[Sex Work Series] Partial Criminalisation in England
Updated: Dec 20, 2020
[Sex Work Series] Paper 4b: Sex Work Legislation Case Studies - Partial Criminalisation in England: An evaluative analysis of the legal approaches to sex work in Western Europe to distinguish which system best protects the human rights of sex workers.
Partial Criminalisation, as present in England, Malaysia and Japan, is a legislative approach where the buying and selling of sex are legal, but certain associated aspects such as street solicitation, pimping, and brothel-keeping are illegal. What is legal and illegal differs from country to country depending on legislation and societal dynamics. For this system, I will be focusing on England¹ as a case study.
In England, the actual act of sex work conducted in private, either in their own homes or through working as an escort, is legal, as is buying sex, as long as the sex worker hasn’t been forced into sex work (Section 53A, Sexual Offences Act, 2003), and selling sex in a brothel, “provided the sex worker is not involved in management or control of the brothel” (Section 33A, Sexual Offences Act, 1956). However, it is illegal to; rent or allow a property to be used as a brothel (Section 34-36, Sexual Offences Act, 1956); Advertise in phone boxes or kerb crawl ie. approach people in public to ask them for sex (Section 1(1), Street Offences Act, 1959); Pimp or have third party involvement of any kind ie. “it is an offence to cause or incite prostitution or control it for personal gain” (Section 52, Sexual Offences Act, 2003); Exploit someone selling sex, for example by using force, threats, deception or other forms of coercion (Section 53, Sexual Offences Act, 2003); Traffic people to England or around England for sex (Section 57, Sexual Offences Act, 2003).
These policies aim to protect sex workers and reduce the ability for traffickers to exploit victims in the sex industry. However, as my further analysis will illustrate, they actually make it much harder to safely and legally perform sex work. To exemplify this, I will be looking into the intricacies of how the laws are interpreted in practice; from brothel-keeping, to advertising, to pimping.
According to British law, managing, owning or “assisting” in the running of a brothel is illegal: “Section 33A of the Sexual Offences Act 1956 creates an either-way offence of keeping, managing, acting or assisting in the management of a brothel to which people resort for practises involving prostitution (whether or not also for other practices)” (Section 33A, Sexual Offences Act, 1956). The restrictions on brothel keeping were enacted in the hope to reduce pimping and third party involvement taking advantage of sex workers through criminalising their involvement. According to the UK’s Home Office regional studies, in the years between 2015 and 2018, there were 186 prosecutions and 174 convictions for brothel-keeping offences (Oppenheim, 2019) which illustrates the implementation of the restrictions in practice. This seems legitimate at first glance, however as my analysis below will show, the vagueness and broad applicability of “brothel” results in the criminalisation of landlords and sex workers becoming homeless through hasty evictions and being denial a lease.
According to British law, a brothel is defined as "a place where people are allowed to resort for illicit intercourse" (Section 33A, Sexual Offences Act, 1956) which is purposely vague allowing it to be applied to a wider scope of places. In practice, a brothel is interpreted as a place where more than one person offers intercourse for economic gain (Mac & Smith, 2018). This is highly problematic as since the loose definition of ‘brothel’ allows any premises where more than one person offers sex work, whether on the same day or different days, ie. if you work alone but share a flat with someone who works on different days, even though there is only ever one person working at a time this still counts as a brothel (Mac & Smith, 2018). Additionally, the ‘premises’ can include an entire apartment complex rather than just a specific flat, meaning that if more than one sex worker is living in the building, even if each lives and works separately, which again is legal, then the entire building can be classed as a brothel (Mac & Smith, 2018). This means private flats, an apartment complex, a university dorm, adult clubs or massage parlours, all can be deemed as brothels and therefore can be subject to legal scrutiny. The actual act of selling sex in a brothel is legal, but the existence of said brothel, which is immensely loosely defined and broadly applicable, is illegal (Section 33A, Sexual Offences Act, 1956) meaning that it may as well be completely illegal.
So how does this result in the homelessness of sex workers? As explained above, an apartment where two or more sex workers work is defined as a brothel, which defines the landlord/owner as a brothel-keeper. The consequences for being involved in the management of a brothel can result in a “maximum penalty of seven years in prison and a minimum of six months” (Section 33, Sexual Offences Act, 1956). It is also important to note that keeping a brothel (Section 33, Sexual Offences Act, 1956), a landlord letting premises for use as a brothel (Section 34, Sexual Offences Act, 1956), a tenant permitting premises to be used as a brothel (Section 35, Sexual Offences Act, 1956), a tenant permitting premises to be used for prostitution (Section 36, Sexual Offences Act, 1956) are all summary offences, meaning that it doesn't even need to be proven in court to prosecute, just suspected (Article 40, Criminal Justice Act, 1988), which is another form of discrimination against sex workers in the form of denying a fair trial. All of this means that in reality, sex workers are subject to hasty evictions, and/or being denied an apartment from landlords, who realise that their apartment complex can be deemed as a brothel if more than one sex worker operates from there, which would result in the landlords being convicted (Mac & Smith, 2018).
Understanding the reason behind these laws, to act as a deterrent to perform sex work, illustrates why these evictions or denials may occur, yet this also increases the vulnerability of sex workers by further placing them in an economic disadvantage, by limiting access to housing and increasing the risk of homelessness simply based on their profession which may be the best option out of a limited set of alternative, and if sex work is a method of survival, then denying housing based on this is unjust. These legislative restrictions on brothels force sex workers to work alone, as again anywhere where two or more sex workers work is defined as a brothel, making them more vulnerable to attack from dangerous clients. Due to the negative stigma against sex workers in England, sex workers are already targeted by serial killers, murders and rapists (Cunningham et al., 2018). According to a report from the National Ugly Mugs, a national UK organisation that aims to end violence against sex workers, “180 sex workers were murdered in Britain between 1990 and 2015” (Cunningham et al., 2018, p. 3). On average, the mortality rate of sex workers is 12 times higher than the national UK average which is reported as being primarily from attacks (Dulcie, 2017). Working alone to obey the law further puts them at risk and in danger to criminals.
The targeting of sex workers for attacks is why screening clients is so important for sex workers, however, in England, the partial criminalisation legalities further restrict the screening of clients by limiting the means of advertising (Section 46(1), Criminal Justice and Police Act, 2001). Advertising in print publicly is illegal as it is deemed as a "conspiracy to corrupt public morals" (Section 2(4A), Obscene Publications Act, 1959). Even advertising using the euphemistic language for “personal services” or “massage parlours” is unable to do as newspapers refuse to print it as this may be liable to prosecution (Section 6, Proceeds of Crime Act, 2002). In England, “tart cards” (adverts for sex work) were traditionally placed in public telephone boxes to advertise, yet this is now also criminalised (Section 46(1), Criminal Justice and Police Act, 2001). A person caught advertising in print is liable to a summary offence conviction of 6 months imprisonment and/or a significant fine of £60 (Section 46(1), Criminal Justice and Police Act, 2001).
Similarly, street soliciting (aka curb-crawling), defined as a person soliciting “in a street or public place to provide a sexual service”, is illegal in England (Section 51A, Sexual Offences Act, 2003) and will result in a “Prostitute's Caution” (Section 16, Policing and Crime Act, 2009). According to the UK’s Home Office regional studies, between 2015 and 2018, there were 915 prosecutions and 724 convictions for street-solicitations offences, which is significantly higher than the brothel-keeping offences (Oppenheim, 2019). It is important to note that solicitation and advertising sex work (through any platform) are also summary offences, meaning again that it doesn’t need to be proven in court to prosecute, just suspected (Section 51A, Sexual Offences Act, 2003). This gives the police significant power. Whether or not a sex worker will be punished is at the officer’s discretion (Mac & Smith, 2018). This imbalance of power dynamics which can lead to abuse, violence against and rape of sex workers. Journalist and former sex worker Melissa Grant notes that since the 1970s to today, most sex workers identify the police, rather than clients, as being the source of most abuse and attacks (Grant, 2014).
Prostitute's Cautions (Section 16, Policing and Crime Act, 2009) show up on background checks, which due to the stigma associated with sex work, reduces the chance of obtaining other work, pushes people back into sex work, dangerous situations and potentially further criminalisation in a reinforcing feedback loop. Restrictions on advertising make it more difficult to attract clients, meaning to meet their economic needs, sex workers may have to accept more potentially dangerous clients. The higher the demand for sex workers, the more choice of clients they have, making it easier for sex workers to screen clients and reject potentially dangerous clients, while still meeting their quota to meet their economic needs. In Leeds, police have experimented with “safe zones” to reduce the high levels of murders where sex workers can advertise on the streets without fear of prosecution (BBC, 2019). They claim this helps to contain sex work, which makes it easier to protect sex workers (BBC, 2019). Officers from this experiment have reported that it has successfully reduced rates of crimes against sex workers as well as reducing complaints from members of the public (BBC, 2019). Making sex work legal to conduct and purchase seems meaningless without legalising the ability to advertise.
Pimping, or having third party involvement of any kind, is illegal in England. Pimping, according to British legislation is defined as “profiting off someone else’s sex work” (Section 52, Sexual Offences Act, 2003). This technically means that any other person who takes money off a sex worker; taxi drivers, bodyguards, landlords, friends and/or family members, could be defined as a pimp by this definition, and therefore is at risk of prosecution. This seems farfetched, prosecuting someone for having been involved with a sex worker where money was exchanged for completely unrelated means, however, there have been many instances where this law is used as a scare tactic to discriminate against and further societally isolate sex workers. As outlined previously, sex workers are subject to discrimination and abuse, and even violence or murder, due to the stigma associated with sex work (Mac & Smith, 2018). Yet even though sex workers are both targeted and forced into dangerous situations to avoid arrest, they cannot legally hire bodyguards as the bodyguards would be getting paid from the money made from sex work, which is following with the above legislation, is technically pimping and is illegal. Separately sex work is legal and hiring a bodyguard is legal, but under this system, it is illegal for a sex worker to hire a bodyguard. This leads to the conclusion that these laws are not designed to protect sex workers but prosecute and endanger them.
In terms of punishment, in England, incarceration is not the most commonly used consequence. Instead as punishments for the laws defined above, convicted prostitutes must pay a fine of £60, which to someone economically vulnerable can be crippling (Donald, 2005) just furthering the problem of economic pressure. The economic reasons that lead some women to sex work have not been solved and the criminal record still holds which means fining sex workers just forces them to work more rather than less, having the opposite effect of its intent as a disincentive to reduce the amount of sex work occurring. To pay the fines, a sex worker must work more, which if not complying within the difficult restrictions, stack up as the sex worker works resulting in a vicious cycle of poverty and criminalisation, and the criminalisation prevents them from moving to formal employment due to their criminal record reinforcing a feedback loop of poverty and employment in sex work. Furthermore, in England, the penalty for living off immoral earnings, which includes sex work, is up to seven years imprisonment (Donald, 2005) which has been used as a threat to coerce sex workers into having sex with police officers (Donald, 2005).
Through my exploration, I have discovered that there are many legislative contradictions present in a system with partial criminalisation making it almost impossible to work both safely and within the constraints of the law. One must be sacrificed for the other; either sacrificing safety to abide by the law, or reject the law to prioritise safety, both of which lead to a reinforcing feedback loop that eventually results in criminalisation. After a root cause analysis, it has been exemplified that the root cause of many of the safety issues concerning sex workers in England is the vagueness and broad applicability of the criminalisation legislation. These connections illustrate how compliance with British legislation, specifically regarding sex work, leads to a trade-off of the safety of sex workers. To summarise, Sex work is legal; but not if it is done in a flat or apartment complex shared with another sex worker, which is technically brothel-keeping. Sex work is legal; but not if it is advertised on the streets, as this is technically solicitation. Sex work is legal; but not if it is advertised online, in newspapers, or anywhere else really, as this is legally deemed inappropriate. Sex work is legal; but not if the money gained from it is given to others, as they are technically profiting from somebody else’s sex work, which is legally classified as pimping. So sex work is legal, partially, however, the ‘partial’ aspect differs very little from full criminalisation which makes it impossible to work safely and within the law.
¹ I will be focusing solely on England for the Partial Criminalisation approach, as the whole of the UK does not follow the same laws ie. Northern Ireland follows the Nordic Model.
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