update: Making arrangements for paid for sexual services for a person who lacked capacity to make those arrangements was not an offence under s 39 Sexual Offences Act 2003

Friday 30 April 2021

Blog post by Bethan Harris of the Garden Court Chambers Court of Protection Team.

A Local Authority -and- C (by his litigation friend, AB), A Clinical Commissioning Group and Secretary of State for Justice [2021] EWCOP 25, Hayden J, 26 April 2021

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Facts

AB, aged 27, who has Klinefelter syndrome and autistic spectrum disorder, raised with his Care Act advocate whether he could contact a sex worker, as he wanted to have sex, and thought he would be unlikely to find a girlfriend.

AB had capacity to engage in sexual relations and to decide to have contact with a sex worker. He lacked capacity to make the practical arrangements involved in identifying a suitably safe sex worker and negotiating the financial transaction.

Under s 39 Sexual Offences Act 2003 a person (A) commits and offence if he “intentionally causes or incites another person” to engage in a sexual activity if that person has a mental disorder and A is involved in the person’s care in one of the ways set out in s 42 of the Act. 

The court received evidence of a consultation by the Professional Deputies Forum, which found that sex services were requested by some clients and arranged for them, but deputies had concerns about liabilities of carers under the Sexual Offences Act 2003. The court also considered evidence from a charity which vets sex workers and provides support for people with disabilities to access their services.

The question was whether making the arrangements was prohibited by s 39(a) SOA 2003 – whether this amounted to intentionally causing or inciting another person to engage in sexual activity.

It was argued on behalf of C and the local authority that assistance with making practical arrangements to contact, visit and pay a sex worker fell outside s 39 SOA 2003. The Secretary of State argued that making such arrangements was prohibited by s 39 SOA 2003.

The Secretary of State also argued that the State through its care services should not facilitate or encourage prostitution, referring to the Code for Crown Prosecutors, stating the public interest aims that “Those who sell sex should not be routinely prosecuted as offenders” but “the emphasis should be to encourage them to… find routes out of prostitution”. 
 

The Judgment

Hayden J held that s 39 SOA 2003, on its natural and obvious meaning, did not apply to the making of the arrangements contemplated. He held that the objective of the law is not to prevent people with mental disorders from having sexual relationships but to criminalize the exploitation and abuse of such adults by those with whom they are in a relationship of trust.  (paragraph 42)

The judge held that on its correct construction therefore, s 39 SOA 2003 does not compromise Article 8 rights but that had he construed it as doing so he would have had little difficulty in interpreting it in a Convention compliant way. (paragraph 85)

As for the argument that the State should not encourage prostitution, this was extrapolating a moral obligation to actively discourage prostitution in all circumstances, which failed to recognize the autonomy of those involved.  (paragraph 72)
 

Comment

  • Central to the judgment is the recognition that, although SOA 2003 criminalizes some matters relating to prostitution, it is not unlawful for one adult to pay another for sex. On that background it must be correct that the “mischief” at which s 39 is aimed is where there is an element of abuse, and a wider interpretation would be, as the judge found, unjustifiable discrimination against persons with a mental disorder.   
  • The judgment contains an extremely useful insight into the way property and financial affairs deputies are responding to the wishes of clients for payments to be made for sex services. The consultation by the Professional Deputies Forum showed that such services requested by some clients proved beneficial to them.
  • Further useful insight is provided by the information about the “The Outsiders Trust” incorporating “TLC”, a charity for people with disabilities which focuses on education and support for the provision of sexual and intimate services, one of a number of disability rights charities which will provide advice and some support in relation to access to services of paid sex workers. TLC vets sex workers who apply to advertise on its website and sets out rules for the providers of the services and those who access their services (such as giving information and respectful conduct). Its chair, Professor De Than, gave evidence that she had also worked with local authorities, agencies and organizations to develop care plans and risk assessments for individuals being supported in their sexual expression.
  • The judge emphasized (in the context of considering aspects of the Act concerning children) the important principle that it is a fundamental error to conflate the circumstances of vulnerable adults with children.
  • This case does not directly address the situation where a person does not have capacity to decide whether or not to have contact with a sex worker (as opposed to the situation here where C was able to make that decision for himself - the best interests decisions were the steps to be taken to support him in relation to implementing it).
  • The decision-making on behalf of C as regards planning to visit a sex worker was not considered in this judgment.

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