Demanding Improvement: Criminalising The Payment For Sex In England And Wales

I. The Introduction

The Northern Ireland Assembly recently joined the likes of Sweden and Norway in criminalising the purchase of sex. In the rest of the United Kingdom, prostitution - paying for sex - remains technically legal, although a series of related activities, including soliciting sex in a public place, kerb crawling, owning or managing a brothel, pimping and pandering, remain criminal offences. This essay argues that criminalising the `demand side` of prostitution is required in order to curtail the most exploitative aspects of the industry.

II. The Legislative Framework

The proposed legislative framework in this area would ideally mirror that contained in the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 ("the Act"). Since 1 June 2015, it has been a criminal offence to purchase sex in Northern Ireland, with offenders subject to a maximum penalty of one year in prison and a fine of £1000. The Act appeared to enjoy public support in Northern Ireland, according to an October 2014 poll, and closely resembles legislation implemented in Sweden, the so-called `Nordic Model` which, in addition to criminalisation for the payment, provides support to those working within the industry, including assistance for those wishing to leave it.

Amongst its provisions, clause 6 of the Act made it an offence to purchase (but not sell) sex. The legislation reads as follows:

"6.-(1) The Sexual Offences (Northern Ireland) Order 2008 is amended as follows. (2) For Article 64A (Paying for sexual services of a prostitute subjected to force etc.) substitute?- "64A Paying for sexual services of a person (1) A person (A) commits an offence if A obtains sexual services from a person (B) over the age of 18 in exchange for payment?- (a) if the payment is made or promised by A; or (b) if the payment is made or promised by a third party. (2) Person A guilty of an offence under this article is liable?- (a) on summary conviction to a fine not exceeding level 3 on the standard scale; (b) to imprisonment for a term not exceeding one year or a fine not exceeding the statutory maximum, or both. (3) In paragraph (1), "payment" means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount. (4) For the avoidance of doubt, person B is not guilty of aiding, abetting or counselling the commission of an offence under this article. (5) Within the first year of this offence coming into effect, the Department must raise awareness of this offence. (6) The Department shall collect data to review the operation of this offence and report to the Assembly after this offence has been in effect for three years.".

This proposal would replace the relevant existing statutory provisions (most of which are contained within the Policing and Crime Act 2009 and the Sexual Offences Act 2003).

III. Necessity of Reform

The statistics regarding prostitution in the UK paint a bleak picture for those who work within the industry. The total number of prostitutes in the United Kingdom is uncertain due to difficulties in collecting reliable information, but authorities and NGOs believe that about 100,000 persons are involved in prostitution inside the country. Of those, 80,000 women work in `on-street` prostitution in the UK, with a female to male ratio of four to one. According to the Office for National Statistics, the trade in the human trafficking of foreign women to be sexually exploited in the UK is worth at least 130 million pounds. 50 per cent of women in prostitution in the UK were paid for sexual acts prior to age 18, while 95 percent of street prostitutes are problematic drug users. 70% of those involved in street prostitution have a history of Local Authority care. Nearly half report a history of childhood sexual abuse, according to Home Office statistics. Furthermore, up to 5,000 children may be involved in prostitution at any one time.

There is no doubt that some individuals can and do make a conscious choice to receive payment for sex. Some are clearly well-educated, with occupational backgrounds in education, health and social care, according a recent study produced by the research charity, the Wellcome Trust. But it appears that the majority are not working out of choice. To varying degrees, they are coerced using violence, drugs, and other exploitative methods. The ban on sex, therefore, is designed in order to protect these individuals, albeit at some expense to the economic freedom of those opting freely into the system. Ultimately, the costs are too great, the industry too exploitative to justify that freedom.

IV. Benefits of Reform

The primary objective of law and policy in this area should be to protect prostitutes, who are amongst the most vulnerable individuals in society. They are frequently victims of sexual violence, and are often socially and financially isolated. It is critical, therefore, that reform alleviates this disadvantage. The proposal suggested here attempts to do so by making it harder for individuals, of whom most are middle-aged men, to purchase sex and thereby financially support this problematic industry. In doing so, it strives to avoid penalising those who provide that service.

The first benefit of criminalising the purchase of sex would be to discourage individuals from visiting prostitutes. In theory, the stigma and threat of criminal sanction will act to disincentivise such behaviour. Individuals, some of which will have professional backgrounds, and many with something to lose from criminal punishment, will have cause to consider seriously the risks attached to paying for this service. The threat of prison and the reputational damage of criminal punishments such as a prison sentence is likely to be sufficient to dissuade many existing customers, as in other areas to which criminal sanction has been applied.

This behavioural change is desirable on a number of levels. Some advocates of this reform welcome all obstacles to the purchase of sex, on the grounds that the very act of commodifying the body of another person is morally repugnant and inherently exploitative. By signalling societal opprobrium for this act, the law is realigned with moral decency, according to this conception. More concretely, with fewer individuals purchasing sex, the industry will be less lucrative, which is itself desirable. The most obvious losers in that event would be those organising and supplying the brothels in this country, since they currently retain the overwhelming majority of the profits in this sector. With falling demand for prostitutes, the value of trafficking a person to work in a brothel is correspondingly reduced, meaning that fewer individuals are likely to become victims of this horrific crime.

The second benefit of criminalisation on the demand side is to challenge and deconstruct problematic attitudes towards sex and gender which have become prevalent in contemporary society. As has already been mentioned, the commodification of sex is far from gender-neutral: most buyers are men; most sellers are women. This exchange places men in positions of power and control over women by allowing them to purchase women`s` bodies on a casual, and frequently exploitative basis. In doing so, it normalises the expectation that women`s` bodies are particularly ripe for objectification, in a way that male bodies are simply not. This double standard is not entirely the fault of the industry. Nor are buyers completely to blame. But legislators are responsible for the wider cultural effects of adopting a permissive stance towards the objectification and commodification of women. It therefore falls to them to consider whether, given the unhealthy power imbalances which predominate in this area, the reality of the sex industry is in fact capable of being a consensual and socially responsible environment.

Criminalisation represents an obvious solution to this toxic culture. It clearly signals societal disapproval for the commodification of women; that vulnerable individuals should be protected rather than purchased; and it reveals that the idealised sexual bargain is far from the unequal and unfair reality.

Lastly, criminalising the demand side of this transaction clarifies the stigmatisation at work. Currently, the law does not distinguish between prostitutes and purchasers. Both are effectively ignored by the police, with many brothels in cities such as Manchester and London operating under the title `massage parlours`. Alongside this legislative proposal, it is suggested that clear policy guidance be formulated to communicate to workers within the industry that their behaviour is not criminal, and that they can rely on law enforcement authorities to protect their legal and human rights. This is a critical step towards building the relationships of trust which are imperative to protecting the rights of those working in the industry. This would serve to clarify the culpable parties to this transaction by demonstrating that the real criminals are those who buy sex rather than those who are pressured - to varying degrees - to sell it.

V. Objections to reform

I will now briefly discuss the main objections to the reform, and explain why they are less compelling than they may appear.

Objection 1: Criminalising the purchase of sex will merely displace buyers to other, more dangerous locations.

The concern is that people will still look to purchase sex, only they will now be forced to do so more secretively, in ways and locations which can expose prostitutes to greater danger than brothels, which are at least subject to a degree of regulation. Perhaps the most likely alternative location is that people will solicit sex in their cars, which will increase the amount of `kerb crawling`, which is one of the most dangerous forms of prostitution. In the alternative, buyers will rely more heavily on the internet to arrange surreptitious meetups. The primary effect of criminalisation is therefore the creation of an "environment of fear and marginalisation for sex workers".

The Swedish experience appears to provide some evidence to support warning. In 2009, ten years after the introduction of the relevant legislation, the National Bureau of Investigation calculated that there were approximately 90 Thai massage parlours in Stockholm and vicinity, the majority of which were considered to be offering sexual services for sale. At the turn of 2011/2012, the number of Thai massage parlours in the Stockholm area was predicted to be about 250 and across the country roughly 450.

There are several ways of dealing with this concern. Firstly, it seems unlikely that demand for this type of sex is as inelastic as this criticism alleges. Most people use prostitutes because it seems easy, available and uncostly. Criminalisation, as has already been suggested, will do much dispel these perceptions, reducing people`s willingness to engage in such behaviour. If this deterrent is successful, or even partially so, then we would expect that a sizeable amount of the current demand would cease altogether, leaving a rump of `hard-core` users who will attempt to purchase sex by whatever means, regardless of the cost. The 1995 Swedish government commission judged that there were 2500 to 3000 women in prostitution in Sweden, among whom 650 were on the streets. By 2008, however, the report found there are roughly 300 women in street prostitution, and 300 women and 50 men using the internet, or indoor prostitution.

Secondly, this criticism presents a false dichotomy between safe, regulated brothels and under-regulated, alternative locations. In reality, the majority of brothels in the UK are not subject to proper regulation, meaning that there is not a considerable increase in the risk fact, even if the purported displacement effect does take place.

Thirdly, insofar as this concern is valid, the police will need to be sensitive to the dangers implicit within people`s responses to this legislation. Patterns of response will likely emerge, and strategies will need to be developed for dealing with them. Importantly, however, these reactive strategies by purchasers of sex indicate that the cost and complication of the transaction have increased dramatically compared to the status quo. This should be viewed as a positive step if it further reduces people`s willingness to participate in this industry.

Objection 2: Reduced client numbers makes it more dangerous to work in the industry

This criticism contends that a reduction in demand is a colourable development, the hidden downside being that it constrains the choice of people who work as prostitutes. In the first place, the surplus of willing workers at the supply end means that wages will be depressed and workers will have less choice about the type of customer they have. In Sweden, sex workers who were prevented from working indoors were left on the street with the most dangerous clients who they were effectively forced to accept. Workers may also feel pressured to take greater risks to attract business. Furthermore, the remaining clients, those undeterred by criminal sanction, are likely to pose a greater danger to the wellbeing of workers, since they have a manifest disregard for the law in this area.

Importantly, this argument concedes the main contention in support of these proposals. Namely, that demand will fall significantly when criminal sanction sets in. In practice, this may result in short-term hardship for those who remain as prostitutes, but it is of great significance that far fewer people will do so, thereby lessening the load on those who remain. Moreover, the `hard-core` individuals exist under both regimes. The only difference now, however, is that they are more readily identified, thereby allowing workers to take appropriate risk management measures.

Objection 3: It is wrong in principle to criminalise the purchase of sex.

This criticism holds that the criminalising the purchase of sex effectively devalues someone else`s decision to sell sex. It regards the decisions - both to buy and sell - as examples of sexual liberation, and attempts to regulate or curtail these as affronts to bodily autonomy. Moreover, it points out that there is nothing inherently immoral about the purchase and sale of sex; there is no reason that this transaction ought to be classified differently from any other form of physical endeavour, such as mining. Society`s disdain for this behaviour is largely based on unexamined prejudice against the transaction and commodification of something which has historically been regarded as sacred, or at least special in some sense. Above all, this denies low-skilled workers a way, perhaps the only way, to earn a living.

In response, this essay will not be drawn into a debate on the moral implications of paying for sex in the hypothetical case. Instead, it focuses on the actual contexts in which this occurs. As already mentioned, this is gendered and frequently coercive on physical, social and financial levels. This reform does cause some collateral damage to those who choose to work in the industry, but since those individuals are in the minority, it can be accepted as a reasonable trade-off that those individuals will have to look for other jobs. Less exploitative economic opportunities do and will continue to exist elsewhere; at present, these are often rendered inaccessible due to the coercive nature of their employment. Thus it is possible to concede the principled defence of the transaction, but to reject the transaction based on the real world implications. In short, it may not be wrong in principle to purchase sex, but in practice it is too problematic too often to justify the permissive regulation.

Objection 4: It is better to decriminalise prostitution altogether.

According to this objection, there is a better way of dealing with the exploitation identified, namely to decriminalise both the buying and selling of sex. One significant advantage of this reform, proponents argue, is that it would allow for robust, above-board regulation and assistance in a way that is simply precluded under the criminalisation model.

However, this flies in the face of empirical reality. The legalisation model as implemented in the Netherlands, which is effectively an extension of the decriminalisation model being suggested here, has been ineffective at preventing the exploitation on the supply side. Summarising considerably, the effect has been to endorse the industry and normalise the purchase of sex, but without preventing the concomitant exploitation. Accordingly, there are good reasons to disapprove of the purchase of sex, even in systems that appear to be better regulated. Moreover, the assumption that even a clean industry is desirable remains problematic. Prostitution, even when operating legally, has often been used as a front for other forms of organised crime.

VI. Conclusions

The existing, unconsolidated legal framework is plainly unsatisfactory. It fails to protect some of the most vulnerable members of society, chiefly because it is unable to suppress demand for the purchase of sex and, accordingly, for the trafficking of those to work in the industry. The Nordic Model represents an effective policy for dealing with this exploitation, because it is capable of challenging its financial foundations. Importantly, there is no singular policy panacea, but the empirical evidence suggests that wielding the criminal law represents the least imperfect solution.