The UK Home Affairs Parliamentary Committee is currently undertaking an inquiry into prostitution. Preparing a written submission to that inquiry led me to look at the existing legislation against punters, pimps, and trafficking. The more I looked into it, the more it seemed to me that the legislation is deeply flawed, ineffective, and does not meet our binding obligations under international treaties. In this article I reflect on the legislation and how it suggests that there never was an intention to make it an effective tool for tackling these appalling crimes. As women who see prostitution as both a cause and consequence of women’s subordination, we need to work much harder.
Note: The legislation varies between the different countries in the UK. This article focuses on the English legislation.
Section 14 of the Policing and Crime Act 2009
Because of a concerted campaign by the women’s movement, the Policing and Crime Act 2009 included Section 14, which made it an offence to buy sex from someone who’s been forced, coerced, or deceived into it, regardless whether the punter is aware of this fact.
Confusingly, Section 14 was implemented as Section 53A of the Sexual Offences Act 2003. The maximum sentence is a level 3 fine (£1,000).
The following table shows the number of prosecutions under this law in the years since it was enacted. These figures are taken from page 90 of the CPS Violence Against Women and Girls report 2015. I couldn’t find a record of how many of these prosecutions resulted in convictions.
Notice that there were no prosecutions at all in 2013-2014 and the average number per year is about 11, and dropping rapidly.
But what are the numbers?
The last time there was an official attempt to gauge the number of people in prostitution in the UK was in 2004, in the then government’s study, Paying the Price. They came up with a figure of 80,000. That was 12 years ago and the numbers have certainly increased since then.
In 2010, the police conducted research into migrant women in indoor prostitution in England. Of the 17,000 women who met the criteria, they estimated that 2,600 were trafficked and a further 9,600 were deemed “vulnerable”, which means there is a high chance they had also been forced, coerced or deceived. That figure does not include British women, children, those in outdoor prostitution, or men.
From this we can deduce that over the last five years millions of men in the UK have bought women and children who have been forced, coerced or deceived into prostitution.
And in five years, they have prosecuted 58 of them!
So clearly the law is ineffective.
Why is it ineffective?
The law is ineffective because it requires a considerable amount of police work to prove to the standard of proof required by the criminal courts that the woman has been forced, coerced or deceived. But the maximum sentence is only a level 3 fine and the police do not invest many resources into investigating offences that carry such a low penalty.
So the law contains a fundamental contradiction that ensured it would not be effective.
Essentially the women who campaigned for this law were duped.
We need to learn from this.
Its ineffectiveness is a strong argument for the Nordic Model
However, the introduction of this law was an important milestone because it is legal recognition that buying sex from someone who’s been forced, coerced or deceived is wrong.
That it has been ineffective is a very strong argument for a law that makes it a criminal offence to buy a person for sex regardless whether they have been forced, coerced or deceived. Such a law would make the offence much easier to police and gain convictions because the police would only need to prove that the punter had paid or attempted to pay. It would therefore be possible to properly enforce it and that would act as a real deterrent and would change men’s behaviour. This in turn would reduce the demand that drives the traffic in women and children for the exploitation of their prostitution.
Making the buying of sex a criminal offence is a key plank of what is often referred to as the Nordic Model (sometimes also called the Sex Buyer’s Law). The other key planks of the Nordic Model are the total decriminalisation of those in prostitution, and high-quality services (like housing, training, childcare, practical and psychological support) to assist them exit. For the background to this approach, see Prostitution – Time for a New Paradigm.
Prostitution & Trafficking – What’s the Difference?
A common argument used by those (such as Amnesty and Jeremy Corbyn) who promote the full decriminalisation of the sex industry is that feminists like myself “conflate prostitution with trafficking”. Sex trafficking, they say, is a very small phenomenon and it is quite separate from prostitution.
But is this really true?
The internationally agreed definition of human trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (known as the Palermo Protocol). It frames human trafficking as a human rights abuse and a form of slavery:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
Key points to note are:
- The key element is its exploitative nature rather than the movement of the person.
- The movement of the person is not a requisite for trafficking. For example, recruitment for the purposes and using the means specified is enough to meet the definition.
- The notion of abuse of power or a position of vulnerability implicitly recognises trafficking as an issue of sex, race, caste, nationality and poverty, and covers situations where the person has no real alternative but to submit to the abuse involved.
- The definition acknowledges that much trafficking is for the purpose of the exploitation of prostitution and that the exploitation of prostitution and trafficking cannot be separated.
- The definition separates out the exploitation of prostitution from forced labour because the harms are of a different nature.
- The definition makes it clear that consent is not relevant.
- The age of consent for prostitution is 18.
So the Palermo Protocol definition makes the essential feature of trafficking third-party involvement in the exploitation of another’s prostitution. Which, as Catharine MacKinnon says, “is straight-up pimping”.
Most women and girls in prostitution worldwide have a pimp. So we should not be surprised that Sigma Huda, UN Special Rapporteur on Trafficking 2004–2008, said:
“Prostitution as actually practised in the world usually does satisfy the elements of trafficking.”
If the majority of the prostitution in the world actually fits the internationally agreed definition of sex trafficking, the real question is how can prostitution and trafficking be separated? As far as I can see, the answer is that they can’t be separated.
So it seems clear that it is the sex industry advocates who are confused. Or maybe they are subject to wishful thinking? Or blinded by vested interests?
The UK ratified the Palermo Protocol in 2006, which means that the UK has agreed to be legally bound by its terms and to ensure our legislation is coherent with it. The UK also has a legal obligation to address trafficking through the Council of Europe Convention on Action against Trafficking in Human Beings, which uses the same definition of trafficking as the Palermo Protocol.
Modern Slavery Act 2015
The Modern Slavery Act 2015 was rushed through shortly before the 2015 general election. It is the UK’s key trafficking legislation, and is presumably meant to implement our obligations under the Palermo Protocol and the Council of Europe Convention.
Section 1 of the Modern Slavery Act 2015 defines slavery but excludes any mention of sex slavery.
Section 2 of the Act defines Human Trafficking as follows:
(1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.
(2) It is irrelevant whether V consents to the travel (whether V is an adult or a child).
(3) A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
(4) A person arranges or facilitates V’s travel with a view to V being exploited only if—
(a) the person intends to exploit V (in any part of the world) during or after the travel, or
(b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel.
(5) “Travel” means—
(a) arriving in, or entering, any country,
(b) departing from any country,
(c) travelling within any country.
So trafficking has been redefined as travel!
The definition of the sexual exploitation part goes back and forth between the Modern Slavery Act and the Sexual Offences Act 2003, making it horrendously complicated and hard to understand.
The definition of the other forms of slavery and exploitation do not do this. So the most common form of modern slavery, sex trafficking, the one that disproportionately affects women and girls, is not defined fully within the one act!
The following charts, from the UN Office on Drugs and Crime’s Report on Global Trafficking 2014, show that the majority of human trafficking victims are female (70%) and in Europe, the vast majority of human trafficking is sex trafficking (66%).
Offences under the Modern Slavery Act 2015 can be prosecuted in the magistrate’s court (summary offence) or in the crown court (indictment). When the former method is used, the maximum sentence is 12 months in prison, when the latter, it is life imprisonment. But the maximum sentence for the offence of trafficking for sexual exploitation under the Sexual Offences Act 2003 is only 14 years in prison.
I am not a lawyer and the drafting of the sex trafficking part of the Act is head buttingly complicated. However, it seems clear to me that they never had any intention of making it an effective tool for tackling sex trafficking or for meeting our actual obligations under the Palermo Protocol and the Council of Europe Convention.
Do you see what I’m getting at? Women, we are being systematically fucked.
Dear women, we need to get our act together!
As far as I can see, the pimping legislation is Section 53 of the Sexual Offences Act 2003. Here it is:
53 Controlling prostitution for gain
(1) A person commits an offence if—
(a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years.
It seems to me that this definition is closer to the Palermo Protocol definition of sex trafficking than the one in the Modern Slavery Act 2015.
So this offence, which covers the essential features of sex trafficking, has a maximum penalty of just 6 months in the magistrates court and 7 years in the crown court.
Let’s compare this with the maximum sentence for rape, which is life imprisonment. Pimping is profiting from the serial rape of women and its maximum sentence in the magistrate’s court is 6 months, which is the same maximum penalty for low value shoplifting.
Which really does show how much the legislators value women. About as much as a t-shirt in Primark.
Dear women, we cannot trust the legislators! It’s as simple as that.
The obligation to address women’s and girls’ poverty and inequality
In the UK at the moment, we have a Conservative government, and the majority of its cabinet members are millionaires. The government has a neoliberal agenda and governs for the benefit of the very rich (sometimes called the 1%), and has a clear ideological imperative to remove the safety net and dismantle the remaining elements of the welfare state and employment protection.
Soon, if not already, the majority of working people in this country will do shit jobs for low pay and no effective employment rights, so that they (the 1%) can scoop up all the wealth that belongs to the citizens of this country into their private hands.
For this agenda to succeed, I believe they need prostitution to keep women and girls one step out of destitution and the boys and men occupied with pimping and puntering. And to keep us all alienated from each other and our humanity.
In addition, in these times of economic crisis, the sex industry generates economic activity. In 2014, the UK started including the sex industry in the national GDP. This gives the government yet another motivation to ensure that the sex industry has free reign.
Some people have suggested that Shadow Chancellor, John McDonnell’s enthusiasm for the full decriminalisation of the sex industry is not unconnected to his envy of the German government’s multi-billion Euro annual tax revenue from the sex industry.
German TV journalists, Tina Soliman and Sonia Kennebeck, are reported in a Worldcrunch article as follows:
“Soliman and Kennebeck reach the conclusion that the good intentions to strengthen the position of prostitutes through legislation [legalisation] in fact achieved the opposite. ‘Women have become a resource, to be used as efficiently as possible,’ they say.”
We need to understand these dynamics. Those, like the English Collective of Prostitutes (the ECP) who argue for full decriminalisation of the sex industry, often put austerity and women’s poverty at the forefront of their arguments, saying that prostitution is an effective solution to women’s poverty. And on one level that is true – it can save women from destitution. But the price is unacceptably high and she seldom understands what the price will be until it is too late.
As feminists we need to engage with the issue of women and girls’ poverty and understand that prostitution can never be separated from that. I believe that the Nordic Model will never be successful while women’s poverty is entrenched, their options so limited, the pay gap so large.
Now, to go back to the Palermo Protocol. Article 9 deals with prevention of trafficking and it includes not only measures to tackle men’s demand but also the factors that push women into prostitution:
- States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
- States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
This very clearly specifies that the government has just as much a legal obligation to address the poverty and lack of equality that pushes women and girls into prostitution as to address the demand from men.
There are other international treaties that are also relevant. For example, the Convention on the Elimination of All Forms of Discrimination against Women (known as CEDAW) requires ratifying states to take appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.
Article 22 of the UN Declaration of Human Rights guarantees citizens the right to social security and Article 25 states that mothers and children are entitled to special care and assistance.
We do not believe that prostitution is an acceptable form of unemployment insurance for women and girls, any more than pimping is for men and boys. And we do not accept that the sex industry is a legitimate economic activity that the government should rely upon for generating revenue.
We call upon the UK government to address all of the factors that drive women and children into prostitution as well as the factors, like the demand from men, that pull them.
I fear that we have been acting like little girls asking daddy for a treat and happily skipping off when he says Yes, while he pisses himself laughing at how easily we are duped.
What we are asking for challenges the very foundation of the neoliberal patriarchal power structures. I believe that if we simply ask for the three key parts of the Nordic Model, we will fail. We need to be much bolder. At the very least we need to also call for the travesty of the trafficking and pimping legislation to be addressed, along with female poverty and inequality.
The evidence from the countries that have implemented the Nordic Model is clear. Only in Sweden, where the introduction of the Nordic Model was part of a whole package of measures and legislation designed to tackle male violence and to address women’s inequality has the implementation been anything near whole hearted.
My despair at realising how bad the existing legislation is led me to approach another women who was feeling equally frustrated. The outcome of our discussion was a decision to set up a new UK grassroots campaigning organisation called Nordic Model Now! Movement for the Abolition of Prostitution. Many enthusiastic women have joined and planning our resistance is steaming ahead. I will post more information and a link to our website as soon as it is up and running.