By Natalie Smith, Solicitor
In London there is a street called Love Lane. It is tucked away in the financial quarter of the city and its name describes, rather romantically, what was once sold openly on the street, sex. Today you wouldn’t find a street advertising so blatantly but the sex industry is ever present and those involved in it have to tread quite carefully where the law is concerned.
Overview of the legal position
What so many find confusing is that there is no law that states the sale or purchase of sex is illegal in England and Wales. However, that doesn’t mean the sex industry has been legalised.
England and Wales have a number of different laws, brought in at different times to address society’s concerns about the sale of sex. There isn’t one legal approach to this area of law, there are several, and some legislation in existence is quite old using language that seems out of date by today’s standards. The legislation in place refers to sex workers as prostitutes and the sex industry as prostitution, so when these terms are used below, they are simply reflective of the legal language used.
Our laws inhabit a grey area, where the sex industry is tolerated, but not encouraged. In fact, the Crown Prosecution Service (CPS) make clear, their joint approach with the police is to help those involved in prostitution to develop routes out. More recent changes have been aimed specifically at targeting sexually exploitation. It’s fair to say the current target of prosecutions are those who recruit others to become sex workers and those who financially benefit from the sex industry.
Ignorance of what is actually a complex area of law is no defence. The fact many often break the law so openly will not save those that are prosecuted.
What is a sex worker in the eyes of the law?
The law defines a sex worker as a person who, on at least one occasion, offers or provides sexual services to another in return for payment or promise of payment to that person or another.
There is no definition in law of sexual services and is often wrongly thought to refer to full sexual intercourse. It can be any sexual service. In addition, payment isn’t limited to the handing over of physical money; it means any financial advantage, including the discharge of an obligation to pay or the provision of goods and services gratuitously or at a discount.
If the exchange of money for sex isn’t illegal, what is?
(Please note the legislation uses the word “prostitute” as opposed to “sex worker”. In order to accurately convey exactly what the law states this word may be used, along with some other unpleasant words and phrases).
Controlling prostitution for gain
This offence, under the Sexual Offences Act 2003, is the one law that means those working in or running any part of a business selling sexual services could face prosecution.
Controlling prostitution is considered the control of any activities of another person relating to their prostitution. But control doesn’t mean forcing that person. It is the control of activities. It is enough for a person to give instruction or directions to a sex worker with the intention of financial gain. It could be as simple as arranging clients.
Causing or inciting prostitution for gain
A person who intentionally causes or incites another person to become a prostitute in any part of the world, and does so for, or in the expectation of gain for themselves or someone else, commits an offence. This offence, like controlling prostitution for gain, carries a maximum penalty of 7 years imprisonment.
The interpretation of this offence is not to be overlooked. One of the most recent concerns is the reporting of rogue landlords offering free rooms or reduced rent for the exchange of sex or sexual services. The CPS have made it clear the legislation could be used to criminalise the ‘sex for rent’ deals.
To persistently loiter or solicit in a street or public place for the purpose of prostitution.
Public places are those areas where the public are admitted such as bars and clubs.
It is an offence for a person in a street or public place to solicit another for the purpose of obtaining a sexual service.
Paying for the sexual services of a prostitute who has been induced or encouraged to provide those services by someone else.
This is a strict liability offence. It is irrelevant if the person purchasing the sexual services does not know about the exploitation. The maximum penalty is a fine.
Placing adverts relating to prostitution in or in the immediate vicinity of a public telephone.
To keep, manage, act in or assist in the management of a brothel.
To keep, manage, act in or assist in the management of a brothel to which people resort for practices involving prostitution (whether or not also for other practices).
You may wonder why the distinction between keeping a brothel and keeping a brothel to which people resort to for sex work, well the answer lies in the way the law has defined what a brothel is (see below). The more significant difference in these offences is the penalty. To keep, manage, act in or assist in the management of a brothel is a summary only offence which means it can only attract a maximum sentence of 6 months imprisonment. Those who manage brothels involving prostitution can be dealt with in the Crown Court and carries a maximum penalty of 7 years imprisonment.
It is also an offence for:
A landlord to let premises to be used as a brothel,
A tenant to knowingly allow their premises to be used as a brothel or for prostitution.
What is a brothel?
There is no statutory definition of a brothel and the law relies upon case law over the twentieth century for the definition and the language used, is out of date by modern standards.
The accepted definition in case law talks of a house resorted to or used for the purpose of fornication. Another definition is a “place where people of opposite sexes are allowed to resort for illicit intercourse, whether… common prostitutes or not”. The Sexual offences Act of 1967 added to the definition by inserting into the law that, “premises which are resorted to for the purpose of lewd homosexual practices shall be treated as a brothel.” Terrible how this kind of language still exists today in law.
A brothel can essentially be any premises, used by more than one person for the purpose of sexual activity. What’s clear is that it’s not necessary to prove there has been the exchange of sexual services for payment. It does mean that sex venues can be caught by the legislation even when sex is non-commercial (without payment) i.e. in clubs or at parties. However, where sex is exchanged for money the law has the power to treat that as a more serious offence with greater sentencing powers.
The case law that has developed around the definition also means that although more than one person must use the premises, it isn’t necessary that they be there at the same time as the other person.
The Proceeds of Crime Act (POCA) 2002 gives the authorities power to restrain assets in order to preserve them whilst investigations are ongoing as confiscation can follow after certain criminal convictions.
Confiscation orders are tools used to deprive people of their financial benefit from criminal conduct. Failure to pay a confiscation order can result in imprisonment with the money still having to be paid and interest accruing on any unpaid debt.
Some offences under the Sexual Offences Act 2003 and other legislation used to police the sex industry are considered under the POCA legislation to be criminal lifestyle offences. This mean that if confiscation is a live issue in the criminal proceeding, the law is entitled to make presumptions that assets and expenditure over the proceeding 6 years can be included in the amount of money the person is said to have benefited from their crimes.
The “CPS guidance on prostitution and exploitation” states that newspapers have been advised not to publish adverts for brothels and to adopt policies of either checking or refusing to publish adverts for personal services in order to reduce the risk of publishing details of illegal sex work. It warns that in some circumstances newspapers may be liable to prosecution for money laundering offences.
The sale of sex between consenting adults is but one side of the sex industry. Recent developments have focused in on sexual exploitation.
The Modern Slavery Act 2015, addresses issues of human trafficking, slavery and forced labour. Human trafficking involves the exploitation of another and sexual exploitation is included in that definition. Under the act it is an offence to arrange or facilitate the travel of another person with a view to exploitation. It is irrelevant if that person travelling consents to do so. It is also an offence which can be committed by a UK national regardless of where the arranging, facilitating or travel takes place. Those who are not UK nationals will commit an offence if any part of the arranging or facilitation takes place in the UK or the travel involves arrival, entry into, departure from or travel with the UK.
A person under the age of 18 is considered a child.
It is a criminal offence to pay for the sexual services of a child and there are separate criminal offences for those who sexually exploit children. They all carry significant criminal penalties.
So, what is the future? Will the sex industry be decriminalised?
The operation of the sex industry and the laws relating to it have come under great scrutiny in recent times. There are concerns the laws are not sufficiently agile to actually catch those in the sex industry who exploit the vulnerable and they fail to protect sex workers. To stay on the right side of the law sex workers are pushed into work alone, which gives them little protection and makes them too vulnerable when they are already a very stigmatised and marginalised group in society.
The law is ripe for review but change is far from easy to bring about. Public opinion is divided and many are opposed to the sale of sex and raise concerns that to legalise it would lead to greater exploitation of the young and vulnerable. Many however, seek to decriminalise sex work and only want to see sexual exploitation and trafficking criminalised. They advocate this is the best way to keep sex workers safe and that criminalisation of sex between consenting adults should not be the focus but other issues, such as trying to achieve true equality of sexes and addressing austerity. As always sex and the law remain contentious.
(Natalie Smith is a solicitor and has been since 2003. She specialises in criminal law and has extensive experience in representing those accused of very serious and complex criminal offences. She also specialises in the law of sexual offences. She runs a website called www.defendingfalseallegations.co.uk which is an information hub for those involved in the criminal justice system for the first time and want to know more)