Decriminalization and the Prostitution of British Law
Dr Heather Brunskell-Evans
Although prostitution is legal in Britain there are a number of laws which regulate related activities, such as soliciting in a public place, kerb crawling, owning or managing a brothel, and pimping. These laws are both confused and confusing: regional police forces interpret them in different ways; and they do not comply with sexual equality and gender justice. Prostitutes, not punters, bear any punitive brunt of the law; prostitution carries severe risks of sexual violence, even murder. Thankfully there is a move afoot for law reform.
Women’s rights, sexual freedom and how to minimize sexual violence comprise some of the evaluative grounds upon which the Home Affairs Select Committee is currently tasked with making recommendations for law reform. Two contrasting solutions are under consideration: total decriminalization (of prostitutes AND punters, pimps, brothel owners etc.); the total decriminalization of prostitutes for soliciting BUT the penalization of the punter (and pimp and brothel owner) through the introduction of a Sex Buyer Law. What goes along with the latter proposition is the commitment that a Sex Buyer Law should never deprive a woman of the means to look after herself but should always be accompanied by economic and other support to exit prostitution, namely the Nordic Model of legal reform.
The first solution, total decriminalization, is proposed by a coalition of academics, political groups like the English Collective of Prostitutes (ECP), and political activists. Dr. Kate Brown and Paddy Trimmer, members of this broad coalition, have recently contributed to the debate in the Guardian Online. Brown and Trimmer are rather atypical of the decriminalization lobby in that they accede that men’s sexual violence towards women “is a factor at play when female prostitutes are murdered”. However, they remain typical proponents of this solution in that they argue total decriminalization helps minimize violence, and insist strong global research evidence supports this claim. From this view point we should finally, in the 21st century, abandon outmoded moralistic judgements about prostitutes and recognize it is a woman’s right to dispose of her body and to earn her money as she sees fit. The law should facilitate her choice; any other legal solution is moralistic, patronizing (by denying a woman her own capacity for discerning whether the punter might be a threat), and therefore downright dangerous.
In effect, proponents of total decriminalization assume the naturalness and inevitability of men’s ‘need’ for sex and their concomitant right, in a liberal democracy and a free market economy, to pay for the use of women’s bodies (or those of other men), in the same way as one buys any other commodity. The argument for total decriminalization is usually accompanied by the acknowledgement that women who work as prostitutes are not motivated by sexual desire but for money (for drugs, for paying the rent, for putting food into the mouths of their children). However, it is the right of any woman, as a freely consenting adult, to contract into selling her body in order to earn money. In this view the harms inherent in prostitution do not reside in the industry, nor apparently do they lie with the men who perpetrate violence, rather they emanate from our lingering moralistic prejudice and stigmatization of women who earn money through prostitution.
Brown and Trimmer, in making their case, do so in response to an article by researcher and political activist Karen Ingala Smith, a proponent of the second solution, a Sex Buyer Law. Ingala Smith also insists legal changes should occur that take into account the women’s agency, their economic need, and their vulnerability within the criminal justice system. She agrees that valuing the lives and integrity of prostitutes is an issue of equity and social justice, and because of this she also argues for the total decriminalization of prostitutes. However, social justice for prostituted women can never be achieved through total decriminalisation of prostitutes AND punters, pimps, brothel owners etc. Violence towards prostitutes must be understood within the general cultural context of gender inequity, men’s violence towards women, and our apparent tolerance of this phenomenon. It is the social context of prostitution that the legal system should address, and this can be achieved through the introduction of a Sex Buyer Law.
Ingala Smith argues that in a society without economic equality for women prostitution does not alleviate inequality but reinforces it. The sexual objectification of women feeds men’s sense of entitlement and simultaneously reduces the status of women. As long as male demand is not challenged, sexual violence will continue and local strategies of harm reduction – for example, creating a gallery of Ugly Mugs – will only scratch the surface of what is a deeply embedded structural issue. ‘Protection’ by a ‘managed zone’ – an experiment in total decriminalization carried out in an urban area of Leeds since 2015 – is not effective because it does not address the root causes of violence. This failure is exemplified by the murder of Daria Pionko within months of the Leeds initiative.
Brown and Trimmer make three erroneous claims about Ingala Smith’s critique of total decriminalization. Firstly, they argue Pionko’s murder should be understood within the context of her particular personal circumstances as an Eastern European migrant, and they allege Ingala Smith has not taken this into account. They tell us that, in the last three years, out of 18 prostitutes murdered in Britain more than half have been migrant women. This fact indicates, they claim, that the specific vulnerability of migrancy is “exacerbated by criminalization and stigmatization”. However, Ingala Smith couldn’t be more explicit: Pionko and all other prostituted women are vulnerable because of their personal economic and social circumstances, including their migration status. Her murder is a tragedy with its own private circumstances (as is the murder of any woman) but there are commonalities belonging to Pionko’s murder with the murders of other prostitutes. It is precisely because of these shared characteristics that explanations cannot remain at the level of Pionko as an individual. The high percentage of migrant women in the murder statistics is not exacerbated by criminalization and stigmatization but results from the fact that the overwhelming majority of women who enter prostitution belong to the most vulnerable, economic and socially disenfranchised groups in Britain which currently includes many migrant women.
Secondly Brown and Trimmer allege Ingala Smith blames the Leeds strategy of total decriminalization for the murder, when in fact four murders of prostitutes have occurred in Leeds in 25 years, three under the current laws and one within the total decriminalization experiment. But this is precisely to (wilfully?) misinterpret Ingala Smith’s central point: total decriminalization hasn’t rectified the potential for murder because prostitutes are subject to the possibility of the punter becoming violent both within the current legal system and under total decriminalization. There is no evidence from the Leeds experiment that total decriminalization is a solution, rather the converse in this case: total decriminalization has made no difference in reducing sexual violence and murder but conforms to the general statistical pattern for the murder of prostitutes in an urban area with the size and demographic make-up of Leeds.
Thirdly, Brown and Trimmer claim Ingala Smith has “a weak evidence base” for her recommendation that a Sex Buyer Law is the most effective in reducing violence. This is a somewhat typical charge made repeatedly and vociferously by decriminalization proponents and it is essential to challenge it since it has begun to take on the mantle of Truth. In an alleged ‘post-Truth’ world where either Truth no longer matters or authoritative statements are held up to scrutiny because of their possible disguised personal investments, interests and motivations, the total decriminalization lobby has been particularly persuasive in claiming value-neutrality and intellectual objectivity, even in the face of its failure to face facts, as described above. It does not engage with evidence that contradicts its central message – the innocuousness of the sexual ‘contract’ between prostitute and punter – and it makes a great display of any informed critique as little more than over-blown moralising.
Liberals who quite rightly claim to want to rectify the patriarchal wrongs done to prostituted women seem particularly persuaded of the veracity of the allegation that all evidence points to total decriminalization as a solution to the gender inequity of current prostitution law. They also seem convinced by the romantic narratives told by organizations such as the ECP that prostitutes and survivors are a united group, and that women’s rights in general are furthered, not hindered, by total decriminalization. Perhaps the success of the lobby lies firstly in its boast to have enabled the voice of a previously disenfranchised, vilified and silenced category of person, and secondly in the rhetorical coup of sanitizing prostitution as ‘sex-work’ no different to any other labour under capitalism, and thus redefining the prostituted woman as a ‘sex-worker’ who must be understood as no different to any other wage-labourer.
There is copious academic research which indicates not only that a Sex Buyer Law is effective in minimizing violence but also that total decriminalization, because it frees pimps and brothel owners from any legal restrictions, exacerbates and actively incites global networks for men (and some women) to make capital out of the procurement and exploitation of women for prostitution (for references see All Party Parliamentary Report on Prostitution. Arguments for the effectiveness of a Sex Buyer Law are made by academics such as Dr. Maddy Coy who analyses the relationship between prostitution, harm and gender inequality[i], political groups of exited women such as Space International, and political activists such as Nordic Model Now. Indeed, the exited woman Rae Story describes the total decriminalization solution not as the liberation of prostitutes to work without stigmatization and fear but as yet another example of misogyny. The lobby presents the voices of prostitutes as homogenous and thus camouflages the existence of a vibrant “dialogue between exited women, survivors and prostitutes who don’t support the politics of the sex industry movement in its bid to give pimps and profiteers and punters a ‘free ride’’’.
Evidence demonstrates that a Sex Buyer Law is more effective in minimizing violence firstly because it functions as a deterrent. Punters, many of whom are fathers, husbands and professionals, are publicly exposed and punished through a fine, but if the law is repeatedly broken, through a custodial sentence. Secondly it is effective because it shines a spotlight onto the two actors in the sexual ‘contract’ and reconceptualises them and the power relations involved: the punter is a conscious citizen who exercises choice rather than a male driven by biological imperatives; the prostitute is rarely an economic entrepreneur in full possession of herself and her personal and social circumstances. The stigmatization shifts from the shoulders of the prostitute who is not an equal agent in the exchange to the man who has the economic wherewithal to exploit her situation. A Sex Buyer Law fundamentally challenges punters’ sense of sexual entitlement to buy women’s bodies and simultaneously destabilizes the social acceptability of male demand.
My preliminary research in October 2016 of brothels in Germany where prostitution was legalized in 2002 fully endorses this research data and the alternative voices of exited prostitutes and survivors (for an extended analysis see Brunskell-Evans forthcoming)[ii]. Legalization in Germany, in contrast to proposed total decriminalization in Britain, was an attempt by the German state to regulate the prostitution industry along the same lines as it regulates all other industries. For example, ‘sex-workers’ protected by employment law could now enter into employment contracts, sue for payment, and register for health insurance, pension plans and other benefits. However, no such feminist utopia has been realized, indeed what is happening in Germany should be viewed as an example of a dystopia for women.
Manuela Schon, a German activist and member of an anti-prostitution organization called Abolition 2014, describes the shocking situation ‘on the ground’ in Germany which has resulted from the new legal settlement. What the new laws are achieving is the continued removal of any previous vestige of social stigma of men in using prostitutes; the growth of industrial size mega-brothels which have sprung up in German cities, largely serviced by Eastern European migrant women but owned by baron-pimps; and the murder of prostituted women is commonplace. In effect legalization in Germany has been a license for the unregulated freedom of pimps to use women as commodities for capital gain, and not, as it was intended, the establishment of employment conditions so that prostitutes have the same rights as any other member of the work-force. Kat Banyard, a feminist writer about sexual politics, points to the shared ideology of legalization and total decriminalization. She says “total legalization (or full ‘decriminalization’) is the myth of prostitution as ‘sex work’ made into law”.[iii]
Kajsa Ekis Ekman, a Swedish journalist, points to the ideological and material consequences of defining prostitution as ‘sex work’ [iv]. There is no law, as the decriminalization lobby claims, which can, in practice, define a clear-cut division between those women who are trafficked, for example from Eastern Europe, and those who freely ‘consent’. The reality of prostitution is disguised: trade unions aren't trade unions; the women are not independent economic entrepreneurs in control of their own lives; groups of prostituted women working together are simultaneously groups for brothel owners; and the activities of pimps, boyfriends and sex-buyers are conveniently erased from scrutiny.
Ekis Ekman describes the psychological consequences of “being and being bought”. In prostitution the self must be split to make it possible to sell one’s body without selling oneself. The woman becomes disconnected from her own body; the body becomes sex. Indeed, ‘sex-worker’ ideology not only describes the split self as a consequence of prostitution but as an ideal state to be achieved by the woman thus making it possible for her to detach from the use of her body as a ‘service’ commodity. A middle-aged survivor of prostitution – a German national not a migrant – verified this mode of analysis to me from her own experience. Five years after exiting she walked down a street one day after it had rained: she could smell the wet earth and pavements and realized with relief that her senses and thus her lost self was returning. She had long ago disassociated from having any senses in order to conquer revulsion (for example, in smelling the punters), to not experience as violence the acts performed on her copied from pornography, as well as to convincingly fake the pleasure some punters demanded for their money’s worth.
A policing experiment in Britain utterly different to the Leeds experiment was carried out in Ipswich following the brutal murder of five prostituted women in 2006. Since 2007 Suffolk Police have successfully implemented a Sex Buyer strategy but (to my knowledge) this success is not acknowledged by academic and other proponents of total decriminalization. The policing strategy included non-judgmental support of prostitutes; the development of routes out of prostitution, and assistance for women and children to take them; tackling demand for sexual services; the identification of those who coerce individuals and who control and profit from sexual exploitation; and where appropriate, prosecution of sex-buyers. Thus far no further murders of prostitutes have been committed in Ipswich.
In conclusion, the charge of weak evidence throws a smoke-screen over substantive academic research and the voices of prostitutes and survivors who advocate a Sex Buyer Law. The charge of weak evidence functions to shut down critical debate about gender power, exploitation, and sex trafficking, and the collateral global violence done to women and children that historically and currently attends societal acceptance of the inevitability of prostitution. Evidence for the effectiveness of a Sex Buyer Law, and the voices of exited prostitutes who contradict the party line of organizations like the ECP, are downplayed as negligible by those who benefit or profit from total decriminalization – the punters, the pimps, the boyfriends, the brothel owners and the traffickers – as well as by academics wedded to a neo-liberal, individualistic non-structural analysis.
Contrary to the total decriminalization myth, there is no value-neutral position about prostitution. Total decriminalization as a solution is itself heavily invested and weighted with its own political desires, aims and self-interests. The lobby either side-steps the argument that men do not have an inalienable right to buy access to women’s bodies, or if pushed on this point, passionately resists the proposition. Those who identify as politically progressive, and/or whose ethics are concerned with the oppression of categories of person (because of ethnicity, sexuality and gender) are not exempt. The idea that prostitution is an example of structural gender oppression, and that male demand is the phenomenon the British Government should address, arouses discomfort, even outrage.
In arousing hostility, I suggest the idea of curbing male demand and the aspiration to abolish prostitution take their place in the historic line of ideas and campaigns by which radical feminists (and their male supporters) have challenged patriarchal ‘right’, including whether women should be accorded the right to vote. History demonstrates that when feminist ideas become accepted and indeed absorbed as common sense by the culture, and when the law has changed to accommodate or reflect shifting attitudes, the changed norms have substantively helped women wrest control over their own bodies, and achieve sexual agency and economic independence. Moreover, such radical ideas and campaigns have generally moved society to one recognizable as more just and fair, and much more satisfying to live in for both women and men, than the patriarchal one it has left behind.
In the move afoot to reform prostitution laws in Britain I hope we do not sleep-walk into accepting what Banyard defines as a “pimp-state” – namely the statutory sanctioning of the sexual exploitation of women. She argues violence against women is something the state should work to end; and “the state has a choice to pursue or not pursue policies which will either grow, contain, shrink, or end the prostitution trade”. I recommend this country follows Norway, Sweden, Iceland, Northern Ireland and now France in implementing a Sex Buyer Law. The year-long work of the Home Affairs Select Committee was temporarily suspended in autumn 2016 because its Chair, Keith Vaz, was discovered to be himself a punter. Under his chairmanship an interim report was published which supported total decriminalization. However, the committee’s work has resumed with a new Chair, Yvette Cooper. If it eventually recommends the introduction of a Sex Buyer Law, then the Committee’s overall remit will have been achieved, namely proposals for law reform in line with the 21st century ideal of equity and social justice. I have little faith that the Home Affairs Select Committee will prove to be progressive in its recommendation but I take comfort from my belief that the lobby to end male demand and to abolish prostitution will eventually succeed and thus prove to have been gloriously on the right side of history!
[i] Coy, M. (ed.) Prostitution, Harm and Gender Inequality: Theory, Research and Policy, Ashgate: Surrey
[ii] Brunskell-Evans, H. (forthcoming) Internet Pornography: Disciplining Women Through Sexual ‘Freedom’, Palgrave MacMillan: London
[iii] Banyard, K. (2016) Pimp State: Sex, Money and the Future of Equality, Faber and Faber: London
[iv] Ekis Ekman, K. (2013) Being and Being Bought: Prostitution, Surrogacy and the Split Self, Spinifex: Australia