The Decriminalisation of Prostitution: The Lesser of Two Evils?

Although prostitution is not expressly legal in the United Kingdom, the exchange of money in return for sexual services is not expressly illegal. However, with activities surrounding prostitution, such as soliciting and brothel keeping, being rendered illegal by the 1956 and the 2003 Sexual Offences Acts, the legal prostitution that actually takes place in the UK is generally limited to private outcall escorts.

This confusing lack of harmony in relation to the legal status of prostitution in the UK has resulted in frequent academic debate as to what would be the best solution to this ambiguity. Should prostitution itself become illegal as well as its surrounding activities, or should the surrounding activities also become decriminalised? This is certainly not an easy question to answer.

Those who argue that activities enabling prostitution should be decriminalised often do so on the basis of liberal autonomy. Many academics echo the sentiments of liberal thinkers such as philosopher John Stuart Mill, who believed that ‘over himself, over his own body and mind, the individual is sovereign’ (John Stuart Mill, 'On Liberty'. Longsman, Green, and Company, 1865). If applied to this debate, a liberal champion would thus argue that people are free to do what they want to their own body, even if that includes exchanging sexual services for money. This is a firm belief of Peter de Marneffe, who argues that the laws which prohibit people from selling sex violates the right of self-sovereignty (Peter de Marneffe, ‘Vice Laws and Sovereignty’, 2013, 7 Crim Law and Philos pg 29-41). Traditionally, these arguments have been rejected from a moral standpoint. However, moral arguments have become quite outdated. Even Michelle Dempsey, a feminist against the decriminalisation of prostitution, has conceded that campaigning for the prohibition of prostitution on the grounds of protection of traditional values endorses ‘a pernicious tradition that reinforces patriarchy’ (Michelle Dempsey, ‘Sex Trafficking and Criminalization in Defense of Feminist Abolitionism’. 2009-2010, 158 U. Pa. L. Rev. pg. 1741).

A more poignant counter to the liberal ideology has come from feminist arguments that the prevention of harm to women far outweighs sovereignty and autonomy. Dempsey, focuses on the fact that prostitution causes both ‘physical injury to the body… and even death’ (Ibid.) and psychological harm to a significant number of sex workers. Debatably, this is qualified by a UN Report published in 2006 which commented that ‘it is rare that one finds a case in which the path to prostitution and/or a person's experiences within prostitution do not involve…an abuse of power’. Moreover, a study by the Hester & Westmarland Home Office in 2004 found that ‘at least three-quarters of UK women in prostitution have been physically assaulted’, although the accuracy of this claim is questionable considering the finding was based on the experiences of only 140 women. Regardless of the accuracy of the study, it is unanimously accepted that sex workers are definitely at risk of violence. It is for these reasons why certain academics and activists, such as Julie Bindell, argue against decriminalising prostitution, stating that there is ‘nothing civilised about legitimising one of the most exploitative industries on the planet’.

The prevention of exploitation of women is another key theme of those who argue in favour of prohibiting prostitution. It is argued (Home Affairs Committee, 'Prostitution (3rd Report, HC 26, 1st July 2016)' para 19) that many sex workers are either trafficked or coerced into the industry, and that the decriminalisation of prostitution would inflate its demand which would thereby lead to the increased exploitation of vulnerable women.

Both the Sexual Offences Act 2003 and the Policing and Crime Act 2009 expressly prohibit any form of prostitution where a worker has been subjected to any type of force, and this is a prohibition which is absolutely correct and not up for debate. The sad reality is, however, that despite this specific prohibition, many prostitutes are still forced into the lifestyle. Although the number of those trafficked for sexual exploitation has significantly reduced in the UK ‘following the implementation of the Modern Slavery Act 2015’ (Ibid.), it is still estimated that ‘there were 1,139 victims of trafficking for sexual exploitation in 2014, and 248 in April to June 2015’ (Ibid.).

It can therefore be argued that although prostitution is essentially rendered illegal by the current framework, and that although legislation is in place to prohibit any prostitution linked to trafficking or force, harm and coercion still clearly exists. To go down the route of criminalising prostitution would be a small extension of the legislation which arguably already exists and has already failed to completely eradicate human trafficking as shown by the aforementioned statistics. This may be why there is significant support for decriminalising or legalising prostitution instead, so that sex workers can be actively protected from harm. It has been submitted that institutions such as brothels allow for the increased surveillance and protection for the prostitutes that work there, especially through the use of elaborate safety measures such as panic buttons (Ronald Weitzer, “Prostitution: facts and fictions”, 2007, 6(4) ASA pg. 31). Both these options would also offer scope for increased state regulation and surveillance of the sex industry. A consequence of this may be that those involved in the sex industry would become more aware of the potential to get caught trafficking or forcing individuals to work, and thereby would be less inclined to carry out such activities. Furthermore, it has been put forward that the decriminalisation or legalisation of prostitution would encourage more sex workers to report violence against them to the police, something which they are currently reluctant to do given the legal status of their activities and the potential ramifications against them.

Whether one is for or against the decriminalisation of prostitution, there is at least a consensus that the current ambiguous legal framework is unsatisfactory. So has there been any notable indication as to what avenue a change in legislation in the UK may take in recent times?

In October 2014, the avenue of decriminalisation was taken in Leeds, when a pilot scheme establishing a council managed red-light district was introduced. In this safe zone, ‘sex workers are allowed to ply their zone in the designated part of the Holbeck area of the city between 7pm and 7am’. In January 2016, this red-light district was made a permanent fixture. It was perhaps this news that acted as the catalyst for the debate on prostitution to be propelled from the academic to the public sphere.

The pathway for the decriminalisation of prostitution was then furthered in July 2016, when the Home Affairs Select Committee published an interim report which has been subsequently described as ‘unprecedented’. Although the report was lengthy and detailed, there were three main key recommendations which are pertinent to this discussion. The first one is the uncontroversial recommendation that ‘the Home Office commissions an in-depth research study to help develop a better understanding of the current extent and nature of prostitution in England and Wales, and to draw together… any recent relevant research’ (Home Affairs Committee, Prostitution (3rd Report, HC 26, 1st July 2016) para 38). Many of the above-mentioned academics have attempted to qualify their arguments with evidence, but there is so little reliable data available that it is hard for any individual to properly evaluate their analysis and suggestions. It can therefore be submitted that this recommendation is not only an excellent idea, but one which should have been carried out a long time ago.

The next recommendations are ones of much higher significance. The committee also recommended that ‘the Home Office change existing legislation so that soliciting is no longer an offence and so that brothel-keeping provisions allow sex workers to share premises, without losing the ability to prosecute those who use brothels to…exploit sex workers’ (Ibid). This recommendation, if followed, would create a nationwide extension of the current Holbeck red-light district, whilst also allowing brothels to be decriminalised. Both of these changes would mean that prostitution would be readily available in the UK. It is unsurprising, therefore, that this interim report was met with an outburst of reaction: the majority of which was positive. Organisations and charities aiming to further the protection of sex workers such as The English Collective of Prostitutes, The Sex Worker Open University and the National Ugly Mugs reacted joyously to the news. In addition to this, many of the recommended measures from the interim report aligned with the views of globally recognised organisations such as the WHO and Amnesty International. For the first time ever, there was serious momentum behind the prospect of a decriminalised sex industry.

Yet, since the publication of the interim report, progress has stagnated. In an ironic turn of events in early September 2016, Keith Vaz, the chair of the committee that produced the interim report, was exposed by the Sunday Mirror for engaging in sexual activity with male prostitutes and offering to pay for their drugs. It is not surprising that, following these revelations, the integrity of the interim report has been questioned. Vaz resigned as the chair of the Committee on 6th September 2016, and Yvette Cooper was appointed in his place in October 2016.

Despite this obstacle, the Government did publish their official response to the interim report in December 2016 (Secretary of State for the Home Department, The Government Response to the Third Report from the Home Affairs Select Committee Session 2016-17 HC 26: Prostitution, Cm 936, December 2016). In response to the first recommendation, the Government recognised the current lack of reliable data and thoroughly agreed with the need for new research. They promised that ‘the Home Office will work with other Government departments, researchers and academics to develop a comprehensive, impartial understanding of the nature, prevalence and composition of prostitution and sex work and will provide an interim report to Parliament by June 2017.’ (Ibid). This is an incredibly positive development, for this much needed research will provide further clarity on the specific issues within prostitution, which will in turn make it clearer as to how the legal framework should adapt to tackle these issues. It is perhaps the lack of current data, however, which is the reason behind the Government’s reluctance to pass judgement on the other recommendations of the interim report. Page 5 of the report states that a ‘robust evidence base… would have to be established before the merits and demerits of any policy changes and their potential implications were to be considered.’ (Ibid). This is a predictable, yet understandable, response from the Government. Although change may be necessary, proper research must be carried out before any significant decision regarding the legal framework of prostitution is made. Furthermore, the Home Affairs Select Committee still need to produce their final report, which the Government have said they will respond to once published.

In conclusion, the problem clearly lies with the fact, that although good points are made on both sides of the argument, a lack of reliable data means that it is hard for either side’s argument to be proven as possessing more credence. There is no doubt that the introduction of the red-light district in Holbeck and the recommendations in the interim report have swung the momentum in favour of those who want prostitution to be decriminalised. However, until the Home Affairs Select Committee produces their final report and the Home Office completes their interim research report, we are unlikely to see any further developments.

Photo Credits: SWNS