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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Brexit has transformed Nicola Sturgeon into a defender of the status quo

First Minister Nicola Sturgeon is saying the right things, but she may not be able to deliver.

Since 2014, Scotland has been split between "neverenders" who constantly agitate for another vote on independence, and those who complain of referendum fatigue.

This latter emotion appeared to be in the ascendancy during the EU referendum last week, when Scottish voters failed to turn out in large enough numbers to push the Remain vote over the 50% threshold. 

And First Minister Nicola Sturgeon has framed her arguments accordingly. 

Speaking on the Andrew Marr Show, the Scottish National Party leader portrayed herself as battling for the status quo and declared "independence is not my starting point". 

Describing the process of leaving the European Union as "deeply damaging", she said: "The status quo we voted for doesn't exist."

Sturgeon said there was "no vacuum of leadership in Scotland" and added: "My priority is to seek to protect Scotland's interests in uncharted territory."

As well as redefining Scottish independence, Sturgeon is attempting to redefine the rules of the debate. Quizzed on whether she could actually take a unilateral approach to negotiations, she claimed: "The reality is there are no rules, there is no precedent. What will happen from here on in is a matter of negotiation."

Batting away reports that Brussels would not want to sit down with her, she again outlined plans to meet with EU institutions over the coming weeks. 

There is no doubt the First Minister has captured the zeitgeist in Scotland, the most Europhile part of the UK. A full 62 per cent of voters opted to remain in the EU, compared to the UK average of 48.1 per cent. 

But even as she vows to protect the status quo, Sturgeon may find the practical details of "protecting Scotland's interests" are a stumbling block. 

She was unable to say much more about the currency question apart from suggesting it was a "moral issue", and that the borders question would affect Northern Ireland as well. 

During the Scottish referendum, Sturgeon and her colleagues tried to play down the prospect of land borders and an adoption of the euro. Whether Scottish voters' attachment to the EU could include such impositions remains to be seen.