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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What the Operation Black Vote poster row tells us about race in Britain

The poster aimed to draw attention to the cause of BAME voter participation - instead it stirred something deep in the British psyche.

Political advertising campaigns need to be controversial, but go too far and the fall-out can be disastrous. Critics of the new “white thug” billboard campaign, aimed at encouraging ethnic minorities to vote in the EU referendum, think that Operation Black Vote (OBV), the group behind the campaign, had made a spectacular misjudgement. “Racist and divisive” were some of the milder reactions on Twitter. Soon UKIP’s Nigel Farage jumped in calling it “disgusting”, and new London mayor Sadiq Khan claimed it “reinforced stereotypes.”

I took a long hard look at the poster after witnessing the torrent of hurt and anguish it provoked, from white and ethnic minority people alike. To me the poster depicted an angry neo-Nazi type young man fuelled with race hate, and an Asian elder stoic in the face of prejudice, like so many of her generation have been since arriving in the 1970s. It was set in a working class environment familiar to me, a place where even today Asian shopkeepers face regular racist hostility and the far right still organise on the extreme fringes of London in every respect.

The poster is reminiscent of a century-long grassroots struggle against fascism and the intersecting drive to raise the anti-fascist vote from black, Asian and minority ethnic (BAME) communities and the progressive working class. From the battle of Cable Street in 1936 to the ousting of British National Party councillors from Barking and Dagenham town hall in 2010. Raising the BAME registration rate and vote is a challenge because of disillusionment with a political system that appears not to care about the challenges of racial barriers that cause such unequal outcomes in employment, housing and health.

OBV’s billboard poster seemed to be a collision between this experience of the anti-racist struggle and a slick ad-man. I was troubled; why should so many people see ‘racism’ in the campaign where I saw none? Surely the poster would only be racist if the thug in the image represented white people in general? To me he represented only the sort of hardcore racist who hated both my African mother and my English father for being with her. The sort of racist that hated England too. I asked myself who, in their right minds, could feel any affinity with such a vile character?

True, there were only two people in the image, one white person and one person of colour, but this wasn’t black versus white, it was BAME versus hate and prejudice. There was no earthly reason why the fascist’s skin colour should be an insult to non-fascists who only share the same ‘race’.

Throughout my life I’ve heard people of colour being accused of having a chip on their shoulder, and I’ve been accused of the same. We are routinely stereotyped for seeking out imagined racism, of being overly-sensitive and failing to understand the nuances behind something negative towards black or Asian people. Yet the deluge of anger unleashed by OBV’s campaign led me to conclude that the poster’s critics were doing exactly what BAME people have long stood accused of.

Some cried ‘if the poster showed a black/Muslim thug pointing angrily at an old white granny there would be uproar’. These are clearly people oblivious to the negative portrayal of BAME people daily amid no uproar whatsoever. Occasionally a big household brand might end up in the news for peddling racial stereotypes but mostly it goes unremarked but not unnoticed by those impacted by racism.

If racism is power plus prejudice why were so many consumed by the belief that the poster was racist? Why this overwhelming feeling that white people are being treated unfairly? After all, every study of privilege shows that power rests firmly with white people.

Part of the answer can be found in the impact of changing demographics, as illustrated by the BBC documentary this week The Last Whites of the East End which explored white working class feelings that BAME families are taking over and that traditional white English culture was being erased.

The Cockneys fleeing to Essex to ‘be with their own’ fail to comprehend that it is they themselves who are accelerating Newham’s BAME proportion through their white flight. It is a flight sparked by alarm that their ideal balance between white and colour is out of kilter, so they move and thereby accelerate segregation. White British are still the largest single ethnic group in Newham but they don’t see it that way because everyone else – Somalians and Pakistanis, Turks and Nigerians – are lumped together in one homogenous ‘other’ no matter how different their culture is from one another.

The shifting plates of race, population change and migration are building fault lines of tension that manifest in tremors of fear about white people being under attack, of being strangers in their own country. This growing sensitivity can be seen in the reaction to OBV’s poster (‘look, they’re treating us unfairly’) or Britain’s Got Talent’s Alesha Dixon called a black group “sexy chocolate men” (‘if I said that it would be racist, so surely she’s racist too’).

Nigel Farage and hundreds of Twitterers who objected to the poster don’t identify with the fascist in the image but they do feel sensitive to accusations that white people are being discriminated against – despite all the evidence to the contrary – and want to stand up for white people’s feelings, integrity and rights. They felt slighted by the juxtaposition of the white thug and serene Asian granny and mistakenly see it is an attack on them when it wasn’t really about them at all.

Where once it mattered not whether white people were portrayed positively or negatively, because white was the colourless default, now the white colour is racialised simply by proximity to someone of a different colour on the other end of a children’s swing.

As commentators and academics grapple with what integration means in a changing nation where BAME-majority cities are just years away, and white families with money flee to less diverse pastures leaving behind an increasingly threatened white working class, the demand for equal treatment for white people will inevitably grow. After decades of unfair discrimination against people of colour where politicians have failed to act, they are finally standing up for the feelings of a minority. A white minority, if not in proportionality then in certainly in mentality.

OBV’s poster aimed to draw attention to the cause of BAME voter participation. Instead it stirred something deep in the British psyche, a feeling that in a multicultural society disrespect of whiteness is a sign that white privilege is under assault. Was the poster racist? No, but it did inadvertently touch a nerve.

Lester Holloway previously worked for Operation Black Vote, and was Editor of the African and Caribbean newspaper New Nation. He is writing in a personal capacity and tweets at @brolezholloway

Lester Holloway is a Liberal Democrat councillor in Sutton and an executive member of the Ethnic Minority Liberal Democrats. He tweets @brolezholloway