By Eugene Huang
Being a sex worker in the 70s and 80s was not easy. Although prostitution itself did not violate the law, numerous activities associated with it were prohibited. This essay focuses on prostitution law around the 1980s and its influence on women by reviewing the campaign of the Programme for Reform of the Law on Soliciting (P.R.O.S.) which was based in Birmingham.
Criminal penalties were terribly harsh on sex workers, often sentencing them to prison for soliciting or loitering on the streets.[1] Susan[2] from Birmingham was sentenced to three months’ imprisonment for soliciting. However, even the maximum punishment failed to deter Susan and she was forced to offend again in order to repay debts. Another P.R.O.S. interviewee, Candy, stated, ‘[imprisonment] didn’t stop me. The only thing that stops me going on the street is myself. You’re behind in your rent and everything else so you go straight out to get it again.’[3] Moreover, being fined instead of imprisoned was not a desirable alternative. Fines—up to £200— far exceeded the average rates which prostitutes charged their clients—approximately £5-£10.[4] Imposing fines only increased a sex worker’s financial burden and forced them to go back to the streets and work again to cover the fine. The penalty not only failed to deter soliciting but effectively encouraged the practice.
National and International Debates
The law of England and Wales has a long tradition of criminalising activities related to sex work.[5] During the 1970s, P.R.O.S. and other members of the public emerged to advocate the relaxation of criminal prohibition of sex work. In addition to opposing imprisonment for soliciting, P.R.O.S contested the use of the term ‘common prostitutes’ in legal proceedings to label certain sex workers who had been cautioned by the police twice. Revealing a woman’s status as a ‘common prostitute’ at the start of a trial unjustly prejudiced the accused and contravened the general legal principle prohibiting revealing the defendant’s previous record before he/she is found guilty.[6] Moreover, P.R.O.S. argued that sex work should be decriminalised or regulated by ordinary employment and businesses laws since criminal punishment only worsened a sex worker’s working conditions and quality of life.[7]
While most countries condemned and wished to end prostitution, there was no international consensus on the proper method to take. The struggle of choosing between different means was reflected in the law of different countries. In Women Working, McLeod classifies different legal systems’ method of addressing prostitution into three categories: suppression, regulation and abolition.[8] An example of suppression is demonstrated by United States law where, in most states, all sex work and all activities that promote it are strictly prohibited. On the other hand, Germany adopted regulatory measures governing the profession in order to maintain public health and decency. Finally, English law is a typical example of abolition; sex work is not a crime, but activities related to prostitution are illegal.
Before and After P.R.O.S.
While there were numerous offences related to prostitution—keeping or managing a brothel[9] and living wholly or in part on the earnings of prostitution[10]—P.R.O.S. focused on promoting the abolishment of imprisonment for soliciting or loitering. The offence rendered soliciting—which is preliminary to a lawful activity i.e. prostitution—unlawful. The use of imprisonment to severely penalise soliciting was illogical and unjust and P.R.O.S argued that it ought to be abolished.[11] Members of the group interviewed street sex workers to examine the drawbacks of imprisonment from the viewpoint of those subjected to the law. They also engaged in public activities like publishing annual bulletins and organising conventions, giving voice to sex workers. They attended Parliamentary hearings to advocate legislative reform and promote the decriminalisation of soliciting or, at least, the relaxation of penalties. The campaigns gained wide support from different members of the society all over the country including prostitutes, social workers, lawyers, magistrates and MPs. After 6 years of campaigning and Parliamentary lobbying, the Criminal Justice Act 1982 was finally enacted to amend the Street Offences Act 1959 and abolish imprisonment for soliciting.[12] However, the imposition of heavy fines remained unaltered.
However, the Criminal Law Revision Committee was reluctant to adopt P.R.O.S’s proposal to prohibit the use of the term ‘common prostitute’ despite the label’s violation of civil liberties. The term ‘common’ created an ‘aura of heinousness’ shame and moral condemnation upon sex workers.[13] Once a defendant was identified as a ‘common prostitute’, they could be charged with loitering by his/her mere presence in the streets despite the lack of annoyance or nuisance complaints.[14] The offence was based on the person’s identity rather than their actions. It was not until 2009, in s. 16 of the Policing and Crime Act that the use of the term ‘common prostitute’ was finally removed, however, soliciting still remains illegal in England and Wales.
Tackling Prostitution – Forgetting about Women Themselves?
The indirect prohibition of sex work reflects the condemnation and stigmatisation of the practice and is based on false assumptions about prostitution and the reasons why women engage in sex work. Some individuals view sex work as immoral, undesirable and necessitating prohibition. In its report, the Wolfenden Committee stated that ‘prostitution is an evil of which any society which claims to be civilised should get rid of itself’.[15] Feminists like Giobbe also argued that sex work is inherently exploitive. With limited education opportunities and employment alternatives which can provide sufficient financial support, poverty forces women into prostitution. Pimps further exploit this economic weakness by establishing a financial and psychological dependence through physical abuse.[16]
Other feminists do not share the same opinion. The assumption under the criminal law that prostitution is inherently exploitative negates the fact that ‘prostitution takes place under different circumstances for different women’.[17] Some sex workers may work individually and not necessarily under the control of others. Moreover, to assume that all women succumb to sex work due to financial pressures and exploitation is to deny them any sexual autonomy or ability to make choices freely. ‘[T]o speak only of sexual violence and oppression ignores women’s experience with sexual agency and choice and unwittingly increases the sexual terror and despair in which women live.’[18] It can be argued that sex work is a form of expression of female autonomy where women can freely choose to sell her own sexuality for financial gain.[19] While some may consider prostitution immoral, other may take no issue with it and even regard it as a preferable way of earning money.
Even if it were assumed that everyone agrees sex work is undesirable and women should be encouraged to leave the industry, criminalisation represents the superficial moral condemnation of prostitution. It neglects the underlying reasons behind why individuals become prostitutes and fails to tackle the root problems of the phenomenon.[20] When women are motivated to prostitute due to poverty and a lack of alternatives, criminal sanctions are ineffective as a deterrence. They must continue sex work in order to support themselves and their families. Val from Leamington Spa stated,
‘Prison hasn’t deterred me. I’m still at it and have been for years. The money is the reason. I want my kids to look the same as anyone else’s. I want to provide them with the material things in life and give them a chance to better themselves. Where else could I earn this sort of money?’[21]
Additionally, imprisonment is harmful to families; caring mothers may be forced to be separated from their children due to their occupation. Carol, a sex worker from Birmingham, was sentenced to 3 months in prison for soliciting. Consequently, her son was placed with foster parents.
‘It wasn’t until I was inside that what had happened really hit me. It was terrible. I thought about Robert all the time and just wanted to talk to him. I missed him terribly…It was very strange when he first saw me. He talked a lot about the foster home and I let him – though it hurt a bit.’[22]
The criminal law claimed to improve women’s welfare by prohibiting them from sex work; however, this is an example of paternalistic law-makers assuming the universal censure of certain institutions (e.g. prostitution is bad/exploitative), and imposing their moral standards upon others through the criminal law. Moreover, it was assumed that prohibiting prostitution would deter the act, but the law effectively worsened their financial situation causing them to prostitute to accommodate the financial loss and deeply impacted their family life.
P.R.O.S. exposed and rebutted these incorrect assertions and highlighted the problem with paternalism, i.e. frequently there is no consensus on what is the preferable method of dealing with prostitution or whether it will be effective in its results. ‘To falsely universalize some women’s experiences and make unwarranted claims to objectivity’[23], is a suppression of others’ experiences.[24]
[1] Street Offences Act 1959 s.1. Before being amended by Criminal Justice Act 1982 s.71, the maximum punishment for soliciting or loitering in England and Wales was three months’ imprisonment
[2] Expenditure Committee (Education, Arts and Home Office Sub-Committee), Minutes of Evidence (Monday April 1979), p.285
[3] McLeod, Women Working: Prostitution Now (Croom Helm, 1982), p.96
[4] n.2, p.281
[5] Vagrancy Act 1824
[6] n.2, p.282
[7] McLeod, ‘A Fresh Approach? A Critique of the Criminal Law Revision Committee’s Working Paper on Offences Relating to Prostitution and Allied Offences’, (1983) 10 J.L. & Soc’y 271, at p.275
[8] n.3, p.21
[9] Sexual Offences Act 1956 s.33
[10] ibid, s.30 and s.31
[11] n.3, p.97
[12] see section 71
[13] n.7, p.276
[14] n.7, p.276 and n.2, p.281
[15] Home Office, Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247)
[16] Giobbe, ‘Confronting the Liberal Lies on Prostitution’ in The Sexual Liberals and the Attack on Feminism, edited by Leidholdt and Raymond, (1990) The Athene Series, p.67-81
[17] Ross, ‘Looking Past the Red Light: A Critical Analysis of the Legal Treatment of Prostitution’, Birmingham Student Law Review (2017)
[18] Vance, Pleasure and Danger: Exploring Female Sexuality (1984), Routledge & Kegan Paul, p.1
[19] Kong, ‘What It Feels Like for a Whore: The Body Politics of Women Performing Erotic Labour in Hong Kong’, Gender, Work and Organisation, Vol.13, No.5 (Sep 2006), p.409-434, p.412; Ueno, ‘Self-determination on Sexuality? Commercialisation of Sex Among Teenage Girls in Japan’, Inter-Asia Cultural Studies, 4:2, p.317-324, p.321
[20] n.2, p.281
[21] n.2
[22] ibid
[23] Fechner, ‘Three Stories of Prostitution in the West: Prostitutes’ Groups, Law and Feminist Truth’, 4 Colum. J. Gender & L. 26 (1994), p.57
[24] Flax, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the Contemporary West, University of California Press (1990), p.27-28