This morning the Court of Appeal handed down a long-awaited judgment in the case of Re C, a legal case fraught with tension due to the sensitive and complex nature of what lay at its heart.
In short, C, a learning-disabled man, wished to seek out the “services” of a prostituted woman to pay her for sexual access, but he lacked the mental capacity to make such arrangements for himself.
One of several legal issues at hand was the fact that, if such a care worker was permitted to make such arrangements, they may be committing an offence under s.39 of the Sexual Offences Act 2003, which prohibits care workers from “causing or inciting sexual activity”.
To cut a long legal story short, the Court of Appeal overturned the original ruling of the Court of Protection, and stated that in this instance C’s care workers were categorically not permitted to facilitate the purchasing of sexual access on behalf of their learning-disabled client.
Understandably, this case produced a strong emotional reaction: why should individuals with learning disabilities be prevented from having sex? Surely they too should be allowed to engage in “autonomous sexual expression” which “respects the […] humanity and dignity of all involved” as the original judgment from the Court of Protection stated.
But this is a subtle misdirection. To view this through the prism of blanket sexual autonomy is to obfuscate the reality of prostitution. For many women and children trapped within the brutal system of prostitution, agency or choice is far from their reality.
For example, in one case in the Netherlands (where prostitution is legalised), six defendants were found guilty of trafficking more than 100 women into State-regulated prostitution via a sprawling and organised network of accomplices, where women were subjected to violence including “rape and coercion into breast enlargement or abortion” which was used as a method to control them.
One study spanning five countries found that women were frequently subjected to treatment such as “… [being] urinated on, pinched in the breasts, sodomized, objects inserted in anus and vagina, bestiality … weapons used against women … being strangled with a bandana, burned … bound with extension cords, assaulted with … knives and guns, hit with shoes and a liquor bottle…”
Furthermore, even if women do try to escape this form of modern slavery, studies have reported consequences such as: “physical punishment when they made mistakes or tried to run away … they had to service men … even when they were ill or did not feel well … Their movement was highly controlled, and most were not allowed to leave the premises and were tightly guarded”.
And so we see the argument begin to shift. No longer is the purchasing of sexual access an issue in which parties of equal bargaining power are coming to an amicable contractual arrangement, exercising their shared autonomy. In the vast majority of cases, a man is exploiting the vulnerabilities of a woman who has few other choices but to acquiesce to the offer of payment.
It should be noted as well that the Court expressly acknowledged that C posed a “risk of sexual and violent deviancy”, and that there was “a serious question mark over whether he could safely be left alone with a sex worker”. Would a situation in which C was left alone with a prostituted woman be any different from one of the violent scenarios outlined above? Perhaps not.
As a result, the heart of the issue is whether any given individual has a right to purchase sexual access. This was an argument advanced by C, arguing that his Article 8 rights under the European Convention on Human Rights (the right to respect for your private and family life) meant if criminal liability were to be incurred under s.39 SOA 2003, it would be an interference with his private life. A private life which, it is implied, includes the right to purchase sexual access to another human being. Thankfully, the Court rejected this argument.
As the judgment states, there is no sign that Article 8 includes an obligation for states to allow care workers to facilitate the purchase of sexual access for their clients (or the obligation to permit this to occur more generally without criminal sanctions). As Dr Charlotte Proudman, one of the barristers who worked on this case, told me:
I welcome the court’s decision today. It is not a human right to pay for sex. The government’s public policy approach shows that it needs to take a cautious approach to prostitution because of the exploitation that underpins the sex trade.
This judgment rightly shows that s.53A makes it difficult (if not impossible, as I would say) to prove that a woman hasn’t been coerced into prostitution particularly when we reflect on the plethora of coercive constraints that women are subjected to — sex abuse as children and in adulthood, grooming, financial control, trafficking, objectification, verbal and physical abuse, rape and it goes on.
I’ve seen many of my clients exploited in prostitution and it would be wholly wrong for the law to condone this in any way, especially to confer a right to a man to sexually exploit or buy a woman’s body. This is not a human right. It’s abuse.
Beyond the context of this case, this ruling will hopefully begin to change how we talk about prostitution and the way in which people with disabilities have been used by the pro-sex trade lobby.
As Julie Bindel outlines in her book The Pimping of Prostitution: Abolishing the Sex Work Myth, many disability-rights activists find it extraordinarily distasteful to suggest that individuals who may have either a physical or mental impairment must rely on purchasing sexual access to lead a fulfilling and rich life — “If you have a disability, you are so undesirable that you must pay to have sex with somebody.” It is quite clear why many would, and should, find this grotesquely offensive.
As for the issue of an individual’s “rights” when it comes to prostitution, the reality is beginning to come out in the wash. For too long the discourse has focused on the rights of those purchasing sexual access — but what about the rights of the women to not be subjected to degrading and violent exploitation? It is those women who must be our concern and priority, and both the law and the Government must no longer tolerate their subjugation.