Calls for paying for sex to be outlawed

Original post by BeastOfSyracuse

Recently the French parliament voted to outlaw the buying of sex. Selling sex will not be illegal, only the buyer will be punished

http://www.bbc.com/news/world-europe-35982929

This seems highly illogical as the proponents are advocating these buyer laws based on specious arguments; they argue that prostitution results from human trafficking, that it involves underage women and that it is inherently patriarchal.

Human trafficking and underage prostitution are already illegal in the UK, as are pimping. It is an undeniable fact that there are many women (and men!) who prefer to do sex work than to work in a canned meat factory or a supermarket checkout earning minimum wage.

Many of these people make an active choice, and it is interesting that if you listen to sex workers themselves they oppose these laws and say they will make things more dangerous for them. Also, they claim that prostitution is inherently misogynistic but this is nonsensical because there are many prostitution transactions that don't involve any women at all (where a man buys sex from a man).

Finally, it makes no sense to outlaw the buying of sex but not outlaw pornography; otherwise the easy way to get around the sex buyer law is to simply take a video camera along with you when you see a prostitute thus you are "making pornography". I directly asked some of the advocates of this law about that, but they claimed "Prostitution is always exploitative but pornography isn't". This is silly, every one of their specious arguments they make against prostitution could also be made against pornography. But they realise how bad it looks to call for outlawing pornography

I see the rational behind both sides really and I also see some fault with your own critism of the idea.

For one a video camera wouldn't do the trick. To be classed as pornography would require setting up a pornographic company with regular contracts for all participants.

On too of that prostitution often is exploitive. A number of sex workers are pressured and forced into it by abusive partners and the such. Making prostitution totally legal would make it incredibly difficult to protect such people. And the arguement of regulation is largely irrelevant given the level of regulation needed would turn prostitution into pornography without the cameras.

Basically put I lean more towards the idea than against it.

Reply 43

TSRUsername99

Original post by garfeeled

Making prostitution totally legal would make it incredibly difficult to protect such people.

Harder than now? how so?

Reply 44

Original post by TSRUsername99

Harder than now? how so?

Should have made myself clearer, with a law against paying for sex.

Also the statement would still apply if laws surrounding prostitution were relaxed, eg laws against pimping. By having such rules in place it makes it easier for an investigation to begin whilst the law against paying for sex from someone who is forced even if the client wasn't aware of the force in effect forces potential clients to be wary.

Reply 45

Original post by anarchism101

Courts generally don't enforce any kind of contract not made with legal tender,

Erm, you do know that card payments, cheques, and - in Scotland - all bank notes aren't legal tender, don't you?

If we have a deal involving us swapping a cow for a horse, it's absolutely enforceable.

it's not just about sex as payment. Courts have rules on contracts about sex before - they've found men who refused to pay sex workers after having sex with them guilty of fraud.

Yep. One of the best moments of working at a sex worker support service was realising that several people were talking about the same 'bouncing cheque' client and getting the police interested. (He did time for a fraud offence, came out and started doing it again...)

But none of them got their money: you can commit the offence of 'obtaining services dishonestly' even if the courts wouldn't enforce the contract.

Theoretically a court could convict a sex worker of fraud if she refused to have sex after being paid for it (assuming the client abided by obvious or explicit terms)

'Clipping' is the jargon. Usually the sex worker disappears after being paid, rather than hang around for an argument about what they paid for.

Reply 46

Original post by garfeeled

On too of that prostitution often is exploitive. A number of sex workers are pressured and forced into it by abusive partners and the such.

And that's an offence now.

Reply 47

Original post by unprinted

And that's an offence now.

Yep. Has been for a while. Paying for sex from a sex worker who is forced ha strict liability meaning you can be prosecuted regardless of culpability.

Reply 48

TSRUsername99

Original post by garfeeled

Still not sure how that would make it easier to protect them. Wouldn't it rely on someone being caught red handed paying for sex with a sex worker that has been pressured or forced into it? Wouldn't it be far easier if we knew where they all were and could give them regular check ups?

Reply 49

Original post by TSRUsername99

That arguement can be made and I don't disagree with it but that would require corporate prostiution (and even then look at the pornography industry which whilst more open than before as well as more regulated still has problems with abuse (sexual and non sexual) and drugs). What you are describing would require regular contracts and regular check ups and so much more.

In terms of making easier to protect it would make it easier to punish forms of sex work we can all agree are immoral.

Reply 50

Original post by garfeeled

I see the rational behind both sides really and I also see some fault with your own critism of the idea.

For one a video camera wouldn't do the trick. To be classed as pornography would require setting up a pornographic company with regular contracts for all participants.

Why? In English law, for example, there is no special licence you need to possess to engage in that business. A person is just as entitled to operate as a sole trader as they are to operate as an incorporated company or partnership, as in any other business. As the employment relationship with the sex worker would only last a few hours there's no need for written particulars or anything other than a verbal contract.

It would be very easy for a savvy businessperson to set up a company that caters to the administrative requirements of people who want to see a sex worker and the sex workers themselves, for £50 or so each it could be very easily done

On too of that prostitution often is exploitive. A number of sex workers are pressured and forced into it by abusive partners and the such. Making prostitution totally legal would make it incredibly difficult to protect such people.

Prostitution is legal in the UK. In France, it was legal prior to this law and subsequent to the enactment of the law it's still legal to sell sex.

It's completely unclear how making the buying of sex illegal has any bearing on enforcing already-existing laws relating to human trafficking, underage prostitution and enslavement. Not to mention the fact that the evidence from places where this has been tried is that it worsens the lives and situations of sex workers and forces them into more dangerous situations.

Reply 51

Original post by unprinted

You're right that prostitution is not illegal in England and Wales, but courts will refuse to enforce contracts involving sex

Actually, I suspect that's no longer a valid construction of the law since Armhouse Lee Ltd v Chappell and other cases (more tangentially, Sutton v Hutchinson). There would be no bar on the basis of illegality to the enforcement of a sex work contract these days. I suspect the Court of Appeal would tread very carefully and circumspectly in deciding whether to declare a sex work contract unenforceable on the basis of immorality. A lawful sex-work contract simply does not, in light of current standards, appear to possess the necessary degree of moral turpitude nor is it characterised by the sort of "windfall" that this public policy exemption envisages.

Most of the cases outlining policy objections to enforcement of "immoral" contracts relating to sex occurred in a time when prostitution was illegal anyway.

Given we don't see sex workers come to the courts to have their contracts enforced very often (if ever) it seems unlikely this proposition could be tested. But a court finding fraud had occurred in the case of clients legging it after sex with a prostitute is certainly an interesting and persuasive support for my side of the argument. After all, the police would not prosecute a fraud case if someone "defrauded" a drug dealer out of a pound of heroin. The legitimacy of the gain sought does seem relevant. Also, these days a case would have to be determined in light of the Human Rights Act, which I believe would more forcefully push the court towards permitting enforcement

I also think the Jany case in the CJEU, which determined that prostitution is an economic activity for the purposes of European employment and residency rights. Where the national legislature has declined (as it has in the UK) to outlaw this form of economic activity, it does not seem to be the place of the court to act in effect as a legislator to make contracts relating to this form of economic activity unenforceable

(edited 8 years ago)

Reply 52

Original post by anarchism101

Courts generally don't enforce any kind of contract not made with legal tender, it's not just about sex as payment. Courts have rules on contracts about sex before - they've found men who refused to pay sex workers after having sex with them guilty of fraud.

As unprinted pointed out, legal tender isn't the issue; a contract exchanging a chicken for a pair of socks would be a valid and enforceable contract.

But I think unprinted was wrong to claim prostitution contracts are unenforceable; in the 19th century, yes. But in 1996 the Court of Appeal declined to find that a contract involving phone sex lines unenforceable. It appears that the old assumption of contracts involving sexual "immorality" being inherently unenforceable is no longer completely straightforward as it once was

(edited 8 years ago)

Reply 53

ThePunisher

But how will ugly people have sex....???

(inb4 *you*)

Reply 54

Original post by garfeeled

Yep. Has been for a while. Paying for sex from a sex worker who is forced ha strict liability meaning you can be prosecuted regardless of culpability.

Zero prosecutions, from what I can see. This was another bit of gesture politics: as originally introduced in the bill, it affected everyone 'controlled for gain', i.e. everyone who chose to work for an agency or in a brothel, indicating what the movers' intentions were.

Original post by BeastOfSyracuse

Actually, I suspect that's no longer a valid construction of the law since Armhouse Lee Ltd v Chappell ... There would be no bar on the basis of illegality to the enforcement of a sex work contract these days. I suspect the Court of Appeal would tread very carefully and circumspectly in deciding whether to declare a sex work contract unenforceable on the basis of immorality.

So a case which was clearly about someone's attempt at getting out of paying their ad bills that said something wasn't prostitution and thus wasn't immoral enough to mean that courts should refuse to enforce means that courts would enforce prostitution contracts?

I'm not convinced, I must say.

Most of the cases outlining policy objections to enforcement of "immoral" contracts relating to sex occurred in a time when prostitution was illegal anyway.

Prostitution has never been illegal in England.

But a court finding fraud had occurred in the case of clients legging it after sex with a prostitute is certainly an interesting and persuasive support for my side of the argument. After all, the police would not prosecute a fraud case if someone "defrauded" a drug dealer out of a pound of heroin.

There the contract is illegal rather than merely immoral.

I also think the Jany case in the CJEU, which determined that prostitution is an economic activity for the purposes of European employment and residency rights. Where the national legislature has declined (as it has in the UK) to outlaw this form of economic activity, it does not seem to be the place of the court to act in effect as a legislator to make contracts relating to this form of economic activity unenforceable

That just says 'if you allow your own citizens to work as prostitutes, you can't stop citizens of other EU members from doing so'.

The entire centuries-old sport of horse racing is based on betting, and bookmakers and casinos have been very heavily regulated by the state but until the Gambling Act 2005, you still couldn't enforce a gambling debt...

... and I wouldn't want to trust a court to say they'll enforce a prostitution one.

Reply 55

Original post by unprinted

The team at inbrief.co.uk interpret the significance of Armhouse in the same way I do, and it is particularly relevant I think in the way it discusses changing community standards and the role of the court in light of that.

You have to accept it would be ludicrous to assert the basis of prostitution unenforceability in English common law, Pearce v Brooks, is still good law insofar as it might be applied to a case with particulars that were identical but merely updated to correspond to modern technology. If it were, a prostitute who engages a hire/purchase agreement with a car company for a car she uses to take her to and from prostitution jobs could plead immorality to avoid having that agreement enforced if the claimant ('s officers) had any knowledge of its possible use.

I don't think anyone would seriously assert that is a likely outcome

Prostitution has never been illegal in England.

I don't mean to be provocative but that's not actually true. Prostitution was absolutely punishable; ecclesiastical courts had jurisdiction over sexual offences after which they would be handed over to civil authorities for punishment. Putting a wanton woman in the stocks was not uncommon.

There were Tudor statutes that closed all brothels in England and required local authorities to punish prostitutes. And subsequent legislation outlawed the means by which prostitutes touted for trade (i.e. a "common prostitute" standing in the street being bawdy, which is how they obtained trade, was punishable)

All of this legislation reflected society's view of the immorality of prostitution per se. Society does not have the same views today or the same perception of moral turpitude around prostitution, which is why many of the laws surrounding prostitution which were used to punish them have now been repealed. And to say that prostitution itself wasn't illegal, merely all the ways in which a prostitute might actually find work and conduct herself has about as much intellectual substance as "love the sinner, hate the sin"; it's the same rhetorical switcheroo as asserting it is fine to be a homosexual but they just shouldn't ever act on it.

What constitutes "immorality" for the purpose of contract law is not fixed in 1866, the courts will interpret it in light of changing community standards. It seems fairly clear that the community views prostitution quite differently from how they did in 1866 or even 1996

That just says 'if you allow your own citizens to work as prostitutes, you can't stop citizens of other EU members from doing so'.

What it says is that prostitution is a valid economic activity for the purposes of EU residency law; that is, that they can work in any EU country provided prostitution is tolerated there.

If a Polish prostitute were to come to the UK to work as a prostitute (which the UK permits its own citizens), it would be very strange indeed if EU law permitted her that but English courts would declare unenforceable any contracts she made pursuant to that lawful economic activity.

Member nations have to provide the means by which EU citizens' rights can be given practical effect, and they are certainly entitled to vindicate these economic rights in an English court. Where they were weighing up an EU citizens' undoubted right to perform a type of work in the UK and that parliament had chosen not to make this form of economic activity illegal, it seems there would be a very high bar for the court to justify disallowing enforcement. If the sole justification for disallowing enforcement was not a statute, secondary legislation, an EU regulation or any kind of positive signal from the legislature but instead a wholly elastic and nebulous common law rule then I'm skeptical about how keen the court would be to come down in favour of disallowing enforcement.

Placing the rule in Pearce v Brooks in one column against substantial and weighty considerations of giving effect to European treaty obligations, it seems fairly clear which is the more persuasive. I also think the Pearce rule would struggle to be maintained when weighing it up against HRA Article 8 and Article 11 considerations.

(edited 8 years ago)

Reply 56