by Harriet Wistrich & Debaleena Dasgupta
Today (22nd October 2021) the Court of Appeal overturned a decision in the Court of Protection which many feared would imply a “human right” to buy sex. The case known as Re C was considered by three judges, led by the Lord Chief Justice, who examined whether care workers would be committing a criminal offence if they procured sexual services from a woman in prostitution for a man who lacked capacity.
Centre for Women’s Justice (CWJ) acted for two women’s organisations working with women in, or at risk of exploitation, in prostitution, nia and Women@thewell, who jointly intervened in the appeal. You can read the grounds and our clients’ evidence here:
The argument
The question for the Court of Appeal, was whether the operation of section 39 of the Sexual Offences Act 2003 (which concerns the issue of care workers causing or inciting sexual activity) could result in a care worker being prosecuted for assisting someone they cared for to access a prostituted woman. The Court of Protection decision, which concluded that there was no risk of prosecution, implied that there was a right to buy sex and that the State should facilitate that.
Both intervening organisations gave evidence setting out the realities of prostitution, which is a “trade” characterised by coercion, abuse and violence against women and girls. It was clear that the original judge had made his decision without any evidence before him of the realities facing exploited women.
The intervenors argued that Mr Justice Hayden had failed to take into account the operation of a different provision of the Sexual Offences Act, Section 53A, which makes it a criminal offence to pay for the “services” of a prostituted woman if she has been subject to exploitation.
The Court of Appeal significantly noted that:
“It is an undoubted fact that many of those working as prostitutes have been exploited, for example as victims of modern slavery or trafficked to the United Kingdom. It is the regular experience of the courts to come across such cases in both the criminal and immigration contexts. Interveners before this court (charities called Nia and women@thewell) attest to its prevalence. It is irrelevant to liability under this section whether a defendant knew or had reason to believe that the prostitute in question had been exploited. …. Based on the arrangements contemplated there would necessarily be a risk that both C and his carers might commit an offence under section 53A.”
Thus, the issue highlighted in our submissions and the evidence of our clients was not simply that increasing demand by creating a right to pay for sex increases exploitation (though that is also true) it was also that by creating a situation whereby care workers arrange for such conduct, the Court was putting both the care workers and those they care for at risk of being prosecuted for serious criminal offences. The statements provided by nia and Women@thewell are compelling and, for many readers, they will be eye-opening.
The court of appeal also significantly noted that there is no evidence that the European Court of Human Rights have
“recognised that article 8 entails a positive obligation on the state to allow the purchase of sex without fear of criminal sanction.”
Nia and Women@thewell welcomed the judgment and in particular that their evidence had been taken on board. They are gratified that the Court has made clear that the right for the State not to interfere in one’s sex life does not extend to creating a situation where paying for sex is protected in law - and that the State should enable this.
Nia said:
“We welcome this judgment which recognises the scale, nature and extent of exploitation in prostitution and rejects any idea that there is any sort of a “right” to purchase sex.”
A full statement was also released by nia earlier today.
Also commenting, Women@thewell said:
“Our experience of providing front line holistic support services, tells us that 100% of the women we support have experienced some form of control by another person or some form of coercion and or exploitation.
Sexual access should never be a saleable entity, women@thewell strive for a society which recognises that you cannot buy consent.”
The intervenors were represented by Anthony Metzer QC and Charlotte Proudman instructed by Centre for Womens Justice. The judgment is available here in full.