Prostitution – how does the current law and society treat women who are prostitutes? Prostitution is apparently the oldest profession in the world but equally it is one of the most denigrated and disparaged professions in the world. The stereotype of a prostitute is a downtrodden woman, probably with a drug habit, who ran away from home as young girl, could not find another way to make a living and somehow became trapped in a world she can never get away from. This may be because she does not know anything else or because her pimp has terrified her into continuing to sell herself for small amounts of money, most of which she gives to him to keep her ‘safe’. To compound the stereotype, there is the idea that prostitution causes wider criminal behaviour and the spreading of sexually transmitted infections and so if prostitution were to cease to exist there would be less crime and fewer incidences of HIV. Though as a general rule, people, including professional’s[1], consider the health risks to the general pubic and the crimes perpetrated against the general public rather than the crimes perpetrated against sex workers. As it is, prostitution per se is not illegal but associated activities are, consenting adults are actually able to participate in a ‘cash for sex’ transaction if they chose. It is how that transaction is arranged that the legislation makes reference to. Soliciting, procurement and kerb crawling are all illegal and have been for a long time, but convictions for these offences have dropped dramatically in the last fifteen years[2]. There are now further offences of trafficking[3] but in that offence the prostitutes are generally seen as the victims and society tends to be more sympathetic towards the women who become involved in prostitution via organised crime rather than their own desperate circumstances and lack of choices. While it is accepted that the true figures for those involved in prostitution in can never be accurately established because much of the industry is hidden, the Home Office estimates that there are around 80,000 people involved in prostitution[4]. This figure comprises of those who work on the street, in brothels, via escort agencies and also those who profit from prostitution without being involved in the act itself. It is not made clear how this figure is divided into involvement and gender but it is probably fair to assume that the majority of the people involved in the actual act are women. Additionally, one paper quotes that there are 2000 young prostitutes working in the UK and a third of those are under 16[5], in that instance, who should the law treat as the criminal, the prostitute or the ‘customer’? The nature of a sexual act is not different because money has changed hands so presumably, a teenaged prostitute is as much a victim of abuse as any other minor who is engaged in a sexual act by an adult. However, notwithstanding the legislative position, the notion of prostitution is always going to evoke strong feelings from those within and outside the profession. How many prostitutes admit to how they make a living? Further, how many choose not to admit it because of public opinion rather than fear of the neighbours reporting her to the police? A prostitute’s character is almost always going to be called into question either by those who believe sex to be an expression of love, a necessity for procreation or because the idea of handing over cash in an alleyway in return for a sexual favour makes sex sordid and cheap. There is of course an opposite to this view, such as that proposed by Harris, that receiving ‘financial or material’ rewards for sex is not wrong, but a person being forced to do so through ‘economic, social or personal pressures’ is. Harris further suggests that it is typical of the British way of thinking that somebody who does such a personal act for gain rather than love of the act itself is considered of a lesser character than the amateur[6]. Whether such a simplistic argument, whatever the merits of it, would suffice to explain the vehement opinions of the masses against this issue remains to be seen. In 2004 the Government published ‘Paying the Price’[7], a Consultation Paper on prostitution produced on the premise that a new ‘realistic and coherent strategy’ is needed to deal with the prostitution, consequences it has on the individual and the wider community. Why this was produced after the Sexual Offences Act 2003 received the royal assent is unclear, however, it seems slightly perverse to amend legislation relaying to an issue and then ask questions about how to deal with that issue later. Some of the issues highlighted in the Paper were the nuisance caused to communities such as noise litter and harassment, the undermining effect or neighbourhood renewal and economic regeneration, the spread of sexually transmitted infections, links with drug abuse, child prostitution, grooming via the internet, social exclusion of prostitutes, impact on prostitutes families, increased criminal behaviour such as robbery and the effects on gender inequality. Although there is nothing to suggest that these were listed in any kind of order of importance it is interesting that nuisance towards neighbours and the detrimental effect on economic regeneration were first and second on this list, particularly as public sympathy towards prostitutes is notoriously low. Turning now towards the legislation, previously the definition of the so called ‘common prostitute’ was a ‘woman who engages for reward in acts of lewdness with all and sundry’ [8]. Under the Sexual Offences Act 2003 (the 2003 Act) the definition of a prostitute is ‘a person (A) who, on at least one occasion, and whether or not compelled to do so, offers or provides sexual services to a person in return for payment or promise of payment to A or a third person’[9], the word ‘common’ does not appear in this definition thankfully. Until the 2003 Act was enacted, sexual offences were legislated for under Sexual Offences Act 1956 (the 1956 Act) and Sexual Offences Act 1985 (the 1985 Act), an obviously unsatisfactory situation. Social attitudes towards prostitution have changed dramatically since that time and so the legislation was virtually antiquated in terms of public opinion. A brief synopsis of the law relating to prostitution is useful at this point, under the 1985 Act a man commits an offence if he solicits a woman for the purpose of prostitution from a motor vehicle in a public place or in a street or public place while in the immediate vicinity of a vehicle he has just got out of[10]. A man also commits an offence if he persistently solicits a woman in a street or public place for the purposes of prostitution[11] and under the 1956 Act it was an offence for a man to persistently solicit or importune in a public place for immoral purposes[12]. Under s. 1 Street Offences Act 1959 it is an offence for a ‘common prostitute’ to loiter or solicit in a public place for the purposes of prostitution. The 2003 Act has created new offences relating to prostitution and it is purported that the legislation focuses on prosecuting those who exploit prostitutes, such as ‘pimps’ and those who operate brothels. It is apparent that the Government are now turning towards criminalizing ‘agents’ of prostitution, the cynic may suggest that this has more to do with recovering the proceeds of crime via the Assets Recovery Agency rather than protecting prostitutes, but that does not make prostitutes any safer. Prostitutes are aware that the activities associated with prostitution are illegal yet they continue to work, are they to be expected to refrain from working under a ‘pimp’ because that is illegal, more pertinently, are prostitutes going to feel able to report the activities of a pimp when by necessity they will have to report themselves as prostitutes, bringing them to the attention of the authorities? The specifics of the above changes are as follows. Under s. 24 it was an offence to detain a woman on any premises for the purposes of unlawful sexual intercourse or against her will in a brothel. Under s. 28 it was offence to cause or encourage the prostitution of a girl under sixteen and under s.29 to cause the prostitution of a ‘defective’ girl. These sections have all been replaced; offences relating to child prostitution are dealt with sections 47 – 51[13]. Under the 2003 Act a person commits an offence if he causes or incites a person to become a prostitute in any part of the world for the expectation of gain for himself or a third person[14] and if he intentionally controls the activities of another person in relation to that persons prostitution in any part of the world in the expectation of gain for himself or another person[15]. Both of these offences are triable either way and can result in a prison sentence of up to seven years if found guilty upon indictment. There is no dispute that some of the acts that prostitutes are asked to perform are what many people would consider ‘deviant’ and prostitutes are used in these circumstances because the males involved would not dream of asking their long term partners to perform such acts. Furthermore, they may also be acts that the woman would not dream of carrying out if a partner asked her to do so within their relationship and are therefore acting under duress when consenting to such an act for financial rewards. As unpleasant as this may seem you cannot legislate for the sexual desires of people who employ prostitutes, therefore, the legislation is always going to be ineffectual up to a point because it can only ever deal with attempting to manage prostitution. In all honesty, it is difficult to imagine a prostitute ever being fully protected as they will always be, up to a point, at the mercy of the person paying them to fulfil their desires. What would protect prostitutes would be a safer working environment, better access to health care and a well publicised programme that helps people to leave the profession if they wish to. The overhaul of sexual offences legislation was an opportunity for the Government to create ‘tolerance zones’, where prostitutes could work in groups, away from residential areas, in well lit areas that the police could control[16]. Or, more radically, legalise prostitution and allow the profession to be properly regulated. Farley believes that underneath the legalisation of prostitution lies the acceptance that prostitution is inevitable which it is not[17]. However, it is, prostitution is apparently the oldest profession in the world, the UK sex industry alone is worth A£1 billion per year[18] if that does not point towards the fact that people are willing to pay for sexual gratification then nothing will. Therefore, if prostitution is inevitable why not do what ever is necessary to make it safe for women to be prostitutes? In addition to the failures of the 2003 Act to properly protect prostitutes, it has to be said that the protection it attempts to provide with one hand, it takes away with the other. The focus of legislation surrounding prostitution is supposedly on minimising the exploitation of prostitutes, making the agents the focus of criminal attention, yet the Crime and Disorder Act 1998 allows for prostitutes to be penalised for working as prostitutes via the imposition of an Anti-Social Behaviour Order (ASBO) if their behaviour causes ‘harassment, alarm or distress’ to the public. In order to demonstrate the effect that this can have, consider the case of the Manchester prostitute Joette Lydiate who has been banned for soliciting anywhere is England and Wales[19]. Ms Lydiate now faces up to five years imprisonment should she breach this order, but what help has she been offered to allow her to move away from that life? It is a known fact that the reason most prostitutes have worked for such a long time is because they know little else and they have found themselves in a cycle that they cannot break. As Sanders[20] has commented, the main effect that imposing an ASBO on a prostitute has is driving them further underground and therefore in to even more dangerous situations as the women work later at night, alone rather than in pairs, and they are more likely to take any work that comes their way rather than consider the risks and then make a choice. They do this because they have to in order to earn a living. Sanders also makes the point that it is nearly always the female prostitute who is served with the ASBO, not the pimp who is exploiting her or the kerb crawlers who perpetuate the necessity for prostitution as a profession. If this is to continue, the 2003 Act will do little to protect prostitutes and may even have the opposite effect because they will be become even more hidden than they already are and as such much more vulnerable. As human rights have become a much bigger issue in recent years so has the issue of prostitution and human rights. Mackinnon has been quite forthright on the subject of prostitution as an abuse of human rights[21] claiming that it is a tolerated form of slavery despite the fact that slavery was abolished 200 years ago. If this argument were to be accepted in the UK that would render prostitution incompatible with Article 4 of the Human Rights Act 1998 (HRA), the prohibition of slavery and enforced labour. She also suggests that as prostitutes are often raped, forced to carry out various acts that are degrading and humiliating and ‘subject to cruel and brutal treatment without human limits’ they are tortured, if this argument is accepted this makes prostitution incompatible with Article 3 HRA, the prohibition of torture. Additionally, keeping a woman against her will in a brothel would also be incompatible with Article 5, the right to liberty and security. While this argument may be supportable in terms of those who are forced into prostitution either by another person or social or financial circumstances it does not take any account of those women who choose to enter into prostitution as a viable means of supporting themselves and their family and therefore Article 8, the right to respect for private and family life. Mackinnon is not alone in viewing prostitution as a violation of human rights, which is not really surprising. Another group of authors carried out a study in five different countries and concluded that prostitution is an act of violence against women and a human rights violation that can, and in many cases does, result in post-traumatic stress disorder[22]. The study showed that the majority of those in prostitution are poor women who have entered into prostitution on the back of sexual abuse as a child and prostitution as a vocation is seen as a reasonable job for a poor uneducated woman to perform, but not for a more ‘respectable’ middle class woman to become involved. Again while it is easy to see the arguments that enforced prostitution is a violation of human rights, this study still does not consider those who opt into prostitution via their own free will. While these women may make up the minority of the profession, they still exist, as difficult as it may be to comprehend that a woman would chose to sell her body for financial reward, it does happen. In conclusion, while the 2003 Act purports to make the exploitation of prostitution the target of legislation it still does not go far enough to protect prostitutes. The Government has had the opportunity to pilot ‘tolerance zones’ in larger cities where prostitution is prevalent and has declined to do so thus far. Such zones are operated not with the intention of condoning prostitution but providing a safer environment for prostitutes to operate in. Cracking down on the exploitation of prostitutes is all well and good but it is not merely a prostitutes earnings that need to be protected it is the woman as well. If the Government were to trial tolerance zones they would surely see a sharp decline in the number of rapes, assaults and murders of prostitutes, it might also encourage them to come forward when they have been attacked. Or to take it one step further, as we have seen, prostitution per se is not illegal, therefore, why not decriminalise the associated offences as well and focus on regulating exploitation of prostitutes via trafficking and forcing people into prostitution against their wishes? Obviously this would be a very controversial step and the legislation would have to be very clear on exactly what the boundaries are but it would at least provide protection for women who are currently forced to work in dark alleyways and have unprotected sex with strangers. The reality is that prostitution is not going be the first choice for most women, Mackinnon asks ‘If prostitution is a free choice, why is it the women with the fewest choices are the ones most often found doing it?’[23] and this is a pertinent question, however, in order to solve that problem you have to solve much wider issues in society. Poverty, lack of education, abuse within the home, drug dependency and racism all contribute towards women entering prostitution and all of these are issues that have to be addressed, but this will take a lot of time and an global effort, in that case, it is better to improve the conditions of those working in the sex industry now, while also working on giving women more choices so they can leave the industry when they want to, or never feel it necessary to become part of it. Bibliography: Articles: Farley, M., Bad for the Body, Bad for the Heart: Prostitution Harms Women Even If Legalised or Decriminalised, Violence Against Women, (2004), 10, 1087 – 1125 Farley, M. et al, Prostitution in Five Countries: Violence & Post-Traumatic Stress Disorder, Feminism and Psychology, (1998), 8(4), 405 – 426 Farley, M. & Kelly, P., Prostitution: A Critical Review of the Medical & Social Sciences Literature, Women & Criminal Justice, (2000), 11(4), 29 – 64 Brewer, D. et al, Prostitution & the Sex Discrepancy in the in Reported Number of Sexual Partners, Proceedings of the National Academy of the Sciences in the USA, (October 2000), 97(22), 12385 – 12388 MacKinnon, C.A., Prostitution & Civil Rights, Michigan Journal of Gender and Law, (1993), 1, 13- 33 Sanders, T., Anti-Social Behaviour Orders: the Impact of New UK Legislation on Street Based Sex Workers, Books: Harris, J., The Value of Life – An Introduction to Medical Ethics, (Routledge: 1985), pp 281 Government Publications: Home Office, Paying the Price: A Consultation Paper on Prostitution, (July 2004) Cusick, L & Martin, A., Home Office Research Study 268: Vulnerability and Involvement in Drug Use and Sex Work, (Home Office: November 2003) World Wide Web:
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