Rough law of the street

The current legal regulation of outdoor prostitution in Scotland is both unhelpful and contradictory, casting prostitutes as deviants by prioritising concerns of public nuisance. Our current legal approach neglects the harm inflicted on the sellers of sex and stands in sharp contrast to contemporary political conceptualisations of prostitution as “violence against women”.

The majority of women involved in street prostitution in Scotland are propelled into selling sex due to various problems such as: debt or low income; homelessness or lack of secure accommodation; mental illness; drug or alcohol addiction; poor educational achievement; lack of skills useful to employment; physical or sexual abuse; or a history of family breakdown (Expert Group on Prostitution, Scottish Executive, 2004, 27). Indeed the 2004 report findings of the Expert Group, which was established in August 2003 by the then Scottish Executive to investigate street prostitution in Scotland, indicate that prostitution in Scotland is overwhelmingly “survival behaviour” (p 27).

In the last decade, both the Home Office and the Scottish Government have communicated clearly that prostitution is a form of “sexual exploitation” (Home Office, 2006, 2) or an “abuse of women”(Scottish Executive, 2005, 1). The Scottish Government has even communicated its intention to address street prostitution within an extended approach to tackling violence against women (Scottish Executive, 2005, 1).

Our contemporary political response frames prostitution as harm to women rather than by women. Yet this rhetoric of “victimhood” stands in sharp contrast to the laws that we have on prostitution. On one level the women are regarded as victims, yet on another – embodied in their status as recipients of the criminal law – they are deviants.

Prostitution has a confusing legal status in Scotland since the exchange of sexual services for cash does not constitute a crime itself, yet almost every conceivable way of engaging in prostitution is illegal. Ultimately, elements of the surrounding activities to buying and selling sex which transgress into the public sphere attract criminal regulation.

Accordingly, prostitutes are targeted by our law in respect of the nuisance caused to communities. Thus solicitation, importuning and loitering by a prostitute in a public place is a criminal offence (with solicitation also being criminal if it occurs in an area that is visible to the public): Civic Government (Scotland) Act 1982, s 46. It is the very fact that such behaviour is visible in public that creates the offence.

As well as overlooking the intrinsic harms caused to the prostitute, such offences actually serve to heighten the risk of harm to the women involved, since they have less time to assess clients, often getting into cars more readily in an attempt to avoid attracting attention. They also prompt displacement, forcing prostitutes into less visible areas unmonitored by surveillance, the police and other prostitutes, whilst placing them further from the visibility of outreach agencies. Consequently, by viewing prostitution purely as “nuisance caused to communities”, this approach completely overlooks the women involved.

Additionally, prostitutes may be subject to ASBOs (Crime and Disorder Act 1998, s 19) – which serves to reinforce their deviant status within Scotland’s legal framework. Although primarily a civil sanction, breach of an order is a criminal offence punishable by a fine or imprisonment of up to five years: s 22(1)(b). Imposed upon street prostitutes, ASBOs have been and will continue to be breached. Excluding the women from specific areas merely serves to relocate the problem to neighbouring areas, or indoors, making it infinitely more dangerous for the sellers of sex. The risk of obtaining a criminal record also serves to alienate the women from society, operating as a barrier to exiting prostitution and entering employment.

Furthermore, our law restricts the personal relationships that a prostitute may develop by virtue of imposing offences on the profiting from prostitution, which often encompass in their ambit the boyfriends or partners of prostitutes. For example, it is illegal for a male person to live on the earnings of prostitution (Criminal Law (Consolidation) (Scotland) Act 1995, s 11(1); s 7(1) contains offences aimed at those who seek to procure women to “work” as prostitutes. Accordingly, those who are closely involved with prostitutes may be legally suspect.

Although theoretically necessary in respect of targeting those who seek to control prostitution, a man only needs to be proven to “live with or be habitually in the company of” a prostitute to be guilty of living on the earnings of prostitution (1995 Act, s 11(3)). This makes no distinction between genuine pimps and the men who are the sons, boyfriends or husbands of the women involved.

Moreover, despite political conceptualisations of prostitution as “violence against women”, there appears to be a reluctance to call into question the client’s role in the sexual transaction. Soliciting and loitering for the purpose of obtaining the services of a prostitute – often referred to as “kerb-crawling” – is criminal merely if it occurs in a public place (or a place to which at the material time the public are allowed to have access: Prostitution (Public Places) (Scotland) Act 2007, s 1(6)). Thus it is purely the public nature of the client’s behaviour that is targeted by our criminal law in Scotland.

This is particularly questionable when one considers that the rise of the internet, mobile telephony and indoor prostitution has allowed clients to access sex privately and anonymously, without social stigmatisation or fear of law enforcement. By failing to confront the acceptability of buying sex, our fragmented laws communicate a dangerous message that as long as no nuisance or harm transgresses into the public arena, prostitution is ultimately harmless.

Thus our current legal regulation of outdoor prostitution in Scotland prioritises public concerns whilst overlooking the women involved, many of whom may be some of the most vulnerable members of our society. Selling sexual services is often done at a great emotional cost to those involved, regardless of whether or not it transgresses into the public sphere, yet our present law in Scotland fails to reflect this.

References

Scottish Executive, 2004.Being Outside: Constructing a Response to Street Prostitution: A Report of the Expert Group on Prostitution in Scotland: www.scotland.gov.uk/Publications/2004/12/20410/48751

Scottish Executive, 2005. Scottish Executive Response to the Expert Group on Prostitution: www.scotland.gov.uk/Topics/Justice/crimes/Response/streetprostguidecons/expert-group-report/StreetProst

Home Office, 2006. A Coordinated Prostitution Strategy: And a Summary of Responses to Paying the Price: www.surreycc.gov.uk/sccwebsite/sccwspublications.nsf/f2d920e015d1183d80256c670041a50b/ae416f8239f800bc802572f3005561c5/$FILE/SSCB%20Prostitution%20Strategy.pdf