Amendments to the Crime and Policing Bill relating to prostitution and pornography have been proposed by Tonia Antoniazzi, Carolyn Harris, Jess Asato, and others. While on the surface these amendments are coherent with some of the provisions for which we campaign, we have a number of concerns.
No provision for services offering exit strategies and viable alternatives
If passed, the amendments are likely to reduce the size of the prostitution industry. However, there is no provision for services offering genuine routes out of the industry and viable alternatives for making a living. This is likely to lead to devastating hardship for those selling sex, massive opposition to the proposed legislation, and a reduction in the effectiveness and success of the legislation should it pass.
We therefore call for an additional amendment that would (a) place a binding obligation on the government to provide ring-fenced funding for high-quality services for those selling sex including genuine routes out of the industry and viable alternatives; and (b) make accessing such services a legal right for all those selling sex acts.
Without such provision, the amendments do not amount to the Nordic Model.
No provision to expunge criminal records for loitering or soliciting
NC3, the ‘Victims of Commercial sexual exploitation’ amendment, repeals the offence of “Loitering or soliciting for purposes of prostitution” and relevant related parts of the Street Offences Act 1959. We 100% support this. However, we are dismayed to find that the amendment doesn’t also provide for the expunging of criminal records for this offence and prostitutes’ cautions.
Such criminal records cause significant difficulties to women attempting to exit prostitution and afterwards as they work to rebuild their lives. Criminal records for these offences often rule out many jobs, particularly those in the care, health, and education sectors, which these women might otherwise be eligible for.
While some of these criminal records are now filtered out, this applies only after 11 years (6 years for a prostitute’s caution) and there are a number of exceptions, including that the offences and prostitutes’ cautions are retained on the Police National Computer (PNC) until the woman reaches 100 years of age.
We therefore call for provision for expunging all criminal records and prostitutes’ cautions for “Loitering or soliciting for purposes of prostitution” and their removal from the PNC.
Amending the Modern Slavery Act 2015
We have long called for the definition of human trafficking in the Modern Slavery Act 2015 to be brought into line with the international definition set out in the Palermo Trafficking Protocol, which the UK has ratified and is therefore legally binding under international law.
We were therefore encouraged to see NC4, the ‘Modern Slavery Act’ amendment. While we broadly support the proposed amendments to Section 2, we are dismayed that it does not also amend the definition of sexual exploitation in Section 3.
Unlike the other forms of exploitation (with the exception of removal of organs), Section 3 does not fully define sexual exploitation. Instead, it relies on a long list of offences in the Protection of Children Act 1978 and the Sexual Offences Act 2003.
While the list includes controlling someone’s prostitution for gain and various offences related to the sexual exploitation of a child, there are many other possible offences in the list. This obfuscates the fact that trafficking for the purpose of exploiting (i.e. profiting from) a woman or girl’s prostitution is the most common form of human trafficking, and that to prevent it, we therefore need to reduce men’s demand for prostitution and other forms of sexual exploitation.
In addition, most of the listed offences in the other two acts hinge on the consent of the victim in contravention of the international definition of human trafficking, and some have other restrictions that are much narrower than the international definition of sex trafficking. For example, most of the child sexual offences apply only if the child is under 13 or the defendant “reasonably believed” the child to be over 15 (17 in cases of child sexual exploitation).
This increases the difficulty of securing convictions, because, for example, the prosecution has to prove that the defendant didn’t “reasonably believe” that she was older than 15 (or 17 in “sexual exploitation” cases) and/or the prosecution has to prove that the defendant didn’t reasonably believe that she had consented to the act in question. This is a further discrepancy from the international definition.
As the vast majority of sex trafficking victims are female, we see this as sex discrimination, in violation of Article 3 of the Council of Europe Convention on Action against Trafficking in Human Beings, which requires human trafficking provisions to be implemented without discrimination on the grounds of sex, and of Article 17, which requires a gender mainstreaming approach.
We therefore call for Section 3 to be amended to fully define sexual exploitation in line with the international definition. For example:
Sexual exploitation
(3) The exploitation of or profiting from V’s prostitution or other forms of sexual exploitation, including pornography, lap dancing, stripping, or live streaming sex acts.
This would bring the definition of sexual exploitation more into line with the definitions of the other common forms of exploitation and would facilitate prosecution. It would also clarify the links between human trafficking and prostitution and other forms of sexual exploitation and would therefore facilitate prevention.
The proposed legislation is overly complex
The last thing we need are more laws that are so complex and convoluted that few understand them and that are difficult to prosecute. We already have Section 53A of the Sexual Offences Act 2003, which makes it illegal to pay for sexual services of a prostitute subjected to force etc. However, it is ineffective and is barely used, partly because the way the law is framed means that the prosecution has to prove beyond reasonable doubt that the woman had been forced, coerced or deceived by a named individual. In the murky world of prostitution this is not easy and it invariably requires considerable police work to bring a successful prosecution. But the maximum penalty is only a relatively small fine and the police do not invest many resources into investigating offences that carry such a low penalty. So, there is a fundamental contradiction within the law that makes its ineffectiveness inevitable.
We are in favour of the introduction of a new offence of paying for sex acts per se but have always argued that it must be easy to understand, implement and enforce. We do not believe that amendment NC2 meets those criteria. In particular, we are concerned that clause 3(c) appears to mean that there must be proof beyond reasonable doubt that an in-person sex act has taken place. This will make enforcement difficult and invasive and we believe it will therefore meet very heavy resistance. We therefore advocate the dropping of clause 3(c).
We recommend learning from the Swedish and French laws, which we find elegant in their simplicity and ease of understanding.
Here is the Swedish law:
“Section 11 A person who, otherwise than as previously provided in this Chapter, obtains a casual sexual relation in return for payment, shall be sentenced for purchase of sexual service to a fine or imprisonment for at most one year. The provision of the first paragraph also apply if the payment was promised or given by another person.”
And here is the French law:
“Art. 611-1.-The act of soliciting, accepting or obtaining sexual relations from a person who engages in prostitution, including occasionally, in exchange for remuneration, a promise of remuneration, the provision of a benefit in kind or the promise of such a benefit is punishable by the fine provided for fifth class offenses.”
Note that neither require proof that a sex act has taken place – merely “promising” payment is sufficient. This means that making an appointment via a prostitution advertising website is enough to commit the offence. This makes the law simple and straightforward to enforce while allowing the prostituted person to retain dignity. This is what we need in England and Wales.
We also recommend that the title of this new legislation is changed from “Commercial sexual exploitation” which is obfuscating to “Purchase or attempted purchase of sex acts” or similar. The last thing we need is yet more legislative white elephants.