Policy Papers


Prostitution and the law in historical perspective: a dialogue

Helen McCarthy, Samantha Caslin, Julia Laite |

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Introduction

Helen McCarthy

In March 2014 the All-Party Parliamentary Group on Prostitution and the Global Sex Trade published a major report, Shifting the Burden: Inquiry to Assess the Operation of the Current Legal Settlement on Prostitution in England and Wales. Based on six years of research, including extensive interviews with sex workers, police, local government officials and the voluntary sector, the investigation aimed to ‘raise awareness of the impact of the sale of sexual services on those involved and to develop proposals for government action to tackle individuals who create demand for sexual services.’ The report calls for reform in how prostitution is regulated and argues that more emphasis should be placed on prosecuting the purchasers of sex rather than the women who sell it. It argues for the introduction of a general offence prohibiting the purchase of sexual services and suggests that soliciting offences that target the women who sell sex should be removed. 

The current laws on prostitution are complex and confusing. Selling sexual services is not illegal, but various acts associated with prostitution are prohibited. Under the Policing and Crime Act 2009 it is an offence for a person to persistently loiter or solicit in a public place in order to sell sexual services. The Sexual Offences Act 2003 states that it is illegal to incite another person to become a prostitute in order gain financially from them. Brothel keeping, through a landlord or tenant allowing a premises to be used for prostitution, is illegal under the Sexual Offences Act 1956. It is worth noting that a brothel is defined broadly as premises that are used by more than one woman, simultaneously or one at a time, for the purposes of prostitution. This means two sex workers sharing a flat could be deemed to be running a brothel. In terms of laws affecting customers, it is illegal to pay for sexual services if the prostitute has been exploited or coerced, regardless of whether the client was aware of the circumstances or not. The Policing and Crime Act 2009 (Section 19) also makes it an offence for a person to solicit the sexual services of a prostitute in a public place, whether the customer is in a motor vehicle or not. 

Recent decades have seen the re-emergence of debate about prostitution policy. Questions have been raised about the law's effectiveness, implementation and impact on sex worker safety. This debate is reflected in the varying approaches to prostitution regulation across the globe. The ‘Nordic Model’, first implemented in Sweden in 1999, decriminalises prostitutes but prohibits the purchase of sexual services. This model has been influential, with Norway and Iceland also following this policy.  However, other countries have taken different approaches. In the Netherlands, the US state of Nevada, parts of Australia and Germany prostitution has been legalised. This means that prostitution is legal but it is regulated by law and kept confined to certain areas. In 2003 New Zealand took up the case for decriminalisation by removing prostitution laws, replacing them with health and safety regulations and officially recognising it as a form of work. In October 2014, Northern Ireland's Stormont Assembly voted in favour of introducing a law similar to the  ‘Nordic Model’ which will criminalise the purchase of sexual services, much like much like Shifting the Burden proposes for England and Wales.

Samantha Caslin and Julia Laite set these recommendations in historical perspective, showing how Shifting the Burden is only the most recent contribution to an often fraught debate over prostitution throughout the twentieth century. Caslin discusses how earlier government reviews framed the issue, identifying a gradual move away from moralising narratives of prostitution as social ‘evil’, towards a supposedly more liberal approach which tries to give more emphasis to the safety and wellbeing of women. She notes that current policy thinking has not resolved the problem of whether, and how far, criminal law should be used to regulate what many regard as an issue of personal morality. Julia Laite is even more sceptical, questioning the assumption implicit in Shifting the Burden that pursuing men who buy sex will serve the interests of women. She shows how the voices of sex workers were marginalised in early twentieth-century debates about criminalisation and asks why in 2014 policy-makers appear equally reluctant to consider the wider structural inequalities in the global labour market which force some women to sell sex.

 

Shifting the burden or repeating the past? Prostitution and the law

Samantha Caslin

For the past century there have been complaints from politicians, care organisations and police that the law on prostitution is confusing. Prostitution is not in itself illegal but solicitation, that is seeking to buy sex, and various other associated offences are. Shifting the Burden is the latest intervention in a long debate. Previous inquiries into the way in which prostitution has been regulated in England and Wales have examined the law on this matter and recommended changes.

In 1928 the Report of the Street Offences Committee (known after its chairman, Hugh Macmillan, as the Macmillan Report) was underpinned by a great deal of moral ambivalence about prostitution and a belief that solicitation was a criminal matter. Problems with policing prostitution and questions about the role of the law in regulating the private relationships between citizens did not go away. This led to the 1957 Report of the Departmental Committee on Homosexual Offences and Prostitution (also referred to after its chairman, John Wolfenden, as the Wolfenden Report). The report proved to be significant: the Wolfenden Report and subsequent 1959 Street Offences Act strengthened the law and had a direct impact on the legal framework used to regulate prostitution to this day. Yet strengthening the law has not made the policing of prostitution any easier, and certainly it has not resolved whether prostitution is a moral issue or a criminal matter. Despite a century of debate, changes to prostitution policy have been slow and in many ways the discussions remain the same. Although Shifting the Burden does in some respects signify progress, historical analysis reveals that its rejection of decriminalisation of all parties means that it falls into the same trap as previous inquiries which have advocated using the law to regulate morality.    

The Macmillan Report (1928)

Several factors created the political room for a debate about the solicitation laws in the 1920s. The Association for Moral and Social Hygiene, an abolitionist group, publicised their arguments well and were important in the formation of the Macmillan Committee. At the same time, the application of the solicitation laws by the police had been called into question and marred by scandal, such as the 1928 conviction of the Metropolitan Police's Sergeant Goddard for corruption offences following his links to nightclub and brothel owners. The changing social and economic position of women raised concerns that prostitutes were becoming harder to identify. By the 1920s, the moral anxiety provoked by prostitutes was closely associated with concerns over women's symbolic move from the domestic sphere and their greater presence in public places such as shopping malls and entertainment venues. It was no longer easy to say that a woman walking through the streets wearing make-up was likely to be a prostitute. Additionally, fears about greater sexual freedom meant that the law’s definition of a ‘common prostitute’ was becoming problematic. Questions were asked about whether girls who had sex on dates in exchange for non-monetary payments such as gifts were in fact engaging in a form of ‘amateur’ prostitution and, if so, what did this mean for the regulation of the 'professional prostitute'?

The morality of prostitution was very much present in the Macmillan Committee's discussions. Concerns about how the prostitute should be defined in relation to other women, the influence of her presence over other women and her supposed impact upon public morals were key features in 1920s debates. During the Committee's hearings the appropriateness of the term ‘common prostitute’ came under scrutiny. Whilst some argued that the term was unfair as it predisposed courts against women identified in this way, other officials were in favour of removing it as a legal category on the grounds that they should be able to use the law to target anyone who solicited. It was therefore plausible even for reactionary social purity supporters to question the efficacy of the solicitation laws and argue for the elimination of the legal category of the common prostitute.

The Macmillan Committee’s attempts to distinguish between private morality and the law proved problematic. The state was not able to resolve the issues with the solicitation laws because it could not resolve the problem of defining the prostitute or the precise nature of her offence. The government struggled to articulate in purely practical terms why prostitution should continue to be criminalised. As chairman of the Committee, Hugh Macmillan tried to rationalise solicitation as both a legal and moral issue by suggesting that prostitution represented a threat to the moral and therefore national order; it was tantamount to an offence against social stability. For the Macmillan Committee, this was reason enough to recommend that laws should remain in place to target solicitation, even if these laws did not apply specifically to common prostitutes. In the indecision that preceded and followed, social purists continued to take to the streets and proffer informal moral surveillance. Members of vigilance associations and organisations such as the Women Police Patrols would monitor train stations and ports looking for young women travelling alone. They would enquire about the purpose of their journey and whether their families knew about their travels. If they considered these girls to need moral guidance they would arrange for them to be sent back home or to a safe lodging house while alternatives were sought. These organisations feared that without their guidance these women would be recruited by brothel owners.  In the meantime,   politicians continued to avoid clarifying the legal status of solicitation.

The Wolfenden Report (1957)

Street prostitution remained a source of moral anxiety throughout the post-war period. In 1954 the Home Office set up the Committee on Homosexual Offences and Prostitution (the Wolfenden Committee), the second official investigation into the law on prostitution in three decades. Though prostitution and homosexuality, commonly perceived as socially and sexually transgressive, were placed together on the Committee’s agenda, they were not treated in the same way. The debate about the criminalisation of homosexuality was, for John Wolfenden, an overwhelmingly philosophical issue, whereas prostitution was debated as a practical matter of how to control this form of inevitable trade on the streets. As with Macmillan, the Wolfenden Committee set about investigating the effectiveness of the solicitation laws and their relationship to the moral condition of the nation’s streets, especially London. The Committee’s work was intended to bring some clarity to the problematic solicitation laws. Questions about how to define prostitution, whether there was a difference between amateur and professional prostitution, whether prostitutes encouraged ‘normal’ women to engage in immoral behaviours, and precisely what was illegal about the prostitute’s trade had increased in urgency by the early 1950s.

The Committee set out to offer a new, secular approach to the problem: to move away from moral discourses and conduct a more objective debate about the role of law in society. However, the Committee’s aims and the resulting policy outcomes turned out to be quite different. That the Committee was unable to maintain its supposed liberal objectivity is clear in the final report that prostitution was ‘an evil of which any society which claims to be civilised should seek to rid itself.’ Morality, and the notion that the prostitute was ‘bad’, permeated the Committee’s thinking.

The Wolfenden Report recommended that penalties for solicitation be increased, and proposed removing the need for proof of annoyance in order to secure a conviction – proposals that were enacted in the 1959 Street Offences Act. The final report justified using the law to control prostitution because, when conducted on the streets, it was a form of immorality that was visible to the general public. The Committee presented a pragmatic solution to the issue of solicitation: they believed that the law should only prosecute prostitution where it was conducted in public spaces. Acts between individuals within the private sphere, at home or in hotels for example, were moral rather than legal matters. The upshot of this was that prostitutes were pushed indoors and the prostitute continued to be used as a warning about the dangers of female immorality.

Shifting the burden: a 21st century shift in attitudes towards prostitutes?

Recent official approaches to prostitution have continued to define the prostitute as a criminal who threatens the social order and wellbeing of local communities. The Wolfenden Report has left an important legacy. Anthropologist Sophie Day has noted that the Wolfenden approach still characterises the way prostitution is controlled in England and Wales. She has suggested that the Street Offences Act (1959) forces prostitutes to replicate unpaid sex in private sexual relationships rather than allowing them to conduct their work as a job. Criminologist Teela Sanders has emphasised that contemporary policies have created the ‘anti-sexual’ city, with appropriate moral conduct being enforced on the streets.

In 2004 the Labour government conducted the consultation, Paying the Price, the first examination of prostitution regulation since Wolfenden. Yet the report did not significantly challenge or change understandings about the need to regulate sex workers. As with debates in the early- and mid-twentieth century, the focus of this consultation was street-based prostitution, ignoring other forms of sex work. The Home Office’s 2006 ‘Coordinated Prostitution Strategy,’ which followed the consultation, rejected proposals for decriminalisation, toleration or licensing, supporting instead the use of measures such as Anti-Social Behaviour Orders to punish solicitation.

Where Shifting the Burden differs from earlier inquiries, and the Macmillan and Wolfenden Reports in particular, is its conscious attempt to move away from assumptions that sex workers are disreputable criminals out to destabilise the moral order of urban spaces. However, this attempt to jettison moral condemnation is only partly successful. On the positive side, there is more concern with the safety and wellbeing of sex workers than previous inquiries, and the report acknowledges the role that criminalisation has had in pushing women into marginalised and consequently dangerous spaces. The report also talks about prostitution in terms of the harm it does to the women involved. It notes that violence against sex workers is unlikely to be reported as the sex workers are already criminalised by engaging in activities associated with prostitution. For example, prostitution is not in itself illegal, but it is illegal to persistently stand on the street soliciting (offering sex for sale). Women who fall into this category are therefore more likely to have issues reporting crimes. 

Furthermore, Shifting the Burden argues that by not taking account of the gender imbalance in prostitution, the law fails to recognise the supposedly intrinsic physical and mental suffering that is involved in selling sex. It suggests that the current legal situation does nothing to alleviate this harm and instead encourages the notion that men have a right to purchase sex. Thus, the report acknowledges the wider impact of prostitution laws on cultural perceptions, which affect sex workers. Criminalising prostitutes sustains the notion in society that these women are a problem. This level of reflexivity was not present in the Macmillan and Wolfenden reports. In recognising the cultural marginalisation of prostitutes, Shifting the Burden shows that official inquiries have moved away from casting these women in the role of social evil as a means to justify criminalising them.

Nevertheless, there are problematic continuities with previous inquiries. Despite moving away from one stereotype of the disreputable woman as a seller of sexual services, the report reproduces another: the prostitute as vulnerable, exploited victim. Alongside earlier notions of the morally depraved prostitute co-existed an image of the vulnerable and coerced ‘white slave’. Shifting the Burden sustains his unhelpful dichotomy which obscures the real needs of sex workers. Shifting the Burden recommends that sex workers should not be criminalised but by shifting the moral condemnation to the purchaser of sex, the debate echoes previous attempts to justify using the law to target individual morality.

Furthermore, criminalising the male purchasers of sex does not necessarily make sex work safer for the women involved. The women would still have to work in clandestine spaces and in often isolated ways in order for their clients to meet them and avoid prosecution. By criminalising men the law would effectively support a culture that defines prostitution as part of a criminal underworld where violence and danger are an inherent and expected part of the job. To this end, whilst Shifting the Burden's interest in the relationship between the law and culture and how this affects sex workers is a positive move, there is still a long way to go before sex workers are no longer marginalised by the law.

As with previous inquiries, Shifting the Burden concludes that the laws surrounding prostitution need to be changed. Unlike the Macmillan or Wolfenden reports, it recommends replacing the solicitation laws with a single Act that targets the purchasers of sex more than the women who sell it by ‘Introducing a general offence for the purchase of sexual services’. It says that this proposed Act should see the ‘burden of criminality should weigh heaviest on those who purchase sex – who create demand – and not on those who provide sexual services.’ Where sex workers engage in anti-social behaviour, the report says they should be dealt with under Anti-Social Behaviour legislation rather than the current solicitation laws, though it does not specify which aspects of prostitution would be defined as anti-social.  In particular the report is concerned that sex workers should be dealt with outside the criminal justice system as much as possible so as not to hinder their attempts to exit prostitution. In many ways, this can be seen as progress. Policy makers have moved a long way from the Home Office culture of the 1920s and 1950s where it was acceptable to refer to prostitution as a ‘scandal’ and a social ‘evil’ not befitting ‘civilised’ society.

Moreover, Shifting the Burden represents progress in addressing the impact of prostitution policy on broader cultural perceptions of sex workers. For example, it openly acknowledges the law's stigmatising effect on sex workers, how this makes them more vulnerable to violence and how it makes it harder for those who want to leave prostitution. Shifting the Burden recognises that ‘Legislation on prostitution is not value-free' and that it 'sends a signal about what is, and what is not, acceptable.’ But in 2014 the previously dominant moral condemnation of sex workers has lost ground in favour of a renewed focus on supposed victimhood. Consequently, policy makers can focus on discussing the ways in which criminalisation has been unfair and harmful to sex workers, but shifting the moral focus to the role of male client risks continued marginalisation of prostitution and sex workers.

 

Making men moral by an Act of Parliament: criminalizing men’s involvement in prostitution, past and present

Julia Laite 

Earlier this year, the European Parliament passed a motion to encourage member countries to criminalize the purchase of sex, following what has come to be called the ‘Nordic’ model., It is a motion supported by some radical feminists and by religious organizations, as well as many politicians who see it as an ideal way to appear to crack down on prostitution without appearing to crack down on the women involved.   The UK seems to following suit: Shifting the Burden recommends the criminalization of the purchase of sex, and it is possible a Bill will be tabled in the near future.

This is a highly controversial move. Dozens of organizations came together to campaign against the European Parliament vote and the Shifting the Burden Report, including the Global Alliance against the Trafficking in Women.  These groups argue that criminalizing clients would only serve to drive the sex industry further underground and make it significantly more difficult for organizations to find and help the women who need it.  They presented extensive, research-based evidence to Gavin Shuker, chair of the All-Party Parliamentary Group on Prostitution and the Global Sex Trade to show that criminalizing the purchase of sex would not reduce prostitution, trafficking, or exploitation and would increase stigma and vulnerability for everyone in the sex industry.  

Despite this, the UK Parliament is seriously considering enacting such legislation. This measure is presented as an entirely new way of thinking about prostitution and its control, and one that is in line with feminism and women’s rights. It starts from the perspective that prostitution is inherently exploitative, and that the demand for bought sex is the primary cause of prostitution.

The debate over who should be held morally and criminally responsible for prostitution is one that stretches back into at least the nineteenth century. Indeed, the new proposals to criminalize clients are frequently presented as the culmination of an over century-long struggle by feminists to overturn the double standard in prostitution law. But it is worth looking back at the legislation, debates, and hidden histories of the early twentieth century to throw light on contemporary assumptions about the sources of exploitation and the role played by demand in the sex industry.

Overturning the double standard of sexual morality

The idea that men were more morally responsible for prostitution than women was one of the keystones in the campaign against the Contagious Diseases Acts in Britain (CD Acts). These Acts, passed in the 1860s, required that suspected prostitutes in ports and garrison towns be registered and forcibly inspected for venereal disease, and inspired an unprecedented attack on what came to be called the double standard of sexual morality. Why, asked repealers, were poor women held responsible for venereal disease and prostitution, when men were just as frequently the cause, source and spread of it?  Men and women came together to demand the repeal of the Acts, and the movement blossomed into a wider campaign to end the government regulation of prostitution in Britain, Europe, and the Empire, which lasted long after the initial Acts in Britain were repealed. 

Caught up in the campaign against the CD Acts was the call to criminalize men who bought sex as well as, or instead of, the women who sold it. Influential organizations such as the National Vigilance Association made several attempts to introduce legislation to criminalize the purchase of sex during and after the First World War, seeing this as important step in ending the double standard of sexual morality and improving the overall moral standard of society.

These proposals, like those today, met with strong opposition.  Some of this opposition came from men who saw it as their natural or liberal right to buy sex, but perhaps the most vociferous opponents were other feminist and social welfare organizations, including the Salvation Army, the YWCA, the International Women’s League, and the Association for Moral and Social Hygiene. Why, given the legacy of the campaign against the sexual double standard, did many early twentieth century feminists and social reformers oppose the criminalization of clients? 

It is helpful to understand that campaigns against the double standard of sexual morality and the government regulation of prostitution were rooted as much in the principles of civil rights as they were morality. Leading figures in the CD Act repeal movement, such as Josephine Butler, cautioned campaigners not to replace government regulation with criminalization, which infringed equally upon human rights and stigmatized women. By the early twentieth century, when the criminalization of clients was becoming a possibility, liberal feminists reiterated Butler’s views, arguing that making the buying of sex illegal would only create ‘an equality of injustice’ that would ‘contravene those essential principles of personal liberty which are the very breath of life for English Citizenship.'  It used the same prejudicial and unconstitutional methods of arrest and prosecution that were directed against prostitutes would be used against their clients.  'Prostitution is a grievous vice,’ wrote one feminist campaigner, ‘but it cannot be turned into a crime without grave injustice.'

Listening (and not listening) to the women who sold sex

Women who sold sex in the early twentieth century also engaged in these debates, and the patchy evidence suggests that they did not see their clients as the enemy, however much they may have disliked them personally or found sexual activity with them distasteful. Rather, it was the poor wages they were offered elsewhere, the mistreatment they experienced at the hands of the police and immigration officials and, most of all, the stigmatization they were made to feel by society for having chosen or having been forced to sell sex.  In the early twentieth century, these voices are just echoes, left behind in scarce police reports, rare autobiographies, and sociological investigations. In the present day, unlike in the early twentieth century, sex workers groups are organized and vocal, and turning these echoes into a shout.  But, just as in the early twentieth century, lawmakers, radical feminists, and moral reform organizations do not seem to be listening.

The legal stigma of selling sex might be removed by a law that criminalizes clients and only clients, but the social stigma of engaging in the sex industry - even if it is claimed to be a choice made by an adult woman - still remains.  This law does little to address the more than century-old concerns of women who sell sex, who report that the chief problem they experience in prostitution is its marginalized,  making it more difficult for women to seek support and potentially exit the industry.

Redefining demand and challenging criminalization in the early twentieth century

While prohibitionists were unsuccessful in convincing the State to criminalize the purchase of sex in Britain in the nineteenth or early twentieth centuries, they did get laws against third-party (largely male) exploitation enacted.   These pimps, traffickers, and brothel keepers were largely considered the most heinous participants in the commercial sex industry.  Indeed, the campaign against ‘white slavery’ –the sexual exploitation and trafficking of young women - in the early twentieth century largely superseded calls to criminalize clients. The resulting 1912 Criminal Law Amendment Act made ‘controlling or directing the movements of a prostitute’ an offence, with the potential for imprisonment and also whipping.  The 1912 Act attracted wide support, much as the new proposal to criminalize clients has today: many were confident that the ‘right’ target for criminalization had been found and a consensus had been reached about criminalization.

However, there were several important dissenting voices.  In The English Review in 1912, outspoken feminist Teresa Billington Greig expressed a deep concern for legislation based on exaggerated claims of exploitation that ignored the more systematic and complex factors that contributed to women leaving their homes and selling sex. She warned that criminalization - no matter how potentially worthy the target - would only worsen the problem of abuse and exploitation: ‘in the underworld of sexual trading...,’ she wrote, ‘the more severe you make your deterrent punishment, the more cunning and subtlety you develop in those who have to evade it.’ She argued that the l912 Act was ideological rather than based upon evidence, and was passed largely because ‘those responsible for it may have obtained ease of mind, the selfish satisfaction of having accomplished something’.  My own research into twentieth century prostitution bears out Greig’s assertions: I have charted a move of prostitution further and further underground as the legal and social stigma of selling and buying sex increased over the course of the century. The result, no matter who in the sex industry was targeted by the law (the prostitutes, the pimps, or the clients) was the same: darker alleys, more isolated furnished rooms, more abandoned lots, and more abuse and violence.

George Bernard Shaw was equally scathing of the campaign against white slavery, but from another perspective.  The people most morally responsible for prostitution, he argued, were not the women who sold sex, the men who bought sex, or even the third parties who made money from it. Instead, it was the industrialists and businessmen who forced women to accept such low wages for their labour. It was also, crucially, the affluent middle classes who demanded cheap labour and cheap products in their homes. 

The wages of prostitution are stitched into your button-holes and your blouse,… ‘pasted into your match boxes and your boxes of pins, stuffed into your mattresses, mixed with the paint on your walls, and stuck between the joints of your water-pipes. The very glaze on your basin and tea-cup has in it the lead poison that you offer to the decent woman as a reward for honest labour, meanwhile the procuress is offering chicken and champagne.

If anything, Shaw’s powerful words ring truer today in light of our increasingly iniquitous global economy in which cheap domestic, agricultural and industrial labour and poorly regulated manufacturing are seen as crucial to satisfying the ever higher standards of living. There is plenty of evidence that shows women are particularly affected by this exploitation of labour. Just like those who seek to criminalize the purchase of sex today, Shaw insisted that it was indeed demand that caused prostitution, but the most significant demand was ours, the demands of consumer society, not that of male clients or third party exploiters. Only when such uncomfortable and historical truths are considered by both the EU and UK Parliaments can they  begin to make truly unprecedented attempts to end women’s exploitation within prostitution and, perhaps more significantly, within the wider global economy.

The UK would be effective in preventing the abuses and violence experienced by marginalized women -including prostitutes -if they stopped singling out ‘prostitution’ as a particular problem and started seeing it as a symptom of wider issues in society.  To do this, the government needs to listen to the research on sex work that repeatedly finds that the causes of women’s unwilling prostitution are linked to vulnerable immigration status, poverty, drug addiction, and violence within the home. The burden does need to be shifted, but this should be a burden of responsibility, not criminalization.

The UK Government should strongly consider making better provisions to protect low-wage workers, especially foreign ones; and it should reconsider granting asylum and the legal right to work to women seeking to escape from domestic violence and poverty abroad. It should also invest heavily in programmes designed to help sex workers who wish to leave the trade, domestic violence shelters, and drug addiction treatment centres; and make education and housing affordable to women on low incomes. Most of all, child care should be made affordable for all families so no women needs to do something she considers degrading in order to feed, clothe, and house her children. 

 

Julia Laite responds to Samantha Caslin

Caslin and I take different positions on the promise and historical novelty of Shifting the Burden and the government’s proposed measures to criminalize clients. Caslin sees the criminalization of clients as a welcome cultural shift towards no longer blaming women but rather targeting men for prostitution. However, I have found in my research that any form of criminalization pushes prostitution further underground and makes it more dangerous, especially for the most vulnerable women in the sex industry. The criminalization of prostitution whether for women selling sex or men buying it increases the associated risk which is invariably experienced by sex workers. If the government is truly concerned with sex workers’ safety, then it would pay heed to the thousands of sex workers and sex work researchers who make pleas for decriminalization, so that they can conduct their work openly and as safely as possible.

I take Caslin’s points about the missed opportunities of the Macmillian and Wolfenden reports, but I think that she is overly optimistic about the degree of historical change we are experiencing currently. Moral reformers have long positioned prostitutes as victims rather than villains; historians tend to date this shift to the later eighteenth century. Yet, even prior to the Contagious Diseases Acts, reformers used this ‘victim’ status to argue for more repressive and moralistic legislation that ultimately harmed the women they purported to protect.

Shifting the Burden has not strayed very far from this Victorian morality:  it still claims that prostitutes are wretched victims who need to be saved from themselves, makes no attempt to link a woman’s prostitution to her economic hardship or lack of social welfare support, and maintains the age-old position that prostitution is inherently morally wrong - a moral failing on the part of an individual or a whole gender, rather than symptomatic of wider economic and social problems.  The law might be trying to make men, rather than women, moral by an Act of Parliament but the motivations and the outcomes - geared to produce politically palatable and superficial reform rather than actual harm reduction will likely be extremely similar to all that has gone before. 

Like the previous reports, Shifting the Burden does not listen to the opinions and demands of sex workers, nor to the small army of sex work researchers who consistently and through methodologically sound research show how all forms of criminalization of prostitution harm women.  When the government starts listening to these voices and this research, and reforming labour, welfare and immigration legislation, then that would represent a culture shift in the way we think about commercial sex. Only then I will concede some historical progress.

 

Samantha Caslin responds to Julia Laite

Laite argues that Shifting the Burden still channels nineteenth century moral discourses about the dangers of prostitution and, to a large extent, I agree. She is correct to argue that the report limits itself to only seeing prostitutes as victims in need of saving rather than as individuals acting with a wide variety of agency in the context of their own social and economic situations. Although Shifting the Burden attempts to move beyond old notions of the morally corrupt, dangerous prostitute, it relies overly on the trope of the victimised prostitute in order to explain its support of continued criminalisation (although now the emphasis is on criminalising the clients rather than the prostitutes).

While some sex workers will identify themselves as victims, many others do not. Moreover, it remains to be seen how targeting customers will create routes out of prostitution, since this form of criminalisation continues to socially marginalise and stigmatise sex workers via their clients. It is not so much, as Laite suggests, that I interpret the report as a ’welcome cultural shift towards no longer blaming the women but rather targeting the men.’ I agree that criminalisation of the customer is similarly problematic to the situation we have now in terms of marginalising sex workers, but I can see potential for change in the proposal to stop criminalising the women at least.

I am more optimistic than Laite in my reading of Shifting the Burden. The report urges that, in the run up to the 2015 election, all political parties should commit to reviewing the laws affecting prostitution. Unlike the Macmillan and Wolfenden reports, this debate is far more reflexive about the ways in which prostitution policy can put sex workers in danger, in particular through negative cultural perceptions. Shifting the Burden thus represents progress, but there is clearly some way to go before legalisation or decriminalisation are likely to be accepted as the better route towards recognising the agency of sex workers while prioritising their safety. Therefore the report does not necessarily provide the right answers. But by considering the cultural impacts of prostitution laws and attempting to address what support, rather than punishment, sex workers need, Shifting the Burden at least tries to ask the right questions.

Further Reading


Day, S. On the Game: Women and Sex Work (Pluto Press, 2007).

Home Office, Paying the Price: A consultation paper on prostitution, July, 2004.

Home Office, A Coordinated Prostitution Strategy and a Summary of Responses to Paying the Price, January, 2006

Laite, J. Common Prostitutes and Ordinary Citizens: Commercial Sex in London, 1885-1960. (Palgrave Macmillan, 2012).

Sanders, T. ‘Controlling the “Anti-Sexual” City: Sexual Citizenship and the Disciplining of Female Street Workers,’ Criminology and Criminal Justice, 9, 4, 2009.

Self, H. Prostitution, Women and Misuse of the Law: The Fallen Daughters of Eve. (Frank Cass, 2003).

About the author


Samantha Caslin, an independent researcher, received her PhD from the University of Manchester in 2013. She published 'Flappers, Amateurs and Professionals: the Spectrum of Promiscuity in 1920s Britain,' in K. Hardy, S. Kingston and T. Sanders, New Sociologies of Sex Work (Ashgate, 2010).  samcaslin@alumni.manchester.ac.uk

Julia Laite came to Birkbeck in 2009 as a lecturer in Modern British History after teaching in Canada and holding a postdoctoral fellowship at McGill University. She is author of Common Prostitutes and Ordinary Citizens: Commercial Sex in London, 1885-1960 (Palgrave Macmillan, 2011). j.laite@bbk.ac.uk 

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