are you sitting comfortably?
Then I’ll begin…
On the 1st of April 2010, a new law was introduced in England and Wales which criminalises the purchase of sexual services from any person who has been or is being forced, coerced or exploited. The nuts and bolts of this legislation (an addition to Section 53A of the Sexual Offences Act 2003) are here.
There continues to be widespread misconception and lack of understanding about what this actually means, not helped by the abolitionist lobby, the moronic red-tops and even senior police officers (at least one of whom has been quoted as stating, among other things, that it is no longer legal to purchase sexual services in a brothel). The Sun newspaper has already had to amend and print a correction to this disgraceful article (see the end) following an email to the Press Complaints Commission by an irritated punter (leaving aside the fact that the raid reported was almost certainly a set up, unless you believe that the Sun routinely send a reporter and photographer to hang around outside East London brothels at ten in the morning on the off chance). And the predictable throwing around of the ‘T’ word has reached pandemic proportions, despite there being no mention whatsoever of trafficking in any part of the new statute.
It is hardly any wonder that most of the relatively small number of our clients who have even heard about the new laws are confused – I personally have been reading every relevant article I could get my hands on and have yet to see one which addresses these concerns in any sort of informative, responsible and pragmatic way. This week I am aiming to at least have a go myself, admittedly having no legal background or any legal training at all so please do bear with me – an embarrassingly analytical nature and adeptitude with Google can make up for an awful lot. The background is as follows:
Myth One: Visiting a prostitute is illegal. FALSE. It is not, and has NEVER been an offence to visit a prostitute for the purpose of buying and availing oneself of their services, nor to have one visit you, and this applies whether you are referring to commercial premises or private dwellings.
Myth Two: Working as a prostitute is illegal. FALSE. It is not, and has NEVER been an offence to sell, or offer sexual services for sale in the UK. I have found that confusion arises about these first two surprisingly often and generally results from a mistaken belief that soliciting and prostitution are the same thing; the soliciting offence (including kerb-crawling) relates to maintaining public order and preventing nuisance, and has nothing whatsoever to do with the process of exchanging money for sex.
This last is not helped by the worthless disclaimers carried on many websites; the twaddle about ‘time and companionship’ originates from the United States where prostitution is almost entirely outlawed and has as much relevance in England and Wales as the Bill of Rights. If I decide to redesign my site to read ‘I will cheerfully have full penetrative sex with you in any position of your choosing and on any fuckable surface you see fit for £XXX – ring me to find out how!!!’, I would be perfectly within the law in doing so. Neither the internet nor the telephone are public places. Escort agencies are technically breaking the law because they are almost exclusively procuring sexual partners for third parties (no matter what it says on their websites), but no one using or working for one is committing an offence in doing so.
None of this mentioned so far has been in any way affected by recent changes. The new Section 14 offence of paying for the sexual services of a prostitute subjected to force (etc) would on the surface seem to be relatively straightforward; most reasonable people would recoil in horror at the thought of adding to the misery of those genuinely exploited and I do not believe I have ever met any punter, however unpleasant (and there have been a few over the years) that would knowingly continue an appointment with anyone who was not participating willingly and of their own volition. It is the nature of the offence – one of the relatively few categorised as ‘strict liability’ – that is unusual, and demonstrates for me beyond doubt, the eventual intention of the state to make prostitutes and prostitution disappear.
Strict liability automatically convicts a defendant of the offence they are charged with; there is no defence and it is normally applied to situations where there is no question that the party concerned were aware they were in breach of the law – speeding, driving without insurance and possession of a firearm are examples I know about (there was a recent case of a man being prosecuted for the latter having found a gun in his back garden and taken it to the police station to hand it in). However, the new legislation concerns a far greyer area – it is explicitly stated that it is irrelevant whether the person who pays for sex is, or ought to be aware that the prostitute has been exploited – they are guilty regardless. Therefore, someone can now be convicted of an offence they not only do not know they have committed but have no way of knowing they are committing.
In other words, John Q Punter could prepare and bring along a carefully worded questionnaire or statement for his chosen lady to sign, confirming that she is happy and working of her own free will or conversely he could shuffle through the door, pay, get his end away and leave without even asking her name – if the lady in question is later decreed to fall into one of the categories described, BOTH examples would be equally guilty of exactly the same offence; any concerted effort made to find out her personal circumstances is utterly pointless, completely futile and constitutes no defence whatsoever. Unfair and unjust doesn’t even begin to describe it, but there it is (and it is worth pointing out that none of this is aimed at punishing the third party actually responsible for the coercion).
The aim is obvious enough and the agenda is hardly hidden; the reduction of demand by putting the fear of God into people. Only time will tell whether this will have any real effect. Common sense ought to prevail in terms of avoiding the sort of establishments where ladies are kept chained up in puppy cages and let out only to service punters on demand, the problem being that (as far as the UK goes) such establishments exist, for the most part, only in the heads of the Harriet Harmans of this world, and actual exploitation is likely to be far more ‘everyday’ and subtle, extremely well hidden and thus almost impossible to detect. So in summary:
It is not illegal to pay for sex with a prostitute who has been trafficked any more than it was a month ago; the state of being trafficked in and of itself does not indicate coercion, or even being non-British. Many migrant workers are not trafficked, and some native British workers are.
If you are convicted of this new offence you can be fined up to £1000 and will have a criminal record. Contrary to one popular misconception, you will NOT end up on the Sex Offenders register. And the offence does have to be proved to have taken place before any of this can happen, which is when it is going to get interesting. If it ever happens.
Most importantly, it makes no difference whether you have tried to ascertain whether a person is willing, exploited or under duress in the event that it turns out he/she is.
So realistically, the chances of this law ever being able to be properly enforced are close to zero. In other words, after all that fuss – it’s basically as you were. Back for the usual diary entry soon…
EDIT: 20th April 2010, 1.15pm – For those following developments from north of the border, Trish Godman’s amendment has been voted down by the Justice Committee this morning. Unlucky, Trish.
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April 22nd, 2010 at 10:45 am
Just two or three points on this excellent entry. The first link isn’t working for some reason.
What generally hasn’t been appreciated in most accounts of the new law is that no sex has to actually take place (or therefore be proved) – it is in the arranging of sex that the offence lies.
Secondly the ‘t’ word. Someone who has been trafficked as internationally defined (Palermo Protocol) would almost certainly be coerced for the purpose of the new law, as this involves (in the case of adults) coercion or deception. However, in UK law (Sexual Offences Act 2003) no coercion or deception need take place for someone to be deemed trafficked. An adult is deemed trafficked if they are moved into, around or out of the country to enable any offence in Part 1 of the Act to take place, eg if they are moved from one brothel to another, EVEN IF THEY WANT TO GET THERE!
Or it could be for a host of other sex offences. One could be ‘trafficked’ to have sex in a public loo, for example, or to have sex with a parent, without any ‘prostitution’ being involved.
Thus it is possible in the UK for trafficking ‘victims’ to have been subjected to no force or coercion whatsoever, in which case their clients should have nothing to fear.
Ministers have been quite up front about seeing the measure as a means of reducing demand. In so doing, of course, they have made it almost impossible for clients to report genuine trafficking cases lest they be arrested for the new offence.
April 22nd, 2010 at 11:34 am
Oops – link fixed. Too much coffee.
Another point arising from this excellent comment is that not only sex, but payment does not need to have taken place – according to the statute, PROMISE of payment is enough. This could theoretically mean that telephoning a brothel and arranging an appointment for a given length of time (and an agreed fee), arriving but deciding not to stay due to concern for the welfare/situation of the workers present and the overall appearance of the operation (and very possibly intending to report to Crimestoppers) could also get you convicted of the new offence. Thanks to Stephen for adding to this post.
April 22nd, 2010 at 11:46 am
First link working now, thanks! The definition given there of sexual services is interesting and would seem to let most BDSM dominatrixes off the hook, as I understand they rarely allow penetrative sex by clients.
Hand jobs and tit wanks also seem to fall outside the category of sexual services. Would be interesting to know what category the Government does classify them as!
April 22nd, 2010 at 12:24 pm
You make a very good point in your comment. In a situation commonly arising in today’s sex industry world, in which sex is arranged over the net or by text message, or by phone, without the parties actually meeting, the client will have already committed the offence by the point he is in a one to one relationship with the sex worker, and in a better position to discover if any coercion has taken place. And there will no doubt be some who would take the view that they may as well be hung for a sheep as a lamb, as by that point they will already be guilty of the offence. To make one’s excuses and leave would be mitigation at best.
Furthermore, the net and the text message, possibly the phone, will quite possibly mean that there is some form of electronic record somewhere.
For those few cases of genuine sex trafficking that undoubtedly exist in the UK, the new law seems to me the last nail in their coffin. The traffickers and the brothel managers aren’t going to help them, they’re kept inside all day, who else will help if not a client? You can now get seven years for managing a brothel (compared with six months in 1997) presumably in an effort to boost employment by encouraging protection rackets.
April 24th, 2010 at 8:52 am
You see – this is why I come to Amy if I have a business/serious side of this job question to ask.
Your going to get an answer and an answer that you can actually understand.
I would suggest you become a politician Amy but you talk far too clearly to be one of those. You have no BS and it’s right down to the point – if you went into politics with that attitude, you would be permanently on the naughty chair. Although, I am tempted to say, that would be rather fun really!
Aside from the headache you must have sorting all that out and writing it into a form most people (politicians aside, they always struggle with the truth of something) can understand – I hope you well up there in (sunny?) Scarborough.
xx
May 12th, 2010 at 9:52 am
The CPS’s definition of what counts as a sexual service seems – and I haven’t done a full check – to be something they’ve invented rather than what the law actually says.
The basic definition of ‘sexual’ in the SOA 2003 is in s78, and does not limit itself to stuff involving penetration. (Rather it says that something is sexual if “is because of its nature sexual” or if it could be sexual and at least one of the participants thinks it is.) The s4(4) the CPS reckons defines it is what makes the offence of ‘Causing a person to engage in sexual activity without consent’ more serious: if I get off on, say, making you fondle someone’s feet without your consent, I am still guilty.
I don’t know of any cases involving BDSM in this context, but I do not believe for a second that a jury would not find it was not sexual, just because it does not involve penetration.