As you may know, there is a
consultation that closes today for a bill in Scotland that would criminalise the purchase of sex.
The response to the consultation that I have submitted to MSP Rhoda Grant is included below. It's long.
If you would like to make a last-minute submission,
please consider the excellent template letters offered by SCOT-PEP. Please be sure to request anonymity if you want to do it privately, or consider signing with a pseudonym.
You don't have to be in Scotland to reply.
My response:
First
off, I would like to address to comments Trish Godman MSP made at the
Conference Against Human Trafficking in October this year that “Belle”
does not exist and is not happy.
I am Belle de Jour, I do exist, and please thank Ms Godman for being so
concerned about my feelings – I am happy.
QUESTIONS
Q1: Do you support the general aim of the proposed Bill? Please indicate
“yes/no/undecided” and explain the reasons for your response.
No, I do not support the general aim of the bill.
If
the current laws are not working, as you claim, what makes you think
new, badly thought out laws would work better? Or is this another 'send a
message' law?
Passing laws is easy. Passing a law which actually works in the way
intended, is enforceable and has no harmful unforeseen consequences is
far more difficult.
Such a law as proposed here will
not affect whether or not prostitution happens: it will simply affect
the conditions under which it takes place to the harm of sex workers.
The question is, do you care about those conditions? I do. My priority
is access for sex workers to the services they need to preserve or
improve their circumstances.
The criminalisation of the
purchase of sex in other countries has been shown not to be a
successful approach in either helping sex workers or stopping the
phenomenon of paying for sex. The extensive evidence for this position
is outlined in the replies to the following questions.
Q2: What do you believe would be the effects of legislating to criminalise
the purchase of sex (as outlined above)? Please provide evidence to
support your answer.
The effects of criminalising
the purchase of sex would be increased danger for the people involved in
selling sex and no reduction in demand. It is neither the logical
response to sex work nor is it the compassionate one.
It
has been reported that at a meeting in London at the House of Commons
in November, Rhoda Grant said that harm or attacks that might be
suffered by sex workers as the result of this bill was a “price worth
paying”. How easy to say when other people are the ones paying the
price! This shows me the bill is putting ideology above people’s lives.
That the desire to punish sex workers and their clients matters more to
her than women’s safety. It is horrifying.
[Alex Bryce, ” A Regressive Move Which Would Further Stigmatise and Endanger Sex Workers”. Huffington Post, 28 November 2012]
Legislators
who care about lives should focus on the provision of essential support
services first and foremost. There is ample evidence to suggest that
introducing criminalisation as well as spending valuable time and police
resources would be to the detriment of the sex workers this Bill claims
to want to protect.
My opposition is based upon the
fact that the Swedish model is flawed; on the negative impact of such
criminalisation on existing sex workers, particularly in their ability
to access health and criminal justice services; the fact such an
approach ignores and thus fails to address limitations within the
criminal justice system (and other agencies) to effectively address
abuses; the negative influence it has on the broader narrative of human
trafficking to the detriment of other kinds of trafficking and
exploitation.
The law in Sweden criminalising buyers
has not been successful. It was brought in based on very little
evidence. According to Dr Laura Agustin, an expert on sex work and
migration, one of its data sources was a survey of only 14 people - just
7 of whom were sex workers.
Statistics show Swedish
men are not deterred by the law. Many go to Denmark and Germany where
prostitution is legal. The demand has not dried up. The number of men in
Sweden who have paid for sex is actually rising.
The laws have proved unpopular. A recent newspaper survey found 63% of
the population favoured abolishing the sex purchase ban. When the
Justice Minister proposed increasing penalties, 88% of Swedes disagreed.
There
are health and safety concerns about prohibition. Condom distribution
and HIV prevention, “ugly mugs” schemes identifying violent punters, and
exiting services show far lower uptake when prostitution is
criminalised.
As Purchasing Sexual Services in Sweden
and the Netherlands found, the impact of the law on sex workers was to
make such work more dangerous; for example, by reducing the time
available to sex workers to assess clients.
[Purchasing Sexual
Services in Sweden and the Netherlands, A Report by a Working Group on
the legal regulation of the purchase of sexual services, 2004, p. 20]
Much
is made in anti-trafficking discourse of the Swedish model based on the
assertion that, by making the purchase of sex an offence, human
trafficking declines. But as an example, a 2011 report found that:
[W]hen reviewing the research and reports available,
it becomes clear that the Sex Purchase Act cannot be said to have
decreased prostitution, trafficking for sexual purposes, or had a
deterrent effect on clients to the extent claimed. Nor is it possible to
claim that public attitudes towards prostitution have changed
significantly in the desired radical feminist direction or that there
has been a similar increased support of the ban. We have also found
reports of serious adverse effects of the Sex Purchase Act – especially
concerning the health and well-being of sex workers – in spite of the
fact that the lawmakers stressed that the ban was not to have a
detrimental effect on people in prostitution.
[The Swedish Sex Purchase Act: Claimed Success and Documented Effects,
Susanne Dodillet and Petra Östergren, Conference paper presented at the
International Workshop: Decriminalising Prostitution and Beyond:
Practical Experiences and Challenges. The Hague, March 3 and 4, 2011,
p.3.]
This year UNAIDS, the Joint United Nations
Programme on HIV/AIDS, stated unequivocally that decriminalisation is
the best strategy for both safety of sex workers and disease control.
Swedish statistics in the 2012 UNAIDS progress report show Sweden has no
data on whether HIV and safer sex programmes are reaching sex workers,
or if sex workers are getting tested. This is a worrying development
that could lead to an Aids timebomb. Such things are already happening
in countries like Cambodia, where abusive and violent police enforcement
of anti-sex work laws has led to decreased use of prophylactics, fewer
people coming forward for STI testing, etc.
Close
reading of the Swedish publications on the topic make it clear that
UNAIDS is correct in their interpretation. For example, the report
claims “it is reasonable to assume that the reduction in street
prostitution in Sweden is a direct result of criminalisation” and “The
overall picture we have obtained is that, while there has been an
increase in prostitution in our neighbouring Nordic countries in the
last decade, as far as we can see, prostitution has at least not
increased in Sweden”
(p. 36).
The language
reveals that Sweden has no data and is simply pulling numbers out of
thin air. As such, we argue that the Swedish model should be more
carefully considered, especially in relation to its alleged ‘success’,
and its applicability to Scotland.
Criminalising sex work makes prostitutes more vulnerable to violence.
The
UNAIDS report notes “In Sweden, sex workers who were unable to work
indoors were left on the street with the most dangerous clients and
little choice but to accept them.” This has also been the case in
reports focusing on human rights in countries like Cambodia, where
efforts to reduce prostitution have had a significant harmful effect.
By
contrast, decriminalisation has been beneficial in terms of welfare of
women. In 2003, New Zealand opted to overturn their laws that
criminalised prostitution in favour of regulation. The people most
visibly affected by the law were streetwalkers in larger cities like
Auckland, where in 2003 about 360 girls were estimated by police to be
working. Streetwalkers represent about 11% of the total number of
prostitutes in the country.
["Big Increase of Sex Workers a Myth: Latest Research". Christchurch School of Medicine and Health Sciences. 2006-09-12]
An evaluation of available data shows that the number of sex workers
changed very little – and in some places, the numbers of them on the
streets actually decreased – compared to before sex work was legal.
In
Auckland, the estimated number of girls working the streets decreased
significantly, from 360 to 106. People working in massage parlours and
other establishments expressed a desire to stay in the work because of
the financial rewards.
[Report of the Prostitution Law Review
Committee on the Operation of the Prostitution Reform Act 2003.
Available online at:
http://www.justice.govt.nz/policy-and-consultation/legislation/prostitution-law-review-committee/publications/plrc-report/report-of-the-prostitution-law-review-committee-on-the-operation-of-the-prostitution-reform-act-2003]
In 2010, interviews with over 700 sex workers in New Zealand were published.
[G
Abel, L Fitzgerald, C Healy, (eds). Taking the crime out of sex work:
New Zealand sex workers' fight for decriminalisation. Policy Press 2010]
The number of interviews represents almost 12% of the estimated 5932
prostitutes in the country, a far higher proportion than in virtually
any other qualitative study of sex workers ever conducted.
It
concluded that the majority entered and stayed in the sex trade for
financial reasons, that they felt the new laws gave them more
protection, and that the result was positive changes overall for safety
and health. As a result of the legislation they had become more willing
(and able) to report crimes to the police - surely a victory for women’s
safety.
We have a relevant and recent Scottish example
with Aberdeen. From 2001 onward, the city had an established tolerance
zone for sex workers around the harbour. That ended with passage of the
Prostitution (Public Places) (Scotland) Act in 2007. In the following
months the city centre experienced an influx of streetwalkers and an
increase in petty crimes.
Quay Services, which operates a drop-in centre for streetwalkers,
reported that sex workers became more afraid to seek assistance and the
number of women coming to the centre dropped to “just a handful”.
[M Horne. “Safety tips texted to prostitutes after tolerance zone ends.” The Scotsman, 08 June 2008.]
There was also evidence that displacing sex workers led to more
activity in the sex trade, not less – convictions for solicitation
tripled.
[K Keane, 18 November 2008. “Prostitution 'forced into city'.” http://news.bbc.co.uk/1/hi/scotland/7734480.stm]
To
give a more specific example – when I lived in Sheffield in the early
2000s I saw firsthand the tragic effects of driving sex work away from
well-trafficked, well-watched areas.
At one point a de facto ‘tolerance’ area of streetwalkers had existed
around the St George’s area of the city. It was fairly central, well
lighted with CCTV, and police went through the area regularly. The
streetwalkers I saw there (for I lived in a flat nearby) all seemed
confident and in control. The interactions I saw with them and punters,
and them and police, did not appear strained or overtly dangerous.
This
changed when the crackdown came. Bollards went up to prevent kerb
crawling. Women were pushed out to less populated, more industrial, less
policed areas.
It happened at that time I was a student, working in the city’s Medico
Legal Centre.
One day I was called down to look at a
postmortem. The mortuary was a rectangular room, with parallel stations
set up for performing autopsies. That particular morning, there was one
case I remember in excruciating detail. A young woman had been stabbed
in a frenzied attack out past the dark underpasses of the Wicker, not
far from Corporation Street. She died in hospital. The victim was just
25 years old. I had turned 25 the night she died.
[Name
Redacted] was picked up by someone unknown, stabbed 19 times, and
dumped in a lot. She lived long enough to give a partial description of
her attacker, but died in hospital. I remember the dark hair, the
pathologist methodically recording the position and appearance of each
place the knife entered. I remember the stuffed teddy bear with a little
red heart someone brought to the centre for her. Later I heard she had a
7-year-old son. Her killer has never been found.
Such a
terrible, violent murder is only one tragedy. Many murders go unsolved
every year. But the connection between what happened to [Redacted] and
where she was working seemed clear to me. The more I learned, the more
the effects of “zero tolerance” policing seemed partly responsible for
her untimely death. This would not have happened if she had been on the
streets near St George’s, with loads of walk-by traffic and well-lit
corners. This crime could only have happened away from prying eyes,
where anyone alerted to [Redacted]’s distress would not have been able
to save her. Where there were no witnesses.
There is
growing evidence that moving prostitutes into the darkened industrial
outskirts of cities makes their lives more dangerous. [Redacted] is just
one victim of a policy that is more concerned with exploiting
prostitution myths and preserving a façade of public order than it is
about benefitting women.
Perhaps rather than assuming
these women are targeted because they are prostitutes, we should
consider that they may be targeted because of message society is sending
about their value as humans. Gary Ridgway, also known as the Green
River killer, murdered 48 women in America in the early 1980s. He later
talked about why most of his victims were streetwalkers: "I picked
prostitutes as victims because they were easy to pick up without being
noticed. I knew they would not be reported missing right away and might
never be reported missing. I thought I could kill as many of them as I
wanted without getting caught.”
[EW Hickey. Serial Murderers and Their Victims (5th edition). Wadsworth Cengage Learning, 2010. P. 25.]
It wasn’t the commercial sex angle that was attractive to him, but the convenience.
Many
such killers are opportunists; they not only target shamed outsiders
like prostitutes, but also hitchhikers and people travelling alone.
People whose whereabouts are not exactly known at any given time. And
yet no one would endorse a law criminalising solo travel under the
rubric of “protecting” holidaymakers – that would be ludicrous.
Q3: Are you aware of any unintended consequences or loopholes caused
by the offence? Please provide evidence to support your answer.
The
unintended consequences of such a law would be greater personal risk
for the people who sell sex, including both criminal danger, risk of
attack, and exposure to sexually transmitted infections as detailed in
the evidence for my answers given above.
Attacking sex workers or their clients is not successful in changing
behaviour. Prohibition in general tends to backfire.
We
all know how badly alcohol prohibition in the US went and the
frightening criminal implications of the ongoing “War on Drugs”. Instead
of addressing the underlying social issues that might have been leading
to unwelcome behaviours, it simply gives criminals a far greater hold
on the industry than they would have otherwise. It does nothing to solve
any actual family or societal problems.
The government policy of the last several decades against sex workers
has failed. No matter what deterrents are applied it always continues.
Even
the Swedish government admits sex work advertising has increased on the
internet – in other words, the trade has disappeared from public spaces
but it has not gone away at all. What has happened is that sex workers
have gone underground. This makes them more vulnerable, not less, to
attack and abuse. It makes them more vulnerable to criminal gangs.
It
is worth noting that Sweden’s largest trafficking prosecutions have all
happened since the criminalisation law came into being –
criminalisation makes trafficking worse, not better.
If was as a society are serious about protecting women then we should
rethink the current approach. The only country in the world that has put
safety of women and men in sex work above subjective moral ideals is
New Zealand. Their decriminalisation of sex work over ten years ago has
been a great success.
Q4: What are the advantages or disadvantages in using the definitions
outlined above?
“80. I want to ensure that the proposed legislation avoids any potential loopholes
where a purchaser could avoid prosecution by means of non-cash payment.”
“82. I intend to pursue this approach as it would mean that the offence would not
be limited to sexual intercourse or oral sex but could potentially include a
wider variety of sexual activity.”
So that’ll be
everything from marriage to dating websites to flirting made illegal,
then.
The section relevant to this question makes clear that the intent of the
bill is not simply the question of sex work, but policing any gendered
or sexual interactions and behaviour with ill-defined parameters that
make virtually all human relationships susceptible to prosecution. This
is relevant to Q3 as the unintended consequences of such a law are
potentially limitless.
Q5: What do you think the appropriate penalty should be for the offence?
Please provide reasons for your answer.
I do not
believe the consensual sexual activities of adults, monetised or not,
should be in any way criminalised or subject to penalty. There are
already laws in place to rightly prosecute those who engage in forced
labour practices, abuse of children, rape and sexual assault and these
should continue to be enforced robustly.
The
consultation is low on information about what sex workers’ lives are
really like, and seems informed mainly by skewed sources and dodgy
assumptions. Since no space in the questions has been allocated to
dispute these dangerous stereotypes, I’d like to use this opportunity to
provide some data.
When researchers allow sex workers to tell their experiences in a way
that does not prejudge the outcome, the results reveal things that are
well-known to those in the work, but still news to people on the
outside.
A 2009 study polling sex workers is an excellent case in point.
Beyond Gender: An examination of exploitation in sex work by Suzanne Jenkins of Keele University (2009)
revealed the results of detailed interviews with 440 sex workers. Not
simply street-based women, either, but women, men, and transgendered sex
workers in all areas of the business. Over half were from the UK; the
rest were based in western Europe, North America, Australia and New
Zealand.
The results turn almost everything we think we
know about sex work on its head.
Is paid sex all about clients dominating sex workers? No. Less than 7%
of the women interviewed thought that paying for sex gives the client
power over the escort. 26.2% thought paying makes clients vulnerable,
while the majority, 54.5%, said that 'commercial sexual transactions are
relationships of equality'.
People generally think
that clients get whatever they want from sex workers, abusing and taking
advantage of them. But when asked 'in your escort interactions who
normally takes overall control of the encounter?' 78.7% said they always
or they usually did. 22.3% said it varies, and only 0.7% said the
client decides.
Sex work is often characterised as
brutal, with abuse a commonplace and even usual outcome. But when asked
if they have ever felt physically threatened, only 25% of women and
18.7% of men said yes. 77% of women said they felt clients treated them
respectfully; the same percentage said they respected their clients.
When asked "how much longer do you plan to do escort work for?” " I have
no plans to stop escort work‟ was joint first choice of answer for
women along with "one-five more years" (both receiving 35.3%). Only 3.2%
said they planned to stop in less than three months.
In
many ways, this reflects a pragmatism and familiar to anyone with a
more ‘traditional’ career.
Sex workers are often stereotyped as very young and naive, unaware of
the dangers of the choices they are making. But the age data do not
suggest the field is populated with teenage runaways and naive
youngsters: Almost 85% of the women were aged 26 or older, and 19% of
them were over 40.
Sex work is frequently assumed to be
a choice suitable only for the uneducated. But 35.3 % of the men held
degrees, whereas for women, it was 32.9%. More than a third of the total
were degree-educated, and over 18% held post-graduate qualifications.
Only 6.5% had no formal educational qualifications.
When asked what things they like about the work, 2 in 3 respondents in
the Keele study reported 'like meeting people'. 75% of women and 50% of
men reported 'flexibility of working hours' as an aspect they enjoy. 72%
of women cited 'independence'.
Jenkins noted: “an
appreciation of flexible working hours and independence were factors
that were valuable to women generally, not only mothers. The benefits of
greater independence and flexible working hours were not just about the
demands of parenting - they were often about time provided for other,
non parenting-related pursuits.”
Q6: How should a new offence provision be enforced? Are there any
techniques which might be used or obstacles which might need to be
overcome?
I do not believe this should become an offence and therefore my opinion
on how it should be enforced is irrelevant, except to say: not at all.
We
can see that Denmark have recently rejected a similar bill that would
have criminalized the purchase of sex and their reasons for doing so are
worth considering carefully. The Justice Minister was of the opinion
that such a law would be both illegal and unfeasible.
Manu Sareen, the Danish gender equality minister, said during last
year's election he wanted to ban the sex trade because it exploited
women, but last month said he was not sure a ban was the best solution.
The government is expected to offer counselling and other support
programs to prostitutes. This is a far better use of human and financial
resources.
Without engaging in the debate as to
whether women (and indeed men and transgender individuals) willingly
sell sex or are victims forced by circumstance to undertake this
activity due to a lack of other income generating opportunities, there
is nothing within this Bill or the accompanying consultation document as
to the services and ‘help’ that will be provided to this group.
If
the Scotland decides to criminalise the purchase of sex, and thereby
seriously undermine the livelihood of sex workers, then they must
acknowledge the need to provide alternative employment options and that
this will require organisation and funding - both of which have been
notably underfunded to date.
Spend the money on services and support, not on policing victimless
crimes.
Q7: What is your assessment of the likely financial implications of the
proposed Bill to you or your organisation; if possible please provide
evidence to support your view? What (if any) other significant financial
implications are likely to arise?
As a former sex
worker and advocate of sex workers’ interests I know firsthand from
friends and family in countries where sex work is illegal what the
financial implications of this bill would be to the people involved.
Imagine for a moment a downward spiral where someone who turns to sex
work as a quick financial fix finds themselves in increased danger.
There is also the question of how much money the government are going to
waste on endless consultations for a law that will not work.
In
times of financial austerity, throwing more money at unsuccessful
policies is against the public interest and out of step with public
opinion. Many opinion polls clearly show people support protecting the
safety of sex workers and support decriminalisation. Criminalising
consensual sexual activity between adults is expensive and dangerous.
Q8: Is the proposed Bill likely to have any substantial positive or negative
implications for equality? If it is likely to have a substantial negative
implication, how might this be minimised or avoided?
This
bill will have a substantial negative implication for equality.
What the people who believe in such numbers fail to acknowledge is that
the continued attitude towards sex workers of being “damaged” or
“fallen” women who must be saved by white knights only serves to
exacerbate many of their problems.
Consider, as an
analogy, that in the past society used to think of homosexuality as a
disease rather than a sexual preference. Reams of supposedly
“scientific” evidence were produced in order to “prove” that homosexuals
suffered from mental health problems. These issues faced by gay,
lesbian, and bisexual people (including stress, depression, and
addictive behavior) are now understood to be the result not of their
sexual preferences, but of the stigma associated with them and the
pervasively negative social messages about them.
The
mental health problems associated with outsider status are well known.
Social isolation increases the risk of violence, blackmail, and
coercion. Stigma and fear of humiliation and prosecution exacerbates any
existing mental health issues. The current policy therefore is
responsible for many of the mental health issues associated with sex
work.
The consultation document cites among its
evidence studies conducted by Melissa Farley, whose opinions have been
found to be of insufficiently high quality to be admitted as evidence in
Canadian court
[Ontario Superior Court of Justice, Bedford v Canada,
2010. “Conclusion: Expert Evidence”
http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html#_Toc270411950], who has been the subject of serious ethical allegations to the APA from her colleagues
[http://maggiemcneill.files.wordpress.com/2011/07/complaint-to-apa-re-melissa-farley.pdf], and who makes rape jokes about sex workers on her own website.
[http://www.prostitutionresearch.com/WhyIMade.html]
Her work is a prime example of the persistent, institutionalised hatred
against sex workers and it has no place in any serious discussion of
sex work and public policy.
There are some hopeful and
encouraging things going on that actually could benefit sex workers and
reduce their exposure to harm. In Liverpool, police adopted a policy
that recognises violence against sex workers as a hate crime. The result
is that they can approach the police and know that violence against
them will be taken seriously. This has led to a dramatic increase in
prosecutions and a decline in assaults. But it’s a model that has yet to
be picked up anywhere else. In Aberdeen, police are working to build
links with outreach workers and streetwalkers to identify and assist
women who want to transition out of sex work.
To give a
personal example, while my own experience of sex work is long in the
past, as someone who is “out” as a former sex worker I am subjected to
high levels of verbal abuse, harassment, and threats, be they over the
internet, through the post, and even in person. This has ranged from
written threats posted to my workplace, to harassing phone calls, to
being harassed and accused of supporting paedophilia by members of the
SSP during a public event, to a PCC complaint I filed against the
Guardian in which they defended a comment on the site that stated I
“should be dead in a ditch”. The PCC, by the way, sided with the
newspaper. Imagine if anyone ever wrote about you on a national
newspaper’s website that way. It is unpleasant to say the least.
The
help of police in various areas when I report these things has been,
shall we say, variable. Some are very helpful, some are not.
This has affected things like where I have my post sent and whether to
be listed in the phone directory. I have undertaken substantial legal
efforts to keep the exact location of my home from being printed in the
newspapers.
As a result of the amount of abuse and the
threatening flavour of some of it I sadly have had to make the decision
not to start a family. This is because I feel the risk of subjecting
anyone else to the unfiltered hatred and threats I receive would be
unacceptable.
I feel lucky to have the strong support of family and friends which I do
not take for granted. Even in my privileged position it is a constant
struggle to “not let the bastards get me down”. It is easy to see how
others without such support would fall into depression from constant
abuse encouraged by our society. If you are okay with the fact this
happens not only to me but to thousands of others every day, then by all
means support this bill and keep the hatred going.
I
do not believe however that people with empathy and compassion would
want that to continue.
There are many people who claim to support women’s rights yet deny the
rights of large numbers of women whose lives they don’t approve of.
Evidence shows that places where prostitution is tolerated or
decriminalised produce better outcomes for the people involved.
Attacking
visible signs of prostitution results in more criminality, not less.
There is no such thing as “ending demand”. This is documented by
research, by statistics.
Anyone who supports criminalisation is basically saying to me and people
like me, ‘women’s rights are important, except of course for women like
you.’ They are endorsing the kind of attitudes that allow a national
newspaper to defend the statement that I “should be dead in a ditch”. I
reject such a stand as hypocritical and anti-women.
This substantial negative implication can only be avoided by rejecting the bill altogether.
Regards
Dr Brooke Magnanti
