Handbook for Universities: 8. Legal matters

This is the eighth chapter in the Nordic Model Now! Handbook for Universities.

The Public Sector Equality Duty (PSED)

Prior to the year 2000, equality legislation in the UK did not require public bodies to take a proactive approach to equality issues. The legislation only gave individual complainants the right to seek redress after receiving discriminatory treatment.

This changed after the public inquiry that followed the murder of Stephen Lawrence in 1993 found that “institutional racism” was a key factor in the failures of the police response to the murder. This public recognition of entrenched and invidious forms of discrimination galvanised popular support for proactive institutional change and led to the introduction of an equality duty to the Race Relations Act, and subsequently to the sex and disability discrimination acts.

The Equality Act 2010 rolled the discrimination legislation into one act and defined nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation, and pregnancy and maternity. It also extended the new equality duties, now called the Public Sector Equality Duty (PSED), to cover all nine protected characteristics and applied it to most public bodies, including further and higher education institutions.

Of particular relevance to the sex industry is the protected characteristic of sex – which protects against discrimination on the grounds of being female or male. However, some of the other protected characteristics are also relevant because young, disabled, and LGBT+ people, and people from minority ethnic groups are also disproportionately vulnerable to being drawn into the sex industry and harmed within it.

The Government Equalities Office (GEO) Quick Start Guide summarises the key features of the PSED like this:

“The PSED requires public bodies to have due regard to the need to:

Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act;

Advance equality of opportunity between people who share a protected characteristic and people who do not share it; and

Foster good relations between people who share a protected characteristic and people who do not share it.

Having due regard means consciously thinking about the three aims of the Equality Duty as part of the process of decision-making. This means that consideration of equality issues must influence the decisions reached by public bodies…”

Later, the guide says:

“The weight given to the Equality Duty, compared to the other factors, will depend on how much that function affects discrimination, equality of opportunity and good relations and the extent of any disadvantage that needs to be addressed.”

This handbook provides extensive evidence that the sex industry is profoundly gendered and causes great harm to the individuals caught up in it (most of whom have the protected characteristics of being of the female sex, and/or young, disabled, LGBT+, or from minority ethnic groups) and that it has a corrosive impact on the general relationship between the sexes and on initiatives and work to improve it. There is no doubt therefore that significant weight must be given to the PSED when developing, reviewing, and assessing any policy relating to the sex industry.

It’s not enough to simply develop a policy about supporting students who are already involved in the sex industry without considering the impact on other students and the wider community as the University of Leicester did. To conform with the spirit and letter of the PSED, it’s necessary to consider unintended and inadvertent impacts to other protected groups within the university and the wider community and to ask the right questions.

When considering a policy relating to the sex industry, for example, you might want to ask:

  • Does the policy provide a sanitised view of the sex industry without a realistic discussion of the harms, risks and dangers that it involves?
  • Could the policy be interpreted as the university sanctioning student involvement in the sex industry?
  • If the answer to either of these questions is yes, could this lead to students who are not already involved in the sex industry considering becoming involved in it?
  • If so, is that likely to lead to those students being harmed and disadvantaged in either the short or long term?
  • Is it likely that those students would have protected characteristics that have suffered historical and material disadvantages that the university has a legal obligation to work to reduce?
  • Is it possible that male staff and students in particular could interpret the policy as the university sanctioning buying sexual services and so lead to them starting or increasing their consumption of sexual services?
  • If so, is this likely to increase or worsen ‘rape culture’ attitudes and confuse male staff and students’ understanding of consent?
  • Is this likely to worsen the general relationship between the sexes, make sexual harassment and sexual misconduct more likely, and therefore increase sex discrimination?
  • Might this put girls and young women (in particular) in the local community at greater risk of being harassed or worse – for example, when travelling on public transport or waiting for a bus at night?

If the answer to any of these questions is yes, the policy would fail to meet the three key planks of the PSED and should be returned to the drawing board. Similar questions need to be asked at all stages of the life of the policy, including during any subsequent review and assessment.

Unfortunately, the only mechanism for enforcing the PSED is judicial review, which is expensive for individuals to bring and is not covered by legal aid. However, we hope that universities would want to comply not just with the letter of the PSED but with its spirit too and would see doing this as best practice and as a selling point to current and potential students, their parents and schools.

If the university were to be faced with a sex discrimination suit, being able to show that they have thoroughly fulfilled their obligations under the PSED when developing relevant policies, would help to show that they take discrimination seriously and are doing all they can to challenge rape culture and sex discrimination.

This is of particular relevance at this time when sexual harassment and sexual violence are at an all-time high on university campuses and there is considerable dissatisfaction with the way that many universities are dealing with this problem. A well-thought-through policy for supporting students who have been impacted by the sex industry would be a significant contribution to work to change sexist cultures on campus.

Sex industry legislation in the UK

Prostitution is legal in England, Wales, and Scotland, although many of the activities surrounding it are criminal offences. Selling sexual services is legal in Northern Ireland, but buying them is an offence.

This section briefly summarises the key offences related to the sale and purchase of sexual services and other potential legal sanctions in England and Wales. The law in Scotland is similar but the legislation is separate and there are key differences.

The law in England and Wales

With the exception of rape (which can only be committed by a male), all laws that relate to sexual behaviour and the buying and selling of sexual services apply to everyone regardless of sex or gender. Most of the sex-industry-related offences that are covered by legislation in England and Wales relate to ‘full service’ or in-person prostitution. Most of the other activities – such as lap dancing, stripping, webcamming, and advertising online – are legal, although sexual entertainment venues are subject to local licensing regulations. There are laws against ‘extreme’ pornography, but they do not apply to webcamming and are not covered here.

Police enforcement varies widely from area to area. However, national guidelines suggest the police should focus on “organised crime” and those who “exploit or cause harm” to those involved. The Crown Prosecution Service (CPS) data shows very low levels of prosecutions for most prostitution-related crime, relative to the size of the industry in the UK. However, shamefully, police are known to undertake brothel raids – sometimes under the guise of ‘welfare checks’ – and arrest women for immigration offences, which would not show up under the CPS prostitution data.

The offences can be roughly categorised as follows. In practice, maximum sentences are rarely handed down for a first offence.

On street prostitution – It is an offence to persistently loiter or solicit in a public place for the purpose of selling sexual services. The penalty on conviction is a fine or an ‘engagement and support order’ that requires you to attend meetings with a support worker. Other offences, such as highway obstruction or disorderly behaviour, are sometimes used against women involved in street prostitution, along with a variety of orders for ‘anti-social behaviour’.

It is also an offence to solicit to buy sex in a public place – whether on foot or in a car – and there is no requirement for persistence to be shown. This is usually known as kerb crawling and the maximum sentence is a fine.

Brothel keeping – It is legal to sell sex or to work as a maid in a brothel, but it is an offence to keep, manage or act or assist in the management of a brothel. The maximum sentence is up to seven years in prison.

A property is considered a brothel under the law if it is used by more than one person for the purpose of selling sexual services, even if they never do so at the same time. This means that technically if two women who share a flat both sell sex at the flat, one or both of them could potentially be charged with a brothel keeping offence.

Maids can also be charged with assisting in the management of a brothel, particularly if they have any element of control, if they have authority to negotiate prices and ‘services’, for example, or if they perform tasks like taking money and recording it in a cash book or arranging advertising or recruitment. They could potentially also be charged under the Modern Slavery Act 2015 if any of the women involved in prostitution in the brothel are trafficked.

CPS guidelines recommend focusing on the prosecution of those who control others in prostitution and make a living from their prostitution rather than those who have minor involvement.

Pimping – Offences for pimping include causing or inciting prostitution for gain and controlling prostitution for gain. The maximum sentence is seven years in prison.

Buying sex – Generally, paying for sexual services is legal. However, it is an offence to pay or attempt to pay for sex with a person who has been subjected to force, coercion or deception – regardless of whether you are aware of this or not. The maximum sentence is a fine.

Paying for sex with someone under the age of 18 is considered a very serious offence, and the maximum sentence is 14 years in prison.

Sex for rent – There is currently no specific ‘sex for rent’ criminal offence. However, the CPS issued new guidance in 2019 on using the offences of causing or inciting prostitution for gain and/or controlling prostitution for gain to charge sex for rent offences, while cautioning that this approach should generally be used only in “circumstances which clearly feature exploitation”. For a successful conviction, the prosecution would need to prove that the victim “became a prostitute”.

For a more detailed overview of the legislation in England and Wales, see the ‘Sex Workers and the Law Booklet’ from Release. This covers the offences in more detail, along with other offences that you might be caught under, and tips for dealing with the police, getting legal help, etc.

International obligations

International law recognises prostitution as violence against women and girls. The 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others states that prostitution is incompatible with the dignity and worth of the human person and that it endangers the welfare of the individual, the family and the community.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) implicitly recognises prostitution as a violation of human rights and explicitly prohibits third parties from exploiting (i.e. profiting from) another person’s prostitution. As a result, the UK has a direct, binding obligation to oppose any trivialisation of prostitution and to work towards the elimination of its exploitation, including pimping, procuring, and brothel keeping.

Article 9 of the Palermo Trafficking Protocol places a binding obligation on ratifying states to take measures to “alleviate the factors that make persons, especially women and children, vulnerable to trafficking” and to “discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking”.

This means that the UK also has an obligation under international human trafficking treaties to reduce both the poverty and inequality that make people, especially women and girls, vulnerable to being trafficked and the demand for prostitution that drives human trafficking. Reducing the demand is imperative because otherwise the number of women voluntarily getting into the sex trade is inevitably insufficient to meet the demand and human traffickers step in to fill the gap by coercing or taking advantage of vulnerable young people.

Further reading

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