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Throwing
in the towel
As
concerned MPs publish a report on the issue of prostitution Chief
Constables and Judges back legalisation
By
Jennifer Mills
©1997 The Christian Institute
Contents
Introduction
MPs back legal overhaul
Summary of Existing Legislation
Keeping the Status Quo
Legalisation
Calls for Liberalisation
Decriminalisation
Licensing
Zones of Toleration
Morality or Practicality?
Conclusion
References
At a time when morality has caught the political headlines, the Chief Constable of West Yorkshire has called for the legalisation of prostitution. Keith Hellawell described the law controlling prostitution as "absurd" (1). He has been supported in his demands by Pauline Claire, Chief Constable of the Lancashire force. According to a survey conducted by The Sunday Times a number of senior Judges also back legalised prostitution. (2)
MPs back legal overhaul
In July an All Party Committee of MPs published a high profile (but unofficial) report. It stopped short of recommending legalisation, but called for an overhaul of the prostitution laws. Perhaps the single most significant feature of this report is its amoral stance:
"We do not feel that our primary concern is to make moral judgements about those who participate in the sale or purchase of sexual services. Rather in line with the majority of witnesses,(who gave evidence to the Committee) we are concerned mainly with practical issues." (3)
The problem is not going to go away. In 1992 Birmingham's Community Affairs Committee, supported by local councillors, recommended a 'zone of tolerance' be established - like those in Holland - where street prostitution could operate freely. This met with a negative response from the Home Office. Southampton City Council's application for powers to establish a similar zone was similarly rejected.
Arguing that prostitution cannot be eradicated, both Hellawell and Claire claim that legalising brothels would bring manifest benefits. "Call-girls" would be kept off the streets. They would be more commonly free of disease if forced to undergo regular health checks as a condition of registration. Legalised brothels would also provide a new flow of tax revenue into the Treasury's coffers. (4) The new respectability of prostitution as an occupation is reflected in the fact that already Lloyd's of London are providing insurance cover for the earnings of prostitutes. "Professional ladies" as they are being delicately described, are now having their earnings underwritten in a new "Professional cover" policy. (5)
Keith Hellawell rejects the accusation by Sir Ivan Lawrence, chairman of the Commons Home Affairs Select Committee, that he is helping to "weaken the fabric of society". (6) Pauline Claire claims to be morally against prostitution saying she is merely bowing to the pressure of the practicalities of policing it. "I don't like prostitution. Morally I'm against it. But it does occur and will continue to occur. You can't stop it. What we do is react to prostitution, usually because...of the people where prostitutes operate, being upset about it." (7)
Rachael Campbell - Johnston in The Times (8) argues that " the question we must now ask ourselves is not so much whether or not we approve of it, but whether without condoning or promoting it we can make provision for it in our society" The argument continues "Were brothels to be legalised they could be run collectively by the women who work in them. Health and safety could be more safely monitored and although licensing would involve tax payments, financial independence from brokering middle men would in many cases make up the difference."
Ms Campbell - Johnston even goes on to say that "we might witness a consequent decline in failed marriages, rape cases and sexual abuse of children." (9)
Anne Atkins, a Christian writer and broadcaster, hits the nail on the head when she states that exchanging sex for money is funda-mentally wrong. And she states why: "Brothels should not be legalised, because the law should be about what is right and what is wrong, not just about what is possible."
She continues in the vein that the argument surrounding the legalisation of prostitution "demands that we change the law to suit our behaviour, rather than the other way round." She continues "If some activity is illegal it may well still happen, but it is probably being held in some kind of check. Legalise it and it will burgeon". (10)
She goes on to argue that the law is not there simply to prevent us from doing evil, but it is there to tell us what is good, helping us to define the right course of action. In the absence of all other absolutes, she argues, we look to the law to remind us what we believe. So if something is legal, during the passage of time we are likely to think it's right.
Dealing with the issue of paedophilia Anne Atkins argues that at the moment paedophilia is recognised as wrong. But, she argues, that within a decade or two who is to say that we might not think it perfectly acceptable as long as all parties consent?
In the end the essence of the issue is dealt with. "Morality is not relative. It is prescriptive. We need the courage to say that some things are wrong. And we need to make sure our laws back us up." (11)
The All Party Committee (which took three years to produce its report) disappointingly made no real effort to identify what is right and wrong nor to address the role of the law in restraining what is wrong.
Its main motivation in preparing the report came from pressure from residents groups whose complaints centred on issues of noise, litter and freedom of movement.
The report states from the outset that its primary focus is on the regulation of the street trade, which is predominantly a trade involving female prostitutes, not on its elimination. It repeatedly states that the policing of prostitution is exclusively concerned with controlling activities in order to minimize harm.
Prostitution has never been defined by statute with the result that the only definitions of prostitution are to be found in case law of the courts. The working definition of the crime of prostitution is that given in the case of de Munck (12) in which the court held that prostitution is proven if it is shown that a woman offers her body commonly for acts of "lewdness" for payment. This definition was widened in the case of Webb 1 (13) where it was stated that the definition in de Munck was not confined to cases involving sexual intercourse and may include those in which the woman offers her body for "lewdness" in a passive way, or where she submits to something being done to her.
It
must be borne in mind that prostitution in itself is not a criminal
offence. This is true insofar as the act of sexual intercourse is
not illegal. It is the attendant practicalities - the exchange of
money, the loitering on street corners, the pimps living off the
earnings of such women, the kerb crawlers persistently driving around
city streets and so on that are illegal. Thus the debate has tended
to focus on the public order and decency aspects of prostitution
and the protection of the general public.
The 1957 Wolfenden Committee (14) which looked at homosexuality and also the problems of prostitution stated that it was primarily concerned: "....not with prostitution itself but with the manner in which the activities of prostitutes and those associated with them offend against public order and decency, expose the ordinary citizen to what is offensive and injurious, or involve the exploitation of others." (15)
Keeping the Status Quo
The All Party Group of MPs think the present system of fining and arresting women for solicitation and loitering is a generally ineffective deterrent. The MPs called for a radical overhaul of the prostitution laws. They stopped short of calling for legalisation and appeared to be resigned to accept prostitution on its present scale.
The report suggests that stronger penalties should be available to deal with kerb crawlers. It advocates:
- publicising the names of convicted kerb crawlers
- mandatory notification to the employer when the vehicle involved was a company car
- central registration of convicted kerb crawlers.
Alternatively they suggest that kerb crawling should be viewed as a traffic offence which would enable charges to be made on the basis of driving without due care and attention or creating traffic congestion. This would allow the use of cautions and endorsements which would build up to the point of disqualification and/or having a driving license revoked.
Representatives from the Metropolitan Police agreed that the power of arrest for kerb crawlers was essential if the police were to be able to effectively tackle the 'demand' side of the relationship.
Legalisation
Groups completely opposed to legalisation, official toleration of brothels or to the registration or licensing of prostitutes, argue that such measures provide a legal market for prostitution, which will stimulate demand and lead to more traffic in women procured for prostitution. Prostitutes would be treated as commodities and their exploiters would flourish.
Calls for Liberalisation
A Prostitutes Outreach Worker cited in the report sees decriminalisation as the only effective way 'to break the connection with exploitative and violent pimps and give control and power back to the women.' The English Collective of Prostitutes argue that the criminalisation of women involved in prostitution serves to ensure that friends and relatives suffer 'guilt by association'. Convictions for soliciting and related offences have the effect of stigmatising these women and their families. They also claim that the women are encouraged to go back onto the streets in order to pay outstanding fines which may in some cases amount to thousands of pounds.
The English Collective of Prostitutes are in favour of the abolition of all prostitution laws. They wish to 'end the criminalisation of prostitute women for refusing poverty and/or financial dependence on men.' They argue that the abolition of these laws would allow, what they term "sex workers", the same rights as other workers, particularly freedom from harassment by the police. They want to eliminate the stigma which these women experience and break down the divisions between "prostitute and non-prostitute women". They call for prostitutes to be allowed to advertise and work freely from their own premises. They say that this would go some way to removing 'red - light areas'.
Decriminalisation
Few would go as far as calling for the scrapping of all prostitution laws. Yet two options for partial decrimin-alisation have growing support.
Licensing
In Edinburgh entertainment licenses have been issued to 'saunas' known to be used for the purpose of prostitution. It has been argued that licensing premises has potential benefits, in terms of health and safety. Police could carry out checks upon proprietors and vet them to ensure that they do not have criminal records, or other personal characteristics which would make them "unsuitable" license holders.
Zones of Toleration
The basic idea underpinning this initiative is that if a zone can be established in a non-residential area, street prostitution can operate without causing nuisance and disturbance to residents. Such a zone was recommended by Birmingham's Community Affairs Committee in 1992 and was supported by local councillors. On application to the Home Office for bye laws to be introduced exempting the zone from the legislation pertaining to soliciting and kerb crawling, the then Home Office Minister, Mr Michael Jack, refused the proposal arguing that adequate legislation already existed.
The response from the Criminal Law Revision Committee in 1984 to Southampton City Council's application for powers to establish a similar zone, was generally negative insofar as such a proposal was 'inappropriate'. Some Councils would agree. The Chief Executive of Norwich City Council expressed the view that the cultural and legal differences between Holland and Britain were such that Holland was not an appropriate point of reference. He also stated that prostitutes themselves would be unlikely to cooperate and that finding a suitable area would be difficult.
Morality or Practicality?
The Royal College of Nursing have a view on prostitution. They argue that the related issues of poverty, violence and drug abuse urgently need to be addressed by the government. They stress that this should not be confused with any 'moral crusade' against prostitution.
Health workers, cited in the report, believe that women involved in prostitution are often used as scapegoats. It was suggested that this disempowered those engaged in prostitution.
The report concluded that while the social problems associated with prostitution were not of a large enough scale nationally to cause wide public outcry, there was no doubt that for those who are affected, the price paid in terms of nuisance and public safety was enormous.
It was recommended that there was a real need to address the gender bias in legislation relating to prostitution and to rephrase existing legislation to employ gender neutral terminology. This was felt to be necessary in the light of discrepancies in the ways in which the law treats male and female prostitutes insofar as females usually face fines whereas males may face the prospect of imprisonment.
It was strongly felt that sanctions should be increased against those who encourage young people to enter prostitution and against those who use under age prostitutes. In addressing the issue of juvenile prostitution, it was felt that a full examination of the operation of residential care establishments is necessary, as well as the range of welfare provision which is available for young people who may be at risk.
The complex nature of prostitution suggests that there needs to be greater co-ordination between statutory and voluntary agencies in order to develop flexible responses and in particular, to provide support for prostitutes who want to leave their life of vice or as the report terms'the trade'.
There was significant support for the removal of the term 'common prostitute' from the existing legislation. MPs thought this term was "pejorative".
The report makes the astonishing claim that far from addressing the moral issues, existing legislation involves a combination of both punitive and protective measures designed to limit what they see as the "more undesirable aspects" of prostitution. They advocate the continuation of this approach.
Therefore instead of dealing with the issue head on and stating categorically that it is morally unacceptable, the report hedges round the issue. Instead they concentrate on the attendant practicalities of prostitution. No one wants to live in a red light district or have to listen to car engines revving or noisy disputes in the street, or have their property littered with used condoms. But these are not the real issues. The real issue, as Anne Atkins identified, boils down to the fact that exchanging money for sex is wrong— morally wrong. The law should set the highest of standards to show us what is acceptable, not merely reflect our moral bankruptcy. As the All Party Report has shown, we have once again been let down by our political leaders in their failure to state categorically that prostitution and all its trappings are wrong.
The recent call by two Chief Constables to legalise prostitution shows lack of foresight and a spineless approach to the whole issue. Far from making life easier for the police, the level of prostitution would escalate as would the level of crime. A Chief Constable's role is to fight crime — not to try and legalise it. However in helping them with enforcement, the courts should make a realistic attempt to pass sentences which address the nature of the crime.
Conclusion
Prostitution is wrong and it needs to be stamped out. There is a need to stigmatise prostitution - not de-stigmatise it. It is imperative that prostitution itself, that is, the exchange of money for sex, be criminalised for both male and female prostitutes and for those who use them. The police complain about stretched resources whilst the MPs in their report seem obsessed with how prostitutes and residents can exist together. The only way to tackle the real problem of prostitution is to go for full criminalisation.
References
(1)The
Daily Telegraph 30 July 1996
(2)The Sunday Times 1 December
(3)Report of the Parliamentary Group
on Prostitution page 44 point 5.8
(4)The Daily Telegraph 30 July 1996
(5)The Daily Telegraph 7 August 1996
(6)The Daily Telegraph 30 July 1996
(7) Loc cit
(8)The Times 31 July 1996
(9) Loc cit
(10) The Daily Telegraph 5 August
1996
(11) Loc cit
(12) (1918) 1 KB 635
(13) (1964) 1 QB 357
(14) The Wolfenden Report 1957 Report
of the Committee on Homosexual Offences and Prostitution, Parliamentary
Session 1956-1957 Cmnd 247
(15) The Wolfenden Report Cmnd 247
p80
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