Opinions are split on a ruling that allows carers to find prostitutes for vulnerable people.
A judge’s recent ruling that it is lawful for the carers of a 27-year-old man with learning disabilities to facilitate sex between him and a prostitute has aroused controversy.
While some lawyers praised Mr Justice Hayden’s judgment, others slammed it as a “patriarchal and sexist” affront that puts a man’s right to have sex above a woman’s right to dignity and freedom from exploitation.
The laws in England and Wales on prostitution are an unsatisfactory compromise that reflect the divergent views on what is often dubbed the oldest profession in the world. While prostitution is legal, many of the activities surrounding it are not.
The case of this man, known only as C, concerned the interpretation of the Sexual Offences Act 2003. Section 39 of the act makes it an offence, punishable by up to ten years in prison, for a care worker who “intentionally causes or incites” someone in their care with a “mental disorder” to engage in sexual activity.
C has been diagnosed with autism and a genetic disorder that causes developmental delay and social communication difficulties. He expressed a desire to have sex, but felt he would never be able to find a girlfriend, and asked his carers if they could arrange for him to pay for it.
The judge found that C has capacity to engage in sexual relations and understands the importance of consent, before and during sexual contact, appreciates the link between sex and pregnancy, and recognises the possibility of sexually transmitted disease.
But the ruling also found that C lacks the capacity to make the practical arrangements involved in identifying a suitable and safe sex worker and cannot negotiate the financial transaction.
The judge said that in the past, the law had effectively prevented those with mental health disorders from engaging in sexual relations. Yet in the landmark ruling, he said the law is intended to protect vulnerable adults and prevent sexual exploitation of them by others, “not to repress autonomous sexual expression”.
Lawyers argue that the decision will have far-reaching consequences for others who want to have sex but are unable to deal with the practical and financial arrangements, including the elderly, terminally ill and those with head injuries or other conditions.
Elizabeth Young, a partner at Roythornes, agrees with the “refreshing” and “carefully considered” judgment.
In certain situations, she says, it is “beneficial and right” to assist those who cannot help themselves to access experiences that are taken for granted by others. “If the activity itself is legal, then providing support to enable those individuals to access it cannot then be illegal,” Young says.
Jemma Garside, a solicitor at Kingsley Napley, says the Court of Protection “will need to consider each case on its own merits to determine whether it is in a person’s best interests to include contact with a sex worker in their care plan”.
In instances where care workers do not agree with the concept of buying or selling sex, Garside says their beliefs are likely to be protected under the Equality Act 2010, and forcing them to implement such a care plan could amount to indirect discrimination.
Lawyers for the justice secretary, Robert Buckland QC, were given permission to appeal the ruling. They had argued that allowing carers to help to facilitate paid-for sex undermines attempts to discourage prostitution.
However, Hayden said that the government’s position was “logically unsustainable”. While parliament “has recognised the futility of seeking to criminalise prostitution”, he said the secretary of state “finds himself in the invidious position of trying to discourage, by guidelines and policy, that which the law allows”.
Others criticised the ruling as an affront to women’s rights that pays insufficient heed to the exploitative nature of prostitution. Charlotte Proudman, a barrister at Goldsmith Chambers and a women’s rights campaigner, says the judgment “uses the law to legitimise a man’s right to pay to sexually abuse and exploit women”. Branding the judgment “patriarchal and sexist”, she says it has “set women and the law back by decades” by embedding women as subordinate to men.
While the judgment recognises that most women in prostitution are exploited, Harriet Wistrich, a solicitor and co-founder of the Centre for Women’s Justice, says it “seems to presume a right to sex” and does not have sufficient regard to the strongly divided opinions in parliament and the wider society as to whether paying for sex should be deterred, if not criminalised.
Proudman advocates the Nordic model of sex work, which criminalises the buyers, decriminalises prostitutes and supports them in efforts to leave the work.
However, Niki Adams, a spokeswoman for the English Collective of Prostitutes, which promotes decriminalisation, argues that the Nordic model would be a disaster for sex workers. In Ireland, she says, it has resulted in an increase in violence against sex workers. Figures from the collective estimate that there are 72,800 sex workers in the UK — 88 per cent of whom are women, and most are mothers supporting families.
Under the present laws, Adams says, thousands of sex workers each year are arrested, prosecuted and fined or imprisoned. “The laws land us in prison, divide us from families and friends, make us vulnerable to violence, isolate us, and criminal records trap us in prostitution. We see decriminalisation from the women’s point of view — not to safeguard the rights of men, but to protect women.”