I would firstly wish to raise concerns as to the short deadline for these proposals which have, as yet, not be widely publicised or debated. Details of the 6 month review are not available to ascertain the rationale of the reforms or indeed the research evidence supporting the government’s proposed approach. This is particularly worrying given the grave inadequacies of recently commissioned work see for eg academic concerns regarding the commissioning of and failure to comply with basic ethical standards in reports such as ‘Sex for Sale’, ‘Big Brothel’ ‘Challenging Men’s Demand for Prostitution in Scotland’ and A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden¹. Also the Home Office’s earlier review ‘Paying the Price’ and ‘A Co-ordinated Strategy’ was met with a substantial body of criticism in the academic press. Concerns were expressed specifically about the use of criminal law to tackle a complex issue of social inequality, the introduction of compulsory orders designed to exit women from prostitution and the lack of consultation with sexworkers as stake-holders. These important issues do not appear to have been taken into account in formulating these most recent proposals, which have not been widely debated. I would hope that this call for responses is only the beginning of a more extensive consultation with all key stakeholders which would presumably help to broaden out the current narrow focus of reform, which follows a narrow criminalising and prohibitionist line, into a more inclusive, research informed reform strategy which is germane to the realities of commercial sex in the 21st century.

I would make the following observations:

(a) a new criminal offence of paying for sex with a person controlled for gain;

While acknowledging the motivations behind this new offence I would question its efficacy. The use of the extremely wide term ‘person controlled for gain’ and the failure to state whether knowledge is required for the crime may mean that this proposed new law is inoperable and would in effect offers little by way of protection to those it seeks to help. This stems from the narrow use of the criminal law to tackle a much wider and complex social issue, namely the conditions and legal status of economic migrancy, the realities of poverty and survival and the unequal and unregulated nature of the sex industry. These structural factors require much greater political action than that offered by criminalising a small section of purchasers. This in any event is unlikely to if there is a requirement of criminal intent. Knowledge of a person’s controlled status would be difficult to establish, meaning that few, if any, prosecutions would result. As Archard notes

Criminal liability presupposes fault, and normally this obtains in the presence of clear intention, recklessness or negligence. [If the suggested proposal applies] where someone does not know, and further is not unreasonable in not knowing, that he is deriving benefits from a practice that has evil consequences …[it] would be a case of a strict liability offence, and such offences are thought to be unfair²’

This would this make the law of merely of symbolic rather than practical use and given there are many practical ways in which the government could improve the position of vulnerable sexworkers it may be something of a distraction. It would also potentially criminalise a wide group of purchasers and is likely to stymie an important source of information as to the presence of ‘trafficked’ and coerced sex workers.

(b) a new civil order to enable police to close brothels;

This proposal is extremely vague. On what basis would such civil orders be granted? What evidence is required? As the International Union of Sexworkers notes the

‘[p]resent law fails to make any distinction between clean, well run, tax paying brothels with fair and safe working practices, and those in which workers are coerced, exploited or treated as slaves. This wastes valuable criminal justice resources and creates a major barrier to decent owners and managers providing the facilities’

In the absence of measures to offer greater protection to indoor workers (who at present are poorly protected by virtue of quasi-illegal status of brothels and the ban on 2 women or more working collectively) this will do little to improve the condition of those who work indoors and as is clear from centuries of criminal control, banning venues will not lead to a reduction in demand but will merely displace it. Once again the interests of residents (and even then only those who object to the presence of commercial sex) are prioritised over sexworkers needs, rather than an accommodation being sought between different groups .While I would recognise the need to amend licensing laws to offer greater powers, there is more at stake than simply giving ‘local authorities and communities more powers to prevent the anti-social behaviour and nuisance that can accrue from such activities’.

(c) Amendments to the Sexual Offences Act 1985, to remove the requirements of persistence, annoyance and nuisance from the offence of kerb-crawling.
Removing the necessity for the persistence, annoyance and nuisance from the offence of kerb-crawling is a major change, one which involves a shift from a nuisance based crime to a status based crime and as such it requires careful consideration. If kerb-crawling is no longer a public order offence but the harm is infact the buying of sex by car then why not criminalise all purchasing if that is what the government really wants to do and have an open debate which will bring to the fore the serious limitations of such a policy (see for eg Scoular, J (2004b) ‘Criminalising ‘Punters’: evaluating the Swedish position on prostitution’ Journal of Social Welfare and Family Law 26:195-210) which outlines the flaws of the Swedish position which the government are moving towards. Criminalising buying sex in such the indirect way suggested has serious human rights implications and practical consequences in terms of enforceability. The use of law and order rather than regulation and empowerment to deal with a complex social issue is my primary concern. (see Scoular and O’Neill Legal incursions into supply/demand: criminalising and responsibilising the buyers and sellers of sex in the UK, Scoular, J and O’Neill, M (2008) ‘Legal Incursions into Supply/ Demand: Criminalising & Responsibilising the Buyers and Sellers of Sex’ in Munro, V & Della Giusta, M (eds) Demanding Sex: Critical Reflections on the Regulation of Prostitution (Ashgate, Aldershot); Scoular, J and O’Neill, M ‘Regulating Prostitution: Social Inclusion, Responsibilisation and the Politics of Prostitution Reform’ 2007 British Journal of Criminology 47(5) 764-778). Not only does the use of criminal law fail to address with the conditions which structure the contemporary sex industry but it maintain, a significant section of the economy, behind closed doors, exacerbating its marginality and dangerousness.

Jane Scoular
7 October 2008

¹ These academic commentaries critiques are available, see for example http://www.guardian.co.uk/education/2008/oct/03/research.women/print).

² ‘Criminalising the Use of Trafficked Prostitutes: Some Philosophical Issues’ Munro, V & Della Giusta, M (eds) Demanding Sex: Critical Reflections on the Regulation of Prostitution (Ashgate, Aldershot), p157. 

It’s not as if Scotland isn’t heaving with consensual sexual activity. There are 190 couples on one swing site in Inverness alone, and more than a dozen fetish and BDSM clubs around the country. One Glasgwegian lass enjoyed sex with 52 men in a greedy-girl session at the Night of the Senses.

Exotic Edinburgh, Amorous Aberdeen, Daring Dundee, Invigorated Inverness and all Highland Flings are hopelessly apathetic in the knowledge that our lustful yearnings, already thwarted by the Wee Frees. will be beheaded in Glasgow, the city otherwise renowned for being the most violent in Europe, with the worst teenage pregnancy and STI /HIV rates too.

Scotland is deserted by its famous sexpots: Irvine Walsh fled to Dublin and Miami Beach, Billy Connolly to LA and Sean Connery to Switzerland, leaving ordinary sexpots to fend for ourselves to Keep Scotland Sexy.

We need to challenge Scottish plans to close down brothels. criminalise the buying of sex and the possession of extreme pornography.

Glasgow’s evangelical group CARE asked the Scottish Parliament’s justice committee to add a clause to the Sexual Offences (Scotland) Bill, to outlaw the purchase of sex. Glasgow City Council is also pressing for a ban on the purchase of sex. Ann Hamilton, of Glasgow City Council’s Community and Safety Services and lead officer on prostitution, said the new law on kerb-crawling was helping to combat street prostitution, but some women were continuing their trade elsewhere. The 2009 Stage 1 Report on the Sexual Offences (Scotland) Bill did not include legislation against the buying of sex.

However, the law already passed by the Scottish Parliament in October 2008 makes men who buy sex – or try to – liable to face prosecution. Under the Prostitution (Public Places) Scotland Act, anyone caught soliciting a prostitute for sex, as well as those “loitering for the same purpose”, can be fined up to £1000. See http://edinburghnews.scotsman.com/topstories/Call-for-outright-ban-on.4653578.jp

The Edinburgh Evening News reported on 03 November 2008:

“The campaign to amend the Sexual Offences Scotland Bill to include a clause making it illegal to pay for sex is well intended, but on closer examination misguided.

Since the trade was driven into the shadows, attacks reported to Scotpep have almost doubled from 66 in June 2006 to 126 last year. There have been 55 assaults and 17 rapes and sexual assaults.”

see http://news.scotsman.com/edinburghssexindustry/Sex-in-saunas-39Street-girls.4653583.jp

Any ban on the purchase of sex would contravene the European Declaration of Human Rights.

It is already illegal to traffic human beings and to sexually exploit, rape or assault children, so any new Scottish legislation is unnecessary. If any proposed legislation becomes law, it will be used as an excuse to close down saunas and parlours that provide a public service.

What consenting adults do, look at, and perform, is not the business of the state. Therefore any pornography that is made with consenting adults is not to be banned and its possession not to be criminalised.

CJLB, the Criminal Justice and Licensing (Scotland) Bill

see the latest, dated 05 Mar 2009 on www.scotland.gov.uk/Topics/Justice/crimes/pornography/ExtremePornograhicMateria

POSSESSION OF EXTREME PORNOGRAPHIC MATERIAL

The Criminal Justice and Licensing (Scotland) Bill was introduced into the Scottish Parliament in March 2009 and contains provisions to:

• introduce a new offence which will criminalise the possession of obscene, pornographic images which explicitly and realistically depict those which are of an extreme violent and sexual nature
• increase the maximum penalty from 3 to 5 years, for the existing offence under section 51 of the Civic Government (Scotland) Act 1982, for the publishing, selling or distributing or possessing with a view to selling or distributing obscene material

Summary of the new offence

The new offence criminalises the possession of obscene, pornographic images which explicitly and realistically depict:

• an act which takes or threatens a person’s life
• an act which results or is likely to result in a person’s severe injury
• rape or other non-consensual penetrative sexual activity
• Sexual activity involving (directly or indirectly) a human corpse
• An act which involves sexual activity between a person and an animal (or the carcase of an animal)

The maximum penalty for the new offence will be three years imprisonment.

The new offence is similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which applies in England, Wales and Northern Ireland. The Scottish offence goes further than that offence, however, in that it covers all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.

The offence will not catch those who accidentally come into contact with this type of material and the provisions will contain a defence to this effect. There will also be a defence for those who can prove that they participated in the act depicted, that the extreme nature of the act was apparent and not real and there is no intention to distribute the material.

Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing the obscene material, including the obscene pornographic material which is covered by this new offence. The Bill therefore contains provisions to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from 3 to 5 years.

The Scottish Government proposes to increase the maximum penalty under section 51 of the 1982 Act in respect of the publishing etc. of extreme pornographic material from 3 to 5 years.

……………………………………………………………………………………….
What you need to know and do

If this Bill becomes law, it will produce a situation whereby acts of the most extreme animal cruelty are likely to get you six months imprisonment, having sex with an animal can get you up to 2 years imprisonment and possessing a picture of someone having sex with an animal can get you three years imprisonment, selling it 5 years.

Possession of Extreme Pornography has been banned in England and Wales under the Criminal Justice and Immigration Act since 26th January 2009, and nothing has changed except people who like looking at extreme images are losing sleep at night instead of sleeping soundly, and Ben Westwood’s photographic book, F**k Fashion: The Erotic Photography of Ben Westwood has been removed from the shelves.

Mark Cowling of University of Teesside makes this comment, “It seems to me that aspects of this legislation are ridiculous (over and above libertarian objections to the whole principle)”.

Scottish MSPs Patrick Harvie and Robin Harper from the Scottish Green Party and Margo Macdonald, Independent, are known to be challenging this new legislation. Write to ask how you can help here:

Robin Harper

Webpage : http://www.robinharpermsp.org

Patrick Harvie

Website: http://www.patrickharviemsp.com

Margo Macdonald

Website: http://www.margomacdonald.org

CAAN (Consenting Adult Action Network Scotland) is protesting and planning a meeting with Sexual Offences team about the CJLB. You can reach them on
. Please contact them before sending any attachments.

To object to Ann Hamilton’s crusade to ban the purchase of sex, contact her here:

Ann Hamilton
Glasgow Community & Safety Services
Westergate
11 Hope Street
Glasgow G2 6AB

Phone 0141 276 7400
Fax 0141 276 7699
Email

To object to the Criminal Justice and Licensing Bill

email (the preferred method of getting in touch) -

By post to: Jim Wilson, Scottish Government, Criminal Law and Licensing Division, Room GW.15, St Andrew’s House, Regent Road, Edinburgh EH1 3DG
By phone – 0131 244 7050

To express your views on the Sexual Offences Scotland Bill, contact Andrew Proudfoot, Assistant Clerk to the Committee, on 0131 348 5047 or email

Send your opinions to your MSP

Find your local MSP on
http://www.theyworkforyou.com

on the Scottish Parliament webpage http://www.scottish.parliament.uk/apps2/MSP/MSPHome/Default.aspx

or

http://www.writetothem.com

Tell your MSP that you cannot see any reason why any pictures of consenting adults, even if deemed “extreme pornography”, however threatening-looking, or convincing the acting, should be outlawed (and tell them why), and that this section should be removed from the CJLB.

You don’t need to use posh language, just say it as it is. For example, websites showing porn stars getting hung are obviously just acted, as you see the same starlets being hung over and over again. Show those MSPs how stupid they are being if they fall for the fundamentalist, puritanical prohibitionist arguments rather than your common sense.

AND HURRY!