On Tuesday 11 July 2017, I was fortunate to attend the launch of Nia’s “I’m No Criminal” report, which examines the impact of prostitution-specific criminal records on women seeking to exit prostitution, and their campaign for such criminal records to be erased.
The launch was held in Committee Room 12 in the House of Commons. The room was packed, the atmosphere electric with passion at the injustice that women who are (or have been) involved in prostitution face and the warped system that makes disadvantaged women pay for the damage that men cause.
Thangam Debbonaire, the MP for Bristol West, who sponsored the event, opened the meeting and told us that one of her motivations for becoming an MP was her desire to change the prostitution law in this country – making it clear that she supports the Nordic Model.
Fiona Broadfoot gave a powerful and moving speech about her own experience in prostitution – being pimped and trafficked at the age of 15. Her pimp gave her some condoms and put her on a street corner, where she was immediately the target of horrendous violence and abuse. She was bought and sold, raped, beaten, spat at, and arrested for loitering and soliciting numerous times. Sometimes passers-by threw urine over her but not once did any of the pimps or punters who exploited and abused her get arrested or even suffer any opprobrium.
Inside she felt dehumanised and worthless but in order to survive, she kept telling herself she was OK. It all came to a head when she turned on the television one day in 1995 and saw her young cousin’s face under the headline, “Prostitute found dead in house.” It emerged that her cousin had been groomed into prostitution by a pimp at the age of 14 and was brutally murdered by a punter three years later. The horror of it shocked Fiona into facing up to the awful reality of her life in prostitution and finding the strength to exit.
But in the 22 years since, her criminal records have followed her and constricted what she’s been able to do – while the men who raped, abused, beat her up, and exploited her have got off scot free.
Her criminal records, which she describes as a record of her abuse, run to eight double-sided A4 pages. As a result, she was refused a place on a social work degree course she was otherwise qualified for at Huddersfield University, and was thrown off an Early Years course at Bradford College when it came time to do a placement working with children.
For the work she currently does with disadvantaged girls, she has had to sit through long meetings at the council offices in which her criminal records are scrutinised by male managers. I don’t think the irony of this escaped a single person in Committee Room 12.
Heather Harvey, head of research and development at Nia, talked us through the research. It arose out of an earlier project that looked at the barriers women face when trying to exit prostitution. That study found nine major barriers, one of which was criminal records.
The focus of this new research was to examine the impact of prostitution-related criminal records on women’s attempts to exit prostitution and build a new life. Heather emphasised the challenges that women face in exiting and how a stable alternative source of income and forging new social connections are fundamental to success. But these are the very things that criminal records make difficult or even impossible to achieve.
Finding work is already a challenge for most women seeking to exit prostitution: many have few or no qualifications and lack a recent work history. Much of the low skilled-work that many of them would like to apply for, at least initially, is care work or cleaning and catering jobs based in schools and hospitals and similar. But these jobs invariably require an enhanced DBS (Disclosure and Barring Service) check.
Previously called CRB checks, DBS checks have the aim of preventing “unsuitable people from working with vulnerable groups, including children.” Of course we all support that aim. However, the system is rigid and inflexible and frequently penalises people inappropriately.
Enhanced DBS checks include convictions that are classified as “spent” and would be excluded from a basic DBS check. Similarly whereas a single conviction might be exempt from disclosure, multiple convictions are not. This particularly affects prostituted women because many have multiple convictions.
The report provides many examples of how criminal records make getting a job, any job, difficult if not impossible. One woman said:
“I’ve applied to all sorts of supermarkets… Cleaning, you need certificates for that… You know, you just can’t get a job. Even voluntary, it’s hard for me to get a voluntary job and all because they CRB [DBS] you.” [I06]
The women interviewed in the study talked about a deep sense of shame and embarrassment about their criminal records and how this causes a lack of confidence, which deters them from applying for jobs and thus serves to trap them in prostitution.
Even volunteering to help out in your children’s school – to accompany your child’s class on a trip to a museum, for example, or to run a tombola stall at the school fete requires an enhanced DBS check. It seems that many people, including those who should know better, wrongly assume that criminal records for soliciting to sell sex are “sex offences” that automatically preclude working with children.
This is irrational because women who have been involved in prostitution are no more of a risk to children and vulnerable people than any other women, whereas research shows that punters are more likely to rape and assault than other men.
We heard the testimony of a woman who was barred from entering her child’s school playground because of her prostitution-related criminal records. One day when looking through the gate while waiting for her child she noticed one of the punters who had used her in prostitution in the playground picking up his kids.
Penalties for soliciting
Although buying and selling “sex” is not illegal in the UK, some of the associated practices are – such as loitering and soliciting to sell sex on the street. Prison sentences for this were ended in 1982, but the convictions show up in criminal records decades later.
Since 1982 women have been fined for these offences. The fines invariably serve to trap the women in prostitution – because how else are they expected to find the money? As one of the women who participated in the research eloquently pointed out:
“I think it’s terrible because it’s not going to help me, you know, not do it again is it? Because I’m going to have to pay a fine, I’m going to have to keep prostituting to continue to pay my fines… and it doesn’t do anything… It just pisses you off even more and you put yourself into more situations.” [I12]
More recently there’s been a move for women who are soliciting to get ASBOs rather than being prosecuted. ASBOs often have stringent conditions that can result in women losing housing, and local social networks – or being criminalised for breaching the order. A criminal justice worker said:
“I think that that whole enforcement is really unhelpful… the potential repercussions of breaching an ASBO […] can lead to imprisonment and obviously further evidence on your own criminal record.” [ST08]
Not paying fines and breaching an ASBO can land women in prison. When men are in prison, they often have a supportive family to keep the home fires burning. Women are much less likely to be so lucky. Even a short stretch in prison can therefore lead to catastrophic consequences for women, including losing children, benefits, and housing:
“They took the kids, and they took the flat. Cause I was in temporary accommodation. Then while I was in [women’s prison in London], … they packed up all my stuff and I no longer have a place. I had nowhere to go when I came out of there. I was actually, no, I was living at a punter’s house actually when I came out.” [I04]
“You can go to prison, do your time in there and come out and you’re still back on the road. That’s what’s happened to me.” [I02]
But some of the women were in such a bad way from their time in prostitution that sometimes prison would be a positive experience – it would get them away from the pimps, give them respite from the daily assaults of prostitution, and they would gain weight and be able to sleep.
“When I got there, it was alright, do you know what I mean? You had your cell and you had routines, you know what I mean… cos when I got jail I was five stone. There was nothing on me… Yeah, I was in a bad way so, and then getting my meals, I come out and I was nine and a half stone, I was like bloody hell… I think if I didn’t get to jail I don’t even think I’d be stood here right now, do you know what I mean.” [I15]
The report covers all of this in some depth and discusses other initiatives such as court diversionary and drug rehabilitation schemes. The effectiveness of these programmes vary hugely, with the women interviewed generally finding services more helpful when they are women-only and address prostitution-specific issues. These are exactly the kinds of specialist services that are being eliminated by competitive tendering processes that authorities use to commission services, which generally reward generic, gender-blind bids.
Like ASBOs, these initiatives often come with stringent conditions that many women find difficult to meet – often through no fault of their own – and so they end up with more severe penalties and criminalisation.
It takes two to tango but women take the rap
Page 12 of the report provides a startling insight into who got convictions for soliciting to sell and soliciting to buy sex from 1984 to 2004 and from 2004 to 2016.
|Soliciting to sell (women)||Soliciting to buy (men)|
When we put this data on a chart, it is even clearer that in practice it is women and not men who carry the rap for prostitution. Even though all the evidence points to the fact that it is the punters, more or less all of whom are men, who have a choice as to whether to engage in this behaviour, whereas the women are invariably there through coercion, a lack of alternatives and the difficulties of getting out.
You practically need a magnifying glass to detect the convictions that men have received.
And of course, these statistics don’t take into account the large numbers of women who have received ASBOs and other orders and have been further criminalised for breaching them – often through little fault of their own.
And of course the criminal records for all of this follow the women throughout their lives.
“When women are stigmatised, men prosper by default.” – Sarah Ditum
The report brilliantly exposes society’s hypocrisy and double-standards.
Some of the women in the study had criminal records for offences not specifically related to prostitution, such as shoplifting and possession of drugs. These women made it clear they found their criminal records for these offences much less difficult to disclose and discuss.
As Fiona Broadfoot and several of the women interviewed in the study testified, it is excruciating to have to sit in front of male managers and interviewers while they scrutinise your prostitution-related criminal records. These women have intimate knowledge of what men do to women in prostitution. So how is it possible for them to not wonder what the men are thinking, whether they are punters and are they seeing them as sexual objects, not full human beings?
The women felt judged for their involvement in prostitution and often internalised the shame of that – even though their involvement generally came about through coercion and lack of viable alternatives, often before they were 18.
Some people use this stigma the women face as an argument for normalising prostitution – for redefining it as “sex work” and for legalising or decriminalising the entire sex industry, like they have done in Germany, New Zealand and parts of Australia. But experience in those countries suggests that the stigma associated with women in prostitution is unchanged – it is only the stigma that men face for pimping and prostitution-buying that decreases.
As we have shown, prostitution involves treating women as if they are not human. This is the key to the stigma that prostituted women face. The solution is therefore to discourage prostitution and to hold men accountable, while tackling the inequality and disadvantages that drive so many women and girls into prostitution, and providing women with genuine routes out. This is why we campaign for the Nordic Model.
The legal challenge
Harriet Wistrich, a solicitor who specialises in holding the British state to account for abuses of power, spoke about a legal challenge being brought by Fiona Broadfoot and several other women who have chosen to be anonymous.
As the research shows women’s prostitution-related criminal records and the DBS checks are:
- Discriminatory on the grounds of sex – Soliciting to sell sex is an almost entirely female offence and the occupations that require enhanced DBS checks are for jobs that are disproportionately done by women.
- Disproportionate – Soliciting to sell sex is generally considered a public nuisance and yet the impact of criminal records are lifelong and more severe than for many more serious crimes.
- Irrational – Prostitution-related criminal records hinder women’s attempts to gain employment and build new social networks and often serve to entrench women in prostitution and the criminal justice system – all of which runs in direct opposition to government policy that explicitly aims to facilitate the rehabilitation of offenders, reduce re-offending and reduce the number of women in custody.
- Unfair to victims – Many of the women interviewed in the research were groomed and pimped into prostitution before they were 18 and/or were coerced and exploited in prostitution after their 18th birthday – meaning that they fulfil the international definition of being victims of sex trafficking.
The case will argue that these things contradict the Human Rights Act 1998 and other laws and legal directives, including Article 8 of Directive 2011/36/EU of the European Parliament, which requires member states to ensure that victims of human trafficking are not penalised or prosecuted.
There are other ongoing legal challenges to the criminal records and DBS system. However, we are not aware of any other legal challenges specifically addressing prostitution-related criminal records.
21 December 2017: The High Court will consider the challenge at the Royal Courts of Justice (Strand, London WC2A 2LL) on January 17th and 18th 2018. Nia and the Centre for Women’s Justice are calling for supporters to gather outside the Royal Courts of Justice and to attend the public gallery, to make it clear to the judges that there is strong public opinion on the side of the women bringing the case and for a change in the law.
2 March 2018, (partial) victory: The High Court has ruled that the disclosure of their convictions for soliciting is disproportionate and a breach of the right to respect for private life. Huge congratulations to all those who worked for this. Read more >>
28 November 2020: New rules came into force which mean that provided she didn’t serve a custodial sentence and the convictions are more than 11 years old, criminal records for loitering and soliciting to sell sex under Section 1 of the Street Offences Act 1959 will no longer be automatically disclosed to employers – even on an enhanced DBS (Disclosure and Barring Service) check. Read more >>
Nia is spearheading a campaign that calls for women’s prostitution-specific criminal records to be wiped or sealed, and made exempt from disclosure. It is also calling for the ending of criminalising the women involved in prostitution and until that happens, to provide them with anonymity when they are brought before the courts on prostitution-related offences, in a similar way that rape victims are – in recognition that prostitution is a form of violence against women.
Nordic Model Now! has signed up to fully back the campaign.
Thangam Debbonaire urged anyone who wants to support the campaign to write to their MP to ask them to support it too.