Where an individual suffering from a mental disorder wishes to have sex, can care workers lawfully make arrangements for him or her to visit a sex worker? Following a Court of Appeal ruling in a landmark case, the answer to that question is ‘not without placing themselves in jeopardy of criminal prosecution’.
The case concerned a young man who suffered from a genetic disorder that resulted in developmental delay and social communication difficulties. Although he did not have the mental capacity to litigate, manage his own finances or make important decisions concerning his care, he was able to consent to sexual relations. He wished to meet with a sex worker but was unable to make the practical arrangements himself.
The local authority responsible for his care proposed that care workers make such arrangements for him, including booking and paying a sex worker. However, there were concerns that, by doing so, they might be committing an offence under Section 39 of the Sexual Offences Act 2003. Section 39 criminalises care workers who cause or incite those who have a mental disorder to engage in sexual activity.
Following a preliminary hearing, a judge ruled that, in making the arrangements proposed, care workers would not be exposed to criminal liability. He emphasised that the purpose of the Act was to criminalise serious breaches of trust by care workers, not to constrict the life opportunities of those who suffer from mental disorders.
An appeal against that ruling brought by the Secretary of State for Justice hinged on the question of whether, by making the proposed arrangements, care workers would be ‘causing’ the man to have sex. It was accepted that they would not be ‘inciting’ him to do so in that they would be doing no more than giving effect to his wishes.
Upholding the appeal, the Court found that the judge’s interpretation of Section 39 did not accord with its ordinary meaning. The proposed arrangements would involve care workers going beyond merely creating the circumstances in which the man might have sex. By implementing them, they would thus be placing themselves in peril of criminal prosecution.
The Court noted that the regulation, including the criminalisation, of various aspects of the sex trade is a sphere of activity pervaded by complex and controversial moral judgments that it is for Parliament to make. Any discriminatory impact or interference with the man’s human right to respect for his private and family life arising from the balance struck by the legislature was justified and necessary.
The Court emphasised that each case must be decided on its own facts and that there are numerous situations where care workers may lawfully make social arrangements for their charges that may result in them having sex. For example, there may be nothing wrong with enabling mentally disabled young people to make friends with others their own age or with permitting dementia patients to visit their partners or spouses at home.