Sex, Disability and the Criminal Law
In this paper, I shall outline the law as it relates to the provision of sex workers for disabled people. Whilst what I say does apply to male or female disabled people equally, I imagine that the usual scenario woyld be a male person requiring the services of a female sex worker. I appreciate that there is no legal or moral distiction between men and women in terms of the sexuality and drive, but it may be more common male/female worker than vice versa.
Sex workers do not like being called prostititutes because of the legal adjective that is applied in the legislation (1959 Street Offences Act) namely “common”. Some sex workers prefer “working girl” but this seems both twee and inaccurate. The “girl” may be 40 plus and the corollary should be “working boy. I shall use the generic term “sex worker”. I do, however acknowledge that not all sex workers are prostitutes, i.e. exotic dancers, chat line workers, etc.
In legal terms, it is not, and never has been an offence to be a prostitute in the UK, in the narrow sense of someone who provides any sexual service in return for payment. It is a legitimate, if not popular career. Because of the hypocrisy surrounding sex and its provision, many associated activities are illegal. As Mr Justice Fox said in one famous case, “it is not illegal to be a prostitute, but most activities surrounding the provision are (illegal).”
Thus it is perfectly legal to book the services of a sex worker for yourself. It is also legal to book the services of a sex worker for another.The Mental Capacity Act which has just come into force does not apply to sexual activity, which is deemed to be a private matter. This could raise potential difficulties. If a patient / client was clinically insane but demanded the services of a sex worker, what is the legal position? It the client was aware of his situation but, say, suffered from delusions or paranoia, he would provably be able to give proper consent. It is more difficult with a client who has a low IQ or a learning disability. A clinical judgement would have to be made as to his capacity to consent to sexual activity. Without this, any physical contact would amount to assault or “sexual touching” under the new Sexual Offences Act.
I am sure you are all aware that those who have a duty of care towards the client are forbidden to have any sort of sexual relationshios with him or her.
When a mentally alert physically disabled person wishes to hire some sort of sexual service, legally it is quite permissible to book a sex worker to come to the home / hospital / hospice to provide whatever the individual wants, in private. The fact that the sex workers attends the venue does not make the venue into a brothel or disorderly house. A brothel is defined as a premesis where two or more women / men offer and provide sexual services for payment. That is, premesis from which the men / women operate. Their visiting the client poses no legal problem. I appreciate that other residents / staff might object. All I can say is that it should be a matter only between the client, their carer and the sex worker. I know of some sex workers who will give discounts to elderly or disabled clients.
A client who has a learning disability may be in a different situation, as I have already suggested. There are no easy answers; it depends on the degree of disability and the clinical judgement. Also, the sex worker would have to agree if the client was suffering from a problematic learning disability. It could be argued that if the client has the ability to express sexual feelings and wants some thing other than masturbation, then he / she would have sufficient capacity for a sex worker to be booked.
Perhaps some people, even health professionals, find the whole thing distasteful. If however, it is accepted that disabled people have the right to sex, which they do not forfeit simply because of their disability, and do not have a partner, then why should the services of a sex worker not be employed? Incidentally, this applies to same sex activity as to opposite sex activity. A gay client is just as entitled, in law and common senses, to book as sex worker as a “straight” client.
Therefore, where a client/patient is of age, i.e. over 16 years and has the mental capacity to consent to sexual activity, then there is no legal impediment to arranging for the appropriate sex worker to come and visit him/her in the privacy of his/her room. Where the person concerned has a degree of mental impairment, it must be a matter of clinical judgement, by an appropriately qualified health care professional (HCP) as to whether that individual is capable, in a medical sense, to give valid consent to sexual activity of whatever sort.
I have been asked as to the position with, say a terminally ill teenager who wishes to have sex before he/she dies. Provided he/she is over 16 this would present no problem. If the patient were under 16 then legally he/she could not give a lawful consent and other the sex worker and the HCP would commit an offence under the SOA 2003.
In terms of practicalities, there are websites with sex workers' details on them and some will indicate they will visit disabled people who require their services. As for payment, I see no legal problem with paying for the sex worker out of monies held by the individual, provided they have the capacity to disburse money and are in agreement with the price negotiated. Even paying out of a social services allowance should not present a legal problem although, if the individual has a social worker, it might be prudent to advise him/her as to the sitatuation. There is no longer an offence of living wholly or partly upon the earnings of prostitution, it only applied to a man, and could not apply to money received by the sex worker for his/her services.
In conclusion, I can see no criminal law problem with providing a disabled individual with services of a sex worker who is willing to provide whatever service many be mutually agreed between the parties.
There is some talk of this government criminalising the payment of money for sex. It is not yet law and I, for one, hope that it is not enacted. If it were, then my advice would be different.
Copyright © John Blandford October 2007
Main Reference: Sexual Offences Act 2003