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Judge makes it legal for carers to help disabled people engage with sex workers

a sex worker walking down the street
a sex worker walking down the street Image credit:

A judge has ruled carers will not be prosecuted if they assist with finding a disabled person meeting with a prostitute.

Up until now anybody who helps a person in their care living with a “mental disorder” fill their sexual desires with another individual could face prison for up to 10 years under the Sexual Offences Act 2003.

This week a judge in the Court of Protection, which considers cases on behalf of people who are unable to make decisions on their own behalf because of their lack of capacity, stated carers are now permitted to help individuals with learning disabilities engage with sex workers.

Although the Act is "structured to protect vulnerable adults from others, not from themselves".

On Thursday Mr Justice Hayden 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.”

In a separate judgement Hayden granted the Secretary of State to appeal against his ruling at the Court of Appeal.

The judge was asked if carers looking after a 27-year-old man with autism and Klinefelter syndrome would be prosecuted if they helped him find a sex worker.

The man, known as C, lives in supported accommodation, his carers believe his disability makes it difficult for him to start an intimate relationship. He has the intelligent ability to decide where to live and manage his own financial affairs and the capacity to make his own choice to whether he would like to engage with a sex worker.

His local authority 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".

Hayden said in the case of C "the wish to experience sex is articulated clearly and consistently by C himself".

The judge stated 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"

He added 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".

But lawyers representing Justice Secretary Robert Buckland challenged the decision saying interpreting the Sexual Offences Act as having "rendered lawful a carer's assistance to C in securing the services of a sex worker" would not be right.

Justice Hayden said that "the position of the Secretary of State on this point (is) logically unsustainable".

He 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."

Hayden added: "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."

There are around 72,800 sex workers in the UK, 88 per cent are women.