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People with learning disabilities and mental health issues, like everyone else, have sexual needs and feelings – and, like anyone else, may wish to avail themselves of the services of prostitutes. The legal position surrounding this is complex, as it can involve several pieces of legislation. It goes without saying that most of the legislation is intended to protect the vulnerable from abuse and exploitation by those who are entrusted with their care. Of particular relevance are: Mental Health Act 1983; Sexual Offences Act 2003; Mental Incapacity Act 2005
The crux of the matter is the notion of valid consent. Currently, the legal position is that the individual must be able to understand the nature of the sex act and its consequences, that there is no pressure used, and that the person concerned is able to communicate their decision to have sex.
Here are some extracts from the relevant legislation:
“Mental disorder” was defined by the Mental Health Act 1983 (Section 1, ii) as "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind." A person with a "learning disability" would very probably fall within this definition.
The Sexual Offences Act 2003 set out a series of sexual offences involving persons of limited mental capacity. For our purposes, we will consider just two of them. Section 30: Sexual activity with a person with a mental disorder impeding choice, and Section 31: Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity.
Section 30: Sexual activity with a person with a mental disorder impeding choice - A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse. - B is unable to refuse if—
(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A.
Section 31: - 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 is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse. A possible Section 31 offence could be committed if, say, a vulnerable person “wanders” into a brothel and is encouraged by the management to use the services on offer:
The key to both Sections would seem to be the possible interpretations of the words “mental disorder impeding choice”
The Mental Incapacity Act of 2005 included some further pointers to be aware of:
Section 2:
- For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
- It does not matter whether the impairment or disturbance is permanent or temporary.
- A lack of capacity cannot be established merely by reference to—
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. - In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
Section 3:
- For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means). - A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
- The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
- The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
Some pertinent questions to consider:
- Is the person concerned able to fully understand the concept of prostitution?
- Does the person concerned appear to be aware of money matters?
- Is there a worrying power imbalance in the relationship? For example, if someone “vulnerable” asks for domination?
- Are there any actual or perceived threats to the person?
- Is the person able to effectively give consent (verbally and non verbally) and can they appreciate the other partner's right to refuse consent. Or, to put it another way, will “no” be understood as “no”, and will “stop” be understood as “stop”?
- Are you confident that the person understands the possible consequences of sexual contact?
- Does the person appear to be engaging in the act voluntarily, as a matter of their own choice, and of course free from coercion?
- Does the person have the assertiveness skills to stop sexual contact/leave the situation if they wanted to?.
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