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A controversial decision on the case of ‘C’ has been handed down, judging him to have the capacity to engage in sexual relations and to potentially engage a sex worker. Elizabeth Young, partner at top 200 law firm Roythornes Solicitors, considers the judgement.
“This case concerns a young man who has a life-long diagnosis of Klinefelter syndrome (XXY syndrome), autism and associated behavioural challenges. In 2018, ‘C’ told his carer that he would like a girlfriend but considered his prospects of finding one very limited. He wished to engage in sexual relations and wanted to know whether he could have contact with a sex worker.
“As a result, ‘C’ has been very specifically assessed and was found as having the capacity to engage in sexual relations, and to potentially engage a sex worker, but not able to source a suitable and safe provider of the service or the location where the services might be delivered.
“Therefore, to access these services he would need support from his personal carers or a court-appointed deputy. The concern is whether a care worker or deputy might be themselves committing a crime under the Sexual Offences Act if they actively cause or incite this young man to engage in sexual relations.
“It is a very complex matter and Judge Hayden handled the case with a huge amount of sensitivity. He concluded that in certain cases where the person involved has capacity to engage in sexual relations it may be acceptable for support workers to make the arrangements.
“I have a personal interest in the case as I act as professional deputy for a wide range of clients who are assessed as lacking capacity, but for whom these may be real issues. We have quite a number of young, male clients with head injuries or complex conditions, and although I have never yet been asked to specifically arrange a contract with a sex worker, I am aware that some of my clients may choose to spend the personal allowance that I send to them in this way.
“The case reminds me of the care I need to take to ensure that myself and the practice are not inadvertently committing an offence, but at the same time maintaining the privacy and rights of those in my care.
“This is not the first case of its kind, with the judgement referring to a case in Lincolnshire where the gentleman was deemed not have that capacity, so it went no further. However, this judgement was somewhat controversial and unpopular with the Secretary of State on the basis that our government believes that it opposes public policy to encourage the use of sex workers, so the matter must be appealed. Permission to appeal has been given, and it is expected that the appeal will be heard in the Court of Protection before the end of this month.
“However, I believe it to be refreshing for a case to be so carefully considered, and I agree with the judge that in certain situations it is beneficial and right to assist those who cannot assist themselves to access experiences that are, at best, taken for granted and otherwise exploited by those who have the capacity to know better. If the activity itself is legal, then providing support to enable those individuals to access it cannot then be illegal.”