C, who lives with caregivers in supportive housing, believed his prospects of finding a girlfriend were very limited and wished he could have sex with a sex worker, the court heard.
The man was assessed as not having the capacity to decide where to live, what care and treatment to receive and to decide his financial affairs, but has the capacity to have sex and decide to visit a worker sex.
The local authority, which is responsible for C’s care, asked the Protection Court to decide “whether a care plan to facilitate C’s contact with a sex worker could be implemented. without committing an offense under the Sexual Offenses Act 2003 ”.
Justice Hayden, a High Court judge who is also vice-president of the Court of Protection, said in his ruling that the Sexual Offenses Act “criminalizes social workers who are known to” cause or incite activity. sexual ””.
The judge said the aim of the law is to prevent “exploitation of vulnerable people” and “to penalize serious breach of trust.”
But, said Justice Hayden, in C’s case, “the desire to experience sex is expressed clearly and consistently by C himself.”
C made “the utilitarian calculation that if he has to experience sex, which he strongly wishes to do, he will have to pay the price”, a desire he has never ceased to express to his caregivers. over the past three years, the judge added.
Judge Hayden said there is “clear and compelling evidence that he (C) has the capacity to have sex and decide to have contact with a sex worker.”
Lawyers representing Justice Secretary Robert Buckland have argued that it would be wrong to interpret the Sexual Offenses Act as having “made lawful the assistance of a caregiver to C to obtain the services of a sex worker ”.
But Judge Hayden said “the Secretary of State’s position on this point (is) logically unsustainable.”
The judge said there is “a logical paradox in the reasoning of the secretary of state,” adding: “He wishes to discourage prostitution, which many would see as a laudable goal.
“Parliament has however recognized the futility of seeking to criminalize prostitution and therefore it remains legal.
“So the Secretary of State, in this case, finds himself in the odious position of trying to discourage, through guidelines and policies, what the law allows.”
Hayden J. concluded: “This application does not raise any question regarding the legality or social attitudes towards sex work or, as it is called in criminal law, prostitution.
“While some activities surrounding prostitution are criminalized, the act itself is not.
“At this hearing and in this judgment, I am not considering any plans for C to visit a sex worker.
“This decision will be for another day when a full risk assessment has been undertaken and a care plan developed that will inform whether and, if so, how such a visit can be arranged.”