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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Donald Trump is the Republican nominee. What now?

So a Clinton-Trump general election is assured – a historically unpopular match-up based on their current favourability ratings.

That’s it. Ted Cruz bowed out of the Republican presidential race last night, effectively handing the nomination to Donald Trump. “From the beginning I’ve said that I would continue on as long as there was a viable path to victory,” Cruz said. “Tonight, I’m sorry to say it appears that path has been foreclosed.”

What foreclosed his path was his sizeable loss to Trump in Indiana. Cruz had bet it all on the Hoosier State, hoping to repeat his previous Midwest victories in Iowa and Wisconsin. He formed a pact with John Kasich, whereby Kasich left the anti-Trump field clear for Cruz in Indiana in return for Cruz not campaigning in Oregon and New Mexico. He announced Carly Fiorina as his vice-presidential nominee last week, hoping the news would give him a late boost.

It didn’t work. Donald Trump won Indiana handily, with 53% of the vote to Cruz’s 37%. Trump won all of the state’s nine congressional districts, and so collected all 57 of the convention delegates on offer. He now has 1,014 delegates bound to him on the convention’s first ballot, plus 34 unbound delegates who’ve said they’ll vote for him (according to Daniel Nichanian’s count).

That leaves Trump needing just 189 more to hit the 1,237 required for the nomination – a number he was very likely to hit in the remaining contests before Cruz dropped out (it’s just 42% of the 445 available), and that he is now certain to achieve. No need to woo more unbound delegates. No contested convention. No scrambling for votes on the second ballot. 

Though Bernie Sanders narrowly won the Democratic primary in Indiana, he’s still 286 pledged delegates short of Hillary Clinton. He isn’t going to win the 65% of remaining delegates he’d need to catch up. Clinton now needs just 183 more delegates to reach the required 2,383. Like Trump, she is certain to reach that target on 7th June when a number of states vote, including the largest: California.

So a Clinton-Trump general election is assured – a historically unpopular match-up based on their current favourability ratings. But while Clinton is viewed favourably by 42% of voters and unfavourably by 55%, Trump is viewed favourably by just 35% and unfavourably by a whopping 61%. In head-to-head polling (which isn’t particularly predictive this far from election day), Clinton leads with 47% to Trump’s 40%. Betting markets make Clinton the heavy favourite, with a 70% chance of winning the presidency in November.

Still, a few questions that remain as we head into the final primaries and towards the party conventions in July: how many Republican officeholders will reluctantly endorse Trump, how many will actively distance themselves from him, and how many will try to remain silent? Will a conservative run as an independent candidate against Trump in the general election? Can Trump really “do presidential” for the next six months, as he boasted recently, and improve on his deep unpopularity?

And on the Democratic side: will Sanders concede gracefully and offer as full-throated an endorsement of Clinton as she did of Barack Obama eight years ago? It was on 7th June 2008 that she told her supporters: “The way to continue our fight now, to accomplish the goals for which we stand is to take our energy, our passion, our strength, and do all we can to help elect Barack Obama, the next president of the United States.” Will we hear something similar from Sanders next month? 

Jonathan Jones writes for the New Statesman on American politics.