A right to sex? (Part I)
Court of Protection
A judgment by Mr Justice Hayden in the Court of Protection about the lawfulness of arranging for a man in care (‘C’) to have contact with a sex worker* has attracted much criticism. We wanted to explain why we think the decision is correct and to comment on some of the issues arising from the judgment.
C suffers from Klinefelter Syndrome. He was diagnosed with autism spectrum disorder at the age of four and sometimes behaved aggressively and dangerously as a child. Between 2014 and 2017, C was detained in hospital because his mental health had deteriorated and he was making sexual threats. The threats were not acted upon and, following a range of different treatments, C became well enough to be discharged to a house, where he lives with two others and is assisted by carers.
C believes that he is unlikely to ever find a girlfriend and consequently has asked whether he could have contact with a sex worker. C has the mental capacity to decide to have sex and to decide to have contact with a sex worker.
Commenters have expressed understandable concern about whether it is safe for C to be alone in the company of a sex worker given his history of sexual threats. It is therefore important to stress that the court was not being asked to decide whether the contact should go ahead. That is a question for another occasion requiring, as the court said, a careful risk assessment of whether such contact is safe for all concerned and, ultimately, in C’s best interests.
Causing or inciting C to engage in sexual activity
The question the court was asked to decide was whether, by facilitating contact with a sex worker, C’s carers could be guilty of an offence under the Sexual Offences Act 2003. The evidence before the court showed that this was a concern, not only for the local authority in this case, but also for a number of professional deputies (professionals appointed by the Court of Protection to manage the affairs of people with limited mental capacity). That concern can only have been amplified by the short judgment of Keehan J in Lincolnshire CC v AB  EWCOP 43, in which he said unequivocally that carers in such a position would be guilty of the offence under section 39 of the Act. The offence carries a maximum sentence of 10 years’ imprisonment.
The court identified that the ‘mischief’ which section 39 is designed to address is the sexual exploitation of people with mental disorders, and there is no suggestion of that in C’s case. C has the capacity to make the decision and has articulated his wishes clearly and consistently for a period of some three years. To say that a care worker who assists him has “caused” or “incited” him to have sex strains the ordinary meaning of the words beyond breaking point. It would also be an interpretation that is inconsistent with authority and with the principle (admittedly somewhat attenuated in modern times) that criminal statutes should be construed narrowly.
The court’s reasoning on this point is, we suggest, and with due respect to Keehan J’s contrary view, unassailable.
Sex and human rights
The court’s reasoning on the human rights aspect of the case is more susceptible to criticism. Before going any further, it is important to say that Mr Justice Hayden’s views on this issue have been misrepresented and unfairly criticised in the past when, in connection with another case, he commented that “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife.” Through either ignorance or disingenuousness, politicians and media commentators interpreted this statement as endorsing the view that a man has the right to access his wife’s body regardless of her consent. This interpretation is belied by the context in which the comment was made. The case came about because a local authority was asking the court to declare that a woman of limited capacity was unable to consent to having sex with her husband of almost 30 years. The judge was properly concerned that this would be a very significant intrusion into the human rights of both husband and wife, specifically their right to a private life guaranteed by Article 8 of the European Convention on Human Rights.**
There can be little doubt that the right to have consensual sex with one’s chosen partner is one of the most fundamental human rights. That said, it is fair to point out, as some commenters have, that the judgment seems simply to assume that such a right extends to the right to buy sex.
It could be argued that provided the sex is genuinely consensual, the law should not be concerned with whether the consent is the result of attraction or the payment of money; that the law should not peer too closely into what goes on between consenting adults. There are, however, some powerful feminist counter-arguments. Some argue that sex is so personal and intimate that, as a matter of principle, it cannot be bought or sold. Others argue that sex work is so blighted by trafficking, exploitation and drug abuse that sex workers can never be said to be truly consenting.***
Most of the countries which have implemented the ‘Nordic Model’ of criminalising the purchase of sex are also signatories to the European Convention on Human Rights, so the court may in time be asked to decide whether the right does extend as far as Mr Justice Hayden believes (though this is an area in which the state is traditionally afforded a broad ‘margin of appreciation’, which is likely to be a stumbling block for any legal challenges).
Whether there is a human right to buy sex is undoubtedly an important and highly controversial question, but it made no difference in this case. The judge found that C’s Article 8 and 14 rights were engaged and hence that he would have been justified, had it been necessary to do so, in straining the language of section 39 to allow carers to escape criminal liability. However, it wasn’t necessary to do so – the judge had already concluded that section 39 would not criminalise C’s carers for the reasons set out above.
The impact on carers
Many people have expressed concern that carers may now be expected to facilitate contact with sex workers as part of their job.**** We consider that the belief that sex should not be bought or sold is a philosophical belief protected under section 10 of the Equality Act 2010 and an employer which requires all its staff to facilitate contact will be putting workers who hold that belief at a substantial disadvantage when compared with non-believers. Employers will need to be able to show that the legitimate aim of implementing those aspects of a care plan cannot be achieved by a less intrusive measure. Provided that the contact is relatively infrequent and there are enough care workers who do not object to facilitating it, we consider that insisting on the involvement of those who hold a principled objection is likely to amount to indirect discrimination under section 19. In short, we think those workers are likely to be protected. We recognise, however, that care workers are often poorly treated by employers and private law remedies are often an unsatisfactory substitute for regulation. It will therefore be important for Parliament to closely monitor the situation.
The bigger issue
In many ways, the controversy over this judgment is a phoney war. We suggest that the real issue will be whether, in due course, the request of C (and others like him) is approved as part of his care plan. It may be that the legal framework for making those decisions, centred as it is on the best interests of the person with limited capacity, is not capable of giving sufficient weight to the broader societal concerns that critics have raised. We tentatively suggest that it may be difficult for a court to refuse approval on those broader grounds, at least while it remains legal in the UK for a man who is not a protected party to pay for sex. It may be that the wishes of those who oppose this development cannot be realised without legislative intervention.
* We acknowledge, as did the judge, that some people find the term ‘sex worker’ objectionable. We use it here in the absence of a neutral alternative
** We recommend Barbara Rich’s blog for a fuller discussion of the case and the media furore it provoked.
**** Lolly Willowes’ blog sets out many of the practical concerns for carers.