feminists@law, Vol 8, No 1 (2018)

The Sexual Contract in Paid Care Work: Evidence from the Prosecution of Care Workers for Failures to Care

Lydia Hayes*

This is a video of a paper given at the Sexual Contract: 30 Years On conference held in the School of Law and Politics, Cardiff University on 10-11 May 2018. This paper was part of Panel 2: The Employment Contract, chaired by Sarah Keenan. The PowerPoint slides accompanying the paper are available as a separate file.

The contemporary meaning of paid care work is best understood through a recognition that the contract of employment is only part of the story since it relies on a coexisting sexual contract. The sexual contract in paid care work is brought sharply into focus by the framing of criminal law. In this paper, I explore the criminalisation of care workers in relation to elder abuse. When handing down custodial sentences, judges narrate the gap between offending conduct and social expectations of the behaviour of care workers towards the people for whom they are employed to care. The legal capacity to prosecute depends upon the existence of a contract of employment yet the duties and obligations existing between the care worker and her employer are curiously absent from judicial narratives.

The capacity to prosecute individual care workers for ill-treatment and wilful neglect provides powerful insights about the social meaning of paid care work. It reveals that in the shadows of the contract of employment lies a suite of private sphere obligations which the care worker owes to care recipients, and to society at large, as a consequence of her employment. This is the sexual contract in paid care work. Women who are employed to care are liable for prosecution as workers, yet they are judged as women. The root of their offence is an individual failure to exhibit caring behaviour and having a ‘couldn’t-care-a-less’ attitude.

Reports of elder abuse by paid care workers have risen, in concert with the UK’s rampant privatisation of social care provision and increased public concern. Neglect, meaning the failure to provide care as and when it is needed, is the most frequent form of abuse in which care workers are implicated. The scientific evidence from research in care-settings is that poor quality employment relationships create conditions in which abuse occurs. The scale and nature of the UK’s elder abuse problem suggests systemic causes. However, the criminalisation agenda in the UK care sector has been recently expanded by new provisions which widen the scope for individual prosecutions in the shadow of the contract of employment. Drawing on Pateman, the paper identifies how the sexual contract serves as a form of discipline in paid care work and suggests that the state draws upon the subjection of women to legitimate its criminalisation strategy.


* Lecturer in Law, School of Law and Politics, Cardiff University, Wales. Email: hayesl@cardiff.ac.uk