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As you may know, there is a consultation that closes today for a bill in Scotland that would criminalise the purchase of sex.

The response to the consultation that I have submitted to MSP Rhoda Grant is included below. It's long.

If you would like to make a last-minute submission, please consider the excellent template letters offered by SCOT-PEP. Please be sure to request anonymity if you want to do it privately, or consider signing with a pseudonym. You don't have to be in Scotland to reply.

My response:


First off, I would like to address to comments Trish Godman MSP made at the Conference Against Human Trafficking in October this year that “Belle” does not exist and is not happy. I am Belle de Jour, I do exist, and please thank Ms Godman for being so concerned about my feelings – I am happy.

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, I do not support the general aim of the bill.

If the current laws are not working, as you claim, what makes you think new, badly thought out laws would work better? Or is this another 'send a message' law? Passing laws is easy. Passing a law which actually works in the way intended, is enforceable and has no harmful unforeseen consequences is far more difficult.

Such a law as proposed here will not affect whether or not prostitution happens: it will simply affect the conditions under which it takes place to the harm of sex workers. The question is, do you care about those conditions? I do. My priority is access for sex workers to the services they need to preserve or improve their circumstances.

The criminalisation of the purchase of sex in other countries has been shown not to be a successful approach in either helping sex workers or stopping the phenomenon of paying for sex. The extensive evidence for this position is outlined in the replies to the following questions.  

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.

The effects of criminalising the purchase of sex would be increased danger for the people involved in selling sex and no reduction in demand. It is neither the logical response to sex work nor is it the compassionate one.

It has been reported that at a meeting in London at the House of Commons in November, Rhoda Grant said that harm or attacks that might be suffered by sex workers as the result of this bill was a “price worth paying”. How easy to say when other people are the ones paying the price! This shows me the bill is putting ideology above people’s lives. That the desire to punish sex workers and their clients matters more to her than women’s safety. It is horrifying. [Alex Bryce, ” A Regressive Move Which Would Further Stigmatise and Endanger Sex Workers”. Huffington Post, 28 November 2012]

Legislators who care about lives should focus on the provision of essential support services first and foremost. There is ample evidence to suggest that introducing criminalisation as well as spending valuable time and police resources would be to the detriment of the sex workers this Bill claims to want to protect.

My opposition is based upon the fact that the Swedish model is flawed; on the negative impact of such criminalisation on existing sex workers, particularly in their ability to access health and criminal justice services; the fact such an approach ignores and thus fails to address limitations within the criminal justice system (and other agencies) to effectively address abuses; the negative influence it has on the broader narrative of human trafficking to the detriment of other kinds of trafficking and exploitation.

The law in Sweden criminalising buyers has not been successful. It was brought in based on very little evidence. According to Dr Laura Agustin, an expert on sex work and migration, one of its data sources was a survey of only 14 people - just 7 of whom were sex workers.

Statistics show Swedish men are not deterred by the law. Many go to Denmark and Germany where prostitution is legal. The demand has not dried up. The number of men in Sweden who have paid for sex is actually rising. The laws have proved unpopular. A recent newspaper survey found 63% of the population favoured abolishing the sex purchase ban. When the Justice Minister proposed increasing penalties, 88% of Swedes disagreed.

There are health and safety concerns about prohibition. Condom distribution and HIV prevention, “ugly mugs” schemes identifying violent punters, and exiting services show far lower uptake when prostitution is criminalised.

As Purchasing Sexual Services in Sweden and the Netherlands found, the impact of the law on sex workers was to make such work more dangerous; for example, by reducing the time available to sex workers to assess clients. [Purchasing Sexual Services in Sweden and the Netherlands, A Report by a Working Group on the legal regulation of the purchase of sexual services, 2004, p. 20]

Much is made in anti-trafficking discourse of the Swedish model based on the assertion that, by making the purchase of sex an offence, human trafficking declines. But as an example, a 2011 report found that:

[W]hen 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. Nor is it possible to claim that public attitudes towards prostitution have changed significantly in the desired radical feminist direction or that there has been a similar increased support of the ban. We have also found reports of serious adverse effects of the Sex Purchase Act – especially concerning the health and well-being of sex workers – in spite of the fact that the lawmakers stressed that the ban was not to have a detrimental effect on people in prostitution.

[The Swedish Sex Purchase Act: Claimed Success and Documented Effects, Susanne Dodillet and Petra Östergren, Conference paper presented at the International Workshop: Decriminalising Prostitution and Beyond: Practical Experiences and Challenges. The Hague, March 3 and 4, 2011, p.3.]

This year UNAIDS, the Joint United Nations Programme on HIV/AIDS, stated unequivocally that decriminalisation is the best strategy for both safety of sex workers and disease control. Swedish statistics in the 2012 UNAIDS progress report show Sweden has no data on whether HIV and safer sex programmes are reaching sex workers, or if sex workers are getting tested. This is a worrying development that could lead to an Aids timebomb. Such things are already happening in countries like Cambodia, where abusive and violent police enforcement of anti-sex work laws has led to decreased use of prophylactics, fewer people coming forward for STI testing, etc.

Close reading of the Swedish publications on the topic make it clear that UNAIDS is correct in their interpretation. For example, the report claims “it is reasonable to assume that the reduction in street prostitution in Sweden is a direct result of criminalisation” and “The overall picture we have obtained is that, while there has been an increase in prostitution in our neighbouring Nordic countries in the last decade, as far as we can see, prostitution has at least not increased in Sweden” (p. 36).

The language reveals that Sweden has no data and is simply pulling numbers out of thin air. As such, we argue that the Swedish model should be more carefully considered, especially in relation to its alleged ‘success’, and its applicability to Scotland. Criminalising sex work makes prostitutes more vulnerable to violence.

The UNAIDS report notes “In Sweden, sex workers who were unable to work indoors were left on the street with the most dangerous clients and little choice but to accept them.” This has also been the case in reports focusing on human rights in countries like Cambodia, where efforts to reduce prostitution have had a significant harmful effect.

By contrast, decriminalisation has been beneficial in terms of welfare of women. In 2003, New Zealand opted to overturn their laws that criminalised prostitution in favour of regulation. The people most visibly affected by the law were streetwalkers in larger cities like Auckland, where in 2003 about 360 girls were estimated by police to be working. Streetwalkers represent about 11% of the total number of prostitutes in the country. ["Big Increase of Sex Workers a Myth: Latest Research". Christchurch School of Medicine and Health Sciences. 2006-09-12] An evaluation of available data shows that the number of sex workers changed very little – and in some places, the numbers of them on the streets actually decreased – compared to before sex work was legal.

In Auckland, the estimated number of girls working the streets decreased significantly, from 360 to 106. People working in massage parlours and other establishments expressed a desire to stay in the work because of the financial rewards. [Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003. Available online at: http://www.justice.govt.nz/policy-and-consultation/legislation/prostitution-law-review-committee/publications/plrc-report/report-of-the-prostitution-law-review-committee-on-the-operation-of-the-prostitution-reform-act-2003] In 2010, interviews with over 700 sex workers in New Zealand were published. [G Abel, L Fitzgerald, C Healy, (eds). Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation. Policy Press 2010] The number of interviews represents almost 12% of the estimated 5932 prostitutes in the country, a far higher proportion than in virtually any other qualitative study of sex workers ever conducted.

It concluded that the majority entered and stayed in the sex trade for financial reasons, that they felt the new laws gave them more protection, and that the result was positive changes overall for safety and health. As a result of the legislation they had become more willing (and able) to report crimes to the police - surely a victory for women’s safety.

We have a relevant and recent Scottish example with Aberdeen. From 2001 onward, the city had an established tolerance zone for sex workers around the harbour. That ended with passage of the Prostitution (Public Places) (Scotland) Act in 2007. In the following months the city centre experienced an influx of streetwalkers and an increase in petty crimes. Quay Services, which operates a drop-in centre for streetwalkers, reported that sex workers became more afraid to seek assistance and the number of women coming to the centre dropped to “just a handful”. [M Horne. “Safety tips texted to prostitutes after tolerance zone ends.” The Scotsman, 08 June 2008.] There was also evidence that displacing sex workers led to more activity in the sex trade, not less – convictions for solicitation tripled. [K Keane, 18 November 2008. “Prostitution 'forced into city'.” http://news.bbc.co.uk/1/hi/scotland/7734480.stm]

To give a more specific example – when I lived in Sheffield in the early 2000s I saw firsthand the tragic effects of driving sex work away from well-trafficked, well-watched areas. At one point a de facto ‘tolerance’ area of streetwalkers had existed around the St George’s area of the city. It was fairly central, well lighted with CCTV, and police went through the area regularly. The streetwalkers I saw there (for I lived in a flat nearby) all seemed confident and in control. The interactions I saw with them and punters, and them and police, did not appear strained or overtly dangerous.

This changed when the crackdown came. Bollards went up to prevent kerb crawling. Women were pushed out to less populated, more industrial, less policed areas. It happened at that time I was a student, working in the city’s Medico Legal Centre.

One day I was called down to look at a postmortem. The mortuary was a rectangular room, with parallel stations set up for performing autopsies. That particular morning, there was one case I remember in excruciating detail. A young woman had been stabbed in a frenzied attack out past the dark underpasses of the Wicker, not far from Corporation Street. She died in hospital. The victim was just 25 years old. I had turned 25 the night she died.

[Name Redacted] was picked up by someone unknown, stabbed 19 times, and dumped in a lot. She lived long enough to give a partial description of her attacker, but died in hospital. I remember the dark hair, the pathologist methodically recording the position and appearance of each place the knife entered. I remember the stuffed teddy bear with a little red heart someone brought to the centre for her. Later I heard she had a 7-year-old son. Her killer has never been found.

Such a terrible, violent murder is only one tragedy. Many murders go unsolved every year. But the connection between what happened to [Redacted] and where she was working seemed clear to me. The more I learned, the more the effects of “zero tolerance” policing seemed partly responsible for her untimely death. This would not have happened if she had been on the streets near St George’s, with loads of walk-by traffic and well-lit corners. This crime could only have happened away from prying eyes, where anyone alerted to [Redacted]’s distress would not have been able to save her. Where there were no witnesses.

There is growing evidence that moving prostitutes into the darkened industrial outskirts of cities makes their lives more dangerous. [Redacted] is just one victim of a policy that is more concerned with exploiting prostitution myths and preserving a façade of public order than it is about benefitting women.

Perhaps rather than assuming these women are targeted because they are prostitutes, we should consider that they may be targeted because of message society is sending about their value as humans. Gary Ridgway, also known as the Green River killer, murdered 48 women in America in the early 1980s. He later talked about why most of his victims were streetwalkers: "I picked prostitutes as victims because they were easy to pick up without being noticed. I knew they would not be reported missing right away and might never be reported missing. I thought I could kill as many of them as I wanted without getting caught.” [EW Hickey. Serial Murderers and Their Victims (5th edition). Wadsworth Cengage Learning, 2010. P. 25.] It wasn’t the commercial sex angle that was attractive to him, but the convenience.

Many such killers are opportunists; they not only target shamed outsiders like prostitutes, but also hitchhikers and people travelling alone. People whose whereabouts are not exactly known at any given time. And yet no one would endorse a law criminalising solo travel under the rubric of “protecting” holidaymakers – that would be ludicrous.  

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

The unintended consequences of such a law would be greater personal risk for the people who sell sex, including both criminal danger, risk of attack, and exposure to sexually transmitted infections as detailed in the evidence for my answers given above. Attacking sex workers or their clients is not successful in changing behaviour. Prohibition in general tends to backfire.

We all know how badly alcohol prohibition in the US went and the frightening criminal implications of the ongoing “War on Drugs”. Instead of addressing the underlying social issues that might have been leading to unwelcome behaviours, it simply gives criminals a far greater hold on the industry than they would have otherwise. It does nothing to solve any actual family or societal problems. The government policy of the last several decades against sex workers has failed. No matter what deterrents are applied it always continues.

Even the Swedish government admits sex work advertising has increased on the internet – in other words, the trade has disappeared from public spaces but it has not gone away at all. What has happened is that sex workers have gone underground. This makes them more vulnerable, not less, to attack and abuse. It makes them more vulnerable to criminal gangs.

It is worth noting that Sweden’s largest trafficking prosecutions have all happened since the criminalisation law came into being – criminalisation makes trafficking worse, not better. If was as a society are serious about protecting women then we should rethink the current approach. The only country in the world that has put safety of women and men in sex work above subjective moral ideals is New Zealand. Their decriminalisation of sex work over ten years ago has been a great success.  

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

“80. I want to ensure that the proposed legislation avoids any potential loopholes where a purchaser could avoid prosecution by means of non-cash payment.” 

“82. I intend to pursue this approach as it would mean that the offence would not be limited to sexual intercourse or oral sex but could potentially include a wider variety of sexual activity.”

So that’ll be everything from marriage to dating websites to flirting made illegal, then. The section relevant to this question makes clear that the intent of the bill is not simply the question of sex work, but policing any gendered or sexual interactions and behaviour with ill-defined parameters that make virtually all human relationships susceptible to prosecution. This is relevant to Q3 as the unintended consequences of such a law are potentially limitless.

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

I do not believe the consensual sexual activities of adults, monetised or not, should be in any way criminalised or subject to penalty. There are already laws in place to rightly prosecute those who engage in forced labour practices, abuse of children, rape and sexual assault and these should continue to be enforced robustly.

The consultation is low on information about what sex workers’ lives are really like, and seems informed mainly by skewed sources and dodgy assumptions. Since no space in the questions has been allocated to dispute these dangerous stereotypes, I’d like to use this opportunity to provide some data. When researchers allow sex workers to tell their experiences in a way that does not prejudge the outcome, the results reveal things that are well-known to those in the work, but still news to people on the outside.

A 2009 study polling sex workers is an excellent case in point. Beyond Gender: An examination of exploitation in sex work by Suzanne Jenkins of Keele University (2009) revealed the results of detailed interviews with 440 sex workers. Not simply street-based women, either, but women, men, and transgendered sex workers in all areas of the business. Over half were from the UK; the rest were based in western Europe, North America, Australia and New Zealand.

The results turn almost everything we think we know about sex work on its head. Is paid sex all about clients dominating sex workers? No. Less than 7% of the women interviewed thought that paying for sex gives the client power over the escort. 26.2% thought paying makes clients vulnerable, while the majority, 54.5%, said that 'commercial sexual transactions are relationships of equality'.

People generally think that clients get whatever they want from sex workers, abusing and taking advantage of them. But when asked 'in your escort interactions who normally takes overall control of the encounter?' 78.7% said they always or they usually did. 22.3% said it varies, and only 0.7% said the client decides.

Sex work is often characterised as brutal, with abuse a commonplace and even usual outcome. But when asked if they have ever felt physically threatened, only 25% of women and 18.7% of men said yes. 77% of women said they felt clients treated them respectfully; the same percentage said they respected their clients. When asked "how much longer do you plan to do escort work for?” " I have no plans to stop escort work‟ was joint first choice of answer for women along with "one-five more years" (both receiving 35.3%). Only 3.2% said they planned to stop in less than three months.

In many ways, this reflects a pragmatism and familiar to anyone with a more ‘traditional’ career. Sex workers are often stereotyped as very young and naive, unaware of the dangers of the choices they are making. But the age data do not suggest the field is populated with teenage runaways and naive youngsters: Almost 85% of the women were aged 26 or older, and 19% of them were over 40.

Sex work is frequently assumed to be a choice suitable only for the uneducated. But 35.3 % of the men held degrees, whereas for women, it was 32.9%. More than a third of the total were degree-educated, and over 18% held post-graduate qualifications. Only 6.5% had no formal educational qualifications. When asked what things they like about the work, 2 in 3 respondents in the Keele study reported 'like meeting people'. 75% of women and 50% of men reported 'flexibility of working hours' as an aspect they enjoy. 72% of women cited 'independence'.

Jenkins noted: “an appreciation of flexible working hours and independence were factors that were valuable to women generally, not only mothers. The benefits of greater independence and flexible working hours were not just about the demands of parenting - they were often about time provided for other, non parenting-related pursuits.”  

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 do not believe this should become an offence and therefore my opinion on how it should be enforced is irrelevant, except to say: not at all.

We can see that Denmark have recently rejected a similar bill that would have criminalized the purchase of sex and their reasons for doing so are worth considering carefully. The Justice Minister was of the opinion that such a law would be both illegal and unfeasible. Manu Sareen, the Danish gender equality minister, said during last year's election he wanted to ban the sex trade because it exploited women, but last month said he was not sure a ban was the best solution. The government is expected to offer counselling and other support programs to prostitutes. This is a far better use of human and financial resources.

Without engaging in the debate as to whether women (and indeed men and transgender individuals) willingly sell sex or are victims forced by circumstance to undertake this activity due to a lack of other income generating opportunities, there is nothing within this Bill or the accompanying consultation document as to the services and ‘help’ that will be provided to this group.

If the Scotland decides to criminalise the purchase of sex, and thereby seriously undermine the livelihood of sex workers, then they must acknowledge the need to provide alternative employment options and that this will require organisation and funding - both of which have been notably underfunded to date. Spend the money on services and support, not on policing victimless crimes.  

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?

As a former sex worker and advocate of sex workers’ interests I know firsthand from friends and family in countries where sex work is illegal what the financial implications of this bill would be to the people involved. Imagine for a moment a downward spiral where someone who turns to sex work as a quick financial fix finds themselves in increased danger. There is also the question of how much money the government are going to waste on endless consultations for a law that will not work.

In times of financial austerity, throwing more money at unsuccessful policies is against the public interest and out of step with public opinion. Many opinion polls clearly show people support protecting the safety of sex workers and support decriminalisation. Criminalising consensual sexual activity between adults is expensive and dangerous.  

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? 

This bill will have a substantial negative implication for equality. What the people who believe in such numbers fail to acknowledge is that the continued attitude towards sex workers of being “damaged” or “fallen” women who must be saved by white knights only serves to exacerbate many of their problems.

Consider, as an analogy, that in the past society used to think of homosexuality as a disease rather than a sexual preference. Reams of supposedly “scientific” evidence were produced in order to “prove” that homosexuals suffered from mental health problems. These issues faced by gay, lesbian, and bisexual people (including stress, depression, and addictive behavior) are now understood to be the result not of their sexual preferences, but of the stigma associated with them and the pervasively negative social messages about them.

The mental health problems associated with outsider status are well known. Social isolation increases the risk of violence, blackmail, and coercion. Stigma and fear of humiliation and prosecution exacerbates any existing mental health issues. The current policy therefore is responsible for many of the mental health issues associated with sex work.

The consultation document cites among its evidence studies conducted by Melissa Farley, whose opinions have been found to be of insufficiently high quality to be admitted as evidence in Canadian court [Ontario Superior Court of Justice, Bedford v Canada, 2010. “Conclusion: Expert Evidence” http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html#_Toc270411950], who has been the subject of serious ethical allegations to the APA from her colleagues [http://maggiemcneill.files.wordpress.com/2011/07/complaint-to-apa-re-melissa-farley.pdf], and who makes rape jokes about sex workers on her own website. [http://www.prostitutionresearch.com/WhyIMade.html] Her work is a prime example of the persistent, institutionalised hatred against sex workers and it has no place in any serious discussion of sex work and public policy.

There are some hopeful and encouraging things going on that actually could benefit sex workers and reduce their exposure to harm. In Liverpool, police adopted a policy that recognises violence against sex workers as a hate crime. The result is that they can approach the police and know that violence against them will be taken seriously. This has led to a dramatic increase in prosecutions and a decline in assaults. But it’s a model that has yet to be picked up anywhere else. In Aberdeen, police are working to build links with outreach workers and streetwalkers to identify and assist women who want to transition out of sex work.

To give a personal example, while my own experience of sex work is long in the past, as someone who is “out” as a former sex worker I am subjected to high levels of verbal abuse, harassment, and threats, be they over the internet, through the post, and even in person. This has ranged from written threats posted to my workplace, to harassing phone calls, to being harassed and accused of supporting paedophilia by members of the SSP during a public event, to a PCC complaint I filed against the Guardian in which they defended a comment on the site that stated I “should be dead in a ditch”. The PCC, by the way, sided with the newspaper. Imagine if anyone ever wrote about you on a national newspaper’s website that way. It is unpleasant to say the least.

The help of police in various areas when I report these things has been, shall we say, variable. Some are very helpful, some are not. This has affected things like where I have my post sent and whether to be listed in the phone directory. I have undertaken substantial legal efforts to keep the exact location of my home from being printed in the newspapers.

As a result of the amount of abuse and the threatening flavour of some of it I sadly have had to make the decision not to start a family. This is because I feel the risk of subjecting anyone else to the unfiltered hatred and threats I receive would be unacceptable. I feel lucky to have the strong support of family and friends which I do not take for granted. Even in my privileged position it is a constant struggle to “not let the bastards get me down”. It is easy to see how others without such support would fall into depression from constant abuse encouraged by our society. If you are okay with the fact this happens not only to me but to thousands of others every day, then by all means support this bill and keep the hatred going.

I do not believe however that people with empathy and compassion would want that to continue. There are many people who claim to support women’s rights yet deny the rights of large numbers of women whose lives they don’t approve of. Evidence shows that places where prostitution is tolerated or decriminalised produce better outcomes for the people involved.

Attacking visible signs of prostitution results in more criminality, not less. There is no such thing as “ending demand”. This is documented by research, by statistics. Anyone who supports criminalisation is basically saying to me and people like me, ‘women’s rights are important, except of course for women like you.’ They are endorsing the kind of attitudes that allow a national newspaper to defend the statement that I “should be dead in a ditch”. I reject such a stand as hypocritical and anti-women.

This substantial negative implication can only be avoided by rejecting the bill altogether.

Regards

Dr Brooke Magnanti

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