David Lock, 'Court of Appeal decides care workers will act unlawfully if they arrange a sex worker for a disabled person: But were the wrong questions asked?' (Landmark Chambers, 25/10/21)
Prostitution This article argues that s39 Sexual Offences Act 2003 is drafted so widely as to criminalise any care worker who supports someone with a mental disorder to have consensual, non-exploitative sex in any circumstance; that this blanket ban might well be found by the European Court of Human Rights to contravene Article 8 combined with Article 14; and that, like in the assisted dying cases, the Crown Prosecution Service (a public authority with a legal duty to act in accordance with Convention rights) should have been asked to develop a policy to explain which care workers would and would not be likely to be prosecuted under s39 where care workers facilitated consensual sexual activity with those with mental disorders who (a) had capacity for sex and (b) took the decision that they would like to exercise that capacity.
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The Court of Appeal case in question is Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527.