To:
From: Jane Scoular
Reader in Law
University of Strathclyde
I would firstly wish to raise concerns as to the short deadline for these proposals which have, as yet, not be widely publicised or debated. Details of the 6 month review are not available to ascertain the rationale of the reforms or indeed the research evidence supporting the government’s proposed approach. This is particularly worrying given the grave inadequacies of recently commissioned work see for eg academic concerns regarding the commissioning of and failure to comply with basic ethical standards in reports such as ‘Sex for Sale’, ‘Big Brothel’ ‘Challenging Men’s Demand for Prostitution in Scotland’ and A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden1. Also the Home Office’s earlier review ‘Paying the Price’ and ‘A Co-ordinated Strategy’ was met with a substantial body of criticism in the academic press. Concerns were expressed specifically about the use of criminal law to tackle a complex issue of social inequality, the introduction of compulsory orders designed to exit women from prostitution and the lack of consultation with sexworkers as stake-holders. These important issues do not appear to have been taken into account in formulating these most recent proposals, which have not been widely debated. I would hope that this call for responses is only the beginning of a more extensive consultation with all key stakeholders which would presumably help to broaden out the current narrow focus of reform, which follows a narrow criminalising and prohibitionist line, into a more inclusive, research informed reform strategy which is germane to the realities of commercial sex in the 21st century.
I would make the following observations:
(a) a new criminal offence of paying for sex with a person controlled for gain;
While acknowledging the motivations behind this new offence I would question its efficacy. The use of the extremely wide term ‘person controlled for gain’ and the failure to state whether knowledge is required for the crime may mean that this proposed new law is inoperable and would in effect offers little by way of protection to those it seeks to help. This stems from the narrow use of the criminal law to tackle a much wider and complex social issue, namely the conditions and legal status of economic migrancy, the realities of poverty and survival and the unequal and unregulated nature of the sex industry. These structural factors require much greater political action than that offered by criminalising a small section of purchasers. This in any event is unlikely to if there is a requirement of criminal intent. Knowledge of a person’s controlled status would be difficult to establish, meaning that few, if any, prosecutions would result. As Archard notes
Criminal liability presupposes fault, and normally this obtains in the presence of clear intention, recklessness or negligence. [If the suggested proposal applies] where someone does not know, and further is not unreasonable in not knowing, that he is deriving benefits from a practice that has evil consequences …[it] would be a case of a strict liability offence, and such offences are thought to be unfair2’
This would this make the law of merely of symbolic rather than practical use and given there are many practical ways in which the government could improve the position of vulnerable sexworkers it may be something of a distraction. It would also potentially criminalise a wide group of purchasers and is likely to stymie an important source of information as to the presence of ‘trafficked’ and coerced sex workers.
(b) a new civil order to enable police to close brothels;
This proposal is extremely vague. On what basis would such civil orders be granted? What evidence is required? As the International Union of Sexworkers notes the
‘[p]resent law fails to make any distinction between clean, well run, tax paying brothels with fair and safe working practices, and those in which workers are coerced, exploited or treated as slaves. This wastes valuable criminal justice resources and creates a major barrier to decent owners and managers providing the facilities’
In the absence of measures to offer greater protection to indoor workers (who at present are poorly protected by virtue of quasi-illegal status of brothels and the ban on 2 women or more working collectively) this will do little to improve the condition of those who work indoors and as is clear from centuries of criminal control, banning venues will not lead to a reduction in demand but will merely displace it. Once again the interests of residents (and even then only those who object to the presence of commercial sex) are prioritised over sexworkers needs, rather than an accommodation being sought between different groups .While I would recognise the need to amend licensing laws to offer greater powers, there is more at stake than simply giving ‘local authorities and communities more powers to prevent the anti-social behaviour and nuisance that can accrue from such activities’.
(c) Amendments to the Sexual Offences Act 1985, to remove the requirements of persistence, annoyance and nuisance from the offence of kerb-crawling.
Removing the necessity for the persistence, annoyance and nuisance from the offence of kerb-crawling is a major change, one which involves a shift from a nuisance based crime to a status based crime and as such it requires careful consideration. If kerb-crawling is no longer a public order offence but the harm is infact the buying of sex by car then why not criminalise all purchasing if that is what the government really wants to do and have an open debate which will bring to the fore the serious limitations of such a policy (see for eg Scoular, J (2004b) ‘Criminalising ‘Punters’: evaluating the Swedish position on prostitution’ Journal of Social Welfare and Family Law 26:195-210) which outlines the flaws of the Swedish position which the government are moving towards. Criminalising buying sex in such the indirect way suggested has serious human rights implications and practical consequences in terms of enforceability. The use of law and order rather than regulation and empowerment to deal with a complex social issue is my primary concern. (see Scoular and O’Neill Legal incursions into supply/demand: criminalising and responsibilising the buyers and sellers of sex in the UK, Scoular, J and O’Neill, M (2008) ‘Legal Incursions into Supply/ Demand: Criminalising & Responsibilising the Buyers and Sellers of Sex’ in Munro, V & Della Giusta, M (eds) Demanding Sex: Critical Reflections on the Regulation of Prostitution (Ashgate, Aldershot); Scoular, J and O’Neill, M ‘Regulating Prostitution: Social Inclusion, Responsibilisation and the Politics of Prostitution Reform’ 2007 British Journal of Criminology 47(5) 764-778). Not only does the use of criminal law fail to address with the conditions which structure the contemporary sex industry but it maintain, a significant section of the economy, behind closed doors, exacerbating its marginality and dangerousness.
Jane Scoular
7 October 2008
1 These academic commentaries critiques are available, see for example http://www.guardian.co.uk/education/2008/oct/03/research.women/print).
2 ‘Criminalising the Use of Trafficked Prostitutes: Some Philosophical Issues’ Munro, V & Della Giusta, M (eds) Demanding Sex: Critical Reflections on the Regulation of Prostitution (Ashgate, Aldershot), p157.