Reforming the Law on Sex Offences - Coursework Example

Prostitution and Criminal Law Introduction According to the Home Office’s report Setting the Boundaries: Reforming the Law on Sex Offences (2000: pIV), criminal law should not unnecessarily intrude into the private life of adults. Still, if sex is not consensual or if there are vulnerable groups who cannot give consent and require protection, criminal law should play a role and the right to be sexually autonomous in this case is not absolute. Prostitution laws are not straightforward and, although prostitution as an act is not a criminal offence, other activities around prostitution are identified criminal (Roleff, 2012: p29). For instance, it is an offence to incite, cause, or control prostitution for one’s own gain, to run a brothel, to solicit sex on the street, to kerb-crawl, place adverts in phone boxes, and to traffic humans for sex. Moreover, there are laws on public nuisance that target prostitution (Di et al, 2013: p32). Therefore, whereas most sexual activity in England and Wales is considered a private issue and is not covered by criminal law, there are some instances under which criminal law has a vital role to play, especially in relation to activities that concern prostitution. The Problems of Prostitution While not an illegal activity, prostitution is still viewed as a problematic issue by various sectors of society. Possibly the oldest argument against prostitution has been that it is immoral and acts as an affront to the human sense of decency. St. Augustine argues that there is nothing more dishonourable, ignoble, or charged with turpitude than prostitutes and those who procure prostitutes (Levin & Peled, 2011: p587). He also argues that giving prostitutes a similar place to honest women would lead to everything becoming degraded in ignominy and defilement. Therefore, St. Augustine considers prostitutes to be human beings with impure morals and occupying the vilest place in society. St. Thomas Aquinas, while agreeing about the immorality of prostitution, argues that prostitutes are like sewers in the palace and that taking them away would fill the world with sodomy (Levin & Peled, 2011: p589). Obviously, this means that prostitutes should be tolerated in society but should still be considered as immoral. Moreover, prostitution also causes a public nuisance and there are laws put in place to curtail this issue. Some of the most common instances of public nuisance relating to prostitution include the fact that prostitutes may destroy a neighbourhood’s safety and image. Also, prostitution may cause a nuisance where children have to walk past prostitutes and may suffer from psychological trauma (Parrillo, 2014: p41). In addition, prostitution activities may cause fights and noise at night, while also making non-prostitutes increasingly vulnerable to harassment because of the prostitutes’ presence. Another problem of prostitution is that it increases the incidence of STDs, especially with regards to HIV/AIDS and cervical cancer, which can be spread to the rest of the population especially if the solicitors are married. Other STDs spread by prostitution include gonorrhoea, syphilis, and herpes, particularly if the prostitutes agree to acts that carry higher risks in order to minimise their time on the street so as to escape arrest (Parrillo, 2014: p42). Prostitution has also been implicated as having an adverse effect on children and young persons, especially where circumstances and elders force them into prostitution for economic gain. Child sex tourism has become especially prevalent in developing countries, while children are also trafficked across borders, contributing to child prostitution (Spector, 2012: p44). Some of the factors that contribute to child prostitution are unemployment of their parents, poverty, misery, dysfunctional family environments, human trafficking, poor education, deception, rape and incest, the internet, and early exposure to sex for children. Because children are normally reliant on their elders for guidance, this makes them highly vulnerable to these factors. Another problem arising from prostitution is that prostitutes may be the victims of violence with studies indicating that prostitutes are more likely to suffer from sexual, mental, and physical violence. For instance, the Home Office (2010: p1) finds that 71% of women in prostitution experience physical violence, while 63% experience rape and 68% suffer from PTSD. Perpetrators of these acts include pimps and violent clients, especially where sex-work laws force prostitutes to meet clients in abandoned places. Moreover, in jurisdictions where prostitution is criminalized, police are less likely to investigate crimes on prostitutes (Frances, 2011: p35). Serial killers have also been known to target prostitutes because they are easy pickings and are less likely to be missed by their families or the authorities, while some killers may even use social and religious stigma associated with prostitution to justify their murders. Finally, Prostitution also promotes criminal behaviour, especially with regard to human trafficking of girls and women into sex slavery. Already, human trafficking is the third most lucrative criminal activity after arms and drug smuggling, generating close to $10 billion annually (Frances, 2011: p37). The majority of trafficked girls and women end up in prostitution in order to repay their debt to the traffickers. Given these problems related to prostitution, the question that arises is whether prostitution can be eradicated. Sion (1977: p34) argues that this is not possible because humans have imperative sexual feelings and urges that cannot be satisfied gratuitously and also have the financial ability to pay for sexual release. In addition, it is doubtful whether laws can control consenting adults rightfully, especially in private, as well as whether a penal difference can be made rightfully between the client and the prostitute. In addition, Sion (1977: p41) argues that suppressing prostitution is a major contributor to corruption of public officials tasked with enforcing anti-prostitution laws since the only way to obtain evidence against prostitutes involves the commission of unsavoury acts that may not be acceptable to society. The Wolfenden Committee, on its part, finds that it is not possible to eradicate prostitution through criminal law and, instead, the focus should be on the aspect of public nuisance (Wolfenden, 1957: p121). This committee identified two major defects in prostitution laws, including the necessity to prove that the accosted individual was annoyed and the insufficient nature of soliciting penalties (Wolfenden, 1957: p152). They proposed that prostitutes who were repeat soliciting offenders should be given increasingly severe penalties to induce them to accept probationary guidance, rather than be imprisoned. Therefore, the committee held that the intention of the law should be confined to activities that offend public decency and order or expose society to injurious and offensive acts. Bennion (2010: p1), on the other hand, argues that it is outrageous to ban prostitution because these services have been needed by men for a very long time and any abuses that arise from prostitution should be treated as separate issues. In this case, therefore, prostitution is one form of human behaviour that can only be controlled but not changed and cannot be eliminated through criminal law. The Prostitution Offences From the findings above, it is clear that while prostitution is considered as a problematic issue in society, curtailing it through criminal law would ultimately prove ineffective. For instance, majority of prostitutes are in the business because of widely divergent and personal reasons, which means that their privacy should be respected (CPS, 2011: p59). However, there are cases where criminal law should take precedence over the private life of adults. The Sexual Offences Act of 2003 in section 51(2) defines a prostitute as an individual who provides or offers sexual services on at least one occasion, whether compelled to do so or not, in return for financial payment or promise of the same (Criminal Justice and Police Act 2001). Payment as defined under this Act refers to any financial advantage, such as provision of services and goods at a discount or gratuitously, as well as for the discharge of a payment obligation. Soliciting in the Street Section 1(1) of the Streets Offences Act 1959 held that it was an offence for any common prostitute to solicit in a street for prostitution (Street Offences Act, 1959). DPP v Bull (1994) held that ‘common prostitute’ only referred to females and that the Act only acted to control female prostitution behaviour. In R v. Morris-Lowe (1985), a common prostitute was further defined as a woman who was prepared to engage in lewd acts with anyone who hired her for such a purpose in return for a reward. Moreover, in Behrendt v Burridge (1976), a woman who displayed herself facing a street frequented by men soliciting prostitutes in a way that betrayed her intentions without doubt was guilty of soliciting. Weisz v Monahan (1962), on the other hand, held that a prostitute who offers services through a street notice board or by advertisement was not guilty of solicitation. However, Section 16 of the Police and Crime Act 2009 amended the soliciting offence with regards to prostitution by striking out the ‘common prostitute’ term and requiring that a prostitute must persistently solicit in order to be guilty of an offence (Home Office, 2010: p1). Persistent conduct refers to conduct that occurs on more than one occasion within a period of three months. Subsection 3(b) made amendments to the old law, which meant that soliciting is committed only by a prostitute and not by clients. Section 17 of the Police and Crime Act 2009 amended s.1 (2) of the old law by introducing orders that require guilty offenders to attend rehabilitative meetings rather than face fines if convicted under s.1 (1). Fines for soliciting under this Act should not exceed level two on the standard scale, while a second conviction should attract a fine that does not exceed level three (Policing and Crime Act 2009). The Home Office (2004: p23) notes that almost 75% of all those involved in prostitution in the UK became prostitutes before they turned 18. In considering a child accused of soliciting, the child should be treated as an abuse victim with the focus being on those coercing and exploiting the children. CPS (2008: p1) proposes that any prosecution for children should only be pursued if there is voluntary and persistent return to solicitation. Persons using child prostitutes are to be prosecuted under s.47-51 of 2003’s Sexual Offences Act. These sections deal with paying children for sexual acts, inciting or causing child prostitution, controlling child prostitutes, and facilitating or arranging child prostitution (Sexual Offences Act 2003). Legally, it is possible to charge a child aged 10 with soliciting under the Street Offences Act 1959, although publication of the Safeguarding Children from Sexual Exploitation Report 2000 and its revision in 2009 has reduced the number of children charged with soliciting to zero (Department for Education, 2009: p1). Advertising Prostitution Criminal law may also cover the private life of adults where there is advertising of prostitution. It is an offence to place prostitution-related advertisements according to the Criminal Justice and Police Act 2001 Section 46(1). Under this section, an individual would be considered to have committed an offence if they place a prostitution-related advertisement on a public telephone or near a public telephone (Criminal Justice and Police Act 2001). A public telephone according to s.46 (5) is a telephone made available to the public at a public place for their use. Section 46(3) holds an advertisement for prostitution to be any advertisement that would be considered a prostitution-related ad by any reasonable person, where such an advertisement is taken as being prostitution-related unless the defence shows that it is not (Criminal Justice and Police Act 2001). Anyone found guilty of such an act under this section can be fined, imprisoned for a term not exceeding six months, or both. Kerb-crawling Kerb crawling is also included under prostitution offences and has been considered so since the Sexual Offences Act 1985. Section 1 of this Act holds that an individual commits an offence if they persistently solicit another individual from a motor vehicle for prostitution in the street in a manner that causes a nuisance or annoyance, while section 2 covers a similar offence but this time without the involvement of a motor vehicle (Sexual Offences Act 1985). In Darroch v DPP (1990), beckoning a prostitute was identified as a sufficient cause to show persistence. The Policing and Crime Act 2009, however, replaced the old law with Section 19 making it an offence to solicit for sex in a public place or street with reference to a person in a motor vehicle in the street as a person in a street. This removed the requirement for prosecution to prove the presence of persistence, allowing for offenders to be charged for their first offence if found soliciting (Policing and Crime Act 2009). Causing or inciting prostitution and controlling prostitution for gain Criminal law may also cover instances where an individual causes or incites prostitution, or controls prostitution for gain. This requirement is contained in the Sexual Offences Act 2003 with Section 52(1) holding that an offence is committed if the person incites or causes another to engage in prostitution and does so in receipt of gain or in expectation of the same for a third party or for themselves (Sexual Offences Act 2003). Meanwhile, Section 53(1) holds that an offence is committed if an individual intentionally controls another’s activities in relation to prostitution and where they do so for personal gain. Section 54(1) defines gain as financial advantage or goodwill that appears likely to bring financial advantage in time. Section 51(2) defines a prostitute as an individual who offers sexual services top another at least once for payment or promise of the same (Sexual Offences Act 2003). Paying for the sexual services of a prostitute who is or has been subject to force The Sexual Offences Act of 2003 Section 53A was amended by the Policing and Crime Act 2009 section 14, making it an offence to pay a prostitute for their sexual services if they were subject to force. In this case, the individual is considered to have committed an offence if they promise or make payments for sex to a prostitute, if a third party exploits a prostitute to provide sex to the first individual that has promised or made payment, and if the 3rd party engages in exploitative conduct in the expectation of personal gain or gain for another party (Sexual Offences Act 2003). However, this offence has been criticized by Turner (2008: p1) who argues that it is not right for innocence or guilt of paying for the sexual services of a prostitute who is or has been subject to force to depend on chance instead of culpability. This argument holds that persistence should be retained in the kerb-crawling offence because it is almost impossible to judge a prostitute’s freedom or motive. Keeping a brothel The Sexual Offences Act 1956 in section 33 makes it an offence to keep, manage, or help in managing a brothel (Sexual Offences Act 1956). In Gorman v Standen (1964), a brothel was defined as a house used or resorted to by at least two women for fornication purposes. Thus, there must be ongoing fornication in a premise for it to be regarded as a brothel. In Stevens v Christie (1987), a brothel was defined as a place that persons of the opposite sex resort to where the females participate willingly in indecent physical acts for the men to feel sexually gratified. In this case, evidence of sexual intercourse is not important, as long as there are at least two women using the building for prostitution one at a time or simultaneously. The Sexual Offences Act 1956 Sections 33, 34, and 35 also included buildings utilized for homosexual practices as brothels in situations where the activities occurring in the establishment, were they heterosexual in nature, would lead the establishment to be considered a brothel (Sexual Offences Act 1956). Trafficking Probably the most important instance in which criminal law should intrude in the private life of adults has to do with the trafficking of women and girls for prostitution. This aspect has already been covered by the Sexual Offences Act Sections 58, 59, and 60, which makes trafficking within, out of, and into the UK for the purposes of prostitution an offence (Sexual Offences Act 2003). Section 58 covers the trafficking of people within the UK for prostitution, making it an offence to intentionally facilitate or arrange travel inside the UK for prostitution-related activities, for which a person is liable for a prison term of not more than 14 years. Section 59, on the other hand, covers trafficking of people out of the UK for the purpose of prostitution-related activities with the guilty individual receiving a sentence of not less than 14 years. The Protection of Freedoms Act 2012 Section 109 made the trafficking offence into three separate offences with regards to trafficking within, out of, and into the UK for prostitution-related activity. In addition, the new Act also covers exploitation that may occur after or during the trafficking journey (Protection of Freedoms Act 2012). Conclusion The laws covering prostitution are far from clear and straightforward and, whereas prostitution is not illegal, some of the prostitution-related activities are considered offences. While adults living in the UK have the right to expect that criminal law will not intrude into their private lives, especially with regards to their sexual activities, there are certain instances under which criminal law should intervene. These instances involve cases where the person engaging in sexual activity cannot legally consent to the act, as well as where the sexual act involves vulnerable people in society. As a result, criminal law has an essential role to play in ensuring that prostitution is carried out without nuisance to society, especially by protecting vulnerable people in society. Therefore, it should be an offence to incite or cause prostitution and control it for personal gain, to run a brothel, solicit for sex, kerb-crawl, place advertisements in phone boxes, or traffic in humans for prostitution. Still, as long as the sexual act is consensual and does not break any of the laws discussed, criminal law should not intrude on the private life of adults. References Bennion, F. (2010, March 19). New Prostitution Offence is ‘Outrageous’. Retrieved March 5, 2015, from www.francisbennion.com/pdfs/fb/2010/2010-011-prostitution.pdf CPS. (2008, January 29). Prostitution and Offences Against Public Morals. Retrieved March 5, 2015, from https://archive.is/DAtS0#selection-509.0-509.47 CPS. (2011). Violence against Women and Girls: Crime Report. London: Equality and Diversity Unit. Department for Education. (2009, August 4). Safeguarding children and young people from sexual exploitation. Retrieved March 5, 2015, from GOV.UK: https://www.gov.uk/government/publications/safeguarding-children-and-young-people-from-sexual-exploitation-supplementary-guidance\ Di, N. A., Cauduro, A., Lombardi, M., & Ruspini, P. (2013). Prostitution and human trafficking: Focus on clients. New York: Springer. Frances, R. (2011). Selling sex: A hidden history of prostitution. Sydney, NSW: UNSW Press. Home Office. (2004). Paying the Price: a consultation paper on prostitution. London: Home Of fice Communication Directorate. Home Office. (2010, March 29). Provisions In The Policing And Crime Act 2009 That Relate To Prostitution. Retrieved March 3, 2015, from GOV.UK: https://www.gov.uk/government/publications/provisions-in-the-policing-and-crime-act-2009-that-relate-to-prostitution-sections-14-to-21 Home Office. (2000). Setting the Boundaries: Reforming the law on sex offences. London: Home Office Communication Directorate. Levin, L., & Peled, E. (2011). The Attitudes Toward Prostitutes and Prostitution Scale: A New Tool for Measuring Public Attitudes Toward Prostitutes and Prostitution. Research on Social Work Practice, 21, 5, 582-593. Parrillo, V. N). (2014). Encyclopaedia of social problems. Thousand Oaks, Calif: Sage Publications. Roleff, T. L. (2012). Prostitution. Detroit: Greenhaven Press. Sion, A. (1977). Prostitution and the law. London: Faber. Spector, J. (2012). Prostitution and pornography: Philosophical debate about the sex industry. Stanford, Calif: Stanford University Press. Turner, A. (2008, November 29). Tackling Prostitution. Retrieved March 5, 2015, from Criminal Law and Justice Weekly: http://www.criminallawandjustice.co.uk/features/Tackling-Prostitution Wolfenden, J. W. (1957). Report of the Committee on Homosexual Offences and Prostitution. London: H.M.S.O. Legal Acts Criminal Justice and Police Act 2001, Chapter 16. Retrieved March 5, 2015, from http://www.legislation.gov.uk/ukpga/2001/16/section/50 Policing and Crime Act 2009, Chapter 26. Retrieved March 5, 2015, from http://www.legislation.gov.uk/ukpga/2009/26/contents Protection of Freedoms Act 2012, Chapter 9. Retrieved March 5, 2015 from http://www.legislation.gov.uk/ukpga/2012/9/contents/enacted Sexual Offences Act 1985, Chapter 44. Retrieved March 5, 2015, from http://www.legislation.gov.uk/ukpga/1985/44/contents Sexual Offences Act 2003, Chapter 42. Retrieved March 5, 2015, from http://www.legislation.gov.uk/ukpga/2003/42/contents Sexual Offences Act 1956, Chapter 69. London: Her Majestys Stationery Office. Street Offences Act, 1959, Chapter 57. London: Her Majestys Stationery Office. Legal Cases Behrendt v. Burridge, 1976 All E.R.3 285, 1977 W.L.R.1 29 (1976). Darroch v. DPP, 91 Cr App R. 378, 154 J.P. 844 (1990). DPP v. Bull, 1994 All E.R.4 411 (1994) Gorman v. Standen, 1964 Q.B.1 294 (1964). R. v. Morris-Lowe, 1985 All E.R.1 400 (1985). Weisz v. Monahan, 1962 All E.R.1 664 (1962). Read More