Policy Briefing: Adult Sex Work, Law and Policy: new horizons in the 21st Century

Policy Briefing: Adult Sex Work, Law and Policy: new horizons in the 21st Century

Maggie O’Neill and Alison Jobe

The sex industry is a deeply embedded global institution. Structured by capitalism, commodification, sexuality, and sexual relations, the selling of sex is associated in the public imagination and embedded in law as (moral) deviance and regulated through the enforcement of laws which until the 2003 Sexual Offences Act focused mainly on women who sell sex.

Historical analysis reveals relationships between the State, women mostly selling sex from poorer communities, and the regulation of public space and moral order. The development of a deviancy or social censure model stems from symbols of immorality and disease and the enactment of laws that prevent women’s access to public spaces where they might sell or exchange sex for money. There are three particularly noisy periods of law and policy that set the scene for our own time.

The Victorian era is a powerful moment in the construction of sex workers as an ‘outcast group’.(1) The 1824 Vagrancy Act introduced into statutory law the term `common prostitute’. The 1839 Metropolitan Police Act made loitering an offence in London, and was later extended to other towns and cities. The Contagious Diseases Acts (1846, 1866, 1869) introduced the compulsory medical examination of poor women identified as prostitutes, in naval ports and garrison towns.

The Contagious Diseases Acts enshrined in law the category `prostitute’, so that what she does (sells sex) becomes who she is (prostitute). Her identity is fixed through labelling, registration, cautioning and imprisonment in pseudo-prisons called lock hospitals.(2) She is simultaneously made an `outcast’ from the working-class communities she lived and worked in, set apart as `Other’, labelled a `common prostitute.’ Such ‘identity thinking’ reinforces and reproduces the ideology of prostitution, in which unequal and oppressive sexual and social relations are concealed, contradictions are denied and sectional interests are presented as universal. For example, poor women in Victorian England sold sex to survive, and some sold sex in addition to their `day’ jobs, from which they earned a pittance. The economic basis for entry into sex work is social inequality and the organization of sexual and labour relations, but these are hidden in the label ‘prostitute’ as though the work is in her ‘nature’.

The dominant mode of regulation from the Victorian period onwards is containment and surveillance, with a degree of tolerance. This was reinforced in the mid 1950s with the Wolfenden Committee’s report and the subsequent Street Offences Act (1959). The Committee was set to examine homosexuality and prostitution, at the request of the Secretary of State for the Home Office; `concerned that London streets gave a deplorable impression of British immorality to foreign visitors’. For Wolfenden, the distinction between law and morality was clearly defined; the law was not concerned with morality unless it offended against public decency. However, Roger Matthews argues that the report:

…also rationalised resources directed towards the control of prostitution while increasing the certainty of convictions; and … it encouraged a more systematic policing of the public sphere in order to remove visible manifestations … in London and other urban centres.(3)

The third major period for legislation is our own time, in which most sexual activity has been commodified and also marked by increasing criminalization, not only of sex workers but also their clients. There is a clear shift from enforcement to a social welfare approach in policing and regulation alongside a shift from hierarchical coordination towards network-based operations.(4)

These three periods of regulation and law reform embed the abject status of the sex worker, who is defined as a morally deviant Other who may also be a victim, of her own making or of another: a man, brothel owner, or trafficker. What consistently remains hidden is the poverty experienced by women and their families, the growing market for sex work, as work, at a local and global level, and the fact that social justice for sex workers is circumscribed.

Key legislation (England and Wales) up to 1st November 2016
The selling and purchase of sex are currently legal in England and Wales. However, some related activities are prohibited, including ‘persistent soliciting or loitering in a street or public place for the purposes of offering services as a prostitute’. Conduct is considered ‘persistent’ if it takes place on two or more occasions in any period of three months. If convicted, an “Engagement and Support Order” may be offered in lieu of a fine. The offender must attend three meetings within six months with an “appropriate person” in order to “address the conduct constituting the offence and find ways to cease engaging in such conduct in the future” (CPS, 2016). Failure to comply will result in a breach, which may involve resentencing and more punitive sanctions may be used by police including Anti-Social Behaviour Orders, Drug Treatment Orders, fines or arrest.

Soliciting is defined as engaging person in a street or public place for the purpose of obtaining sexual services (Sexual Offences Act 2003: s51a). It is also illegal to keep, manage or assist in the management of a brothel (Section 33A Sexual Offences Act 2003). Under this legislation a “brothel” is defined as “more than one woman using premises for the purposes of prostitution, either simultaneously or one at a time” (CPS, accessed 3rd June 2016). The causing, inciting or control prostitution for gain is also prohibited as is trafficking for sexual exploitation and paying for sexual services where a person has been coerced/forced/ deceived into providing sexual services (Sexual Offences Act 2003: s53A; Policing and Crime Act 2009: s14).

International Debates: Key international criminal justice approaches
A model of neo-abolitionism was adopted in Sweden (1999) followed by Norway (2008), Iceland (2009), Northern Ireland (2014) with partial adoption in Canada (2014). In the ‘Swedish or Nordic’ model, buying sex is illegal but it is no longer a crime to sell sex. Support services are focused on support for exiting sex work.

While the “Swedish model” has been considered a success by some due to an apparent reduction in street sex work (Equality Now, accessed 18th June 2016; Swedish Ministry of Justice, 2010), others suggest estimates are unreliable and that street sex work may have moved indoors, online or to neighbouring countries.(5) A 2014 study in Sweden found that for sex workers were at increased risk from violence and unsafe sexual practices as well as discrimination from health providers. There was found to be a lack of harm reduction services (e.g. no free condoms), due to focus on exiting.

Sex work was decriminalised in New Zealand by the 2003 Prostitution Reform Act – which removed all provisions criminalising aspects of sex work made it legal for over 18s to buy or sell sex. Sex workers In New Zealand now have the same occupational and legal rights as any group. A review of the act has shown that decriminalization has made the industry safer and improved the human rights of sex workers across all sectors.(6)

In other countries sex work is permitted under certain state-specified conditions: Red Light Districts in The Netherlands and Belgium; specified zones in Switzerland; licensed brothels in Nevada (USA), Victoria and Queensland in Australia. The impact has been variable. In the Netherlands, poor implementation and monitoring has led to variable working conditions and labour rights for sex workers.(7) Elsewhere, Pitcher and Wijers argue that legalisation has not brought significant improvements, but rather increased controls within the legitimate sector, creating a dual system which disenfranchises illegal workers.(8)

Research in the UK: Sex Work Research Hub
There is now a vast, rich and growing research literature on sex work and the sex industry. Much of the available research in the UK has been undertaken by academics, scholars and researchers affiliated to the Sex Work Research Hub (SWRH). The SWRH works with sex workers, sex work support projects and other stakeholders, such as lawyers, police, policy makers, educationalists, youth and community workers, and the voluntary sector to support and develop rigorous research and deliver tangible public benefit and impact. The principles underpinning participatory research are central to its work.

Feminist Debates
Focusing on adult sex work, debates are complex and polarised around sex as work and sex as violence and abuse, embedded in the history outlined above. Applying feminist knowledge and understanding amounts to a demand for the harm and violence against women to be recognised and challenged and for the complex lived lives of women and men to be recognised as part of identity politics, alongside calls for economic redistribution. Whilst feminists acknowledge that structural inequalities form the entry point for many sex workers and also sustain involvement, many also ask that sex work be acknowledged as work. The recognition of rights that transgress cultural value patterns (sex work/worker as deviant/diseased/victim/ Other) alongside a call for redistribution, could transform feminist debates. Overcoming status mis-recognition means seeing sex workers as full members of society, as full – not partial – citizens.

Violence against Sex Workers
It is clear that where sex work is criminalized, stigma and partial illegality leave sex workers vulnerable to violence, abuse and homicide. As Teela Sanders points out following the murders of sex workers in Ipswich, “relying on the rhetoric of a moral order and public nuisance that frames women either as nefarious outcasts that need containing or victims that need protection” is both dated and an unrealistic reflection of those selling sex today.(9) The bottom line is that violence; low levels of reporting and the marginal status of sex workers contribute what John Lowman calls a ‘discourse of disposal’.(10) Lowman argues that current legal structures promote victimisation; sex work takes place in illicit markets; there is a convergence with other illicit markets; together this alienates sex workers from protection. This in turn promotes partial citizenship.(11)

Moving Forward: De-criminalization as a 21st Century Response?
Law and Policy has developed in a piecemeal way across the three noisy periods of law reform. Recent responses by the police address violence against sex workers as hate crime in Merseyside;(12) and in the new Guidance on Policing Sex Work (February 2016). The NPCC with the College of Policing has agreed to revised guidance being circulated to Police Forces in England, Wales & Northern Ireland and adopted in England & Wales.

On July 1st 2016 the Parliamentary Home Affairs Committee published its long-awaited interim report from its inquiry into prostitution. The report calls for an end to the criminalization of sex workers: soliciting should no longer be a criminal offence and sex workers may legally share premises. Final recommendations are deferred until later in the year. This is the first time that Parliament has considered the issue of prostitution in the round for decades. The report opens with a key facts section:

  • Around 11% of British men aged 16–74 have paid for sex on at least one occasion, which equates to 2.3 million individuals;
  • The number of sex workers in the UK is estimated to be around 72,800 with about 32,000 working in London;
  • Sex workers have an average of 25 clients per week paying an average of £78 per visit
  • In 2014–15, there were 456 prosecutions of sex workers for loitering and soliciting;
  • An estimated 152 sex workers were murdered between 1990 and 2015. 49% of sex workers (in one survey) said that they were worried about their safety.

National Ugly Mugs (NUM) evidence to the select committee states that sex workers are often victims of crime, but rarely report these incidents to the police:

Almost 2000 reports have been made to NUM since July 2012, but only 25% of the victims were willing to formally report to the police. Of these, 283 were rapes, 86 attempted rapes and 150 other sexual assaults. A NUM survey in 2015 found that 49% of sex workers are “worried” or “very worried” about their safety and 47% have been targeted by offenders. Yet 49% were either “unconfident” or “very unconfident” that police would take their reports seriously.

The HAC report commends “the police service for its focus on protecting sex workers and for seeking to gain their assistance in targeting those who exploit them or commit other crimes” but acknowledges “there is considerable variation and not all is consistent with national policy”. It also criticises the criminalisation and stigmatising of sex workers and that legislation, including illegality of brothels, makes their lives significantly more dangerous and risky. It requests the amendment of the Rehabilitation of Offenders Act in order to allow the deletion of previous convictions and cautions from the record.

The final Home Affairs Committee report “will consider the purposes of the law on prostitution and what the research shows about how those purposes can best be fulfilled, including whether a different approach should be taken to on-street and off-street prostitution”.

Current social policy debates in the UK
The interim report on prostitution from the Home Office Home Affairs select committee will lead to further debate and consultation on both law and social policy in relation to adult sex work in particular. Until July 1st 2016 the social policy debates in the UK aligned with criminal justice approaches in England and Wales that followed elements of the “Swedish model” with a focus on criminalising clients, through laws on soliciting, a strict liability offence if sex workers have been subject to force (Sexual Offences Act 2003: s53A; Policing and Crime Act 2009: s14), and the rehabilitation of sex workers through Engagement and Support Orders (Policing and Crime Act 2009: s16).

This follows a persistent push to criminalize the purchase of sex, despite the problematic evidence, over several years:

2012: In Scotland, Rhoda Grant, (MSP, Highlands and Islands), attempted fast track to introduce Nordic model. The motion went to consultation but was defeated.
2014: MEP Mary Honeyball produced a report recommending the introduction of the “Swedish Model” and the European Parliament subsequently voted in favour of a resolution to criminalise the buyer. However, the European vote is not binding in the UK and has been strongly resisted by academics and practitioners working in the field, including the Mothers Union, the Lancet and Amnesty International, who are in in favour of de-criminalisation of sex work.
2014 Gavin Shuker, MP for Luton South, chaired the All Party Parliamentary Group on Prostitution and the Global Sex Trade, which recommended blanket criminalisation of all clients. The report was later critiqued for reluctance to disclose the evidence base used.
2014: Fiona MacTaggart, MP for Slough, placed an amendment to the Modern Slavery Bill, which would have introduced blanket criminalisation of clients. It was defeated.
2014: An independent commissioner role was created by the Modern Day Slavery Act with a strategic plan to be developed. Academics wrote to request for it not to introduce the “Swedish model”.
2015: On 1st June 2015 it became a criminal offence to purchase sex in Northern Ireland. Offenders are subject to a maximum penalty of one year in prison and £1000 fine.

However, most recently there has been a push back against this neo abolitionist approach towards de- criminalizing sex work.

2015/2016: MEP Jean Urquhart undertook a consultation on sex work and proposed a bill to decriminalise sex work in Scotland. The bill is currently held up until after elections.
2015: ECP and Scot Pep held consultations in the houses of parliament – London ECP event was hosted by John McDonnell, Jeremy Corbyn, Leader of the Labour Party, and the Green Party who support the introduction of decriminalization.
2015/ 2016: Amnesty International proposed and subsequently adopted a policy to recognise sex workers’ rights as human rights, and campaign for the decriminalisation of sex work.
2016 (February) National Police Chiefs Council publishes new Guidance on Policing Sex Work calling for policing which prioritises the safety of sex workers, focusing on protection not enforcement.
2016 Laura Lee, a sex worker and law graduate, crowd funded aiming to get Northern Ireland legislation repealed on the basis of safety and human rights. (September) Belfast High Court granted her right to judicial review.
2016 Home Affairs Select Committee cross party consultation on prostitution. Interim report published (July 1st) stating that soliciting by sex workers, and sex workers sharing premises, should be decriminalised’.

National Ugly Mugs (UKNSWP), key sex worker organisations, The English Collective of Prostitutes (ECP) in England and Scot-Pep in Scotland, The Sex Work Open University, produce briefing papers and respond to government consultations on sex work. All call for the de-criminalization of sex work.

In summary, we need to think beyond labels and conduct research in participatory ways with sex workers and seek transformative change based upon challenging sexual inequalities and promoting social justice. Moreover, we need to engage with both migration and digital/on-line sex work in coming years as key current developments in sex work research with implications for policy and policing.

De-criminalization is one way forward. As the Home Affairs Committee Report states:

it is wrong that sex workers, who are predominantly women, should be penalised and stigmatised in this way. The criminalisation of sex workers should therefore end. The current law on brothel keeping also means sex-workers can be too afraid of prosecution to work together at the same premises, which can often compromise their safety. There must however be zero tolerance of the organised criminal exploitation of sex workers, and changes to legislation should not lessen the Home Office’s ability to prosecute those engaged in exploitation.

References:
(1) See Judith Walkowitz, (1980) Prostitution and Victorian Society Cambridge, Cambridge University Press.
(2) See Helen Self (2004) Prostitution, Women and Misuse of the Law: The Fallen Daughters of Eve, London: Frank Cass. For more information and this entry in Hertsoria.
(3) Roger Matthews (1986) ‘Beyond Wolfenden? Prostitution, politics and the law’ in Matthews and Young [eds] Confronting Crime, London, Sage.
(4) Maggie O’Neill (2010) ‘Cultural criminology and sex work: resisting regulation through radical democracy and participatory action research (PAR).’ Journal of law and society. 37 (1). pp. 210-232.
(5) Jay Levy and Pye Jacobson, P. (2014) ‘Swedish sex work and on the lives of Sweden’s sex workers’ Criminology and Criminal Justice “The Governance of Commercial Sex: Global Trends of Criminalisation, Punitive Enforcement, Protection and Rights” November 2014 Volume 14 Issue 5, p597.
(6) See Gillian Abel (2014) ‘A decade of decriminalization: Sex work ‘down under’ but not underground’ Criminology and Criminal Justice, 14 (5): 580-592.
(7) Wagenaar and Altink (2012) ‘Prostitution as Morality Politics or Why It Is Exceedingly Difficult To Design and Sustain Effective Prostitution Policy’ Sexuality Research and Social Policy September 2012, Volume 9, Issue 3, pp 279-292.
(8) Pitcher, J. and Wijers (2014) ‘The impact of different regulatory models on the labour conditions, safety and welfare of indoor-based sex workers’ Criminology and Criminal Justice “The Governance of Commercial Sex: Global Trends of Criminalisation.
(9) Teela Sanders (2006) Behind the Personal Ads: The Indoor Sex Markets in Britain’, p 11, in M. O’Neill and R. Campbell (eds) Sex Work Now, Cullumpton: Willan.
(10) John Lowman (2000) Violence and the Outlaw Status of (Street) Prostitution in Canada in Violence Against Women September 2000 vol. 6 no. 9 987-1011.
(11) Maggie O’Neill (2010) ‘Cultural criminology and sex work: resisting regulation through radical democracy and participatory action research (PAR).’ Journal of law and society. 37 (1) and Scoular, J and O’Neill, M. (2007) Regulating Prostitution in Br J Criminology (2007) 47 (5): 764-778.
(12) Rosie Campbell (2014) ‘Not Getting Away With It: Linking Sex Work and Hate Crime in Merseyside’ in Chakroborti, N and Garland, J (eds), ‘Responding to Hate Crime: The Case for Connecting Policy and Research’, The Policy Press, Bristol.(13) Beyond the Gaze Internet Sex Work Project (ESRC) http://www.beyond-the-gaze.com/ and Nicola Mai http://www.researchcatalogue.esrc.ac.uk/grants/RES-062-23-0137/read https://vimeo.com/user3467382

 

Maggie O’Neil is a professor in Sociology (Criminology) at the University of York, she is a founder member and co-chairs the Sex Work Research Hub and the UoY Migration Network. She has conducted (mostly) participatory research in this area for over twenty five years and supervises PhDs in this area.  Alison Jobe is a lecturer in Criminology at Durham University. One of Alison’s key research interests concerns the production of stories relating to sexual trafficking. Her research considers how sexual trafficking has been constructed through the law, the media, within academic research and by activist groups. Empirically, Alison’s research has explored how these discursive processes have interacted with the lives of those identified as sexual trafficking victims/survivors, alongside the impact on other groups.

Image Credit: Thanks to BASIS, Carrie Reichardt & Karen Wydler The Treatment Rooms Collective for permission to use the image.

2 Comment responses

  1. Avatar
    December 07, 2016

    Thank you Maggie and Alison excellent Briefing and very timely!

    Reply

  2. Avatar
    January 21, 2017

    The sex industry essentially is a binary situation, my concern is that the feminist approach tends to look too much towards the demand side. If the sale of sexual services is to be prosecuted then it ought to fall evenly on both sides. I am though more concerned with aspects of trafficking and sexual slavery. These are much more complex and serious issues, and as with other organised crime enterprises, it is the masterminds, so to speak, the criminal directors of these enterprises which should be targeted as a priority. As with drugs, the street purchaser of sex or street supplier of sex are not the key to dealing with the dangers of this criminal carnage on the genuinely vulnerable and trafficked. Prosecuting a purchaser of sex may satisfy the feminist ideals of some, but will not resolve the problem, taking down the directors of this business is the only way to significantly impact the harm.

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