Evidence assessment of the impacts of the criminalisation of the purchase of sex: a review

Policy Commitments By The Scottish Government

Scottish Government policies which govern the broader context of prostitution include the following:

i. Safer Lives: Changed Lives: A Strategy Approach to Tackling Violence against Women in Scotland (2009)

This report includes 'commercial sexual exploitation, including prostitution, pornography and trafficking' as forms of violence against women and symptoms of gender inequality.

ii. Reporting on Progress Towards Equality of Opportunity for Women and Men Made by Public Authorities in Scotland: Ministerial Priorities for Gender Equality: Tackling Violence Against Women: A Review of Key Evidence and National Policies; Scottish Government (2010)

This report reiterates the Scottish Government's view of prostitution as a form of violence against women (2010: para 2.6). The report sits in part of the Scottish Government commitment to 'mainstream' gender equality, in relation to their Equality Duty. ^[14] It is part of the National Framework for Equality Work and the Equality Strategy. ^[15] The Scottish Government consider the importance of education as underpinning a change of societal attitudes in relation to violence against women more broadly. There is also a stated commitment to challenge attitudes, which inform the demand for prostitution.

iii. Equally Safe: Scotland's Strategy for Preventing and Eradicating Violence Against Women and Girls (2014)

Our aim is to prevent and eradicate violence against women and girls, creating a strong and flourishing Scotland where all individuals are equally safe and respected, and where women and girls live free from such abuse - and the attitudes that help perpetuate it (Scottish Government, 2014: 2).

There is a focus in this report on prevention of violence against women and girls. Whilst acknowledged as not being a new approach it is described as a 'step change' (Scottish Government, 2014: para 2.2). There is a new emphasis in this report on expressly including girls, which links the action commitments in the policy to recent concern over child sexual exploitation (Barnardo's 2014). This policy builds on the foundation of the 2010 report, by emphasising a link between policies on violence against women, gender inequality and education. The report notes that the Scottish Government has committed £10.3 million to frontline services for victims and that prostitution and sexual crime investigation are included in this.

Equally Safe is a bold, all-encompassing policy by the Scottish Government to address all forms of violence against women and girls. It makes clear that the Scottish Government considers violence against women and girls to be a symptom of gender inequality and indicates that commercial sexual exploitation; child sexual exploitation; prostitution and trafficking for sex all form part of gendered violence against women. However, this policy statement sits within a wider criminal justice context which demonstrates a number of tensions and dichotomies:

i. The prosecution figures suggest that there are still more women prosecuted for prostitution related offences than men;
ii. The Scottish Government consultation on legal reform, as part of Equally Safe, did not invite views on prostitution or the criminalisation of sex: the consultation focused on juries; domestic abuse and revenge pornography;
iii. The 2015 Act in relation to human trafficking means that women who are recognised as victims of trafficking are treated as victims, with a presumption that they will not be prosecuted. Under the 2015 Act, the Lord Advocate published instructions which outline that adults who are victims of human trafficking or exploitation and are compelled to commit offences as a result of this will be subject to a presumption that they will not be prosecuted for those offences which they were compelled to commit. ^[16]

Criminalisation in Scotland

Advocates for and against the introduction of legislation to criminalise the purchase of sex do appear to agree on the problems associated with prosecution of those selling sexual services. In 2004, the Expert Group on Prostitution in Scotland (the Expert Group) concluded that the current legislation (at that time) was unfair on the grounds that it was an example of inequality. In reviewing the options, the Expert group considered that the soliciting and loitering offences should be repealed and exchanged with: "offensive behaviour or conduct arising from a prostitution related sexual transaction - whether caused by purchaser or seller." The Scottish Government did not follow their recommendation, and instead, prioritised the 'nuisance' element for local communities. The Expert Group sought to address general concerns that penalties such as fines and custodial sentences have no rehabilitative function. Indeed, they can often impact on work undertaken by other agencies (see the Review of Prostitution in Scotland for a more detailed discussion).

Whilst the number of prosecutions of persons involved in prostitution appears to have markedly decreased, the number of prosecutions is still higher than it is for those involved in the purchase of sex. In 2012-13, 127 charges were made under the Civic Government (Scotland) Act 1982 for loitering for the purposes of prostitution and 27 for soliciting; while 65 charges were prosecuted under the Prostitution (Public Places) (Scotland) Act for soliciting for the purposes of obtaining the services of a prostitute and 48 for loitering for the same purpose. ^[17]

There are obvious tensions which characterise prostitution policy in relation to those involved in street prostitution, predominantly women, where their vulnerability is often highlighted yet who remain subject to ongoing criminalisation - despite the fact that all the evidence highlights that a criminal record is a formidable barrier to finding employment and a way out of prostitution. Hester and Westmarland (2004) note the importance of community liaison and support for individuals involved in prostitution where police enforcement is being implemented. Carline and Scoular's (2015) analysis of the Engagement and Support Orders introduced in England and Wales highlight the underpinning problems of the 'enforcement plus support' model. Sanders (2007) also challenges the notion of 'compulsory rehabilitation' and current developments to manage street prostitution via emphasis on exiting, implemented through anti-social behaviour legislation mechanisms; a practice she refers to as 'public patriarchy' (2009).

Many respondents to various consultations on either the criminalisation of the purchase of sex and/or proposals for decriminalisation have clearly noted that they did not believe that individuals involved in prostitution should be criminalised. Sanders (2007) notes that leaving prostitution is hampered by involvement with the criminal justice system with non-payment of fines potentially increasing rates of imprisonment for women. Smith (2014) notes the gender bias in enforcement of legislation in Canada, citing figures for a five year period (2007-2012) she notes that men charged with prostitution offences were convicted 19% of the time, while women were convicted 60% of the time (p5).

The All-Party Parliamentary Group (2014) recommended removing soliciting offences that target women involved in prostitution from statute in England and Wales, dealing with persistent anti-social behaviour ( ASB) under ASB legislation and diverting women from the criminal justice system wherever possible while increasing penalties for those controlling individuals in prostitution and at the same time, reviewing the law to prevent the prosecution of individuals independently selling sex on the same premises for the purpose of their safety. Their Report noted the contradictions in current legislation which 'Normalises the acceptability of purchasing sexual services while stigmatising and penalising those providing sexual services' (p8). The move towards decriminalisation of sellers of sex is recommended in the European Parliament Resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality (2013/2103( INI)) (see European Commission, 2016).

Consideration of evidence relating to demand (Scotland)

While the number of individuals involved in prostitution is relatively unknown, the demand for prostitution is potentially unknowable. Recent figures on the purchase of sex were obtained by Fuller et al. (2015). Their study Natsal-3, estimated that 4% of men in Scotland have paid for sex. The figure for women was 0%. Although the sample used was fairly small (508 men and 643 women) the study used a random probability sample and is deemed generally representative.

Evidence from a review of relevant research for the Home Office Review on tackling the demand for prostitution suggests that the arrest of the purchaser may be the single biggest deterrent to buying sex (see Wilcox et al, 2009 ^[18] ). In Scotland, a study carried out by the Women's Support Project (2008) indicated that based on interviews with 110 men (80% of whom had bought sex indoors, while 56% had bought sex outdoors), the five key deterrents to purchase of sex were: being added to the sex offender register (89%); spending time in jail (79%); increased criminal penalties (72%); having their car impounded (70%) and higher fines (69%) (see also Farley et al., 2011). Although this was an exploratory study, it was strongly criticised by a number of academics, 18 of whom produced A Commentary on 'Challenging Men's Demand for Prostitution in Scotland' collectively arguing that the study did not meet standards of academic rigour, nor was it grounded in empirical research ethics (see Sanders et al, 2008).

The Women's Support Project study (Women's Support Project, 2008: Farley et al., 2011) did, however, reflect findings from other studies, for example. Farley et al. (2009) who interviewed 103 men in London who had bought sex, finding along with McKeganey and Barnard (1996); Coy, Horvath and Kelly (2007 and 2012) that biological imperative or basic rights as consumers appeared to be at the root of the reasons given for purchasing sex. Jabbah (2014) in a study which involved interviews with 55 men in Lebanon who indicated they had bought sexual acts at least once also suggested that a prison sentence or exposure to wife/partner/family would deter 69% of respondents from purchasing sex ^[19] . Suggestions that occasional buyers are more likely to respond to legal measures have been noted (Yen, 2008).

Matthews and Easton (2010) note that in recent years there has been a greater focus on male clients as culpable, while women are increasingly viewed as vulnerable and in need of support rather than punishment (e.g. high numbers of problematic drug users, estimates that between 25-50% of women in street prostitution are homeless). Alongside this, research on male clients suggests that demand for prostitution is often opportunistic and that most male clients would be deterred by relatively low level sanctions.