My Response to Rhoda Grant’s Proposed Bill to Criminalise The Purchase of Sex

Throughout her draft bill to criminalise the purchase of sex in Scotland, Rhoda Grant asked a number of questions for those submitting for and against arguments during the consultation period. These are my answers to her 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.  The general aim of the proposed Bill appears to be to end all forms of sex work by cutting off demand.  Criminalising the purchase of sex will not end demand: it will force the industry underground. (See response to Question 2 for further evidence.)

Grant’s purpose appears to be the imposition of her own personal opinion and morals onto an industry about which she is woefully uninformed.  As a result, the proposed bill is based on presumption, prejudice, and stereotype: not on fact.

For example, it is not a fact that “Prostitution is harmful to those who are exploited and impacts negatively on society”, “Prostitution is inherently harmful and dehumanising” or that “Prostitution acts as a serious barrier to equality and dignity by reducing sexual activity and individuals to a commodity that can be exchanged for money or goods. The buying of individuals for sexual purposes creates a form of sexual servitude”.

Grant presents these statements of personal opinion as fact and goes on to make claims for which she provides either no evidence or, at most, fudged statistics.

For example, she gives no evidence for the statement “The majority of those who are involved in prostitution are unwilling participants”. And the study from which she has taken the statistic “75% of women in prostitution in the UK became involved when they were children” was on a small group of sex workers, all of whom had been involved in sex work before the age of 18.  As a side note, given that this is the study on which Grant bases her 75% statistic, this begs the question of why she didn’t conclude that 100% of sex workers had been involved in the industry when they were children.

The proposed bill shows no consideration for the human rights of those whom it will affect.  Commenting on the attempts by former MSP Trish Godman to pass a similar bill, The Law Society of Scotland published their response which raised doubts as to the proposal’s compatibility with Article 8 of the European Convention on Human Rights which states that everyone ‘has the right to respect for his private and family life, his home and his correspondence and that there shall be no interference by a public authority’. They stated:

“the proposal seeks to criminalise an activity which is not illegal i.e. sexual intercourse between consenting parties, albeit against the background of a financial transaction”

“the proposal has of course to be set against Article 8 and considered as to whether it can be construed as an encroach upon one’s personal liberties”

 From: http://www.lawscot.org.uk/media/245847/crim_purchase_and_sale_of_sex%20_scotland_%20bill.pdf

 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.

Criminalising the purchase of sex will not end demand: it will force the industry underground where, contrary to what Grant may believe (“If you drive it underground so no one can find it, it wouldn’t survive.”, quoted in the Daily Record, November 12th 2012), it will continue in conditions that are made more dangerous for sex workers.

The illegality of sex work in the US drives the industry underground and leads to a strong distrust of both police and public health authorities among sex workers. To avoid arrest, street-based sex workers are often forced to change how they work to avoid police. For example, sex workers may take less time to negotiate sexual transactions prior to getting into a client’s car, and may even agree to engage in riskier sexual activities. Conducting HIV prevention outreach or education in this environment can be difficult.

From: Center for AIDS Prevention Studies: What are sex workers’ HIV prevention needs? http://caps.ucsf.edu/factsheets/sex-workers/

Legislation that criminalises the purchase and sale of sex and targets the sex industry as a whole, results in harmful outcomes for sex workers, including increasing their HIV risk, vulnerability to abuse and exploitation and limiting their access to effective healthcare and support services. This has been well documented around the world, as recently highlighted at a recent UNFPA/UNAIDS conference:

As a result of the criminalization of sex work, the locales where sex work takes place are surrounded by other forms of criminality such as criminal gangs, gambling, large scale corruption and extortion. This negatively impacts the health, safety, and human rights of sex workers.

From: ‘Creating an Enabling Legal and Policy Environment for Increased Access to HIV & AIDS Services for Sex Workers’, Thematic Task Team on Creating an Enabling Legal and Policy Environment in preparation for the 1st Asia and the Pacific Regional Consultation on HIV and Sex Work, 12 – 15 October 2010 in Pattaya, Thailand.

http://www.nswp.org/sites/nswp.org/files/EnablingEnv_discussion_paper_FINAL_Sep2010[1].pdf

The proposed bill references the ‘Swedish Sex Purchase Act’, under which it is illegal to purchase sex but not to sell sex. Commenting on the Act, the Law Society of Scotland noted that:

“there has been some criticism of the law in Sweden in that women are less visible and accordingly more difficult to reach by the support system and that the sex trade in Sweden has gone underground and online, putting sex workers in a greater danger”.

 From: The Law Society of Scotland’s Response, February 2011 http://www.lawscot.org.uk/media/245847/crim_purchase_and_sale_of_sex%20_scotland_%20bill.pdf

 Q3: Are you aware of any unintended consequences or loopholes caused by the offence? Please provide evidence to support your answer.

Contrary to the beliefs expressed in the draft, criminalising the purchase of sex will worsen problems caused by trafficking.

The proposed bill references the Swedish Sex Purchase Act, under which it is illegal to purchase sex but not to sell sex. Recent independent research has begun to expose the chasm between the stated success of the ban and the lack of evidence and data supporting this. Dodillet and Östergren found:

when 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

From: Dodillet S., and Östergren P., ‘The Swedish Sex Purchase Act: Claimed Success and Documented Effects’. Presented at the International Workshop: Decriminalizing Prostitution: Experiences and Challenges. The Hague, March 3-4, 2011.   http://www.plri.org/resource/swedish-sex-purchase-act-claimed-success-and-documented-effects

According to international treaties, trafficking in persons is defined as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.

By definition, sex work means that adult female, male and transgender sex workers who are engaging in commercial sex have consented to do so (that is, are choosing voluntarily to do so), making it distinct from trafficking. Trafficking, on the other hand, involves coercion and deceit, resulting in loss of agency and lack of consent on the part of the trafficked person.

From: United Nations. ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’, supplementing the ‘United Nations Convention against Transnational Organized Crime’ (Palermo Protocol), 2000. http://www2.ohchr.org/english/law/protocoltraffic.htm

Initiatives which confuse sex work with trafficking (as this proposal does), impact negatively on sex workers and expose them to greater levels of risk and insecurity. Sex workers are best placed to spot a trafficked person – and have no interest in supporting human trafficking – and criminalising sex workers means the people best placed to spot a trafficked person will then be prevented from helping them.

Raiding sex work venues and forcibly “rescuing” or “rehabilitating” sex workers results in increased displacement of sex workers, mobility of sex work venues and migration among sex workers; it also has a direct impact on HIV risk. Forced rescue and rehabilitation practices lower sex workers’ control over where and under what conditions they sell sexual services and to whom, exposing them to greater violence and exploitation. In turn, this leads to loss of solidarity and social cohesion (social capital) among sex workers, including reducing their ability to access health care, legal and social services. Low social capital is known to increase vulnerability to sexually transmitted infections among sex workers.

From: Kerrigan D, Telles P, Torres H, Overs C, Castle C. ‘Community development and HIV/STI-related vulnerability among female sex workers in Rio de Janeiro, Brazil’. Health Education Research, 23:1, 137-145, 2008.

http://her.oxfordjournals.org/content/23/1/137.full

In relation to street-based sex work, increased criminalisation will only serve to drive it further underground, leading to an increase in attacks on women, making them more vulnerable.

SCOT-PEP spent approximately 15 years as a service provider, including working with sex workers working on the streets in Edinburgh. The ‘Prostitution (Public Places) (Scotland) Act 2007’ has already directly led to sex workers taking more risks, engaging with clients more likely to pose a risk or clients who refused to wear condoms, dropping prices, spending less time ‘assessing’ and negotiating a contract with potential clients – due to fear of arrest. The Act also had the effect of making people work in more isolated ways and places, led to an increase in ‘solo’ working and meant that less ‘intelligence’ was being shared between sex workers. Criminalising clients makes sex workers more apprehensive about seeking help from the police when they have problems with an abusive client.

 Q4: What are the advantages or disadvantages in using the definitions outlined above?

The fact that this question is asked is further evidence of Rhoda Grant’s ignorance of the sex industry.  Had she made any effort to consult with sex workers about her proposed bill, she would not need to ask it. She would also know that her attempts to be politically correct are of little interest or compensation to sex workers when the outcome of her proposed bill would be to remove livelihood and violate the right to earn a living.

Q5: What do you think the appropriate penalty should be for the offence? Please provide reasons for your answer.

I’m opposed to the legislation.

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 don’t believe there is a workable way in which to enforce the offence.  It would be dependent on widespread, constant, and hugely expensive police surveillance and invasive physical examinations of sex workers to ascertain if sex had taken place.

Commenting on the attempt by former MSP, Trish Godman, to pass a similar Bill, the Association of Chief Police Officers in Scotland (ACPOS) stated that they could not support either option tendered in the Bill, and had significant concerns as to how the proposed offence would apply practically. ACPOS made the following statements in their response:

“ACPOS has concerns as to how sufficient evidence of such activity could be secured when balanced against the proportionality and necessity i.e. would it be justifiable and proportionate to carry out an intimate forensic medical examination of the purchaser and / or seller in such a situation in order to prove sexual contact?”

“ACPOS is of the opinion that officers may not be able to gather sufficient evidence to report to the Procurator Fiscal, which in turn would mean there would be too few convictions for the proposed new offence to deter others”

The Law Society of Scotland also raised points about the practicality of policing and enforcement in the following statements:

• Prohibiting the advertising of brothels and prostitution “may well be very difficult to enforce given the use of the internet and that services advertised online may of course be advertised as escort services”

“From an enforcement point of view this may of course involve procedures such as police surveillance. Against that background, a balance clearly has to be struck between the level of criminality and the cost of enforcement”

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?

The financial costs will be immense, covering widespread and constant police surveillance, legal proceedings, jobseekers’ allowance and financial support for sex workers whose jobs have been taken from them.

In considering the financial implications of the bill proposed by former MSP, Trish Godman, The Law Society of Scotland stated that:

The Committee highlights the practical issues involved in criminalising those who facilitate activities linked to prostitution beyond advertising such as organising hotel accommodation etc.

 From an enforcement point of view this may of course involve procedures such as police surveillance.

Against that background, a balance clearly has to be struck between the level of criminality and cost of enforcement.

From: http://www.lawscot.org.uk/media/245847/crim_purchase_and_sale_of_sex%20_scotland_%20bill.pdf

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?

Yes, it is likely to have a very significant implication for equality: it will result in the loss of livelihood to sex workers. The right to earn a living is a basic human right and one which is defended by the GMB trade union, by whom sex workers are represented. Contrary to what Grant believes, the purchase and sale of sex do not “[reduce] sexual activity and individuals to a commodity”.  The sex industry is a service industry: sex workers provide a service for which clients pay. It is the services and not the individual that are the commodity.

Rhoda Grant has recently launched the TOBIE campaign (Tackling Oppressive Behaviour In Employment), the primary focus of which is the reduction and eradication of bullying and harassment in the workplace. Removing the right of an individual to work in his or her chosen profession is, surely, both bullying and harassment. It is certainly oppressive behaviour in employment. Both her attitudes towards sex workers and sex work, and the likely consequences of the bill constitute bullying, harassment, and oppressive behaviour under the definitions given by the ACAS, quoted by TOBIE:

Harassment, is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.

From: http://www.acas.org.uk/CHttpHandler.ashx?id=304&p=0

I don’t believe the substantial negative effects can be avoided, under the bill in its current state, but if legislators genuinely wish to protect the welfare of those working in the sex industry, the following pointers may be of use.

Researchers, public health and law enforcement officials need to hear from sex workers what they need to keep themselves safe, and work together to achieve those goals. Laws and police attitudes towards carrying condoms must be eased to allow sex workers to protect themselves. Violence against sex workers by clients, police, and other neighbourhood community members must be criminalized, while sex workers should be encouraged and supported to report violent incidents.

Street-based sex workers face a multitude of needs, from immediate concerns of housing, food and medical attention, to longer-range concerns such as mental health services, substance abuse treatment, violence prevention, job training and employment, HIV/STD prevention, quality health care, improved relationships with law enforcement and help leaving sex work. Increased funding and awareness is needed for public health programs that address this full range of issues sex workers face.

From: Center for AIDS Prevention Studies: What are sex workers’ HIV prevention needs? http://caps.ucsf.edu/factsheets/sex-workers/

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