This article discusses the position in English criminal law with regards to sex work and is written in light of the episode in the High Court at the beginning of this year where a group of former sex workers challenged the law requiring them to disclose their criminal past.1 It is argued that the current law in this area is in need of reform and also makes reference to the more far-reaching theoretical questions regarding the criminal law, with particular focus on labelling theory.
The High Court challenge, as referred to in the introductory paragraph, serves to highlight some of the current problems regarding how the law treats sex workers. In this case, the women challenging the law were arguing that it is unlawful to have to disclose criminal convictions for soliciting offences on the grounds that it is discriminatory and breaches the right to a private life. The women in question had been victims of pimping and trafficking yet, according to the law, were also criminals, following convictions under the Street Offences Act 1959. What is more, their abusive past still hinders them, DBS checks requiring disclosure of previous convictions during the job application procedure. There is thus a major flaw in the law. These women are undoubtedly victims, indeed their lawyer Harriet Wistrich said the following: “Some of the women’s experiences absolutely fall squarely into the definition of modern slavery”.2 However, not only are they continuing to be labeled as criminals, but the current laws on disclosure are also disadvantaging them from entering the working world. Therefore, this High Court challenge reveals at least one flaw in the current law. Furthermore, it provokes consideration of the treatment of prostitution on a more general level. Currently, the act itself of exchange of sexual services for money is legal. However, a number of related activities regarding prostitution (including pimping and brothel keeping) and street prostitution are illegal.3 Therefore, concerns remain over the criminalization of prostitution and one strong argument for the liberalization of prostitution is that this would lead to greater protection for those involved because the brothels could be better-controlled and regulated with health checks etc., instead of being driven underground and, for instance, being entangled with grooming gangs.
Moving away from the practical and safety issues regarding prostitution, on the other side of this debate is the question of whether we have an appropriate attitude to sex work. Sex work has traditionally been the subject of criminal legislation and still carries a significant amount of social stigma. Yet for some women, entering this type of work is a free choice, completely un-coerced. We must therefore ask ourselves whether it is right that such women face the amount of stigmatization that they do. Starting from the standpoint that sex is not inherently wrong, there seems little rationale for the idea that exchanging sex for money (if this is indeed a result of a free choice, unlike for the women involved in the High Court challenge) is to be looked down on.
The above debate taps into the more theoretical issues involved in criminal legal theory. Consider Erving Goffman’s “labeling theory”. This theory provides that the labels used to classify individuals influence their behavior. Labels, of course, can be legal, crime being a social phenomenon, and proponents of this theory suggest that the labeling element of criminal law is a tool of oppression, allowing the dominant class to categorize and marginalize certain areas of society. For example, drug addicts and squatters – rightly or wrongly - continue to be singled out by sections of the criminal law. For some legal theorists, therefore, offences without victims should be decriminalized in order to avoid artificial and discriminatory labeling. This line of thought is not free from scrutiny (for example by overly focusing on the victim-element it ignores the substantive nature of the act), however may be able to provide some guidance in the area of prostitution laws. In sum, thus, the key point in this article is that whilst the law needs to better protect victims of sex work, for sex workers who are not victims we may need to re-address our automatic and entrenched yet perhaps unthinking prejudices.