Appeal win - care workers buying sex for disabled client

[EatSleepRantRepeat]

Couldn't see a thread on this already but great to see that they've confirmed it is unlawful for care workers to procure sex on behalf of clients:

www.thetimes.co.uk/article/unlawful-for-care-worker-to-arrange-contact-with-sex-worker-7fx88tkb7

"The characteristics of C raised a serious question about whether it would be appropriate to expose a sex worker to the risks of spending time alone with him".

This quote alone is chilling - what aren't they telling us about this person? It puts the idea to bed of a poor lickle man just wanting to be touched!

Do you have a share token?

I think it's this one: www.bailii.org/ew/cases/EWCA/Civ/2021/1527.html

'...for a period of three years up to October 2017 he was detained under section 3 of the Mental Health Act 1983 due to the risk he presented of sexual and physical violence to others. Since that time C has been subject to a deprivation of liberty order, made in part because of the risk of sexual and violent deviancy he presents when he suffers from intrusive thoughts. Given some of the behaviour he has exhibited, there is a serious question mark over whether he could safely be left alone with a sex worker. '

I should do, but every share click just comes up with the same link, annoying!

The main part of the argument is below:

"It was an offence under section 38 of the 2003 Act for a care worker to engage in sexual activity with a mentally disordered person in his or her care. That was so even if the person had capacity, was keen to engage in sexual activity and consented. The care worker and person cared for might have developed a deep emotional relationship that both wished to become sexually fulfilled but the law forbade it.

It would be no defence for the care worker to argue that the person had capacity and had consented. Parliament had chosen that legislative technique to reduce risk to a group of vulnerable people. In doing so it had restricted the freedom of some who otherwise would be at liberty to have a sexual relationship, but it had done so in the wider interest of protecting the group.

It followed that the words “causes or incites” found in section 39 of the 2003 Act carried their ordinary meaning and did not import any qualifications which would lead to the conclusion that the arrangements contemplated for C to engage with a sex worker would necessarily not result in criminal liability under section 39 of the 2003 Act.

The litmus test for causation was: did the acts in question create the circumstances in which something might happen, or did they cause it in a legal sense? Applying that approach the care workers would clearly be at risk of committing a criminal offence contrary to section 39 of the 2003 Act.

By contrast care workers who arranged contact between a mentally disordered person and spouse or partner aware that sexual activity might take place would more naturally be creating the circumstances for that activity rather than causing it in a legal sense.

Neither article 8 (guaranteeing the right to private life) nor article 14 (prohibiting discrimination) of the European Convention on Human Rights compelled a different reading. Section 39 sought to protect a large number of vulnerable people and, to the extent that it discriminated against people in C’s position, it represented the considered view of parliament striking a balance in a difficult area. It was clearly justified and its discriminatory effect could not be said to be manifestly without reasonable foundation"

Thanks @mattdamon

This is only half good news, though, isn't it? Blocked on the basis that this particular man is unsafe to be around. What we really need is a block on carers arranging prostitutes full stop.

No carer should ever be in the position of having to act as a pimp, and no woman's body should ever be for hire.

Thank goodness for that.

Completely agree with you, GoodieMoomin

Sharetoken link www.thetimes.co.uk/article/df5c3b44-6811-11ec-b36e-12a90a7c0b99?shareToken=c4f2dd596fe9b3672bc4af3d57c7f13f

Completely agree @GoodieMoomin - if the judgement went the other way the floodgates would be open on pushing the boundaries further and further, I'm sure. There is an acknowledgement in the judgement that a lot of this case is hypothetical, so it really makes you wonder who sponsored this to get so far.
It also raised my awareness of The Outsiders Trust who it appears have been running a directory of prostitutes to be booked by disabled people.

Meanwhile, sexual assaults against disabled women have increased and are still not taken seriously by the police:

August 2021:
'Sexual violence allegations brought by disabled women 'not going to court', campaign group says'

'Figures from the Office for National Statistics suggest sexual violence against disabled women in England and Wales has more than doubled in the past six years.'

.... 'Sky News has spoken to a number of victims, who have complained about the way their allegations of sexual assault were handled by the police.'

'"Jayla", who is autistic, said she was drugged and raped on a first date.

When she returned home in the early hours, she left a distraught voicemail to her ex-boyfriend.

She then called the Samaritans. And by late morning, she was admitted to hospital as the bleeding had got so bad, she could not walk.

She said police refused to take her claims seriously when she reported the rape three days later.

"I kept being asked 'was I sure it had happened?' 'Was it not just my autism playing tricks on me?'" she told Sky News.

Her case was later dropped due to "lack of evidence" - which she says led her to attempt to take her own life.'

.
.... 'Meanwhile, those with sensory impairments face barriers. "Shannon", a blind survivor, said when she began using a guide dog in her late 20s, the police stopped following her allegations up.

During the last three years, Shannon has reported ten sexual assaults by strangers on busy tube carriages and stations.

Every time she says the police have dismissed her allegations or refused to return her 101 calls, because she "cannot identify her perpetrators".

The Royal National Institute For The Blind (RNIB) has heard of many similar cases of police discrimination against blind people.

It said if a victim cannot describe their perpetrator, the police must review CCTV and appeal for witnesses.'

... 'A survey by Disabled Survivors Unite also revealed victims have been told they are "not attractive enough" to be sexually assaulted.

"The desexualisation of disabled people is so harmful," "Primrose", a wheelchair user, says.

"Because some police officers think rape and assault are about attraction, not power, women like me can be automatically discounted as victims."

Due to her being in a wheelchair, Primrose feels some men perceive her as a "rolling sex toy", not a human.

She says being groped has become a routine occurrence for her, and she has also come across men who have a fetish about her disability.'

news.sky.com/story/sexual-violence-allegations-brought-by-disabled-women-not-going-to-court-charity-says-12368315

That's absolutely horrific, ColourMagic

Fucking hell. So this man is known to be dangerous and it was understood he would present a risk to any sex worker, and it had to go to court to confirm it was a bad idea?

Fucking hell.

ColourMagic, that is appalling.

Thanks for that colourmagic - I hadn't given that any thought -it's truly dreadful

@GoodieMoomin

This is only half good news, though, isn't it? Blocked on the basis that this particular man is unsafe to be around. What we really need is a block on carers arranging prostitutes full stop.

No carer should ever be in the position of having to act as a pimp, and no woman's body should ever be for hire.

No , that's not correct. It was blocked on the basis of the court's interpretation of the statute

Section 39 of the Sexual Offences Act 2003 headed “Care workers: causing or inciting sexual activity” provided: (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 …”

The comment about the particular person here is obiter dictum. The decision would be the same even if he did not pose any threat.

@ArabellaScott

Fucking hell. So this man is known to be dangerous and it was understood he would present a risk to any sex worker, and it had to go to court to confirm it was a bad idea?

Fucking hell.

No that is not what the point of the case was. The court was being asked if facilitating a meeting with a prostitute would be an offence under s39 of The Sexual Offences Act.

There is no doubt that if the care worker has concensual sex with the person in care that is an offence. The Court was asked to determine if the care worker arranging for someone else to have sex is an offence and has said, "yes, it is"

Thanks @Alekto @EatSleepRantRepeat @MattDamon

This bit is very Alice down the rabbit hole:

It was envisaged that the services of a sex worker would be engaged with assistance from a charity known as The Outsiders Trust, a social charity providing support for disabled people. Many disabled people (whether or not they lack capacity to make particular decisions) find difficulty in forming intimate relationships. The charity vets sex workers before allowing them to advertise their services on its website. Anyone may then contact a sex worker to book a service. The judge observed "vetting really implies nothing more, or indeed less, than ascertaining that the sex worker is both respectful to and understanding of the needs and challenges faced by those with disabilities."

The mind boggles. I'm interested in knowing whether people who donate are aware that the charity provides helps provide prostitutes on demand.

It's good that the Appeal Court reached this decision, but the circumstances of the case are quite unusual, and won't be widely applicable. It is not a judgement about the rights of disabled people generally to have sex with prostituted women.

The client in the case, C, was the one pushing for his carers to facilitate him seeing prostitutes. C was being held in what is effectively protective custody under the Mental Capacity Act 2005, i.e he was being lawfully deprived of his liberty. He was not a prisoner and he was not suffering from mental illness to the point of requiring admission under the Mental Health Act, though he does have a mental disorder. He has a genetic condition that means that he lacks capacity to run many aspects of his life.

To understand this case, it is very important to understand that, in order for deprivation of liberty (DoL) to be lawful, it must always take the least restrictive form possible, while still protecting the person subject to DoL. C is highly unusual; the vast majority of people with DoL restraints are elderly people with dementia. Quite rightly, the Law requires that they are not restricted beyond what is necessary to protect them. They must have the same rights as everyone else, except where it is essential to restrict those rights to protect them. This is really important for disabled people's rights: they must not lose their rights in general, simply because they may lack the mental or physical capacity to exercise particular rights. People subject to DoL retain the right to exercise their personal autonomy to the fullest extent that they have the capacity to do so.

The AC judgement notes that this has not been tested in law, but I doubt that it would be lawful to stop C using prostitutes, if he were able to make the arrangements himself. Using prostitutes is not unlawful, and so it would probably not be lawful to prevent C doing so, if he made the arrangements.

The AC judgement turns on the fact that C cannot make the arrangements himself, and therefore wants his carers to help him. The Local Authority and Clinical Commissioning Group for his area sought to establish whether the carers could lawfully do so. Fortunately, the AC held that, because of C's tendencies to sexual violence, his carers could not arrange sex for him, because of the risks this would pose to the woman involved. It left open the question of whether, if C were not potentially violent, it would be lawful to do so.

It's a really interesting judgement, and recognises the complexities of consent in prostitution to some extent. But we are still a long way from the Law recognising that consent in prostitution is not freely-given consent.

It's horrendous @colourmagic - my blind friend gets harassed in the street regularly, and even well-meaning people grab his arm and pull him out of the way if they want him to move (not for an emergency or safety reason), like he has no bodily autonomy. I was genuinely shocked at how many members of the public will take advantage of someone's disability, either by not providing a service or to intimidate/harass them.

The comment about the particular person here is obiter dictum. The decision would be the same even if he did not pose any threat

Is that correct? I read s75 as leaving this open, though IANAL (though I do work with the MCA).

I understand its not general about consent @MissLucyEyelesbarrow, but a judgement on any case like this can either be a brick in a wall or a hole in a dam - it's a temperature test for what else they can get away with when it comes to women's rights. I include the carer in the term women too - it's a mixed-sex occupation (as is prostitution) but we all know it's majority women workers. No carer should ever be compelled to arrange a paid sexual service for their client - even making someone repeat the sexual acts the person wants to perform can be a fetish for some, along the "dirty talk" spectrum.

"Many disabled people (whether or not they lack capacity to make particular decisions) find difficulty in forming intimate relationships."

Surely if they lack capacity then that means someone else is deciding on their behalf that they need these sex services? Why would someone do that?

The proceedings in the Court of Protection had been unusual. The judge had not been invited to make a best interests decision but invited to express a view on the application of section 39 of the 2003 Act to a hypothetical set of facts

It followed that the words “causes or incites” found in section 39 of the 2003 Act carried their ordinary meaning and did not import any qualifications which would lead to the conclusion that the arrangements contemplated for C to engage with a sex worker would necessarily not result in criminal liability under section 39 of the 2003 Act

The case was whether the care workers would incur criminal liability in the hypothetical situation of setting up a meeting with a prostitute. The Court found they would.

It is not a judgement about the rights of disabled people generally to have sex with prostituted women

It isn't. It is about whether his carers commit an offence under The Sexual Offences Act if they facilitate a meeting with a prostitute.

@FannyCann

"Many disabled people (whether or not they lack capacity to make particular decisions) find difficulty in forming intimate relationships."

Surely if they lack capacity then that means someone else is deciding on their behalf that they need these sex services? Why would someone do that?

It's complicated because some people with disabilities may not have capacity in as full a sense as we would normally expect but still wish to have sex. An example would be a couple who both have Down's syndrome and reduced capacity (which I recognise would not apply to all people with Down's syndrome, as their capacity varies). Is it reasonable to say that they should not be allowed to have sex?

@KimikosNightmare

It is not a judgement about the rights of disabled people generally to have sex with prostituted women

It isn't. It is about whether his carers commit an offence under The Sexual Offences Act if they facilitate a meeting with a prostitute.

Aren't we saying the same thing?