Thursday 13th December 2012.
Submission to the consultation on the Bill to criminalise the purchase of sex.
Dear Ms Grant
Thank you for allowing us the opportunity to comment on your proposed Bill. Ladyfest Glasgow is an explicitly feminist (and intersectional) group, and as such we feel it necessary to oppose in the strongest terms every aspect of the Bill which you have put out to consultation. We would comment in any case, but we feel particularly moved to do so due to the manner in which you have cloaked your proposed legislation in the language of feminism, despite the fact that a feminism that ‘others’, excludes, and stigmatises sex workers is no ‘feminism’ that we would recognise or endorse.
You write, “currently in Scotland, it is possible for a consenting adult to have sex with another consenting adult in return for payment without any offence being committed by either person”. We would be profoundly alarmed to see the principle of consenting sex between adults, that occurs in private, being criminalised for any reason (or, based on the evidence you’ve provided, none.) As a collective that includes trans* women, queer women, and sex working women, we have good reason to be highly suspicious of any state-originating discourse that sees the starting point of “it is possible for a consenting adult to have sex with another consenting adult [ … ] without any offence being committed by either person” as an opportunity for change. We stand with Transgender Europe in their view that, “sex work is work. We believe that the only way to end violence against sex worker women is to respect sex workers’ right to be free from all forms of violence and to take proper measures in parallel with the demands of sex worker communities”. (Emphasis ours.)
Additionally to your casual disregard of a principle (the inviolability of private, consenting, adult sex) that any LGBTQ activist or ally could tell you has been hard won (and is still fought for – look at the recent debate over equal marriage), we would like to direct your attention to a huge body of evidence contrary to the thrust of your legislation.
In on the topic of the fight against HIV-AIDS, you appear to have missed the recent landmark report joint-authored by the UN Development Programme (UNDP), the UN Population Fund (UNFPA) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), which found, “where sex work has been decriminalized, there is a greater chance for safer sex practices through occupational health and safety standards across the industry. Furthermore, there is no evidence that decriminalization has increased sex work”. Also, “evidence from the jurisdictions in the region that have decriminalized sex work – New Zealand and New South Wales (Australia) – indicates that the approach of defining sex work as legitimate labour empowers sex workers, increases their access to HIV and sexual health services and is associated with very high condom use rates.”
This is in addition to the findings of the Global Commission on HIV and the Law, which in its report HIV and the Law: Risks, Rights, Health, states that “countries should decriminalise private and consensual adult sexual behaviour, including voluntary sex work”. And of course, Secretary General of the UN, Ban Ki Moon, is on record as stating that reducing by half the number of “countries with punitive laws and practices around HIV transmission, sex work, drug use or homosexuality” is an agency goal for 2015.
Perhaps most notably, in January of this year we saw the publication of the Report of the UN AIDS Advisory Group on HIV and Sex Work. While other UN documents have not tackled directly the criminalisation of clients – preferring to merely recommend decriminalisation, and point out the many risks that come with more punitive approaches – this report goes into some detail to emphasize that the criminalisation of clients carries substantial risks for sex workers. It says, “the approach of criminalising the client has been shown to backfire on sex workers. In Sweden, sex workers who were unable to work indoors were left on the street with the most dangerous clients and little choice but to accept them”. Furthermore, “policies and programmes to reduce the demand for sex work, designed ignoring the voices of sex workers, often result in unintended harms including increased HIV risk and vulnerability for sex workers and their clients”. Sound familiar? Finally, it notes that “there is very little evidence to suggest that any criminal laws related to sex work reduce demand for sex or the number of sex workers. Rather, all of them create an environment of fear and marginalisation for sex workers [ … ] These laws can undermine sex workers’ ability to work together to identify potentially violent clients and their capacity to demand condom use of clients”.
Most recently, in the World Health Organisation report published yesterday, it is stated under ‘Summary of Recommendations’ that, “all countries should work toward decriminalization of sex work and elimination of the unjust application of non-criminal laws and regulations against sex workers”.
It goes without saying that we at Ladyfest Glasgow are not epidemiologists, or experts on public health. It is therefore all the more troubling that we appear to be better informed about these issues than you. The complete lack of mention of the issues surrounding HIV in your consultation document suggest either, a) you don’t think these issues are relevant to a discussion of sex work, b) you’re not aware of these issues, or c) you didn’t include a discussion of them because you couldn’t find any evidence on this topic that would back up your poorly informed crusade. None of these options suggest that you’re the best person to be legislating on these issues.
Additionally to issues around HIV/AIDS, we’d like to discuss violence. There is a substantial body of evidence emerging from Sweden and Norway which suggests that the sex purchase ban has lead to a huge increase in violence towards sex workers. For example, politicians in Norway are now calling for the law the criminalises clients to be repealed, as this news article details. “Anniken Hauglie called for the law to be scrapped after the city’s official help centre for prostitutes, Pro Sentret, released a report on Friday detailing deteriorating conditions for sex workers in the capital. ‘The reality is that the law has made it more difficult for women in prostitution,’ Hauglie said. ‘It’s our political responsibility to take this feedback seriously. In my view, the sex buyer ban should be repealed … ‘“. If only all politicians were so intellectually honest.
Hauglie made those comments after the release of a report by Pro Sentret, which revealed that the sex purchase ban “… has in fact made prostitutes much more susceptible to violence at the hands of their clients as the sex trade moves further underground. What’s more, prostitutes have become less inclined to seek help since the law came into force, with many now perceiving that they too are viewed as criminals, the report says. Many of the women also said the new law had scared off many of their more reliable customers, while troublesome and violent clients were relatively undeterred.” (Quotes from the same article.)
Its not just sex workers who are saying this. Ann Jordan is the Director of the Program on Human Trafficking and Forced Labor at the Center for Human Rights and Humanitarian Law in the Washington College of Law, and in her paper titled, ‘The Swedish Law To Criminalise Clients: A Failed Experiment in Social Engineering’, she discusses how the Swedish approach (which she calls “not reality-based”) has increased violence against sex workers, the stigma that they experience, and HIV transmission, while causing their access to justice and health services to be diminished.
Prof Jordan’s paper notes that there is no evidence that the law has decreased the clients of sex workers, (“ … the government does not have any evidence of a decrease in sex buyers since the law went into effect. They do not know how many men were soliciting on the street before or after the law. They do not know if men moved from the streets to indoors and on line, or out of the country. They have not collected such data and so cannot prove any success in achieving the primary goal of the law”), no evidence for a reduction in trafficking (“the government does not know whether there has been any change in the number of ‘exploited sex workers’ between 1999 and 2010”), and finds that “the government contemptuously tries to avoid any responsibility for violence caused by the law by shifting the blame for violence to the women themselves”. This is problematic.
Prof Jordan also talks of the social construction of “good sex”, and quotes another academic: ““[w]hat I believe is ultimately at stake in this transition is a much wider phenomenon, namely the entrenchment of an official sexuality, a national sexuality, to which all Swedes should adhere, not because they will be punished if they do … but because official sexuality is good sexuality, the morally comprehensible way to be”. Ladyfest has already alluded to our uneasiness at the idea that state interference in private sex between consenting adults can ever be justified, and as women who refuse to participate in any officially designated “good sexuality”, we don’t see any difference between your punitive, othering version of ‘gender equality’, and the patriarchy you are supposedly against. Especially when this “gender equality” and “sending of a message” is backed up by the threat of violence – as your proposed law clearly is, given all the evidence regarding the increase in violence that accompanies its implementation.
You tell us that you want to bring the indoor sex industry in line with the laws governing outdoor workers. Have you looked at what happened to Scottish street workers after the implementation of the 2007 Prostitution in Public Places Bill? Violent attacks on sex workers skyrocketed. In just the twelve months following the introduction of enhanced penalties for clients of street sex workers, reported attacks increased by 95%. ScotPEP was still funded to do street outreach at that time, and can see from its own figures that in fact the increase in attacks was much, much greater even than that – but of course, most sex workers didn’t report.
You say you want to send a “clear message” that the purchasing of sexual services in Scotland is a hinderance to gender equality and will not be tolerated. You say much less about how how or where a huge increase in attacks on sex workers, and in HIV transmission, fits into this “message” about “gender equality”. Collateral damage, maybe? We at Ladyfest wholeheartedly reject any so-called feminist analysis that places real, immediate, tangible harms to sex working men and women as secondary to some poorly-referenced, ideological fixation based on second-wave catchphrases. There can be no gender equality that is built on such a foundation of violence and erasure.
Finally, we fundamentally reject your Bill’s unspoken but all-too-clear premise, that sex workers are a separate, discrete segment of the population that you can talk about rather than to. Sex workers are valued participants in our communities, projects, and politics, and an attack on them is not only misinformed, wrongheaded, and the cause of profound harms, but also an attack on all of us. We want nothing to do with any analysis that posits “good” women against “bad” (‘pity is very close to contempt’, as Libby Brooks recently observed in the Guardian), or invokes the power of the state to police consenting sexualities and sex acts.
Thank you for letting us contribute, and we hope that the responses you have received will be useful in deciding on your future course of action.
The Board of Ladyfest Glasgow.