Sex work and the prohibitionists

Can we take criminal law out of the lives of sex workers?

The British do like to ban things. It is one of our national vices.

And the things we often like to ban are what other people get up to. We tend to believe that our moral disgust or ideological certainty about what other people do converts easily into legal prohibitions. To ban something, we seem to assume, is to eliminate it. Writing out a new page in a statute book is seen as somehow having the same effect as casting a spell: if we use just the right form of words, and are sufficiently solemn in doing so, we believe we can change reality.

Political debates can thereby be limited to whether something "should be banned". Rarely addressed are the more important questions of whether something can be "banned" and what may be the unforeseen consequences of having a ban. These are seen as second order concerns. It does not seem to matter how or whether the ban will work in practice: the deplored activity must be prohibited. It shouldn't be allowed.

However, to "ban" something is not to eliminate it; it merely means that future incidents of it may be attended by different legal and other consequences than it otherwise would have.

There is no one explanation as to why the clamour to ban things has such a central role in our political discourse. One possible reason is that the progressive widening of the franchise, and the attendant development of our democratic culture, was in respect of control of the legislature, and not the executive directly. Politicians could gain support by promising to make laws rather than actually doing things: "vote for me and I can ban this for you". Another possible explanation is the latent Puritanism in our national culture has long mixed with that popular deference to the rule of law which EP Thompson traced back to the early 1700s: so when we do not like something, we instantly think of the law as the best way to stop it.

This is not a simple left/right issue. Both conservatives and radicals want to ban things: different things, of course, but the political reflex is very much the same. Only the topics vary: fox-hunting, smoking, abortions, pornography, sado-masochism, recreational drug use, and so on. Everyone seems to want to ban something which other people do.

And so the news last week that the government is again thinking of criminalising those who pay sex workers comes as no great surprise.

Indeed, it seems our government is again "looking to Sweden" in respect of how to deploy the criminal law in the context of sex work, as if invoking the name of a Scandinavian country is enough to cloak an illiberal and grubby initiative with the soft glow of freshly-fallen Nordic snow.

In fact, our domestic laws regarding sex work are a complete mess.

Their general effect is to marginalise sex workers socially and to surround them with those whose conduct is at instant risk of criminalization. This is neither sensible nor safe for the sex workers.

Threats of criminal convictions are more likely only to deter someone from detectable types of behaviour than to deter them from refraining from the deplored behaviour altogether.

Criminalization really needs to be taken out of sex work, unless there is evidence of trafficking. (And the purported evidence for widespread trafficking has been discredited by Nick Davies and Dr Belinda Brooks-Gordon amongst others).

A wiser approach to the law and policy of sex work was last week shown by a female Canadian judge, in a 132-page judgment which is both beautifully-written and a superb exercise in progressive jurisprudence.

Judge Susan Himel of the Ontario Superior Court of Justice struck down a range of prohibitions related to sex work policy. She came down on the side of the "right of prostitutes to express themselves in an effort to protect their personal safety". Furthermore, she notes "by increasing the risk of harm to street prostitutes, the [provision banning communications for the purposes of prostitution] is simply too high a price to pay for the alleviation of social nuisance".

This judgment of Judge Susan Himel is humane and refreshing. It applies the law in a liberal and proportionate way. It takes seriously the concerns and interests of sex workers. It is a judgment which should be read by every person with an interest in the topic. One only hopes it will not be appealed.

David Allen Green is a lawyer and writer. He was shortlisted for the George Orwell blogging prize in 2010. On 18 October 2010 he will be chairing a talk at Westminster Skeptics by Dr Belinda Brooks-Gordon (with a reply to be given by Dr Brooke Magnanti) on the Law and Policy of Sex Work.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Jeremy Corbyn's won a monumental victory - but it's more delicate than it looks

The need for peace on the left is overwhelming. 

It is perverse, absurd even, that in the aftermath of such a monumental victory Jeremy Corbyn must immediately talk of coalition building and compromise. Previous winners of internal struggles – most notably Tony Blair and Neil Kinnock – certainly did nothing of the sort, and Corbyn’s victory is bigger than theirs. To an extent, this is not the victory of one set of ideas but the establishment of a new party altogether – with a completely different centre of gravity and an almost completely new membership. 

That new Labour party – and core project that has built around Corbyn’s leadership – is itself a delicate network of alliances. The veterans of big social movements, from the Iraq War to the anti-austerity protests of 2011, find themselves in bed with left-leaning cosmopolitan modernisers and the reanimated remnants of the old Labour left. All parts of the coalition have reason for hubris, to believe that this new formation – complex enough as it is already, and filled with ideas and energy – can carry the Corbyn project into Number 10 with or without the co-operation of his Labour colleagues and the wider left. 

That vision is a mirage. Labour has undergone the biggest membership surge in its history, and is now the biggest left of centre party in Europe. As John Curtis has pointed out, the party’s support has maintained a high floor relative to the level of infighting and sniping over the summer, in part because of Corbyn’s strong appeal to Labour’s base. But the bleak electoral outlook, compounded by boundary changes, requires us to do more than read out lines from pre-written scripts. We must all, from a position of strength, stare death in the face.

The terms of peace with the Labour right must be negotiated carefully. There can be no negotiating away of internal democracy in the selection of candidates or national policy-setting; doing so would permanently weaken the left’s hand and allow Corbyn’s detractors in parliament to run riot. And in policy terms, Corbyn cannot compromise basic anti-austerity principles – not just because doing so would be a betrayal that would demobilise Labour’s new base, but because the project of triangulation pioneered by Ed Milliband is a tried and tested electoral failure. 

And yet the need for peace is overwhelming. At a grassroots level, Owen Smith’s support was not made up of hardened Blairites. Many of them, unlike Smith himself, really did share Corbyn’s political vision but had been ground down and convinced that, regardless of the rights and wrongs, there could be no end to Labour’s civil war without new leadership. The left’s job is to prove those people, and the politicians who claim to represent them, wrong. 

Labour’s assorted hacks – on left and right – often forget how boring and irrelevant the search for Labour’s soul looks to a wider public that long ago left behind party tribalism. The intellectual task ahead of us is about framing our politics in a comprehensible, modernising way – not creating a whole new generation of people who know Kinnock’s 1985 conference speech by rote. 

A united Labour Party, free to focus on shifting the consensus of British politics could well change history. But the grim realities of the situation may force us to go even further. To get a majority at the next election, Labour will need to gain 106 seats – a swing not achieved since 1997. 

Add to that the socially conservative affirmation of the Brexit vote, and the left’s profound confusion in terms of what to do about it, and the challenge of getting a Labour Prime Minister – regardless of who they are or what they stand for – looks like an unprecedented challenge. That unprecedented challenge could be met by an unprecedented alliance of political forces outside the Labour party as well as inside it. 

In order for Labour to win under the conditions set by the boundary review, everything has to be calibrated right. Firstly, we need an energised, mass party which advocates radical and popular policies. Secondly, we need the party not to tear itself apart every few months. And yes, finally, we may well need an honest, working arrangement between Labour, the Greens, and other progressive parties, including even the Lib Dems. 

Exactly how that alliance would be constituted – and how far it would be under the control of local parties – could be the matter of some debate. But there is every chance of it working – especially if the terms of the next general election take place in the context of the outcome of a Brexit negotiation. 

The starting point for that journey must be a recognition on the part of Corbyn’s opponents that the new Labour party is not just the overwhelming democratic choice of members, but also – with a mass activist base and a mostly popular programme – the only electable version of the Labour party in the current climate. For the left’s part, we must recognise that the coalition that has built around Corbyn is just the core of a much wider set of alliances – inside Labour and perhaps beyond.