ACPO's Policy, Strategy and Operational Guidelines for Dealing with Exploitation and Abuse Through Prostitution

Response by Dr Helen J. Self
August 18, 2004

I would like thank ACPO for forwarding this confidential document and for allowing me to comment. I will respect its confidentiality and hope that my response will receive the same serious consideration. As I know two of the authors I do not approach the task lightly!

My main concern with the draft strategy is that it misrepresents the law.

The accepted definition of prostitution set out by the Home Office is quoted in "Appendix A" as being:

"The exchange of sexual services for some form of payment — usually money or drugs. This can take place on the street or in massage parlours or saunas, through escort agencies or at private addresses"
(– Home Office 2004b)

As the authors know (since they state on pg. 8 that "the law regarding prostitution is clear"), the principal offences under which prostitution is regulated are the:

1. The Street Offences Act (1959), under which it becomes an offence for a "common prostitute" to loiter or solicit in a street or a public place for the purpose of prostitution.
2. The Sexual Offences Act (1985), which covers kerb crawling and soliciting in the vicinity of a motor vehicle (all of which are public nuisance offences), and
3. The Sexual Offences Acts (1956 & 2003), which aims at preventing the abuse and exploitation of children and adults through prostitution.

At no point is prostitution per se an offence. If it was, then the client would be committing an offence regardless of whether or not the arrangement was consensual.

There is, therefore, no need to argue, as is suggested on pg. 5, that "prostitution is not a crime at all" since we all know that it is not, and never has never been a crime in the United Kingdom. Indeed, this is stated at the top of pg. 22.

However the Home Office definition, and the wise counsel of Lord Denning on the duties of a Chief Constable, that "in all things he is not the servant of anyone, save the law itself" are forgotten (pg. 19), since on:

• pgs. 3, 21 — prostitution becomes a "victim-centred crime" and on
• pgs. 5, 27, 32 — prostitution becomes a "signal crime", and on
• pgs. 9, 21 — prostitution becomes a "market crime"

One is left, therefore, wondering about the motives of the authors, who, despite their knowledge to the contrary, persist in misrepresenting the law. As an ordinary law-abiding citizen, I find this deeply shocking, especially when it comes from such a respected body as the ACPO.

Further contradictions abound. On pg. 3, for example, there is a reference to the "vain search for easy money" but on pg. 10 we are told that "incredibly high profits" are a pull-factor which applies to the sex worker as much as to the exploiter. There is also the frequent use of terms such as "illegal modes" and "forms" of prostitution (pgs. 5, 7 & 22). Even more confusingly, the authors begin on pg. 22 with the statement that prostitution is legal (at last!), but further down the same page write of "illegal forms" of prostitution. What does this mean? We now define the prostitution of a young person under 18 as "child abuse" and the exploitation of migrant sex workers as "trafficking for the purpose of prostitution", this does not make prostitution itself a criminal offence, or the victim of trafficking into an offender. Deception, coercion and violence, used in order to exploit people clearly are offences. They are not "forms" of prostitution, but forms of coercion, violence and exploitation.

The vulnerable people, who this strategy seeks to highlight, frequently choose prostitution, despite the known risks, precisely because it is not illegal. For a drug addict, a homeless person, or an illegal immigrant this may seem like the lesser of competing evils in the battle for survival. So if the door of street prostitution is firmly shut, then they will move indoors or choose some other equally harmful means of raising money, which may indeed be criminal.

Accuracy is important because when you begin with a correct statement the extrapolation of data and analysis must adjust accordingly. The emphasis then shifts away from prostitution and on to the real crimes which are perpetrated against the sex worker, who is usually a woman, these are crimes which transform the individual into a victim, not the prostitution itself. On pgs. 5 and 23, for example, it is stated that exploitation is "caused by" prostitution. This is the wrong way round. Being old and feeble does not "cause" mugging and the easy accessibility of desirable products does not "cause" shop-lifting. The offence should lay squarely on the shoulders of the offender and not with the person who is victimised. Indeed the use of the word "victim" is highly problematic and most sex workers reject it as merely tweaking the ancient habit of creating the prostitute as 'other', in this case by infantilising and pathologising the individual. Nor does renaming the prostitute a victim dispel the stigma, as Swedish sex workers have testified.^[1] Unfortunately, the prostitute/whore/victim still inhabits a world in which others are criminalized as a result of association with them. If the criminalization of clients is increased, then the victimisation of sex workers may increase proportionally.

What are the aims of the strategy?

I think it is fair to say that every student of criminology will be taught that the police will always ask for more power and increased resources in order to achieve the desired aims. This is a trend which a wise public, concerned for individual liberty, should view with some caution.

The draft strategy infers, that whilst seeking to streamline national policy, an increase in resources and funding for prostitution-related offences would facilitate the investigation into more serious crime (pg. 16). This aim is in conflict with the declared "holistic" and caring objectives set out in the strategy (pg. 4). Such a policy would increase resentment on both sides of the equation and place the sex worker in greater jeopardy. Whereas, if we begin with the premise that prostitution is legal, then the holistic objectives carry more weight. People in need of housing, medical care, child care and legal advice are primarily "people in need". In 1982, Clive Soley MP, argued that The Street Offences Act (1959), accompanied by doubtful police practices, had created more social problems than it solved and that the matter would be better dealt with through the social services.^[2]

Both the ACPO draft strategy and the Home Office publication Paying the Price, focus mainly upon street prostitution (although prosecutions have decreased). This should not be surprising as street soliciting has always been a priority (probably across the world), since most people find it tiresome. The main reason for current concern seems to be associated with the high level of drug addiction and the associated criminal activity (pg. 14). However, the publication of these reports has coincided with the revelation that 1 in 50 of the population are injecting drugs, that there are 45,000 crack addicts in London alone and that Afghanistan is supplying three quarters of the worlds opium (The Observer, July 18, 2004; The Independent, July 28, 2004; The Times, August 12, 2004). Reading these articles, it appears that the drug problem has reached a crisis point and that Western military policies are partly to blame. This is hardly the fault of the police, but to use it as a justification for targeting sex workers seems outlandish and unethical.

I am especially concerned by the proposal for recycling already failed legislation by making it more coercive (pg. 25). It has been argued for decades that The Street Offences Act (1959) is both unjust and unsatisfactory. The non-statuary prostitutes' cautioning system which accompanies it was initially justified on the basis of the government's redemptive aspirations. On this score alone it failed abysmally, so that the main purpose of the Act became clearing the streets of prostitutes. This system has been roundly criticized (not least by the police), as the "revolving door" of arrest-prosecution-fineÐstreet-arrest. If a form of "blackmail" is now to be incorporated, by compelling people to accept treatment or be prosecuted, it will be resented and rejected by the majority, and new ways will be found for circumventing policy. Equally questionable is the suggestion that access to safe housing and protection must rest upon the willingness of the "victim" to testify against the "abuser" (who is probably a partner. (pg. 26)). These are not policies which will in themselves enhance self-esteem (pg. 29).

What are the likely consequences?

Unfortunately, a great deal of ambiguity will be built into the strategy if this "multi-agency, holistic" approach is adopted for adults. To write of prostitution as a "victim-centred crime" epitomizes the contradictions. An individual cannot be simultaneously both victim and criminal, s/he must be one or the other, and if the individual moves from one to the other and back again, confusion will reign. As Jo Phoenix puts it, redefining youth prostitution as "victim-hood" only serves to redefine the problem, while leaving intact the machinery of more traditional criminal justice responses.^[3] Phoenix has also observed that the multi-agency approach creates its own difficulties, since accountability is shared and no individual person or organisation wishes to take full responsibility for a doubtful decision. This may result in more young people being placed in care, as the easiest available solution in difficult cases.^[4] In addition, the anxiety to involve NGOs under the banner of "partnership" has a variety of drawbacks (pgs. 33-34). My own experience of NGOs suggests the need for caution. Voluntary organisations are frequently filled with well-meaning and worthy people, but usually untrained, unaccountable and occasionally very elderly.

Sex workers' rights need to be placed at the forefront of policy, which the contradictory nature of the law and its application denies them. The double construction of either adult or child as "victim or criminal" removes the possibility of personal choice, thus erasing the significance of the experiences which precipitated their entry into prostitution in the first place, i.e. poverty, homelessness, drugs etc. Thus, solutions to these identified "problems" may then be "imposed" upon them from outside by a collection of agencies which may well have very different and conflicting motivations for their actions.

Equally important, is that the main duty of the police will remain law enforcement. Unfortunately, the availability of a "multi-agency response" (which may well be seen as multi-interference), does not transform the police officer into a social worker. It is worth remembering that sex workers the world over complain more about the police than they do about clients.^[5]

The increasing tendency to criminalize the client is also problematic (pg. 28). Increasingly coercive measures may be justified by the comments on supply and demand (pg. 10), but unfortunately it is a fact that men want sex and women are willing to provide it. This is not likely to change. Therefore attention should be given to evidence from other sources. For example, in America, where prostitution has been a criminal offence for decades, they have a 19% higher death rate amongst sex workers than in the United Kingdom.^[6] Whereas Swedish sex workers have testified that the trade has become more dangerous since the legal changes took affect.^[7]

The points which has impressed me most, as a result of reading the Home Office Study 268 ("Vulnerability and Involvement in Drug Use and Sex Work"), is the astronomical cost of initiatives. This must surely be a limiting factor, especially when targeting the more numerous client. When in 2003 I asked at the Vice Conference "why we had such a problem with brothels since they had been illegal since 1885", there was a stunned silence. The answer is obvious, we do not have the resources, either in money or man-power, to devote to the regulation of off-street prostitution. We should therefore learn the lesson of history, which teaches us that clearing the streets pushes prostitution indoors. So if local authorities add to the pressure by closing down off-street venues, it will push prostitution underground, where abuse is more difficult to detect.

As the authors know, in my own work I conclude that the law and its administration are a part of the problem rather than the solution. I see no reason for changing my mind.

Recommendations

1. As an ex-teacher who has spent many years working as a supply-teacher, I would support the introduction of "prostitution" as part of "personal and social" education in schools. I believe that the topic would be approached best on the basis of group discussion using a work sheet with the class coming together at the end to discuss the implications. I have seen this work very well with topics such as abortion and divorce. These lessons provide children with the space to develop their own ideas without too much moralising from the teacher, which could happen if it were taught as part of a religious knowledge syllabus.
2. I was impressed by many of the recommendations in the Home Office Research Study 279 ("Tackling Street Prostitution: Towards an Holistic Approach") which seem to give the police a more marginal role. Many of the problems would be solved if young people did not enter prostitution or take drugs in the first place. If prevention can be achieved without too much intervention in young people lives, much misery would be averted.
3. Both the Research Study 279 and the Home Office Study 268 identify social services and children's homes as weak points in the chain. I think that tackling these problems should take precedence over increasing investment in police man-power and services.
4. The work of outreach workers has also been praised. Therefore, practices such as using the presence of condoms as evidence should be resisted as this nullifies good practice and "harm reduction".
5. I am not able to comment upon operational procedures, but I feel that there is a conflict between the declared "holistic" objectives and the wish to increase the profile of this area of policing through the injection of funding in order to solve serious crime. This places the police in an invidious position.

End notes

1. Petra Ostergen (2004), "Sexworkers Critique of Swedish Prostitution Policy" and Don Kulick (2004), "Sex in the New Europe: the criminalisation of clients and Swedish fear of penetration". Available on the World-Wide Web.
2. Criminal Law Revision Committee (1982), Working Paper on Offences Related to Prostitution and Allied Offences, para. 1.13
3. Jo Phoenix (2002), "In the Name of Protection: Youth Prostitution Policy Reforms in England and Wales", Critical Social Policy, pp. 353-75, (22(2)
4. Jo Phoenix (2002), "Youth Prostitution Policy Reform: New Discourse, Same Old Story", in Women and Punishment, Willan.
5. Laura Agustín (2003), Unpublished PhD thesis, Open University; also McLeod, 1982; Perkins and Bennett, 1985; Butcher and Chapple, 1996.
6. Potterat, J.J.; Brewer, D.D.; Muth, S.Q.; Rothenberg, R.B.; Woodhouse, D.E.; Muth, J.B.; Stites, H.K.; Brody, S., "Mortality in a Long-term Open Cohort of Prostitute Women", American Journal of Epidemiology (2004), Vol. 150, No. 8.
7. Op. cit.