The Legal Regulation of Prostitution in Scotland

Philippa Greer outlines how an outdated and simplistic legal approach to prostitution ignores the women involved and the current political conceptualisation of prostitution as ‘violence against women’. The present law on prostitution in Scotland is both unhelpful and contradictory, casting prostitutes as deviants by prioritising concerns of public nuisance. Our current legal approach neglects the harm inflicted on the sellers of sex and stands in sharp contrast to contemporary political conceptualisations of prostitution as of ‘violence against women.’ Prostitution has a confusing legal status in Scotland since the exchange of sexual services for cash does not constitute a crime itself – merely the surrounding activities to prostitution which transgress into the public sphere. Thus, from the outset, this uncertain legal environment fails to reflect contemporary views of prostitution as harm to women rather than by women. Accordingly, prostitutes are targeted by our law in respect of the nuisance caused to communities by prostitution. Our criminal justice system essentially classes prostitution as a strand of ‘anti-social behaviour’- with solicitation, importuning and loitering by a prostitute in a public place being a criminal offence (with solicitation also being criminal if it occurs in an area that is visible to the public).[1] It is the very fact that such behaviour is visible in public that creates the offence. As well as overlooking the intrinsic harms caused to the prostitute, such offences actually serve to heighten the risk of harm to the women involved since they have less time to assess clients, often getting into cars more readily in an attempt to avoid attracting attention. They also prompt displacement, forcing prostitutes into less visible areas unmonitored by surveillance, the police and other prostitutes - whilst placing them further from the visibility of outreach agencies. Consequently, this approach completely overlooks the women involved in prostitution, by viewing prostitution purely as ‘nuisance caused to communities’. Furthermore, prostitutes may be subject to ASBOs[2]- which serves to reinforce their deviant status within Scotland’s legal framework. Although primarily a civil sanction, breach of an order is a criminal offence punishable by a fine or imprisonment of up to 5 years.[3] Imposed upon street prostitutes, ASBOs have been and will continue to be breached. Excluding the women from specific areas merely serves to relocate the problem to neighbouring areas, or indoors, making it infinitely more dangerous for the sellers of sex. The risk of obtaining a criminal record also serves to alienate the women from society, operating as a barrier to exiting prostitution and entering alternative employment. Additionally, the law restricts the personal relationships that a prostitute may develop by virtue of imposing offences on the profiting of prostitution, which often catch in their ambit the boyfriends or partners of prostitutes. For example, it is illegal for a male person to live on the earnings of prostitution.[4] Accordingly, those who are closely involved with prostitutes may be legally suspect. Although theoretically necessary in respect of targeting pimps, a man only needs to be proven to: “live with or be habitually in the company of”[5] a prostitute to be guilty of living on the earnings of prostitution. This makes no distinction between genuine pimps and men who are the sons, boyfriends or husbands of women involved in prostitution. Moreover, despite political conceptualisations of prostitution as ‘violence against women’, there appears to be a reluctance to call into question the client’s role in the sexual transaction. Soliciting and loitering for the purpose of obtaining the services of a prostitute - often referred to as ‘kerb-crawling’ - is criminal merely if it occurs in a public place.[6] Thus it is purely the public nature of the client’s behaviour which is targeted by our criminal law in Scotland. This is particularly questionable when one considers that the rise of the Internet, mobile telephony and indoor prostitution has allowed clients to access sex privately and anonymously - without social stigmatisation or fear of law enforcement. The fact that it remains legal in Scotland for a man to buy sex creates confusion and clearly sends a mixed message to society in respect of Scotland’s stance on this issue. By failing to confront the acceptability of buying sex, our fragmented laws communicate a dangerous message that as long as no nuisance or harm transgresses into the public arena, prostitution is ultimately harmless. Accordingly, our laws on prostitution ought to be framed in light of the inherent harm caused to the prostitute, by projecting a vital, concrete message of “zero tolerance” to buying sex. Selling sexual services is done at a great emotional cost to those involved, regardless of whether or not it transgresses into the public sphere, yet our present law in Scotland fails to reflect this.

[1] s.46 of the Civic Government (Scotland) Act 1982. [2] s.19 of the Crime and Disorder Act 1998. [3] s.22(1)(b) of the Crime and Disorder Act 1998. [4] s.11(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 contains offences relating to “male persons” who live on the earnings of prostitution. s.7(1) contains offences aimed at those who seek to procure women to ‘work’ as prostitutes. [5] s.11(3) of the Criminal Law (Consolidation) (Scotland) Act 1995. [6] Or a place to which at the material time the public are allowed to have access under s.1(6) of the Prostitution (Public Places) (Scotland) Act 2007.

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