Confusing, Dated and Ineffective? Current Sex Work Laws in England and Wales and Proposals for Reform

Sex work is defined as ‘a person who on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person’1. Sex work law is often controversial, and must balance the interests of the workers, the clients and the public. Examination of the relevant law relating to sex work, and the history and policy considerations that influenced it are crucial to understanding the principles that underpin the current law, as well as its application and flaws. There are a variety of critiques of England and Wales’ current approach to sex work and the reforms put in place thus far, including criticism suggesting that the current law is in places confusing, dated and ineffective. I will suggest proposals for reform, aimed at clarifying and modernising UK sex work legislation. These proposals for reform will explore and compare existing alternative models that could potentially be adopted. The issues raised by legal transplants (i.e. ‘the moving of a rule or a system of law from one country to another or from one people to another’2 in order for it to function as it did in the host jurisdiction3) are also a necessary consideration in the development of reform proposals.

work. In addition, how sex workers identify themselves (or do not identify themselves as the case may be) may cause some difficulties. Many sex workers may not in fact consider themselves sex workers, particularly where the sex work is only occasional or is escort work 6 .
The representation of the sex work markets is also problematic. The street market -which accounts for only around 28% of the sex work market 7 -is often overrepresented, particularly because street sex workers are the most visible and easily accessible. The street market also attracts media attention, which sensationalises the sex work industry and almost exclusively focuses on female sex workers 8 , overlooking other markets and making male and transsexual workers an even less visible population. In contrast, the 'off-street' market of sex work is much less visible, although it is growing 9 . Generally, the street market has a lower age of entry 10 , because unlike in brothels, escort services and so on, there are no controls or limits imposed by managers or websites. Many brothels also will not employ sex workers with drug problems, and so these sex workers turn to the street market to finance their addiction.
Historically, the law relating to sex work was primarily nuisance centred. Emphasis was on the public/private divide as criminal law was 'not charged to enter into matters of private moral conduct' 11 but rather it's role was 'to preserve public order and decency, to protect the citizen from what is offensive and injurious' 12 . Consequently, the law principally aimed to criminalise women on the streets and eliminate 'unsightly' brothels. Reform has been attempted through The SOA demonstrates a shift in legislative focus, changing from targeting nuisance to targeting management, exploitation and pimps to reflect the growing concerns surrounding trafficking and exploitation. A principle concern with this act, is the definition of prostitute this act sets out, namely the inclusion of 'whether or not compelled to do so 13 '. There is no 6  differentiation between prostitution where the sex worker has chosen to do sex work and 'forced' prostitution, i.e. exploitation or trafficking. Therefore, the act is ineffective in targeting management and prostitution in general and dangerously, not only criminalises but also fails to protect victims of forced prostitution.
The Coordinated Prostitution Strategy of 2006 brought some focus back to targeting nuisance, though it did include aims to reduce all form of commercial sexual exploitation. Its key objectives were to challenge the idea that street prostitution was inevitable; to overall reduce street prostitution; and to ameliorate the safety and quality of life of communities affected by prostitution, including those directly involved in street sex markets 14 . Following the recommendations of the 2006 strategy, the PCA (2009) was introduced for further reform and reflected the shift towards targeting the client, based on the idea that sex work could be reduced by targeting demand. One of the most significant and arguably, dangerous effects of the Act was the introduction of the strict liability offence (one can be liable for the actus reus alone -'there is no mens rea element to prove') of 'Causing, inciting or controlling prostitution for gain 15 '. In practice, the only way a sex worker may legally sell sex is if they are 'working alone, in a property they own, without explicitly advertising or financially supporting another person' 16 . The sheer breadth of what could constitute 'control' leaves sex workers at a potentially even higher risk of harm. For example, landlords or people employed as maid or security for sex workers may deemed to be 'in control' (and therefore liable) because they stand to gain from the prostitution as it provides their employment. This hugely restricts the degree of control a sex worker has in how and where they conduct their business and leaves them extremely vulnerable.
Section 14 of the 2009 Act which governs the paying for sexual services of a prostitute subject to force is also problematic -more specifically, subsection 2, which states that, in determining whether the client has committed an offence, it is irrelevant 'whether A [the client] is, or ought to be, aware that C [a third person] has engaged in exploitative conduct' 17 . It is only right that paying for the sexual service of a prostitute subjected to force be an offence -as this relates to abuse and even trafficking, not sex work. However, several issues arise from the irrelevance of 14  the client's knowledge. Although the strict liability element of this offence was intended to increase the likelihood of conviction, in practice it means that a client can be liable whether there was any way of knowing the sex worker was subjected to force 18 or not. Therefore, where clients might otherwise report suspected force, abuse or exploitation, they are less likely to do so in case they are found to have committed an offence, thus making those subjected to exploitation even less visible and therefore less likely to receive the help and protection they need 19 . Furthermore, this section is rarely used 20 as coercion or 'force' is difficult to establish which makes it ineffective in preventing exploitation and deterring the purchase of sexual Diversity in feminist thought stems from a complex cultural, class, race, national, sexual and other differences 24 . Two of the main schools of feminist thought are Radical and Liberal feminism. A radical feminist perspective draws no distinction between voluntary sex work and forced prostitution, arguing that prostitution is inherently abusive and "a form of male sexual violence against women" 25 . Rebuking arguments that prostitution is a choice, radical feminists instead argue that prostitution can never be freely chosen because it is rooted in the sale (and therefore objectification) of women's body 26 . In contrast to this is the liberal feminism approach which argues that "humans are rational, autonomous individuals" 27 and as such, a sex worker is an independent contractor who is able to start and stop transactions 28 . Liberal feminism is centred on using the law to bring about change, calling for decriminalisation and/or regulation of the industry on the basis that "autonomy over one's body includes the right to offer a sexual service in exchange for money, goods, or other services" 29 .
The 'prostitution as abuse' approach of radical feminists is, in my opinion, an overly moralistic one, which by holding sex to be something which can affect one's worth and esteem suggests an inherent connection between sex/sexuality and selfhood. This connection appears exaggerated, when in reality it is much subtler and for some, perhaps even non-existent -many sex workers simply view their profession as work and do not consider it demeaning 30 .
Moreover, I would argue that a distinction between sex work/prostitution and forced prostitution could and should be drawn. Arguably, there is no such thing as 'forced prostitution', this is in fact exploitation, perhaps even trafficking, and should therefore be dealt with differently in the law to reflect this, offering protection and decriminalisation for the victim, and harsher punishments for the client/exploiter to reflect the harm caused.
I would also argue that radical feminism adopts too theoretical an approach as it focuses on symbolism and 'value' but offers few effective practical solutions. Sex work/prostitution, will most likely happen regardless of the legislative stance. Therefore, it would seem to be in the interest of all sex workers to acknowledge this and regulate sex work accordingly in the law to ensure safety of those involved. Whilst I acknowledge there may be an ideological battle to be fought regarding permanent demand for sexual services and objectification or domination of women, this is of little help to sex workers currently suffering or at risk because of the current legislation. Through the media's (and to an extent, the law's) construction of prostitutes as social outcasts, the public subconsciously views prostitutes as legitimate targets of violence, in turn reinforcing social hierarchies 31 . There is a need for laws which enable sex workers to work safely and which provide support and legal protection for victims. The approach taken by New In contrast, the Nordic abolitionist model is another popular recommendation for reform in England and Wales, as current legislation already seems to be 'mimicking the abolitionist tone of Sweden, short of criminalising all purchases of sexual services and decriminalising the activities of those who sell sex' 38 . This model is founded upon the premise that all sex work is inherently abusive, the aim being to reduce the sex industry and send a symbolic message that women are not for sale, which was implemented by the criminalisation of the purchaser and decriminalisation of the prostitutes. Also introduced, were social programmes to educate and deter women from entering prostitution and to encourage and support women in exiting prostitution 39 .
In an effort intended to protect sex workers -or specifically, women in the sex industry -the move to decriminalise sex workers is a positive one. There are however, significant problems with this model. Firstly, the social welfare provision, although good in theory, is extremely narrow, targeted primarily at women and women who want to exit, 40 claiming that the majority of sex workers "just want out" 41 -there is consequently little to no support for those wishing to remain sex workers, and male and transsexual workers are ignored. This school of thought also fails to consider why sex workers may want to exit. For some, it may be true that this is not work that they would freely choose to do were it not for financial obligations or socioeconomic constraints. However, some workers may wish to exit not because of the work they do, but because of the conditions they are forced to work under -this would be particularly relevant in England and Wales where they are subjected to laws such as s.14 PCA. Under the abolitionist model, the sex workers who do not want to exit or are unable to, are not only unprotected but are also demonised. In practice, although sex work appears to have decreased in the on-street market, this is in fact not so much a decrease as it is a displacement 42 . The law in fact exacerbates the problem it seeks to address, as sex workers are increasingly marginalised and forced underground, where they are even less visible and more at risk of harm 43 .
Legal transplants can be hugely beneficial in so far as they "promote desirable social or legal changes which have been observed to arise from the implementation of such a law in other countries" 44 . However, legal transplants may also be problematic and may not translate. The most obvious potential issue is that of cultural differences. Laws and legal systems are inextricably linked to their host country, as its culture shapes not only the laws themselves but also the reasoning underpinning them and the attitudes towards their implementation. As a result, laws are often designed to tackle specific problems 45 (sometimes in a specific way) which may not reflect the problems that England and Wales wishes to address or how it wishes to do so. Similarly, s.14(2) PCA calls for reform. This provision would have a clearer application apply and would be more effective in targeting exploitation if it were not a strict liability offence for the client. It might even be better governed in a separate section dealing specifically with exploitation and trafficking so as to more effectively target the exploiters and encourage reports of suspected exploitation.

One viable option for reform in England and
In conclusion, sex workers are a significant (if somewhat hidden) population, currently subjected to criminalisation, marginalisation and numerous health risks -all of which they must face alone, as they are prevented from legally seeking help from peers, employing security and risk criminal consequences should they reach out to law enforcement. Certain elements of the current law (the PCA and SOA in particular), leave the sex worker very vulnerable, and clients at risk of being criminalised. Prostitution will most likely always be a part of society, and in any event, it is part of society now and so must be properly legislated. If the aim is to help and protect sex workers then repressive and ineffective legislation is certainly not the answer.
Currently, the 'exaggeration of the number of sex workers is being used to enforce more punitive measures, and reinforce a stereotype of sex workers as exclusively female and Northumbria University -ISSN 2632-0452 -All content CC-BY 4.0 vulnerable' 46 . Importantly, but often overlooked, is the fact that the law has the ability to play a significant part in guiding and shaping public opinion and morality. As such, the law should take care to not penalise or further stigmatise a section of the population that is already at high risk of harm.
Though legal transplants can be problematic, it seems that the New Zealand model would best address the socio-legal issue of sex work in England and Wales, specifically targeting the issues and gaps in current domestic legislation. It would mean a more definitive shift towards a decriminalisation and professionalisation model that is vital for the protection of sex workers and the reduction of exploitation. Moreover, the World Health Organisation suggests that decriminalising sex work could mean a reduction of 46% 47 in new HIV infections in sex workers, and that eliminating sexual violence against sex workers could lead to a 20% reduction 48 . Arguably, as a commonwealth legal system, the New Zealand model is also the most appropriate culturally, as there is already a significant degree of historical and cultural cross-fertilisation between the UK and commonwealth countries. As laws and their interpretation are often intrinsic to cultural and temporal contexts, such common ground is crucial to the likely success of a legal transplant. Therefore, the New Zealand model is perhaps easier to transplant than other models and more reflective of the direction we, as a nation, want to progress in 49 . Amongst the various proposals for reforms, each with their own successes and failures, there is one clear commonality -the need for reform. Sex workers, like other "socially excluded/marginalized and oppressed communities have always had to struggle to be represented in cultural and political discourses" 50 , but they deserve -and urgently need -the protection and the legitimacy they have thus far been denied 51 .