Page 8 - Community Living Magazine 35-2

legal: sex and relationships
Charisma and commercial sex

Whether carers can arrange to buy sex for someone they look disorder, this was justified in the
after and protecting people in exploitative relationships were circumstances and can only have been
parliament’s explicit intention.
the subject of recent court cases. Belinda Schwehr reports Under the 2003 act, the motive of the
care worker, no matter how laudable, and
the consent of the person with a mental
wo interesting decisions have The practical arrangements envisaged disorder who wishes to engage in sexual
emerged from the courts. One is of would involve care workers booking the activity are irrelevant.
Tsignificance to anyone with less than sex worker, making the necessary Creation of circumstances for that
full cognitive functional ability who is in a arrangements for C to visit her, then activity rather than causing it in a legal
situation where others may be trying to paying her. This would involve a sense is where the court felt the line should
intervene to prevent risk or harm to them, charity specialising in the provision of be drawn. The Sexual Offences Act requires
despite their wishes and feelings. sexual services. the conduct of the defendant to be an
This will be of interest to those caring A care worker could safely make these operative cause of the prohibited activity.
for people in the coercive clutches of arrangements for someone who does not The judge could not see how the
charismatic charmers and suchlike, even if have a mental disorder. Equally, if the extensive arrangements necessary for this
they are not necessarily after their money. arranger was outside the definition of a man to engage in sexual relations with a
The other concerns whether carers can care worker for someone with a mental prostitute, and without which sexual
help people to use a prostitute. disorder, that would not be an offence. It activity with a third party would be
is not clear how far the definition extends impossible for him, could be held to be
Arranging commercial sex under the Sexual Offences Act. outside the terms of the relevant section.
In Re C, the court of appeal overturned a The concept defined in section 42 is The court did not mean to stymie all
decision that it was lawful for carers of a that of a care worker and unlikely to thought of aiding people with “help” to
man with a mental impairment to help include an informal carer; however, that is start or continue sexual relationships,
him to engage the services of a prostitute. arguable. This section refers to person A, because each would turn on its own facts.
It was a hypothetical question to be who is involved in the care of person B. Examples on the other side of the line
dealt with by exploring whether in so were suggested to be a worker taking a
doing carers would be guilty under 42(4) This subsection applies if A— person to visit her partner for “private
section 39 of the Sexual Offences Act (a) is, whether or not in the course of time” together, where sexual activity
2003, which makes it a crime for a carer employment, a provider of care, might or might not happen, or carers
to “cause or incite” a person with a assistance or services to B in connection assisting a young person who wishes to go
“mental disorder” to engage in sexual with B’s mental disorder, and out and meet people in social situations.
activity (regardless of their capacity). (b) as such, has had or is likely to have One might ask whether providing the
The man, C, had capacity to engage in regular face to face contact with B. means, as a paid appointee or a deputy,
sex, but insufficient capacity to organise to buy sex is “causing” sexual activity.
it. He told his advocate that he wanted to The lower court had said it would not Could carers take practical steps to help
have sex and wished to know whether he be unlawful. The court of appeal C into a position, when visiting his clearly
could have contact with a prostitute. disagreed, finding the steps proposed chosen sexual partner, without that
The advocate raised the matter with his amounted to “causation”. being “causing”?
social worker and the council launched Although section 39 arguably created a The court envisaged that it might be
proceedings to address the lawfulness of state of affairs in which C was treated appropriate in future cases for the court
such contact. differently from people without a mental of protection to endorse a care plan under
which care workers facilitated or
supported such contact and to make an
order under section 15 of the Mental
Capacity Act 2005 that the care plan was
both lawful and in C's best interests.
Any declaration in future cases 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.

Potentially exploitative relationships
In a separate case, Re BU, a wealthy Seán Kelly; Maurizio Bellet/Flickr CC BY-NC 2.0
woman in her 70s (BU) had been in a long
relationship with a man in his 40s (NC). He
had a history of unsavoury convictions and
The court decision does not stop carers arranging activities that may lead to sexual relationships, alleged offences, including fraud, blackmail,
such as taking a person to visit a partner or to a social event to meet other people dishonesty, sexual assault and rape.
8 Vol 35 No 2 | Winter 2022 Community Living www.cl-initiatives.co.uk