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The Court of Appeal of United Kingdom has held that a care worker cannot secure the services of a sex worker for the disabled person they are caring for, since it would amount to them committing an offence under the Sexual Offences Act, 2003.

A bench consisting of Lord Burnett Maldon, Lord Chief Justice of England and Wales, Lady Justice King and Lord Justice Baker heard the appeal from the court protection against an order by Justice Hayden, who had passed the judgment at the Court of Protection, holding that care workers would not commit a criminal offence if they were to engage the services of a sex worker for the person they are caring for.

It was further held that this was specifically in a case where the cared for has the mental capacity to consent to sexual relations, and decide to have contact with a sex worker, but cannot do so himself.

Facts 

A man named C was diagnosed with Klinefelter Syndrome, a genetic disorder where a male has an additional X chromosome. In his case, the disorder resulted in delays in physical development, and other social communication difficulties. C therefore needed significant assistance to live, which ended up depriving him of various liberties.

In the United Kingdom, it is required by law for a court under the Mental Capacity Act, 2005, to deprive someone of their liberty. C was accordingly deprived of his liberty by the Court of Protection in 2017.

The judgment states that in 2018, C expressed to his care advocate that since he could find a girlfriend, he wanted to have sex and wished to know if he could engage a prostitute. C’s care advocate raised the matter with his social worker which culminated in proceedings before the local authority to examine the legality of this contact.

According to the judgment, C was detained for a period of 3 years till his liberty was deprived, because he presented a risk of sexual and physical violence to others. Considering the behaviour he had exhibited, it needed to be seriously considered whether he could be safely left alone with a social worker.

Impugned Judgment

According to the impugned judgment, Justice Hayden received detailed evidence about the hypothetical practical steps that could be taken to ensure C had his wishes fulfilled. It was held that the services of a trust called The Outsiders Trust could be availed to engage the services of a sex worker. The judgment observed that “Vetting really implies nothing more, or indeed less, than ascertaining that the sex worker is both respectful and understanding of the needs and challenges of those faced by disabilities.”

According to Section 39 of the Sexual offences Act, 2003

“39. Care workers: causing or inciting sexual activity
(1) A person (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B's care in a way that falls within Section 42.
(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.
(3) A person guilty of an offence under this section, if the activity caused or incited involved—
(a) penetration of B's anus or vagina,
(b) penetration of B's mouth with a person's penis,
(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of a person's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless sub-section (3) applies, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”

Justice Hayden accepted the argument that if making all the arrangements for C to visit and have sex with a prostitute, it would not amount to “causing” C to engage in sexual activity.

It was further held that C with the mental disorder that he has, the hypothetical conduct of the care worker would be intentional. The judgment of Justice Hayden held that the central philosophy of the 2003 Act was to “protect those where relationship itself elevates to vulnerability.” It further held that the legislation did not constrain those with mental disorders.

According to the impugned judgment while Section 39 criminalises care workers who incite sexual activity, it does not criminalise when the cared decides for the care worker to organise a sex worker for him, since the action would have been calculated to give voice to his autonomy in the sphere of sexual relations.

Accordingly Justice Hayden's conclusion on the interpretation of Section 39 meant that it was unnecessary for him to consider that the sanction of the use of a sex worker is against public policy.

Judgment of Court of Appeal

The court of appeal however, took a different view on the matter and held that Justice Hayden was not invited to make a best interest decision but was invited to express a view on the application of Section 39 of the 2003 Act based on the hypothetical facts.

Since he declined to do so, there is no “order” which is subject of an appeal here. 

It was held that by virtue of Section 15 of the Mental Health Act, 2005, the Court of Protection has powers to make declarations about the lawfulness of specific provisions in a care plan. The use of that power to declare a conduct lawful which has the potential to be criminal should be confined to cases where the circumstances are exceptional and the reasons are cogent.

The court of appeals further discussed Section 53A of the 2003 Act which states that

“"53A Paying for sexual services of a prostitute subjected to force etc.
(1) A person (A) commits an offence if—
(a) A makes or promises payment for the sexual services of a prostitute (B),
(b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and
(c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).
(2) The following are irrelevant—
(a) where in the world the sexual services are to be provided and whether those services are provided,
(b) whether A is, or ought to be, aware that C has engaged in exploitative conduct.
(3) C engages in exploitative conduct if—
(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or
(b) C practises any form of deception.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale."

According to the judgment S. 53A was inserted to create strict liability to anyone who promises payment to a prostitute who has in fact been exploited. The judgment notices that many of those working as prostitutes have been exploited as victims of modern slavery trafficked to the UK. It is irrelevant for the purpose of determination of liability of the person availing services of a sex worker whether the worker was exploited or not.

According to the judgment

“Causation is often an issue in homicide cases. It has been the subject of much judicial consideration in that context and in connection with driving offences (causing death by dangerous or careless driving). There may be concurrent causes of an event or outcome. A defendant's action need not be the sole or even dominant cause of the event but must have been more than negligible or minimal. It follows that the defendant may be held to have caused a result even if his conduct was not the sole cause or could not by itself have brought about the result. Where there are multiple causes including where, for example, the deceased has contributed to the result, a defendant will remain liable if his act is a continuing and operative cause.”

The legislative intent of the 2003 Act was to draw bright lines to reduce the risk of abuse of those who are vulnerable and also to draw bright lines because it necessary for certainty. The line so drawn which in one sense is arbitrate because it does not consider exploitation of individual cases or with an individual’s physical and psychological maturity.

According to the judgment “It is an offence under section 38 for a care worker to engage in sexual activity with a mentally disordered person in his or her care. That is so even if the person has capacity, is keen to engage in sexual activity and consents. The care worker and person cared for may have developed a deep emotional relationship that both wish to become sexually fulfilled but the law forbids it. It would be no defence for the care worker to argue that the person had capacity and had consented.”

The judgment states that the words “causes or incites” found in Section 39 do not mean anything importing the qualifications identified by Justice Hayden, which led him to his conclusions. The test for causation is the answer to the question: Do the acts in question create circumstance in which something might happen or do they cause it in a legal sense?

The court referred to Article 8 of the human rights convention according to which:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It therefore held that Section 39 of the 2003 Act does not entail any interference with the rights guaranteed under Article 8. Even if it does require an interference, it would have to satisfy Article 8.2.

Thus finally concluding that securing the services of a sex worker for the cared would place the care workers concerned in peril of committing an offence under Section 39 of the Sexual Offences Act, 2003.

Lady Justice King’s Concurring View

Lady Justice King wrote that “Achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005. It is not however the role of the Court of Protection to endorse an act which would be unlawful. Under the 2003 Act, the motive of the care worker, no matter how laudable, and the consent of the person with a mental disorder who wishes to engage in sexual activity are each irrelevant.”

Lord Justice Baker’s Concurring View

Lord Justice Baker wrote “I stress, however, that we are only concerned with the judge's decision in this case, namely that care workers would not commit a criminal offence under s.39 by making practical arrangements for C, a man with a mental disorder, to visit a sex worker. I recognise that there are other situations where care workers are asked to assist people who have the capacity to consent to or engage in sexual relations but lack capacity in other respects, for example to make decisions about their care, treatment or contact with other people.”

“In making these observations I emphasise three important points. First, the merits of making such a declaration will turn on a thorough analysis of the specific facts of the individual case. Secondly, in making such a declaration, the court may have to consider carefully whether the steps proposed under the care plan have the potential to amount to a criminal offence under s.39. Thirdly, as set out in the cases cited above, any declaration would not be binding on the prosecuting authorities, although no doubt it would be taken into consideration in the event of any subsequent criminal investigation.”

The judgment came to be passed by the Court of Appeals on October 22. Its neutral citation is [2021] EWCA Civ 1527.