CRIMINALISATION IS ONE POSSIBLE RESPONSE TO SOCIAL ISSUES, AND IT MAY NOT ALWAYS BE THE RIGHT ONE.

Updated: Jun 3



In order to explore whether criminalisation is the correct response to social issues in different cases, definitions must be set out. What is to be meant by “social issues”. In the sociological context, a social issue is typically a problem that affects many people in a community or society, and influences said society at large. They are issues many people strive to solve, but are often the consequence of multiple factors extending beyond one individual's control. Usually revolving around issues of subjective morality, inequality & class disadvantages, and occasionally crossing with economic realities, they are often the subject of much political debate in terms of how to solve them.


Therefore this essay will focus on one controversial and politically & academically debated area that falls within this context. The issue of prostitution in the UK, its current legal position, and the problems surrounding the area will be analysed, discussed, and alternative solutions regarding its criminalisation will be reasoned, weighing the pros and cons against criminalisation. This will be done with reference to the common law jurisdiction of Australia.


As it stands currently, the purchase and sale of sexual services is itself legal in the UK according to the Sexual Offences Act 2003, however loitering,[1] streetwalking and soliciting sex in public (including in the setting of a brothel) is illegal[2]. The law has made it a point to keep “public order” and “decency” by regulating sexual activities in the open, while somewhat leaving those to conduct their business freely in private settings. However the letter of the law and how the law is policed in practice are not always the same. Despite being illegal, certain areas where streetwalking and brothels operate in public frequently do exist, and the police have more or less turned a blind eye for a number of reasons. These areas are known as “informal toleration zones”, where illegal prostitution related activities are tolerated by the police, off the books and swept under the carpet[3]. These zones mostly exist in low socio-economically standing neighbourhoods, where many women involved as workers lack the skills, ability and opportunity to work in another legally recognised sector and/or originate from other countries with limited English.


There have been multiple ways that the economic situation of today and the past ten years prior to COVID-19 has negatively affected sex workers. Currently — according to The Economist article, “Sex doesn't sell” — private flats and massage parlours“have been forced to hold down prices” for a number of reasons[4]. Firstly, they have been dealing with rising rent and energy costs. The article points out that as sex is not a necessity (such as food and rent) but rather a leisure, and consumer spending is significantly lower than its 2007 peak. Prostitutes also have had to reduce prices “out of desperation” to avoid loosing all customers. Cari Mitchell of the English Collective of Prostitutes points out that more people are entering prostitution, which means more competitiveness and fewer clients for each worker. Accordingly, prices would also be cut to compete. The financial constraints of the past year from COVID, would certainly further these issues.


Having lower prices also has bad consequences for the safety of these women. The type of men that are enticed by cheap and discounted sexual services may usually be of a less respectable and sound manner. According to a House of Commons home affairs committee report, “An estimated 152 sex workers were murdered between 1990 and 2015”, and “49% of sex workers (in one survey) said that they were worried about their safety”[5]. Seeing as how prostitutes have long been a prime victim of serial killers — starting with Jack the Ripper — and murder in general, prostitutes being forced to fall within a lower price category exposes them to more risk than they already endure. This paints the picture of sex workers as victims rather than hardened criminals.


An article in The Independent, argues that according to proposals by senior police officers, police raids on brothels should stop[6]. It states that raids are “counterproductive” to combating violence and instead result in the women being less willing to report violence towards them. The article also reports on activists arguments that prostitutes prefer to work in an establishment like a brothel. This is due to the security of being in a building, with CCTV surveillance and communal services. Police raids on brothels have therefore led to these women having to work on the streets, in potentially unsafe areas. In this respect criminalisation seems to be indirectly making it more unsafe for sex workers.


Member of the Scottish Parliament Margo MacDonald, in a 2002 BBC interview, said that after the zones were created in Edinburgh there was a significantly lower rate of prostitution-related crime. This was “because of the intelligence that the police had built up in the area”, so there were no pimps. Underage prostitution was eliminated because police knew where the women would be, and subsequently had started again after the zones were taken away due to the police not possessing this intelligence.


Senior legal journalist Dan Gardner (LLB) wrote in The Ottawa Citizen in 2003 (“Coffee? Prayers? Sex?”) that police officers know this “simply pushes [prostitutes] from place to place” — from brothels to the street — so usually leave them be and the prostitutes understand this. They in turn keep a “low profile” by “never working in groups and by sticking to streets”, forcing the women to work under “the most dangerous conditions possible: alone, on dark, deserted streets”. Gardner here recognises that police presence can be counter-productive; however his response is not to reduce police-presence nor increase it in informal toleration zones. He used the legal red-light district of Amsterdam as an example, where the police are so involved, chatting to the brothel owners and escorts that “they know pretty much what everybody is up to”. The main point here is that the legalisation of prostitution within brothels would introduce regulations into the industry. Sex workers could work in a safe building (with CCTV and sanitation amenities rather than alone on dark streets), rely on police to protect them as citizens and workers, and enforce their rights with the police and the courts. Not only would this lower people harming them, it would stop them having to secure under the table protection & enforcement from criminals who use unsanctioned violence, who are also involved in various dubious activities.


Acknowledging this, writer Kimberly Klingerin in a 2003 The Humanist article, admits that even though designated streetwalking zones “aren't without their problems, they have essentially functioned as a safe community for women to work”[7]. This is less about the physical safety of prostitutes but more about social community to keep morale, saying that “the zones also offer the benefit of a shelter which affords prostitutes a place to meet with their colleagues, talk to health care professionals, and generally relax”. The zones were apparently a good solution, as the women felt scared and were always on the run, and police thought they weren't succeeding at making the streets any safer”.


However, Member of Vancouver Rape Relief and Women's Shelter collective, Suzanne Jay in a 2003 presentation argued if an official toleration zone were to be created (in Canada), it “will be delivering women into the hands of killers like [Robert William] Pickton and Jack the Ripper”[8]. If this were to be the case, the argument would be to ensure that prostitution in all forms stays illegal, and is effectively eradicated by law enforcement.


Another interesting argument against criminalisation here is illustrated in a High Court case[9], where each of the multiple claimants had been convicted of multiple offences of “loitering or soliciting in a street or public place for the purpose of prostitution”[10], many years prior. It was argued that the record & retention of their previous convictions, and the legislative provisions which required the claimants to disclose said convictions if seeking particular types of (non-illegal) employment, were unlawful, specifically a breach of Human Rights under ECHR article 8 (right to private life). The case was successful on the grounds that the provisions in the Exceptions Order 1975 and the Police Act 1997 were incompatible with ECHR art 8. The High Court held that the claimants had all suffered a “handicap in the labour market, and embarrassment and humiliation”, at the hands of the multiple conviction rule, and that Parliament needed “to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work”. The court further held that “under PA 1997 and under the Exceptions Order, the application of the multiple conviction rule to the circumstances of this case results in an interference with the claimants “Art 8 rights which is neither in accordance with the law nor necessary in a democratic society. To that extent, the schemes are unlawful”.


Beyond simply these specific provisions being a breach of international HR law, there is a wider point here. As prostitution is such a dangerous and difficult industry for workers in multiple ways (as has been discussed above), after making the industry itself safer, ideally one would want to stop women working as sex workers, transitioning them into more mainstream and productive work. This is difficult to do as many prostitutes (as stated) are such due to lack of skills, opportunities, and abilities. But these rules, and criminalisation in general makes it even more difficult to escape this life of poverty and victimhood as they are coming out branded criminals. It stands to reason that if they were not, the transition to other work would be easier. Especially with the added societal stigma surrounding prostitution, moving on without that burdening brand, and leaving it discretely in the past would help the social mobility of these vulnerable women.

Former Co-Executive Director of the Coalition Against Trafficking in Women (CATW), Janice Raymond [PhD] stated in a 2004 speech that tolerance zones were merely a quick fix to the spread of the sex industry, but held up as protected zones for prostitutes[11]. She argued that the problems with zones are many, with the biggest being the “Not in My Back Yard” problem. This means that because no neighbourhood wants prostitution — due to the stigmas of it, the non-child friendly nature, as well as all the other things (violence, drugs etc.) that come with it — it gets “pushed into backwater or industrial areas”. This shows how the informal toleration zones in the UK are not ideally placed, and police presence can only be removed without adding danger if prostitution — more specifically brothel owning — became legal and thus it’s zones would not have to be “pushed into backwater areas”.


When also considering the economic difficulties prostitutes are faced with in present days — such as increased costs, less clients due to reduced consumer spending and increased competition — reduction of policing in these areas would most likely expose prostitutes to a greater risk of harm. Unless policing were to completely cease, so illegal brothels would form and the women would be employed their away from the dangers of the streets. However as these would be illegal, they would be completely unregulated, thus subjecting the women to whatever harsh, degrading, and inhumane treatment the management imposes, and the dangers that this brings.


It therefore follows that many of the issues could be solved by simply legalising brothels, and so policing for the designated areas could be reduced without “exposing prostitutes to a greater risk of harm”, as they would be in the safety of their secured and confined CCTV’d workplace rather than the street. Prostitutes themselves say they feel safer inside rather than working in the streets. An added benefit in this would be that as established businesses, brothels and workers would become taxpayers, expand the job market (not just for sex workers, but other employees of the establishments), contribute to the economy, and eventually the stock market. Furthermore, with open medical and sanitation facilities, clients would also be safer from sexually transmitted diseases. In conclusion, criminalisation of social issues that do not agree with the traditional moral sensibilities of mainstream society and attracts other illegal and immoral behaviour (such as violence, drugs etc.), is not always the best decision in dealing with the underlying issues. It can be seen with prostitution that instead of criminalisation, legalisation and regulation would in theory clear up many of the issues associated with it.


FOOTNOTES


[1] Policing and Crime Act 2009 [2] Criminal Justice and Police Act 2001 (in relation to placing of advertisements relating to prostitution) [3] Call for Papers. Sex Work and the Law: Does the Law Matter? (2021) [4] Sex doesn’t sell, The Economist (2013) [5] House of Commons Home Affairs Committee Prostitution Third Report of Session 2016–17 [6] (“Sex workers should be treated as potential victims rather than criminals, police chiefs say” [7] “Prostitution, Humanism, and a Woman's Choice” [8] “Reject Red Light Districts as a Solution to Violence Against Women” (2003) [9] R (QSA & Ors) v SSHD & Anor [2018] [10] Street Offences Act 1959, s 1 [11] The Consequences of Legal Policy on Prostitution and Trafficking in Women (2004)


ARTICLES


Peachey, (2016), ‘Sex workers should be treated as potential victims rather than criminals, police chiefs say’, The Guardian


Anon, (2013), ‘Sex doesn’t sell’, The Economist


Rafferty, (2004), ‘Streets apart’, The Guardian, Accessed 7 Apr. 2018.


Raymond, (2006), ‘Brothels and safe red light areas are the only way forward’, The Guardian


Gardner, (2003), ‘Coffee? Prayers? Sex?’, The Ottawa Citizen


Klinger, (2003), ‘Prostitution, Humanism, and a Woman's Choice’, The Observer


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