Introduction

At the end of April 2021, the Court of Protection ruled that in certain circumstances it is legal for carers to assist their clients in arranging and paying for sex. While the case was about one particular disabled man, it is likely to set a wider precedent.

However, the Secretary of State for Justice intervened and was given leave to appeal because of the implications for public policy. This means that the issue is far from settled.

The case has brought into the light the many contradictions and hypocrisies of current law and policy on prostitution in England and Wales. In this article we argue that the only way of resolving these contradictions and hypocrisies in line with universal human rights is to introduce the Nordic Model, which bans the purchase of sex while making provisions to assist those caught up in prostitution to exit and rebuild their lives.

23 October 2021: The Secretary of State for Justice appealed this judgement and Nia and Women@TheWell intervened in support of the appeal. We are thrilled that they won and the appeal court ruled that there is no human right to buy sex or for the state to make that possible. For more information, see the report from the Centre for Women’s Justice and the full judgement.

Summary of the case

The case involves a disabled man (‘C’) with a history of challenging behaviour so extreme that the Court of Protection has decreed that he should be deprived of his liberty. He is deemed such a threat to the safety of children that he is prevented from having any contact with them. He spent several years detained in a mental hospital but now lives in a group home under supervision.

He was assessed by a consultant psychiatrist who found that he lacks capacity to “decide to use the internet and social media” and to “decide his financial affairs” among other things – but – bizarrely – he has “capacity both to engage in sexual relations and to decide to have contact with a sex worker.”

Quite why his capacity should extend to sexual activity with a human being but not to activity on the inanimate internet is unclear.

Proceedings were initiated on his behalf in the Court of Protection to establish whether it would be legal for people involved in his care to help arrange and pay for prostitution – because he lacks capacity to do this himself.

The proceedings were focused on the legality of this and not on whether it is in his best interests or whether it would put himself or others at risk. These issues would need to be considered separately at a later stage.

Evidence was presented that the practice of people involved in disabled men’s care procuring prostituted women for them is widespread in the UK. Payment for this may come directly or indirectly from the public purse and is typically recorded as ‘leisure’ or ‘entertainment’ in the accounts.

Approximately three pages of the 38-page judgement were quotations from the spokesperson, policies, and website of the TLC Trust, which claims to provide “Responsible sexual services for disabled people.” In other words, it is an escort agency for people with disabilities. The judge in the case, Mr Justice Hayden, Vice President of the Court of Protection, seemed impressed by TLC’s “clinical and pragmatic” approach.

Concerns about the legal position of those arranging or paying for such encounters for a person in their care centre on whether they would be committing an offence under Section 39 of the Sexual Offences Act 2003 which covers care workers “causing or inciting sexual activity.” The seriousness of this offence is indicated by its 10-year maximum sentence and inclusion on the sex offenders register if the sentence is for 12 months or more.

Mr Justice Hayden considered that to fall under Section 39, a carer would need to “intentionally cause” or “incite” their client to engage in sexual activity. He argued that this would not apply if C’s carers were to make practical arrangements for him to have a prostitution encounter because he has “consistently and cogently” expressed his wishes for this for at least three years.

Mr Justice Hayden considers Section 39’s main purpose to be the protection of those whose position is so vulnerable that it would negate meaningful consent. This must be balanced, he says, with the vulnerable person’s right to a private life (including a sexual life) which is protected by Article 8 of the European Convention on Human Rights (ECHR). As buying sex is legal in the UK, he argued that prohibiting disabled people from buying sex when others can legally do so would constitute discrimination contrary to Article 14 of the ECHR.

Mr Justice Hayden’s final conclusion was therefore that it would be legal for those involved in C’s care to assist in arranging and paying for sex. He made it clear that this doesn’t mean that such a course of action would be in C’s best interests or that it wouldn’t pose a risk to himself or anyone else. These issues will be considered separately.

The Secretary of State’s lack of logic

The Secretary of State for Justice’s intervention in the case is of real interest, particularly the argument that allowing carers to assist clients in arranging and buying sex would be contrary to government policy which seeks to discourage prostitution.

In paragraph 71, Mr Justice Hayden described this position as illogical: The Secretary of State may not want to be seen to encourage prostitution but the fact remains that it is legal and the law does not allow him to obstruct people from engaging in lawful activities.

While we are delighted that the government is keen to discourage prostitution, we have failed to see any evidence of this in action. In fact, the evidence points to prostitution having increased significantly since the Conservative government came to power in 2010. It’s even arguable that the government has, by its policies and legislation, encouraged prostitution. For example:

Brothels operate in plain sight in more or less every town and city in the country.
Prostitution advertising websites now facilitate pimping and sex trafficking on a grand scale.
Leeds has had an official red-light zone where pimping and kerb crawling have been given free rein for more than five years. The situation is not dissimilar, if less official, in many other towns and cities across England and Wales.
Prosecutions for kerb crawling and buying sex from someone who has been coerced are practically non-existent.
The Modern Slavery Act 2015 does not conform to the international definition of human trafficking. The way it frames sex trafficking is profoundly sexist and implicitly normalises and trivialises prostitution, and positions it as a form of work. As a result, most sex trafficking in England and Wales is unrecognised, its victims unsupported and its perpetrators have impunity – and the UK is in breach of its obligations under binding human rights treaties.
The police guidance does not even mention the legislation that can be used to address men’s demand for prostitution. It explicitly advises against encouraging women to exit prostitution and is vague on addressing profiteers.
The majority of services that receive public funding to assist women and girls in prostitution are focused on ‘harm reduction’ rather than providing genuine routes out and as such often serve to trap women in prostitution and maintain a thriving sex trade.
The practice of male landlords offering accommodation to women in return for sex is widespread.
The government has, after considerable pressure, acknowledged that large numbers of women are turning to prostitution under the coercion of extreme poverty caused by inadequacies in the social security system.
The government has failed to properly assess the impact of budgets and policies on equality between the sexes, with the result that the economic and social position of women and girls has rapidly deteriorated since 2010. This has created conditions in which prostitution thrives – with men on average having higher disposable incomes and large numbers of women at risk of destitution.
The government has failed to implement age controls on pornography websites even though law for this was passed some years ago. Online porn grooms boys to see prostitution as normal and perhaps even their right and so is likely to lead to an increase in demand for prostitution.

However, it is never too late to admit mistakes and change direction and we hope that the Secretary of State’s intervention in this case is evidence of a real change of heart in the government.

It seems to us that the case hinged on the fact that the law in England and Wales enshrines men’s right to buy women for sex. Therefore, men with disabilities must be allowed to buy sex because other men are allowed to.

Surely then, the solution is simple: ban the purchase of sex outright – by introducing a well-thought through Nordic Model approach and championing it at the highest levels. Disabled men would then no longer be able to claim they were being discriminated against because no one else could legally buy sex either.

The government has a majority in parliament and should be able to change the law on this easily, especially given there is some support for the Nordic Model among Labour MPs. Dame Diana Johnson MP has already introduced a Nordic Model-style private members bill and we urge the government to adopt this bill as a matter of urgency.

The Secretary of State is able do this immediately. He doesn’t need to wait for the appeal, or for the case to wind its way to the supreme court and possibly on to the European Court of Human Rights. He’s the Secretary of State!

The feminist response

Not only did the case expose the Secretary of State’s lack of logic, but also the legal system’s innate sexism and how it still doesn’t consider women’s human rights to be equal with men’s.

Louise Perry, writing about this case in December said:

“If Z wins his case, the judgment will lend legitimacy to the sex industry. It will also affirm the idea that sex is both meaningless and a “right” to be claimed by men, at the expense of women. And such a decision would embolden those who consider male feelings of sexual frustration to be very important — but consider female feelings of sexual violation to not be important at all.”

So it’s not surprising that the judgement was met with a wall of rage among feminists.

@legalfeminist said on Twitter that it was “repugnant” to suggest that access to a woman’s commoditised body falls within Article 8 of the ECHR. @RowlesDavis pointed out that “human rights commentators seem to consistently fail to notice that women are human too, and that there are often conflicts of competing rights that need to be considered.”

The case provides many examples of women’s human rights being overlooked. For example, to support his interpretation of Section 39, Mr Justice Hayden Justice, quoted a Home Office paper that preceded its introduction:

“We thought that it should be possible to identify those relationships of care where any sexual element would be so wrong and inappropriate as to justify a criminal sanction. In a relationship of trust or care with a vulnerable person the relative imbalance of power can be so great that it is difficult to deny sexual demands or protest effectively about their actions. Consent would either be absent or obtained inappropriately.” [Our emphasis]

What struck me when I read this, is that this is equally true in many (probably most) prostitution encounters. The fact that the punter is in a position to pay and the woman needs that money sets up a relative imbalance of power that is so great that it is difficult (if not impossible) for her to deny his sexual demands or to protest. Doing so, will often lead to reprisals – violence at the time or bad reviews or stalking and similar later on. As we have written elsewhere, prostitution is predicated on foregoing the right to refuse sex.

While the risks of the situation were not the focus of the proceedings, it is telling that the parallels between the imbalance of power between the carer and the client, and the punter and the prostituted woman were not mentioned, even in passing.

Nor was C’s size and strength mentioned. On average men are considerably taller, larger, heavier and have a greater muscle mass and density than women. If C has an average male body, I shudder to think of a woman alone and unclothed with him and his “challenging behaviour.” Of course, this is to be considered in a future hearing, but it’s troubling that this wasn’t touched on at all – especially given that this judgement is likely to open the floodgates.

And nor was there any consideration of the fact that prostitution-buying is well documented to increase men’s entitlement and violent behaviour towards women and children, and is associated with higher levels of sexual harassment of women and girls in public places, including workplaces. This is of key relevance because the majority of carers are women. But their needs and dignity did not even get a mention.

Lolly Willowes, who has worked in the care sector for almost two decades, wrote an interesting and passionate blog post about what she sees the judgement will mean in practice. She says that conversations about this issue have been common with service users and until now she’s always been able to say that it’s just not possible. But not any longer:

“So, when, as a provider, we say OK, let’s call that ‘massage parlour’ for you, let’s take you out for a body and a burger afterwards, just what are we saying about autonomy and respect then? How are we promoting healthy relationships when we are dialling a woman or man to submit for cash?”

It is for this very reason that many in the disability movement are vehemently opposed to the promotion of prostitution as a solution to the isolation and touch deprivation that so many people with disabilities endure. For example, here is a quote from Alex Ghenis, an American disability advocate and former dating and relationships columnist:

“It commodifies sex in terms of an action. It makes it so society can check this box that men are getting laid, so we don’t have to have broader social change – we are giving them sex through a brothel, so we don’t have to change our social attitudes around socially excluded people with disabilities.
“And it pities and coddles us, as if we are being given things that will assuage us… rather than have society change around us.”