A Bill on prostitution that deserves the red light

It is in the Policing and Crime Bill, it seems, where the Home Office has chosen to house its latest round of proposals on prostitution. The government has at this point spent the better part of the first decade of the twenty first century considering and reconsidering what should be done about street solicitation, brothels, and sexual trafficking.

We have moved from David Blunkett’s proposals for tolerated zones in urban outskirts, to proposals to legalise small brothels while simultaneously cracking down on street prostitution and forcibly ‘reforming’ prostitutes.

Now we have these latest proposals to ‘tackle demand for prostitution’, which takes the form of a section of the Policing and Crime Bill that criminalizses the purchase of sex from persons who are ‘controlled for gain’. Other sections in part two of the Bill give police more power to close brothels and prosecute ‘kerb krawling’, allow local authorities more control over the location of strip clubs (‘sex establishments’), and remove the term ‘common prostitute’ from the solicitation statute, directing it against any person who ‘persistently’ solicits (‘persistently’ being unconventionally defined as ‘two times or more in a three month period’).

This section of the Bill has been developed largely through the lobbying of radical feminist organizsations and academics and certain religious outreach groups, who have based their arguments on the moral reprehensibility of prostitution and who feel that all prostitutes are victims of abuse. If passed, these confusing and complicated new measures will join or alter a veritable mishmash of legislation on prostitution that has been building up in the law books since the early nineteenth century.

Those of us who have been following these proposals closely, who research prostitution academically, who observe it as outreach and health workers, and who experience it as sex workers, are growing weary of repeating ourselves. The message we have been sending is clear: criminalizsing any aspect of prostitution alienates, threatens, and harms the women working within it.

In some ways, it is even more wearying for historians who study prostitution and its control. It feels like these moral crusades, the bills containing unenforceable proposals, and the largely unheard liberal feminist and prostitute protest against them has all happened before. From a historical perspective, the government has spent the better part of one and half centuries experimenting with how to deal with prostitution, and women working in commercial sex have been the primary victims of it.

The period between 1885 and 1959 was marked by a steady increase in laws and policies that cracked down on prostitution in the UK. In 1885, the Criminal Law Amendment Act made brothels illegal. While this was done with the understanding that brothels were inherently exploitative, in reality it resulted in the hounding of women who worked as prostitutes out of their homes and away from each other. Women came to depend on third parties, who were mostly men, to secure them accommodation and advertise their services in a more clandestine work environment.

A few years later, in the 1890s and 1910s, measures were taken to make mid-nineteenth century laws against street solicitation easier to enforce. The requirement that a woman be proven to be annoying people around her before she could be arrested was ignored by police and magistrates alike. Conviction rates skyrocketed. In an age that claimed to be concerned for the welfare of women exploited within prostitution, more and more prostitutes found themselves in the limelight of the criminal justice system.

Moreover, as women who solicited on the street were more subject to arrests, fines, and prison time, third parties were given more opportunities to profit from prostitution by acting as lookouts, paying bail and fines, and finding women opportunities to work off the street. Prostitution, more criminalizsed than ever before, became more closely associated with organizsed crime, with substance abuse, and with violence. Crime syndicates like the Messina brothers in the 1940s and the Krays in the 1960s played on prostitutes’ vulnerability to arrest and prosecution in order to get women to work for them.

Around the same time, fears about sexual trafficking and concerns about immigration coalesced to produce increasingly strict immigration laws (that grow harsher all the time). This was the most golden opportunity of all for men who hoped to ‘control women for gain’. By offering to facilitate entry into the UK, men were able to convince women from other European countries and, later, developing nations, to commit to working as prostitutes. Once in the UK, men were able to indenture and abuse these migrant sex workers, knowing that a woman was unlikely to seek help because it would mean her deportation. These sorts of trafficking businesses had become extensive and very profitable by the 1930s; they are even more extensive and profitable today.

A few decades later, in the 1980s, the UK adopted what became known as ‘kerb crawling’ laws, in an effort to crack down further on street prostitution while at the same time answering ‘women’s movement’ demands to do something about the men who bought sex. Today, these laws are not only poorly enforced, but seem to have exacerbated the furtiveness of street sex transactions, forcing women to make snap — --and not always wise-- — decisions about whether to get in someone’s car. Similar situations seem to have been created in Sweden, where buying sex has been illegal since 1999.

The crusades to legislate against prostitution in the past have been led by lobby groups (usually alliances of conservative women’s organizsations, men’s social purity groups, and church groups) who presented a very simplistic, exclusionary, and polemic view of prostitution. Tapping into the public’s (especially women’s) confusion and anger about violence against women and women’s endemic inequality, these groups have been very good at setting up prostitutes as helpless and passive victims and inciting moral panic about prostitution, presented as the ultimate manifestation of male violence rather than as a complex phenomenon that is a product of a number of different kinds of inequality, and frequently engaged in by women as thinking human beings who make difficult choices. The tactics of these lobby groups tended to emphasizse the preventative power of the law. William Coote, zealous secretary of the social purity group the National Vigilance Association between 1885 and 1920, stalwartly defended the concept that ‘one can make men moral by an Act of Parliament’ in the face of libertarian and legal criticism of the measures he proposed.

Interestingly, popular culture and, for the most part, academia, have characterizsed these late Victorian campaigns as moralistic, authoritarian, illiberal, and frequently punitive toward women; and yet we entertain their rhetoric today in a slightly different form, and allow a small number of radical feminists, allied with conservative and moralistic organizsations, to dictate the terms of the debate. And, just like in the past, these lobby groups are drowning out more measured voices who base their opinions upon extensive and ethical research and upon the political traditions of liberal feminism.

Home Secretary Jacqui Smith sounds a lot like William Coote. She has responded to criticism that her proposed measures will be unenforceable by claiming that the existence of the law will act as a deterrent for men who purchase sex. She would, like Coote, attempt to make men moral by an Act of Parliament. While she may not realise this, proposals to make the purchase of sex illegal are not at all novel, and have been supported by moralists like Coote since the mid-1880s. Similarly, since the late 1880s, they have been opposed on constitutional, feminist, and libertarian grounds, and accused of perpetrating ‘an equality of injustice’ whereby both prostitutes and their clients would be prosecuted, without ample evidence, for consensual acts that did not disturb the public peace.

This new proposal is not only as equally unenforceable as previous ones, it threatens yet again to do far more harm than good. For instance, how vital will the testimony, and therefore the exposure (and likely deportation), of the person ‘controlled by gain’ be in this process? Who will be more frequently prosecuted: abusive customers and traffickers, or women working on the street and soliciting in this so-called ‘persistent’ manner? How can we avoid harassing women working in the sex industry who are not ‘controlled for gain’ while trying to enforce this law? For despite what radical feminists say, these women do exist. Most importantly of all, what measures will clients and prostitutes take to avoid detection? How much more clandestine and dangerous will legislators make prostitution?

It is difficult to convince people who believe that all prostitutes are victims that a proposal such as this has no place in the statute book, but the historical record proves that laws against commercial sex invariably make women working in prostitution — the ‘victims’ — more vulnerable to further victimizsation. It is with this in mind that feminist Teresa Billington Greig, writing in 1912, declared ‘the ordinary citizen who detests exploited prostitution has no unbalanced desire for legislation at any price. He, or she, is prepared to face the inescapable truth that the causes of this evil cannot be touched by law, however perfectly administered.’

The failure of historical and current attempts to address the problem of prostitution has not been the failure to recognizse it as a legitimate market relationship: I, for one, think that issue is still very much open to debate. But the causes of prostitution have deep roots in women’s inequality and poverty, damaging gender norms, drug addiction, domestic abuse, economic inequality between nations, and increasingly punitive immigration laws that this proposed law does nothing to address. The failure, and there certainly has been one, has been the failure to understand that criminalizsing something like prostitution and sex trafficking does not make it go away.

The UK government, having declared that it is indeed time to rethink its ancient policies on the control of prostitution, has an opportunity to explore the suggestions made by highly qualified, innovative, and humanitarian aid workers, academics, and sex workers, who urge the government to adopt policies that explore the positive potential of decriminalizsation on the one hand while genuinely recognizsing, coping with, and devoting real money to preventing the causes of prostitution on the other. Instead of continuing to travel such well-trodden, unsuccessful, and, frankly, old-fashioned ways of coping with the troubling phenomenon that is prostitution, perhaps the government can listen to some of these suggestions and finally do something that will even surprise a jaded historian.

Dr. Julia Laite