28 October 2017
The law in England and Wales recognises that each sexual encounter and activity requires separate consent and that a person has the right to withdraw or refuse consent at any time for any or no reason, and this applies equally to all persons and regardless of the relationship between them.
It was not always like this. As recently as 1991, the law of rape did not apply to married couples in England and Wales – because it was assumed that the wife gave lifelong consent to any and all sexual activity with her husband on her wedding day. This was a relic of the archaic patriarchal practice by which marriage was in effect the transfer of ownership of a woman from her father to her husband – a practice that has now thankfully been firmly set aside in England and Wales.
However, the idea that a man can have ownership of a woman lingers on in the prostitution relationship, where the punter (almost always a man) pays for sexual access to another person (typically a woman or girl). Even if the woman exercises some superficial level of “choice” to enter prostitution (for example, because of financial need), the prostitution encounter is predicated on her foregoing her right to refuse particular sexual activities or any sexual activity for any or no reason. Under certain (but not all) circumstances she may be able to refuse some more extreme sexual activities, but her practical ability to refuse all or any activity is limited by her need to be paid and the punter’s demand and expectation of getting his “money’s worth.”
It’s as if the punter has temporary ownership of the woman in prostitution – paralleling the archaic patriarchal practice of marriage as indefinite male ownership. That some cultures sanction and justify prostitution by reframing it as temporary marriage supports this analysis.
Prostitution inherently contradicts the prostituted person’s absolute legal right to reject sexual advances and activity for any or no reason. Any attempt to legalise or decriminalise prostitution would inevitably involve the acceptance and institutionalisation of a legal exemption to this right for those in prostitution, just like the old patriarchal marriage law did for wives.
This is one of many reasons that we believe that the Nordic Model is the human rights-based approach to prostitution legislation: It makes it clear that prostitution-buying is unacceptable in a society that values equality and the human rights of all.