The Case for Fully Decriminalising Prostitution

Author(s)

Emily Loch

Posted

Time to read

14 Minutes
Protesters holding posters
Creator: Erik McGregor
Credit: LightRocket via Getty Images
Copyright: © 2019 Erik McGregor

 

Editor's note: This post contains discussion of themes involving sexual exploitation and sexual violence.

 

During the research for this article, 15 dancers and 4 full-service sex workers were interviewed. The research helped provide a fuller picture of how legislation does and would operate for them and the unique struggles they face.

 

I. Introduction

The sex work industry is diverse, and there are many sex workers operating within the United Kingdom (UK). The University of Bristol published a report on the nature and prevalence of sex work in the UK in 2019,[1] which identified 14 settings and services of sex work such as brothels and glamour modelling. The report made it clear that sex work involves a wide variety of jobs, including independent and agency escorting – referred to here as prostitution to reflect the use of the term in legislation – lap-dancing, and webcamming. Additionally, the report estimated that there are 85,714 individuals operating as street-based and indoor sex workers within the UK. The large numbers of sex workers and the variety of areas that they operate in make it clear that sex work cannot be ignored, and ways must be found to support the individuals who work in this industry.

Within the UK, some forms of sex work such as lap-dancing are legal, whilst prostitution is partially decriminalised. This means that although it is not a criminal activity to exchange sex for money, many of the activities surrounding prostitution are criminalised. For example, it is currently illegal to manage a brothel, advertise sexual services in the immediate vicinity of a public telephone, and persistently loiter or solicit on a street or public place for the purposes of prostitution.[2] One negative consequence of this criminalisation is that sex workers must operate in a situation of danger - if they are exposed to physical or sexual violence from clients, they are discouraged from going to the police for fear of prosecution. Criminalisation also makes it harder for those involved in sex work to move out of the industry because of the resulting criminal records.

This article will argue for the full decriminalisation of prostitution in order to foster safer relationships between sex workers and clients and reduce the societal stigma of sex work. This decriminalised system should be accompanied by limited legislation, making certain aspects of prostitution legal, subject to regulations. This article will examine the UK’s laws surrounding lap-dancing to argue that any government-led system of legislation will be unsatisfactory, thus, any legislation should be sex worker-led.

 

II. The distinction between prostitution and sex slavery

It should be noted that the sex trade, otherwise known as sex trafficking, is not the same as prostitution. The sex trade involves the illegal practice of transporting individuals from one place to another for the purposes of sexual exploitation. Prostitution should be decriminalised, whereas sex trafficking should remain criminal. The fact that prostitution and sex trafficking are both currently criminalised perpetuates the negative stereotype that all sex work is inherently exploitative of sex workers. Victims of sex trafficking are sex slaves, not prostitutes.  Exemplifying this difference is the relationship of the prostitute with the brothel-owner, versus that of the sex slave with their sex trafficker. Brothel owners are business people, owning establishments where prostitutes can meet and engage with clients whilst working as independent contractors. They support a safer and more organised environment for prostitutes to work in. Conversely, sex traffickers sell individuals for sex against their will, often in unsafe environments and to unsafe individuals. An important difference between sex slaves and prostitutes is the relationship of trust between the prostitute and the brothel owner and/or client as compared to the relationship of fear and coercion between the sex slave, sex trafficker and sex purchaser. The law should act to protect individuals from being forced into sex work, and punish those who force them into it.

In Julie Bindel’s article, ‘Why prostitution should never be legalised’, she writes that ‘prostitution is inherently abusive’. She notes that ‘every sex trade survivor [she has] ever interviewed’ believes so.[3] However, the ‘sex trade’ that she talks of is trafficking, which is not a form of sex work. She has interviewed women who have been victims of sex trafficking, an inherently abusive area of crime. If Bindel were to talk to those in the sex work industry, not the sex trade, she would find that prostitution has the potential to be life-saving, empowering, and a positive experience for individuals in the industry. Lap-dancers, for example, work in a legalised area of sex work in the UK; they sell a sexual service, similarly to prostitutes. Their experience is a useful indicator of the way that individuals involved in sex work can maintain ownership of their lives and livelihoods, even using their profession to take greater ownership. In a recent survey of 300 lap-dancers by the University of Leeds, not only was it established that 84% of lap-dancers were satisfied with their job and had a positive body image, but also that one third were using their job to fund new forms of education and training.[4]

Legislation currently makes both sex trafficking and many elements of prostitution illegal. Both the legislation and those who wrote it seem to refer to prostitution and sex trafficking interchangeably. Dame Diana Johnson proposed the ‘Sexual Exploitation Bill’ on December 9th 2020. It aimed to make it illegal to pay for sex. In the first reading of this bill, Johnson justified this by drawing on testimonies of those who had been sex trafficked. There is a clear legal link between prostitution and sex trafficking, which perpetuates the stigma that sex work is ‘dirty’ and all sex workers are forced into it. This does not reflect reality. One of the darker consequences of the law perpetuating this stigma is that it manifests in hate and violence towards sex workers.[5] Often, those who have participated in the industry are unable to leave due to the negative association that their prospective employers have with sex work. Legislators should act to remove the stigma to allow sex workers to move out of the industry more seamlessly, and to reduce violence against sex workers. This requires the decriminalisation of prostitution, as will be explored.  

 

III. Is sex work a legitimate form of work?

Though this may perhaps not be the view of the general public, it is argued here that sex work is a legitimate form of work. Women should be able to choose what to do with their bodies, and legitimising sex work supports this assertion. Decriminalisation and legislation would be a step towards convincing the public of this, as minds will not change unless the law does. For example, the 1983 British Social Attitudes Survey found that 17% of respondents thought that same-sex partnerships were ‘not wrong at all’. In 2010, the same survey found this increased to 45%. After homosexual marriage was legalised in 2013, this percentage rose to 64%. Though this may be a reflection simply of a shift in attitudes, these statistics illustrate how society can grow to accept some things it once condemned. The law can do much to reduce the stigma against sex work and promote its acceptance, as it has done for homosexual relationships. It can be argued that, unlike homosexuality, sex work is a choice, one that women do not have to make. A further objection is that sex work is inherently dangerous, putting women at risk unduly. Finally, the same opponent may argue that, in any case, could the government not simply invest more into social care, preventing the need for prostitution at all? To answer this, the first response is that sex work does not have to be dangerous. Decriminalisation will be the first step towards making prostitution a safer form of sex work, whilst legislation can ensure that women working in the industry as lap-dancers are safe, being surrounded by appropriate security measures. Further, the ability to earn more in this industry provides independence for mothers and women as well as a level of financial stability that cannot be provided by government social care. These benefits, with the mitigations of risk which legislation will bring, would outweigh the detriment to sex workers.

 

IV. The consequences of criminalising prostitution

The stigma around sex work, particularly prostitution, manifests in violence against sex workers. In a 2013 report, the World Health Organisation (WHO) recommended the decriminalisation of sex work to reduce the physical, sexual, and emotional violence experienced by sex workers.[6] The WHO found that the stigma against prostitution, perpetuated by its criminalisation, can cause prostitutes to become isolated by family and friends, a form of emotional violence. In some cases, this can result in increased difficulty for sex workers to leave abusive relationships. The criminalisation and resulting stigma surrounding prostitution put power in the hands of abusive partners; for example, it means they can threaten sex workers with the loss of custody of their children. The report also found that measures against prostitution can provide the police with a cover for the abuse of prostitutes, where prostitutes are detained or arrested on criminal charges associated with their work.[7]

Another way in which the criminalisation of prostitution empowers abusers is through discouraging sex workers from reporting violence they experience to the police. The 2013 report by the WHO found that, due to the fear of prosecution for participating in prostitution, individuals are heavily discouraged from going to the police.[8] This results in acts of physical and sexual violence towards sex workers going unreported; in this way, the law operates to allow their rapists and abusers to walk free. Thus, sex workers are forced to trade their safety for financial gain, exposing themselves to more dangerous interactions with clients who believe that they can harm their provider and remain unpunished. Criminalising prostitution results in an unbalanced power dynamic between the prostitute and their client, often resulting in physical and sexual violence. The current illegality of prostitution means that environments where sex workers operate are unsafe. The University of Bristol’s report on the nature and prevalence of sex work revealed that those in illegal brothels were told not to report violence occurring within the premises,[9] as to do so would alert the police to the existence of the brothel, leading to raids. Managers would be arrested for running the brothel, and prostitutes would lose their livelihoods.[10] In some cases, the managers of the brothel could be the sex workers themselves.[11] Prostitutes working at the brothel could be arrested on criminal charges for trying to report violence they experienced while simply trying to make a living. If prostitution were decriminalised, brothels would be able to provide greater safety for prostitutes, which they are unable to do so at the moment due to the risks involved. The stigma perpetuated by criminalisation not only fuels violence against sex workers but causes that violence to go undetected. Fear of police persecution and stigma may also prevent sex workers from accessing health and social care, including HIV treatment and support. It was reported that HIV cases in sex workers could decrease by as much as 25% if physical and sexual violence against them was reduced. Such a reduction can clearly be facilitated by decriminalisation,[12] as the removal of legal barriers could help prostitutes feel more comfortable and supported in going to the police and health and social care services.

Many prostitutes engage in the industry for survival purposes. The current welfare system in the UK has serious flaws, meaning that many feel they have no better choices. There are 390,687 social homes in the UK[13], whilst there are 1.16 million households on relevant waiting lists.[14] Improving the welfare system and encouraging other opportunities would be a starting point, but for many sex work is the best option, especially when many households remain on council house waiting lists for years. Making the industry safer for those who feel it is the easiest and most lucrative option respects the bodily autonomy of women. In this sense, it is particularly relevant to consider the effect of increasing criminalisation on sex workers. The ‘Sexual Exploitation’ Bill proposed by Dame Diana Johnson criminalises another element of sex work, which will further harm sex workers. Criminalising those who pay for sex is harmful to sex workers because it means that prospective clients are more likely to be dangerous, and they will be more difficult to find. This means that to get work, providers may be forced to make risky trade-offs between their physical and financial health due to the elevated bargaining position of the client. In some cases, this involves offering ’bare-back’ services, which are services involving sex without a condom.

It follows that there should be decriminalisation of prostitution. Decriminalising prostitution will do much to reduce the stigma surrounding the industry. This illustrates that prostitution is legitimate work as opposed to underground crime, whilst supporting the distinction between sex trafficking and sex work. Prostitution could take place in a safer environment, where prostitutes are less afraid to go to the police and face a decreasing stigma from friends and family.

 

V. The possibility of legislation

Along with this decriminalisation should come some form of legislation. Legislative rules, however, are often put together by a team of government agents who have little idea of how the sex work industry works best for sex workers. This includes an intricate net of processes that come before the physical relationship between provider and client begins. One can imagine a perfect system of legislation which works well for sex workers, but this will likely only be achieved where sex workers are involved in developing the legislation which will govern their industry. Government-led legislation is more likely to be damaging than beneficial.[15]

The issues with the likely system of legislation are evident upon close examination of the lap-dancing industry, a legalised sector of the sex work industry. This sector of British nightlife is governed by section 27 of the Policing and Crime Act 2009, together with Schedule 3 of the Local Government (Miscellaneous Policies) Act 1982. Previously, lap-dancing was governed by the Licensing Act 2003, but the 2009 Act reclassified lap-dancing venues as ‘Sexual Entertainment Venues’ (‘SEVs’),[16] and lap-dancing is now regulated under the 1982 Act. Following a House of Commons briefing paper on how lap-dancing clubs are licensed, Schedule 3 of the 1982 Act means that local authorities can choose to renew the license of a SEV based on factors such as the ‘character of the relevant locality’.[17] Their powers are far-reaching. Local authorities can issue or renew a license whilst imposing conditions or restrictions on the individual license or all licenses issued in that locality more generally. This can include restrictions on the venue’s opening hours, the way dancers and customers interact, and the sale of alcohol at SEVs.

Regulations imposed upon SEVs due to the 1982 Act can be very harmful to both the dancers' independence and safety, since they can affect the way dancers and customers interact.[18] Regulations introduced into SEVs allow local authorities to ban certain aspects of a dancer’s performance, despite what the dancers themselves may feel comfortable with. Most local authorities ban touching within SEVs. However, customers to the SEV often know that they can barter with dancers to get increasingly sexual services, such as touching for a higher price. In speaking to dancers during the research for this article, it became abundantly clear that the current regulations increase the danger which dancers are exposed to, despite the fact that the legislation purports to reduce the presence of such dangers. When dancers provide these touching services, which are against the licensing conditions, they are forced to hide their activity. If the touching is banned, one might argue that the dancer should not be doing it. This would, after all, remove all danger. However, the potential of profit is enticing for those dancers who do not mind being touched. How dancers conduct their business should be based on their comfort, not the views of a local authority. They are independent contractors. One might argue that touching should be banned because it presents a danger to dancers. However, the current situation is more dangerous for dancers. Rather than closely monitored touching, they expose themselves to greater risks by doing it secretly. If dancers could choose the activities they did within their dances and would not be penalised by their club for doing so, the transaction between dancer and customer would be much safer. Dancers would be able to openly enforce their boundaries. This fully respects the bodily autonomy of dancers. Dancers who are tempted to choose the risk for the potential profit would feel less pressured to offer services they are uncomfortable with because they would no longer be able to charge a much higher price based on the secrecy of the service. If local authorities could not impose such rules against the will of dancers, then those dancers who are comfortable with offering certain services would not need to do so in secret. In this way, the far-reaching nature of the current legislation is harmful to dancers.

Finally, dancing is not a salaried job. As dancers are independent contractors, the money they make is entirely dictated by their skill and negotiating power. This applies to all forms of sex work and is essential to understanding why, if the government adopts legislation relating to prostitution, it should be sex worker-led. The current legislation yields regulations which restrict the business choices of the dancers themselves, illustrating a picture of a government which does not view sex workers as individuals who have agency over their bodies. Further, a government which does not view sex workers as individuals who can make intelligent choices about how to run their businesses. The benefit of sex worker-led legislation on prostitution is its facilitation of the independence that dancers have been struggling to have for decades. It would embrace the comfort levels they already have in their job as independent contractors – for example, the choice to offer touch services. It would promote safety in the exercise of these choices and uphold the bodily autonomy of dancers.

 

VI. Conclusion

Prostitution and sex trafficking are not the same. The former involves a choice to participate in trading sex for money, whereas the latter does not. There should be complete criminalisation of sex trafficking. The current criminalisation of prostitution, however, is unsustainable. It perpetuates the harmful stigma towards sex work; this results in sexual, emotional, and physical violence towards sex workers. Full decriminalisation, on the other hand, presents an image that sex work is accepted by society and by law.  An appropriate legalised system is possible, but only with the full input of the sex workers involved. They have been operating their businesses for years and have built valuable skill sets and unique knowledge of their needs. The downfalls of a legalised system designed without the input of those involved can be seen from the lap dancing industry's legislative framework, which reduces dancer independence where they are self-employed and forces them to make riskier choices.

 

 

[1] Marianne Hester, Natasha Mulvihill, Andrea Matolcsi, Alba Lanau Sanchez, and Sarah-Jane Walker, ‘The nature and prevalence of sex work in England and Wales today’ (Centre for Gender and Violence Research, University of Bristol, October 2019). <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/842920/Prostitution_and_Sex_Work_Report.pdf>, accessed 23 February 2022.

[2] Natalie Smith, ‘Overview of the Criminal Law and the Sex Industry in the UK’ (Adult Industry Services, 11 June 2019) <https://adultindustryservices.com/2019/06/11/criminal-law-and-the-sex-industry/> accessed 23 February 2022.

[3] Julie Bindel, ‘Why prostitution should never be legalised’ The Guardian ( 11 October 2017) <https://www.theguardian.com/commentisfree/2017/oct/11/prostitution-legalised-sex-trade-pimps-women> accessed 23 February 2022.

[4] Teela Sanders and Kate Hardy, ‘Research on lap-dancing in England: Preliminary findings’ (University of Leeds, 2010) <https://democracy.towerhamlets.gov.uk/documents/s68743/The%20Regulatory%20Dance%20-%20Midway%20findings.pdf> accessed 23 February 2022.

[5] Womenstrikeuk18, ‘It’s time for the decriminalisation of sex work in the United Kingdom’ (Decrim Now, 8 February 2019) <https://decrimnow.org.uk/2019/02/08/its-time/> accessed 23 February 2022.

[6] World Health Organisation, Addressing Violence Against Sex Workers (2013) Ch 2 <https://www.who.int/hiv/pub/sti/sex_worker_implementation/swit_chpt2.pdf> accessed 23 February 2022.

[7] Ibid.

[8] Ibid.

[9] Marianne Hester, Natasha Mulvihill, Andrea Matolcsi, Alba Lanau Sanchez, and Sarah-Jane Walker, ‘The nature and prevalence of sex work in England and Wales today’ (Centre for Gender and Violence Research, University of Bristol, October 2019). <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/842920/Prostitution_and_Sex_Work_Report.pdf> accessed 23 February 2022.

[10] Ibid.

[11] https://news.sky.com/story/hundreds-arrested-for-running-brothels-as-sex-workers-say-its-the-laws-that-are-criminal-12117653

[12] World Health Organisation, Addressing Violence Against Sex Workers (2013) Ch 2 <https://www.who.int/hiv/pub/sti/sex_worker_implementation/swit_chpt2.pdf> accessed 23 February 2022.

[13] Ministry of Communities, Housing and Local Government, Local Authority Housing Stock <https://data.london.gov.uk/dataset/local-authority-housing-stock> accessed 23 February 2022.

[14] Lucie Heath, ‘Just one social home delivered for every 175 households on waiting lists’ (Inside Housing, 17 December 2020) <https://www.insidehousing.co.uk/news/news/just-one-social-home-delivered-for-every-175-households-on-waiting-lists-69035> accessed 23 February 2022.

[16] Policing and Crime Act 2009 s 27.

[17] Local Government (Miscellaneous Policies) Act 1982.

[18] Kashmira Gander, ‘How laws are putting strippers in greater danger’ (Independent, 21 February 2017) <https://www.independent.co.uk/life-style/love-sex/strippers-uk-laws-licencing-act-2004-dancers-nighttime-economy-sex-trafficking-sexual-offences-a7590071.html> accessed 23 February 2022.

 

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