Carers would be at risk of committing a criminal offence if they helped an autistic man visit a sex worker, the Court of Appeal has ruled, overturning what had been seen as a landmark ruling for people with learning disabilities and mental disorders.
Under section 39 of the Sexual Offences Act 2003, a care worker who ‘intentionally causes or incites’ someone in their care with a ‘mental disorder’ to engage in sexual activity can be jailed for a maximum of 10 years.
In April, the Court of Protection ruled that the carers for 'C' a 27-year-old man with autism and Klinefelter syndrome, would not be breaking the law if they facilitated contact with a sex worker. In that ruling Mr Justice Hayden, vice president of the Court of Protection, said that the 2003 Act is ‘structured to protect vulnerable adults from others, not from themselves’.
However, the Court of Appeal has allowed the secretary of state for justice’s appeal, ruling that ‘the words “causes or incites” found in section 39 of the 2003 act carry their ordinary meaning and do not import the qualifications identified by [Hayden J]’.
Lord Chief Justice Lord Burnett, sitting with Lady Justice King and Lord Justice Baker, said in the ruling that ‘the arrangements envisaged for securing the services of a sex worker would place the care workers concerned in peril of committing an offence contrary to section 39 of the Sexual Offences Act 2003’.
One of the purposes of section 39 was to ‘throw a general cloak of protection around a large number of vulnerable people in society with a view to reducing the risk of harm to them’, Lord Burnett explained. ‘To the extent that the provision discriminates against people in C’s position by comparison with others in the care of the state (or more broadly) it represents the considered view of parliament striking balances in these difficult areas.’
The Court of Appeal found that it was therefore unnecessary to consider the Secretary of State’s ‘wider argument’ that the involvement of care workers in facilitating C’s contact with a sex worker would be ‘contrary to public policy and on that basis should never be sanctioned by a court’.