Prostitution Legalisation Sexual Offences

Prostitution is defined as participating in sexual activity in exchange for money. It’s often referred to as the oldest profession and is a highly emotive topic nestled within the tangled web of sexuality and morality. The legal status of prostitution has constantly fluctuated over centuries and even millennia as well as in different countries where it can be punishable by death or completely legal.

The historical legislation on prostitution is as vast and as changeable as English law itself is. As long as laws have existed there have been many varying degrees of legalisation and illegalisation of prostitution. In 1161 King Henry II allowed the regulation of London’s brothels. (Evans, 1979) and in 1546 Henry VIII’s ended England’s “toleration” of prostitution. (Roberts, 1993) During the 19^th Century the Victorians ideas of ‘morality’ and ‘social purity’ influenced legislation concerning sexuality and sexual offences. (Walkowitz, 1980) The first law was made with the reference to the term ‘common prostitute’ was the Vagrancy Act of 1824. In Subsection 3 of this Act stated that ‘any common prostitute behaving in a riotous or indecent manner in a public place or thoroughfare’ was liable to a fine or imprisonment. (Laite [online]) Further legislation was built up over this period including ‘solicitation laws’ brought about in England in 1847 made it an illegal offence to loiter or solicit people for the purpose of prostitution. These offences were arrestable and punished by fines which could be increased upon subsequent convictions.

In 1885 parliament passed the Criminal Law Amendment Act (Walkowitz, 1980) which was resultant response to both the publication of an investigative report in the Pall Mall Gazette (Laite) witch uncovered an organised child prostitution ring. The act addressed the issue of Age of consent raising it to 16 and created laws outlawing the forcible detainment and procuring of women for purposes of prostitution. It also addressed laws on brothels, but due to lack of definition of the word brothel it was used everything from what we understand as brothels to a residence of two or more prostitutes. This lead to heavy arrest figures of many prostitutes particularly poor ones as they would often rent premises together so that the cost could be shared and since they had no money to pay legal cost they could find themselves with hefty fines or three months imprisonment.

Some of the next significant changes in prostitution Legislation came about in the 1950’s. A report was published in 1954 called the Wolfenden report as a response to public concern of the rise of the number of women involved in prostitution. (Phoenix, 2005) The report had far reaching effect and the recommendations made went on to form the basis of the Street Offences Act 1959. The report consolidated the official discourse on prostitution and created a ‘new’ framework for the regulation of prostitution. The Acts most significant parts pertaining to prostitution included making it illegal for a prostitute to loiter and solicit in a public place and it introduced a system where prostitutes were first cautioned for offences and after repeat offences a punishment such as a fines would be introduced and if the offending progressed further the offender could be imprisoned for up to three months. (Scrambler, 1997) Other legislation in the Sexual Offences Act 1956 updated the laws on the offence of keeping a brothel, the offence of procuring a woman into prostitution by any means of force or under duress. Additionally it was an offence for a man to live off of the earnings of prostitution (i.e.: pimping).

Legislation dealing with prostitution was not an issue in contention again until the 1980’s. In the 1970’s and 1980’s a number of groups linked with feminist groups emerged in Europe and America promoting the rights of prostitutes (E.g.: COYOTE (call off your old tired ethics) and the ECP (English collective of prostitutes)) and called for the decriminalisation and normalisation of prostitution. (Matthews, 2008) they argued that the laws directed at prostitutes were discriminatory and counterproductive. In addition to that there were increasing concerns about the levels of ‘kerb-crawling’ and it was agreed that a new law was needed to address the issue. These problems were addressed in the 1985 Sexual Offences Act (Scrambler, 1997) which included the criminalization of ‘Kerb Crawling’. Such measures see a shift of focus on who is the ‘problem’ which can be seen as answering the critics who argued against the ‘double standards’ of punishing prostitutes who were nearly always women and often vulnerable and probably poor. However an argument against the ‘Kerb crawling’ law was that it would lead to an increased lack of safety for sex workers on the streets as they have to identify and go with a client quickly to avoid detection and arrest.

The Sexual Offences Act 2003 makes amendments to these previous laws, strengthening them and updating them to include both male and female sex workers and extending the punishment for keeping a brothel to up to 7 years in prison. (OPSI, 2003) Additionally it can be noted that the Crime and Disorder Act 1998 which saw the introduction of Anti-social behaviour orders were used against persistent offenders and street prostitutes were a primary recipient of these in certain English counties, (Sanders, 2005) A study conducted on the matter in Birmingham found during the study that nineteen prostitutes had been served ASBO’s for persistent solicitation and two women were sent to prison for breaching their orders. (Jones & Sager, 2001)

All of this past legislation has culminated in the current UK law on Prostitution which is that whilst it is legal to be a prostitute (take money in return for sex), the laws make all other surrounding areas of prostitution illegal, such as streetwalking, pimping, soliciting (advertising sexual services), kerb crawling and keeping brothels are illegal.

Critics argue that the current laws make, providing sex in exchange for money difficult and dangerous. Additionally we have seen that there have been changes in the ideas of prostitution being a victimless crime, to being a crime which victimises women and children. These shifts in the perceptions of prostitution are informing new calls for a change in policy with claims that the current laws are out-of-date and furthermore they are ‘biased against providers of sex and lenient on those who organise, buy and control and coerce women’ (Edwards in Sanders, 2005)

What appears to be coming clear is that many would prefer to see clear cut laws on prostitution that are either in favour of abolitionism (in the sense that prostitution is prohibited) or legalisation. But in addition to that others look towards legislation which centers on either decriminalisation or regulation. Petitioners for reform look towards examples of other countries and their legislation on prostitution. Most notably those in favour of decriminalization look towards the examples such as the Netherlands, Australia, Germany and Sweden.

Sweden is a prime example of Decriminalisation. In Sweden they hold the view that prostitutes are exploited by their clients and it should be the clients which are held responsible. In 1998 the “Security for Women” bill was introduced in Sweden which included the criminalisation of the purchasers of sexual services, with penalties ranging from a fine to 6 month imprisonment. A key component of the legislation was specific funding for exit strategies for women wishing to leave prostitution, including specific benefits, specialist drug and alcohol services and accommodation. At the time of implementation it was estimated that there were 2,500 prostituted women in Sweden with approximately 600 working in street prostitution, which has now been reduced by 80%. Over 500 men have been charged under the act and the law has an 80% approval rating from the public five years after implementation. (McAlpine, 2006)

The Netherlands has changed over the past century it once outlawed brothels and pimping, however in the later half of the 20^th Century prostitution was tolerated and regulated within certain areas. (Matthews, 2008) Over the last decade there has been a new shift, as pimping became legalised and brothels decriminalised. The idea for allowing brothels was too shift prostitution from the streets and help make prostitution safer for the prostitutes. The result in this change in policy is that the sex industry has reportedly expanded by 25% and the sex industry now accounts for 5% of the Dutch economy. (McAlpine, 2006) There has however been some criticism of this policy system. It’s been argued that the prostitutes are still losing out as they lose control of the ability to choose customers; the prices charged the hours they work and the services they offer. (Safer London Committee, 2005) This is often put down to the influx of women from the Eastern Block, South East Asia and Africa many of who are trafficked by criminal gangs and as a result damage the industry by pushing down prices and not following codes of conduct. (Bindel, 2004)

Additionally in the Netherlands during the 1990’s they initiated a project in an effort to manage and control Street prostitution by introducing tolerance zones called ‘tipple zones’ in a number of their cities where street prostitution was a problem. The function of these zones was to be an area outside of major population areas where street workers would be tolerated to operate; drug dealers and pimps were not tolerated within the area. Charitable agencies also provided help within these areas offering counselling, clean needles, and panic alarm buttons. However while to begin with tipple zones reduced the level of nuisance associated with street prostitution it was seen to be a failure in the long run and eventually all of the zones were closed down. (Matthews, 2007)

Certain States in Australia are prime examples of Legalisation. In Victoria, Australia there were 40 legal brothels in Victoria in 1989, in 1999 there were 94 along with 84 escort agencies following the legalisation of the industry in addition to many illegal venues. Legalisation is argued to have normalised the industry with the pimps being considered legitimate businessmen and sitting together with the police and lawyers on the Prostitution Control Board. (McAlpine, 2006) But it isn’t all positive as there are still a significant amount of brothels that are unregistered and many prostitutes do not want to register as prostitutes because they do not want to be stigmatised. (Bindel, 2004)

Legalising prostitution seems to be far more complex than it initially appears and moreover, evidence in other countries shown can display that it does not solve the problems of prostitution. In countries where prostitution is legalised such as the Netherlands and Germany there are still significant problems with Street Prostitutes and there are also significant problems with the levels of trafficked sex workers.

In return to ideas for reform of UK Legislation it would appear that the overall critique of the UK laws is that the legislation is failing in combating prostitution. Furthermore like most prostitution policy approaches Bindel (2004) argues that they

“Lack a coherent philosophical underpinning, from which specific short and longer term aims and objectives could be drawn…. The most coherent approach in terms of philosophy and implementation is that adopted by Sweden, and interestingly it is the only one where no one who sells sex is subject to the criminal law.”

Many argue, that a lot of money is still spent on law enforcement efforts to catch prostitutes and their customers. When prosecuted, the justice system has to process them through expensive systems. The end results appear to be that there is little impact on prostitution. Prostitutes pay the penalty fines and are back on the streets again in what becomes a revolving door process. (Sanders, 2005)

In terms of the most successful form of policy for the management of street Prostitutes it appears that Sweden’s approach looks to be the most successful. Their laws make use of the notion that prostitutes are victims of male violence, and so the purchaser of sex is the criminal and the seller of sex the victim. It can be argued that the reasons for these ideas working are that it is the perfect deterrence. A typical male who visits a prostitute isn’t the stereotypical view of an older lonely man but it can be anyone. (Spurrell, 2006) Because of this it is likely that many men would be deterred from using prostitutes if it is made far more unfavourable.

If UK prostitution legislation were to be reformed it would be important to make it more fitting to today’s attitudes. It has been established that whilst prostitution in the UK is legal majority of the acts surrounding it are not. The reasons for this are within the basis of past legislation, which sought to protect women from abuse and victimisation. And additionally to push it to the margins of society, presumably in the hope that it would go away. Realistically however it is unlikely that it will go away, so there is the need to address ways to manage prostitution so that it can function without criminalising prostitutes or creating victims and that prostitutes are free to work in as safe and healthy environment as possible.

To do this prostitution needs to be decriminalised and regulated. It needs to be recognised that prostitutes will always be out on the streets in some shape or form and so any attempts to move prostitution solely into the indoor sphere is unlikely to work. With that said legislation needs to address both indoor and outdoor prostitution. As with the Netherlands, brothels should be the promoted alternative with brothels being regulated and only state licensed ones should be tolerated. Prostitutes should be registered but allowed to operate with a degree of anonymity if they choose. The Laws against Pimping and forced prostitution should still stand and heavy laws should be imposed for hose who traffic women and force them to work as prostitutes. As for street prostitution we should look towards the Swedish model which criminalises the buyer rather than the prostitute. Additionally there needs to be a geographical equality to the implementation of prostitution laws. At the moment different areas in the UK operate very different implementations of the current law. Some areas of the UK operate a Zero Tolerance policy yet others are unofficial red light districts. (Matthews, 2007)

So to conclude it can be argued that laws have not changed all that much in the past century; the main changes in the law have mostly been about encompassing new offences. All that appears to have resulted in these new laws are that prostitutes have been driven out onto the streets. The nature of there job and the illegal status of it, creates high risk circumstances. And because their actions are unlawful they have to conceal what they are doing and cannot be protected by the services.There are talks about a draft Bill for new legislation on prostitution. But whole sale changes to the laws appear to not be on the agenda yet again. We can look towards policies in other countries such Sweden which favours the decriminalisation of the prostitute and to the Netherlands which has legalised and regulated brothels with a certain degree of success.

What can be agreed is that there needs to be a wider debate upon the criminalisation or decriminalisation of prostitution, which looks at the needs and safety of those people who are sex workers.

Bibliography

Books:

Evans, H. (1979) Harlots, Whores & Hookers: A History of Prostitution, New York: Taplinger

Matthews, R. (2008) Prostitution, Politics and Policy, Oxen: Routledge-Cavendish

Pheonix, J. Oerton, S. (2005) Illicit and Illegal: Sex, regulation and social control, Devon, Willan.

Roberts, N. (1993) Whores in History: Prostitution in Western Society, London: Harper Collins.

Sanders, T. (2005) Sex Work: A risky business, Devon, Willan

Scrambler, G. Scrambler, A. (1997) Rethinking Prostitution, London: Routledge.

Thomas, T. (2005) Sex Crime: Sex offending and society 2^nd Edition, Devon: Willan

Walkowitz, J (1980) Prostitution and Victorian Society: Women, Class and the State, Cambridge: University Press.

Websites:

Bindel, J. (2004) ‘Streets Apart’ in The Guardian [online] Available from: http://www.guardian.co.uk/weekend/story/0,,1215900,00.html [Accessed 2 April 2008]

Home Office, (2003) ‘Sexual Offences Act 2003′ in Office of Public Sector Information [online] Available from: http://www.opsi.gov.uk/acts/acts2003/ukpga_20030042_en_1 [Accessed 31 March 2008]

Laite, J. (no date) ‘Paying the price again: prostitution policy in historical perspective’ in History and Policy [online] Available from: http://www.historyandpolicy.org/papers/policy-paper-46.html [Accessed 31 March 2008]

McAlpine, M. (2006) ‘Prostitution: A contribution to the debate’ by the Scottish Socialist Party [online] Available from: http://www.scottishsocialistparty.org/pdfs/pamphlet1_1_final.pdf [Accessed 31 March 2008]

Safer London Committee, (2005) ‘Street Prostitution in London’ by the London Assembly [Online] Available from: http://www.london.gov.uk/assembly/reports/pubserv/prostitution.pdf [Accessed 1 April 2008]

Spurrell, C. (2006) ‘Who pays for sex? You’d be surprised’ in The Times [online] Available from : http://www.timesonline.co.uk/tol/life_and_style/men/article627388.ece [Accessed 2 April 2008]

Journals:

Jones, H. & Sager, T. (2001) ‘Crime and Disorder Act 1998: Prostitution and the Anti Social Behaviour Order.’ Criminal Law Review, Nov: 873-885.