December 8, 2020

Do men have the “right” to sex? Few moral issues have shifted so comprehensively in recent years, and while marriage was once seen as securing husbands conjugal rights in the bedroom, today most people look with horror at an idea that implies women’s bodies are a resource.

Yet as with so many sexual issues, old moral norms have been rebottled with new and often contradictory arguments, and with the expansion of human rights law the “right” to sex has returned. This was illustrated last week when the Court of Protection heard a case that digs right down into a central contradiction in contemporary sexual attitudes.

It concerns a mentally disabled man, called only “Z”, who is in the care of his local authority. Z would like to have sex, but feels that his social anxiety prevents him from finding a girlfriend, and is therefore asking his care workers to find him a woman who is prepared to have sex with him for money.

The case has reached the court of protection because it’s not clear if care workers would be breaking the law by granting this request. We know that there have already been instances in this country of the taxpayer indirectly paying for sexual services in brothels and lapdancing clubs both in the UK and abroad, via money that vulnerable adults in the care of the state are permitted to spend on their “mental and physical wellbeing”.

But this case takes us a step further. Psychiatrists have ruled that Z has the capacity to consent to sex and indeed to buy it. He does not, however, have the capacity to manage his own finances, and his care plan includes restrictions on the films and video games he is allowed access to, due to the risk of triggering “inappropriate” behaviour.

In other words, he is not able to actually arrange to buy sex, and therefore requires his carers to take practical steps on his behalf — steps that may or may not be illegal, contrary to section 39 of the Sexual Offences Act 2003.

I cannot share details on what exactly Z’s “inappropriate” behaviour has consisted of, but I can share facts that have already been reported in the press: that Z has spent several years in a specialist facility, detained under the Mental Health Act, and has told care workers that he has sexual fantasies involving violence and children, and so his care plan is therefore designed to prevent him coming into contact with children.

Buying sex is not illegal in this country, even for men who confess to such disturbing fantasies. It is illegal to keep a brothel, solicit in a public place, or (as of 2009) pay for sex with someone who has been “subjected to force”. So, to get around these legal impediments, Z’s advocates propose that his care workers seek out an escort for him through a charity called the TLC Trust, who provide a registry of self-employed escorts who are willing to have sex with disabled people in exchange for money. In court last week, barristers representing Z and the Local Authority presented the TLC Trust as a safe, responsible and carefully-regulated source of sexual services.

But UnHerd contributor Julie Bindel, who has investigated TLC, is sceptical of this assessment, once arguing that although the organisation is technically a charity, it is really in the business of “peddling the commercial services of individuals and escort agencies advertising sexual services. Checking the websites of the escorts listed shows that they are not particularly targeting disabled men, but simply adding to their customer base.”

TLC is also a campaigning organisation that promotes the decriminalisation and destigmatisation of the sex industry. Foregrounding the “right” of disabled people to access “sexual service providers” has long been a media-friendly strategy employed by such campaigners, since it presents a sanitised and compassionate side to the sex industry.

I say “disabled people” advisedly, because the people we’re talking about here are actually disabled men, and the “service providers” in question are almost always women, although you’ll rarely hear campaigners spell this out, since “men have the right to have sex with women” doesn’t sound nearly as good as a campaigning slogan.

In fact, when the judge tasked with deciding on Z’s case said this in regards another case, his comments attracted a great deal of controversy. Mr Justice Hayden had been asked to consider imposing a court order preventing a man from having sex with his disabled wife because her carers believed that she was no longer able to give her consent, and during proceedings he remarked “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife.”

This did not go down at all well with feminist commentators, the criminalisation of marital rape being a hard-won legal battle in this country, only fully won in 2003.

It remains to be seen what Mr Justice Hayden decides in Z’s case; a judgment is expected by the end of the year and will potentially set an important precedent, since a key plank of Z’s argument is that he has a right to a sexual life, protected by Article 8 of the European Convention on Human Rights. He therefore insists that the state must not only meet his needs for food, shelter and medical care, but must also facilitate his desire to have sex. Which means, of course, that someone else has to have sex with Z, and if no one is willing to do so for free, then their consent must be bought.

But then, to be fair to Z, his demands do follow on logically from two assumptions about sex that hold sway among many Westerners in the 21st century, despite the fact that they are in tension with one another.

The first is that sex is not a want, but a need: that it is impossible to live a happy and fulfilled life without sexual intimacy since, although historically there have been established and high status social roles available to celibate people — primarily through the Church — these have now faded away, leaving only a contemptuous attitude towards celibacy: at best, it is eccentric; at worst, suspect.

The second assumption is that sex is a leisure activity that is only invested with meaning if the participants choose to give it meaning – it has no intrinsic specialness, is not innately different from any other kind of social interaction, and it can therefore be commodified without any trouble. People can understand their own sexual encounters as meaningful or even sacred, but there’s no obligation on them to do so.

As the American writer Aaron Sibarium puts it, “if the scientific revolution disenchanted the world… the sexual revolution disenchanted sex.”

If we accept both of these assumptions, then we have to accept a difficult contradiction: that sex is at the same time as essential a need as food or water, but also as trivial as going to the cinema or getting your nails done. According to this logic, sex is simply a service that one person can perform for another, but it is a service that must be performed — that must even, in cases like Z’s, be facilitated by the state.

Z is asking for access to some anonymous, replaceable woman (albeit, presumably, an attractive one) in whom he can relieve his sexual frustration. And he insists that not doing so would violate his Article 8 rights.

If Z wins, we should thus expect a disabled man’s hypothetical care team to grow beyond cleaners, cooks and taxi drivers to include a female worker whose role is to give out blow jobs. And we will all be asked to pretend that the service this worker provides is no different from any other service, since apparently, as Mr Justice Hayden said during proceedings last week, “we’re not here to pass moral judgments about people’s decisions in the sphere of their private life or their decision to go to a sex worker.”

Except we all know that this is not a service like any other, and that we should not suspend our “moral judgments” when it comes to the sex industry. For one thing, in what other line of work are workers so often left with PTSD, suffering rates far higher than military veterans? In what other industry does youth carry such a premium, with a worker’s pay actually declining as she gains more experience? What other work can routinely be carried out with the worker drugged or unconscious? And what other industry so reliably attracts trafficking, and violence, regardless of its legal status?

The whole point of paid sex is that it must be paid. It is not mutually desired by both parties — one party is there unwillingly, in exchange for money, or sometimes other goods like drugs, food or shelter. The person being paid (almost always a woman) must ignore her own lack of sexual desire, or even her bone-deep revulsion. She must suppress her most self-protective instincts in the service of another person’s sexual pleasure. There is a reason that this industry usually attracts only the poorest and the most desperate women. It is the same reason that the Crown Prosecution Service guidelines explicitly address prostitution as “sexual exploitation”.

If Z wins his case, the judgment will lend legitimacy to the sex industry. It will also affirm the idea that sex is both meaningless and a “right” to be claimed by men, at the expense of women. And such a decision would embolden those who consider male feelings of sexual frustration to be very important — but consider female feelings of sexual violation to not be important at all.

It’s a shame that Z regrets his lack of a sex life. But it is not the responsibility of the state to sexually satisfy every frustrated, entitled and potentially dangerous man who demands it. Z needs state care, but he desires sexual intimacy, and the difference between these needs and desires should be obvious: no one has ever died for want of sex.