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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This election has sparked a weird debate – one in which no one seems to want to talk

 The noise level hasn’t risen above a low gurgle in the background.

If this is a general election in which the tectonic plates are shifting, they’re the quietest tectonic plates I’ve ever heard. All the parties are standing on pretty radical platforms, yet the noise level hasn’t risen above a low gurgle in the background, like a leaking tap we can’t be bothered to get fixed.

Big issues are being decided here. How do we pay for care, or health, or education? How do we square closed borders with open trade, and why isn’t anyone talking about it? Democracy is on the line, old people are being treated like electoral fodder, our infrastructure is mangled, the NHS is collapsing around us so fast that soon all that’s left will be one tin of chicken soup and a handful of cyanide capsules, and we face the prospect of a one-party Tory state for decades to come. All this and yet . . . silence. There seem to be no shouts of anger in this election. It’s a woozy, sleepy affair.

I knew something was afoot the moment it was called. Theresa May came out of No 10 and said she was having an election because she was fed up with other parties voting against her. No one seemed to want to stand up and tell her that’s a pretty good definition of how functioning democracy works. Basically, she scolded parliament for not going along with her.

Why were we not stunned by the sheer autocratic cheek of the moment? With news outlets, true and fake, growing in number by the day, why was this creeping despotism not reported? Am I the only one in a state of constant flabbergast?

But the Prime Minister’s move paid off. “Of course,” everyone said, “the real argument will now take place across the country, and we welcome,” they assured us, “the chance to have a national debate.”

Well, it’s a pretty weird debate – one in which no one wants to talk. So far, the only person May has debated live on air has been her husband, as Jeremy Corbyn still wanders the country like an Ancient Mariner, signalling to everyone he meets that he will not speak to anyone unless that person is Theresa May. Campaign events have been exercises in shutting down argument, filtering out awkward questions, and speaking only to those who agree with every word their leader says.

Then came the loud campaign chants – “Strong and stable” versus “The system’s rigged against us” – but these got repeated so often that, like any phrase yelled a thousand times, the sense soon fell out of them. Party leaders might as well have mooned at each other from either side of a river.

Granted, some others did debate, but they carried no volume. The Ukip leader, Paul Nuttall, achieved what no one thought possible, by showing the country that Nigel Farage had stature. And there’s a special, silent hell where Tim Farron languishes, his argument stifled at every turn by a media bent on quizzing him on what sort of hell he believes in.

Meanwhile, the party manifestos came out, with titles not so much void of meaning as so bored of it that they sounded like embarrassed whispers. Forward, Together; The Many Not the Few; Change Britain’s Future: these all have the shape and rhythm of political language, but nothing startles them into life. They are not so much ­clarion calls as dusty stains on old vellum. Any loosely connected words will do: Building My Tomorrow or Squaring the Hypotenuse would be equally valid. I still pray for the day when, just for once, a party launches its campaign with something like Because We’re Not Animals! but I realise that’s always going to stay a fantasy.

Maybe because this is the third national vote in as many years, our brains are starting to cancel out the noise. We really need something to wake us up from this torpor – for what’s happening now is a huge transformation of the political scene, and one that we could be stuck with for the next several decades if we don’t shake ourselves out of bed and do something about it.

This revolution came so quietly that no one noticed. Early on in the campaign, Ukip and the Conservatives formed a tacit electoral pact. This time round, Ukip isn’t standing in more than 200 seats, handing Tory candidates a clear run against their opponents in many otherwise competitive constituencies. So, while the left-of-centre is divided, the right gets its act together and looks strong. Tory votes have been artificially suppressed by the rise of Ukip over the past few elections – until it won 12.6 per cent of the electorate in 2015. With the collapse of the Ukip vote, and that party no longer putting up a fight in nearly a third of constituencies, Theresa May had good reason to stride about the place as cockily as she did before the campaign was suspended because of the Manchester outrage.

That’s why she can go quiet, and that’s why she can afford to roam into the centre ground, with some policies stolen from Ed Miliband (caps on energy bill, workers on company boards) and others from Michael Foot (spending commitments that aren’t costed). But that is also why she can afford to move right on immigration and Brexit. It’s why she feels she can go north, and into Scotland and Wales. It’s a full-blooded attempt to get rid of that annoying irritant of democracy: opposition.

Because May’s opponents are not making much of this land-grab, and because the media seem too preoccupied with the usual daily campaign gaffes and stammering answers from underprepared political surrogates, it falls once again to the electorate to shout their disapproval.

More than two million new voters have registered since the election was announced. Of these, large numbers are the under-25s. Whether this will be enough to cause any psephological upsets remains to be seen. But my hope is that those whom politicians hope to keep quiet are just beginning to stir. Who knows, we might yet hear some noise.

This article first appeared in the 25 May 2017 issue of the New Statesman, Why Islamic State targets Britain

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