Policy Briefing: Prostitution law and policy in England – the limits of liberalism

Policy Briefing: Prostitution law and policy in England – the limits of liberalism

Natasha Mulvihill

Buying and selling sex in England is legal. As long as the exchange of money for sex is discreet and consensual then, so the argument goes, it is not for the law to engage in moralism.  Affirming the English values of individual liberty and tolerance, the Wolfenden Committee on Homosexual Offences and Prostitution concluded in 1957: “It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.”  Add to this the contemporary mantra of choice, and the formal distinction within English policy and law between protecting those who are forced in to prostitution and in general tolerating those who engage freely, and operate inconspicuously, appears to makes eminent sense.

But individual liberty is not equally distributed.  It depends on access to social and economic resources and is constrained by relations of power, including gender, ethnicity, class or sexuality.  Moreover, my liberty unfettered may encroach upon your liberty.  Feminists and other equality movements have recognised that the Enlightenment ideal of liberty was conceived in the mould of its creators: white, invariably affluent, men.

Prostitution is a social practice patterned by gender.  In the vast majority of cases, it is men paying for sex from women (most often), men and children.  Economic inequality and immigration status can also intersect the sex seller-sex buyer relationship, but gender is arguably the defining factor across the different settings for prostitution in England.  A sizeable body of academic research points to an association between sex buying (and consumption of commercial sex broadly) and normative constructions of masculinity. Men pay for sex not because they need to, but because they can.

While the patriarchal roots of prostitution have been recognised and argued about by successive ‘waves’ of feminists, a counter-movement emerged in the 1970s that sought to define sex work as ordinary labour, requiring concomitant legal recognition and rights.  For some within this group, the problem is not patriarchy but social stigma: it is the ‘othering’ of the prostitute, combined with their clandestine status, which makes violence and other harms possible.  Two broad camps have therefore emerged in recent decades within (and outside of) feminist approaches to prostitution: one calling for statutory regulation, or effective decriminalisation of paid sex (through for example, legalising brothels as legitimate businesses or introducing managed areas for street prostitution), and the other calling for an end to prostitution, making sex purchase a criminal offence.  There is some common ground however on the need to decriminalise sex sellers.

English public policy towards prostitution has expanded in focus over the last 50 years from ‘managing’ the seller through criminal, civil and welfare sanctions to ‘responsibilising’ the buyer through kerb-crawler legislation and diversionary educative schemes (kerb crawler rehabilitation programmes modelled on the ‘John Schools’ emerging in North America from the 1980s).  Politicians have been concerned particularly with the public face of prostitution – the street walker, the kerb-crawler, the effect on communities of related anti-social behavior.  Indeed, indoor prostitution barely registered within English policy documents or discussion prior to the mid-2000s and there has been a generally laissez-faire approach by police, though punctuated with periodic and often politically motivated enforcement operations.  The focus on the ‘demand’ for paid sex accelerated through the 2000s with international concern for the trafficking of women and children into prostitution and increasing interest among international policy actors with the efficacy of the approach of Sweden, which in 1999 criminalised the purchase of sex while at the same time decriminalising the sellers.

Following a proposed amendment, by Conservative MP Philip Hollobone, to the Criminal Justice and Immigration Bill in late 2007 aimed at crimminalising sex purchase, the then Labour Home Office Minister Vernon Coaker announced that the Government would initiate a policy review of the ‘demand’ for paid sex from January 2008.  The Home Office report Tackling the Demand for Prostitution: A Review published in November 2008 noted some support for adopting the ‘Swedish’ approach, but acknowledged that cultural attitudes were unfavourable:

[Th]e Government needs to work to challenge the attitudes of sex buyers and the public as a whole before criminalising the purchase of sex per se becomes a viable option. (Home Office, 2008, p.13)

The Review proposed a strict liability offence (that is, an offence not requiring evidence of intention) of purchasing sex from an individual who is ‘controlled for gain’, which was introduced as Clause 13 (later Clause 14) of the Policing and Crime Bill and presented to Parliament in December 2008. This was identified by some as a form of soft abolitionism, and advocated by leading female Labour politicians.  My own research considered how this initial proposal was received, contested and re-shaped through the Parliamentary process to emerge as the somewhat narrower Section 53A of the Sexual Offences Act 2003, which criminalises paying for sex with an individual who is induced by force, threats or deception by a third party for financial (or other) gain.

To do this, I conducted electronic searches of all public Parliamentary records between January 2006 (which marked the publication of the previous significant document on prostitution policy, the Home Office Coordinated Prostitution Strategy) and November 2009 (when the Policing and Crime Bill 2009 passed in to law) to identify any mention of criminal measures for sex purchase together with all the transcripts of Parliamentary debates and committee hearings relating to Clause 13.  This resulted in some 500 pages, which I used to both map the journey of the clause and to identify the key preoccupations of the politicians engaged in its revision.

Despite there being 90 or so clauses in the Policing and Crime Bill, I would estimate around a quarter of the Parliamentary time dedicated to the Bill was spent discussing (what was then) Clause 13.  The principal focus of the debates was whether the strict liability approach was fair to sex buyers and indeed whether buyers should be the focus of criminal sanction.  This discussion was couched in terms of prostitution being inevitable and that women make complex choices.  Fewer speakers problematized the gendered patterning of prostitution: this context was a given.

The concern for fairness could be, said to be, targeted at the strict liability approach, rather than with any concern to uphold a male right to pay for sex.  Yet a key premise within the debates was that there are ‘good’ and ‘bad’ punters.  The fear was expressed that legislation would deter this former group leaving a small hardcore of dangerous men.  Buyers were also considered to be a lifeline to victims of exploitation, who could aid women by reporting their plight: although evidence offered for this was scant.  Buyers, some argued, were merely consumers acting in good faith, who could not be held accountable for the evil actions of pimps and traffickers, where enforcement activity should be focused.

In the event, Section 53A of the Sexual Offences Act (as Clause 13 would become) has been weakly enforced.  This is partly because the final formulation requiring evidence of exploitative conduct for gain by a third party is difficult to substantiate.  Evidence submitted to Parliament, by Gavin Shuker MP, suggests that since 2013 there have been more prosecutions for soliciting and loitering than for profiting from prostitution and kerb crawling (House of Common, 13 Oct 2015, col. 59WH).  In other words, the weight of criminal sanction is again falling disproportionately on the women and men in prostitution.

At the same time, political support for criminalizing sex purchase has gained some traction elsewhere in Europe.  Finland, Norway, Iceland and Northern Ireland have adopted a variant of the Swedish model and proposals are under discussion in the Republic of Ireland, France, Lithuania and Latvia.  In 2014, the All-Party Parliamentary Group on Prostitution and the Sex Trade recommend a “shift in the burden of criminality from those who are the most marginalised and vulnerable to those that create the demand in the first place” (APPG, 2014, p.2).  In 2016, a Home Affairs Select Committee Prostitution Inquiry has been established to, once again, consider the impact of the prevailing mix of laws in this area.

The protections afforded the individual and the safeguarding of freedoms, including sexual expression, are rightly prized within a society which values liberty, tolerance and choice.    Yet these values can gloss over the unequal distribution of resources and power within society.   Claims of unwelcome ‘moralising’ and infringement of private spaces, has long been invoked by those either benefitting from, or untroubled by, the status quo.  The law clearly has an important normative function.  If we focused somewhat less on liberty and choice for some, we may finally reach a legal and policy settlement on prostitution that brings equality and social justice for the many.

 

Natasha Mulvihill is a researcher and teacher at the Centre for Gender and Violence Research at the University of Bristol. She is the author of ‘Gender, power and the translation of English prostitution policy’. In: Nadia Aghtaie, Geetanjali Gangoli (eds) Understanding Gender Based Violence: National and international contexts. Abingdon: Routledge, pp. 110-129.

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