A Right to Sex?
In a widely read piece in the London Review of Books, and more expansively in a new book, Amia Srinivasan explored whether there is a “right to sex”. The issue, as her discussion shows, is predictably complicated and politically charged. But it is one thing to consider the question within the comparatively safe confines of a book of philosophy, and quite another to confront it as a concrete legal matter. To what extent is the government required to allow people to purchase the sexual services of others – or, if they cannot do so for themselves, to have someone else help them? The question recently arose in The Secretary of State for Justice v A Local Authority & Ors [hereinafter Re C], a case which attracted considerable attention among lawyers and themedia. It raises not only important theoretical concerns about sexual morality and personal autonomy, but also hard-headedly practical issues about statutory interpretation, on which this post focuses.
The facts are straightforward. C is 27 years old, and suffers from Klinefelter Syndrome, meaning that he has an additional X chromosome. As the Court of Appeal observed, “the disorder has resulted in developmental delays and other social communication difficulties.” He has been deprived of his liberty since 2014, in large part because “of the risk of sexual and violent deviancy he presents when he suffers from intrusive thoughts.” C would like a girlfriend, but has found ‘dating’ difficult. For this reason, he asked his Care Act advocate if it would be possible to visit a sex worker. Though C lacks the capacity to make practical arrangements for such a visit, the parties agreed that he does have the capacity to consent to sexual activity and to make the decision to have contact with a sex worker.
The question is whether it would or could be lawful for the care provider to make practical arrangements, on behalf of C, for him to visit a sex worker. The sticking point is Section 39 of the Sexual Offences Act 2003:
39. (1) A person (A) commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B has a mental disorder,
(d) A knows or could reasonably be expected to know that B has a mental disorder, and
(e) A is involved in B’s care in a way that falls within section 42.
The central issue in Re C was whether a care worker who satisfies the conditions set out in sub-sections (d) and (e), and who makes arrangements for someone in his or her care to obtain sexual services from a sex worker, necessarily “causes” the former to engage in a sexual activity within the meaning of section 39(1)(a).
Hayden J, sitting in the Court of Protection, adopted a narrow reading of “causes”. In his view, it was not the intention of Parliament to unduly restrict the sexual autonomy of care recipients, and that the word “causes” should be construed in that light. With that premise in mind, Hayden J found that, so long as the care recipient has the capacity to consent to sexual activity, and has decided to obtain the services of a sex worker, the causation element is not satisfied merely because the care worker makes the practical arrangements for obtaining them. Hayden J acknowledged that a “careful risk assessment” would need to be conducted, and that any liaison with a sex worker would need to be in the care recipient’s “best interests”. Given C’s history, and the possibility that no sex worker would consent to sexual activity with him, it was by no means certain that he would get his wish.
In principle, though, Hayden J’s reading of section 39 contemplates the very real possibility of a care worker facilitating the use of a sex worker – a “prostitute”, to use the language employed in the 2003 Act – by someone in his or her care. Hence, the decision raised real concerns that it not only corrupts the relationship between care providers and care recipients by allowing it to acquire a sexual dimension, but legitimizes a practice that (as we will see) Parliament has arguably sought to discourage, and even lends a veneer of respectability to the idea that men have a “right to sex” (see here and here and here).
The Court of Appeal disagreed with Hayden J’s reading of section 39. Lord Burnett of Maldon CJ, with whom Lady Justice King and Lord Justice Baker agreed, held that “causes” should be interpreted broadly, and not as containing the implicit limits that Hayden J read into it. Although one may quibble with aspects of Lord Burnett’s reasoning, it fundamentally rests on the common-sense proposition that criminal offences must, at least sometimes, make use of bright line rules if they are to effectively target certain wrongs – including sexual exploitation.
The Ubiquity of Bright Line Rules
Lord Burnett’s opinion rested on several considerations. First, he observed that, in the context of criminal law, courts tend to employ a broad test for determining whether a defendant has ‘caused’ a given result. For example, it is clear that the causal link in cases of dangerous or careless driving causing death may be satisfied even where, as Lord Burnett observed, the dangerous or careless driving was not the “sole or even dominant cause of [death]”. Typically, it will be enough that the defendant’s contribution to the outcome was more than “negligible”.
In Lord Burnett’s view, the term “causes” in section 39(1)(a) should be construed in a similarly capacious fashion. He pointed out that Parliament’s intention was to “draw bright lines” for care workers dealing with those who have mental disorders. The use of bright line rules is hardly unusual in the context of sexual offences. As Lord Burnett noted, the age of sexual consent is itself a bright line rule that is insensitive to individual differences in physical and psychological maturity among young persons. Their use, however, does not stop there. He observed that Section 38 of the Sexual Offences Act 2003 prohibits a care worker from “engag[ing] in sexual activity with a mentally disordered person in his or her care… even if the person has capacity, is keen to engage in sexual activity and consents.” Likewise, section 40 precludes care workers from (in his words) “engaging in sexual activity in the presence of a mentally disordered person [in his or her care]” irrespective of the attitudes of the care recipient. Further, section 25 precludes sexual activity with a “child” – who may in principle be a mentally, emotionally, and psychologically mature seventeen-year-old – with whom one has one of several designated familial relationships, whether or not the child consents.
In each of these provisions, Lord Burnett suggested, Parliament has implicitly recognized that vulnerable people would face a profound risk of sexual exploitation if adult family members or caregivers were left to decide, for themselves, whether the care recipient or young person possessed the requisite psychological capacity to give legally operative consent to sexual activity. With that in mind, it would be inappropriate to make use of open-ended standards, inviting (indeed, requiring) the use of individual judgement, in crafting these offences. On the contrary, the heightened need for certainty and legislative guidance demands the use of bright line rules, which make it clear that there is no judgement for the care worker or family member to exercise.
The practical effect of such rules, of course, is to restrict – possibly, in some cases, to the vanishing point – the sexual autonomy of young people and care recipients. Moreover, there is (as Lord Burnett acknowledged) an arbitrary dimension to any bright line rule, since it will invariably be both over-inclusive and under-inclusive. Nonetheless, it is difficult to see how Parliament can avoid drawing these lines, however contentious they may be, if it is to effectively use the criminal law to target sexual exploitation in the first place. Respect for parliamentary sovereignty demands deference to them.
Section 39 can be understood, then, as one of many sexual offences that was intended to be somewhat insensitive to the individual characteristics and desires of the people it purports to protect – and precisely because they are in need of protection. The point is sharpened when we consider that, as Lord Burnett observed, the provisions in the 2003 Act that govern care workers closely mirror those that apply to adults in a position of trust vis a vis children. Again, it is difficult to imagine that a teacher who engaged in sexual activity with a sixteen- or seventeen-year-old student could argue, in his or her defense, that the child had consented. Yet, given how the care worker provisions in the Act echo the breach-of-trust provisions, it is difficult to see how, if consent is legally significant in the former, it would not also have exculpatory significance in the latter.
The Respondents argued that this broad interpretation of section 39 interfered with C’s right to a private life under article 8 of the European Convention of Human Rights. Lord Burnett was (not unreasonably) skeptical about the proposition that article 8 encompasses the right to purchase the services of a sex worker. Even if it did, he remarked, section 39 would satisfy article 8(2), which makes provision for reasonable limits. He noted that a number of countries criminalize the purchase of sexual services, and that “the sex trade is a paradigm example of a sphere of activity redolent with complex and controversial moral judgments.” That being the case, Lord Burnett concluded, this is the sort of context in which “the Strasbourg Court would allow a wide margin of appreciation”. This, in turn, made it unnecessary to construe section 39(1)(a) more narrowly in order to bring it into compliance with the Convention.
Lord Burnett also rejected arguments that his interpretation of section 39 was inconsistent with article 14 of the Convention, which prohibits discrimination on the grounds of mental disability. Accepting for the sake of argument that section 39 indeed discriminates against “people in C’s position”, he noted that the provision is “concerned with sensitive moral and ethical issues in the field of penal policy.” Its purpose “is to throw a general cloak of protection around a large number of vulnerable people in society with a view to reducing the risk of harm to them” and reflects Parliament’s considered judgment as to how best to balance a range of factors. Accordingly, Lord Burnett concluded, section 39 has a “reasonable foundation” and, even broadly construed, does not run afoul of article 14.
Causation, Overbreadth, and the Role of Parliament
Lord Burnett’s interpretation and reasoning have a great deal of intuitive force. There are, as he indicates, many contexts in which it would be inappropriate to make use of standards rather than bright line rules in the crafting of criminal offences. (On this point, the work of Andrew Cornford, Frederick Schauer, and, well, me is worth a look.) The fact that there is an arbitrary dimension in the specific placement of these lines does not mean that Parliament’s judgement deserves less deference. Quite the contrary: inasmuch as the protection of vulnerable people from sexual exploitation – an undeniably compelling objective – requires legislatures to provide concrete guidance to their citizens, rather than prohibitions framed in loose moral language, this simply highlights the critical need for positive legislation in the first place. Indeed, the classical natural law tradition emphasizes the need to defer to legislatures with respect to “reasonable specifications of legal principles”: see Vermeule here and here; Rommen at 221-8; Finnis, at 281-90.
That said, there are aspects of Re C that give me pause. For example, I am somewhat skeptical that we necessarily learn much, if anything, about the meaning of “causes” in section 39 of the 2003 Act, by looking to cases on, say, dangerous driving causing death, careless driving causing death, or impaired driving causing death. The reason is simple: those offences have an underlying wrong (e.g., dangerous driving) with an additional consequence element (causing death). By contrast, section 39 features no underlying wrong; rather, the conduct element of the offence just is the act of “causing” the care recipient to engage in sexual activity. We may well think that, all other things being equal, we should understand what it means to “cause” a result more narrowly when that is the sole conduct element of the offence, as opposed to an element tacked onto other elements that by themselves would represent a complete criminal wrong.
In making this observation, I do not call into question Lord Burnett’s conclusion that “causes” should be given a broad reading. It is correct, however, not because what it means to “cause” a given result is or should be uniform across the universe of diverse statutes and wrongs, but because the conduct element in section 39 should be construed in light of the relationship between the care worker and the care recipient, the special vulnerability of the latter, and the risks of sexual exploitation that Parliament plainly sought to address.
(Alternatively, or additionally, we should read “causes” in light of “incites”. Had Parliament wanted to restrict the ambit of section 39 to cases in which the care worker played an active role in the care recipient’s decision to engage in sexual activity, it could have omitted the language of “causation” altogether. By including that language, Parliament surely intended to signal that a care worker who plays more of a “supporting role” may also fall within the four walls of the offence.)
The expansiveness of Lord Burnett’s reading of section 39 no doubt raises new and intriguing questions. For example, Lord Justice Baker and Lady Justice King both expressed concern that the provision, on Lord Burnett’s interpretation, might encompass cases in which a care worker makes the practical arrangements for someone in his or her care to spend private time with a spouse, and the couple then engage in sexual activity. Could it be said, in such a case, that the care worker has “caused” the care recipient to engage in sexual activity?
Certainly, the conclusion cannot be ruled out – though I would observe in passing that the qualifier “intentionally” might do some limiting work here. Baker LJ and King LJ both left open the possibility that, in the event that sort of case arises, it might fall to the Court of Protection to “endorse a care plan under which care workers facilitate or support such contact [with the care recipient’s spouse] and to make a declaration… that the care plan is both lawful and in [the recipient’s] best interests.” At the same time, Lord Baker indicated that any such declaration would not be binding on prosecuting authorities. I would gently suggest that, if there is a need to qualify the scope of section 39 – perhaps on the basis that the provision does not give due recognition to the special moral considerations that arise in the context of long-term intimate relationships – Parliament is best-placed to determine whether and how that balancing of interests should be undertaken.
On that last point, note that Parliament did set out to recognize the special moral considerations that apply to spouses and civil partners. Section 43 of the 2003 Act creates a defence for care workers where they are spouses or civil partners of the people to whom they give care. It does not, however, create a defence in cases where the care recipient is the spouse or civil partner of a third party with whom he or she has been “caused” or “incited” to engage in sexual activity by the care provider. This creates a strange anomaly in the statute that may be worthy of legislative attention. (I thank James Chalmers for pointing this out to me.)
Finally, the Court of Appeal’s interpretation of section 39 made it unnecessary to decide whether the courts should refuse to sanction, on public policy grounds, the facilitation by a care worker of the sale of sexual services to someone in his or her care. In my view, the Court of Appeal was right to exercise caution before using its power in such a way that it might effectively expand criminal liability. As I noted in Sovereignty, Restraint & Guidance, the creation and expansion of criminal offences represents a profound exercise in social policy-making, and is generally best left to Parliament.
At the moment, section 53A of the 2003 Act articulates a relatively ‘nuanced’ moral position with respect to the purchase of sexual services, making it clear that there must be “exploitative conduct” by a third party before it can be said to be a criminal wrong. Given the widespread exploitation of those who work in the ‘sex industry’, and the fact that the risks of exploitation may not be fully eradicable even if purchasers take steps to ensure that those selling sexual services have not been subject to coercion or deception, there may be good reason for Parliament to go further than it has. Again, though, that is a matter for Parliament to decide.
Professor Michael Plaxton, University of Saskatchewan.