Department of Medicine
Supplemental Memorandum of Evidence
on the
Criminal Justice and Immigration Bill
(HL Bill 16)
Amendment to the Sexual Offences Act 1956 (c.69)
LORD FAULKNER OF WORCESTER
BARONESS HOWE OF IDLICOTE
BARONESS MILLER OF CHILTHORNE DOMER
Dr Michael Goodyear*, Dalhousie University
Tamara O’Doherty, Simon Fraser University
Dr Elise Chenier, Simon Fraser University
Associate Professor Leslie Jeffrey, University of New Brunswick
Susan Davis, Sex Worker, Vancouver
Dalhousie Women’s Centre
Note: The main Memorandum deals with the provisions in the Bill relating to the Street
Offences Act 1959
* Corresponding author
We are writing to express our support in principle to the proposed amendments to this
Bill relating to prostitution, specifically the Sexual Offences Act 1956 (Suppression of
Brothels).
Introduction
This is a companion memorandum to one covering the current provisions within the
Criminal Justice and Immigration Bill relating specifically to the Street Offences Act
1959 which provides a general background discussion to the subject. Here we shall deal
with the Sexual Offences Act 1956.
Nature of legislation
It is widely recognised that it is unfortunate that there is not one single statute that
governs the consensual exchange of sexual services for consideration (prostitution) unlike
the situation in many other countries.
Inter-relation of market sectors
The current provisions within the Criminal Justice and Immigration Bill relate to the
numerically small street market (governed by the Street Offences Act), although there is
fluidity in the market sectors. Generally disruption of the indoor market as recommended
in the Coordinated Prostitution Strategy (2006) merely leads to spatial displacement of
workers onto the streets and public places. This is precisely what happened in 1885
following the passage of the Criminal Law Amendment Act 1885 (Walkowitz 1982,
Roberts 1995, Laite 2006). That act was then consolidated in the Sexual Offences Act
1956 (the Act) which also repealed the older statute in its entirety and deals
predominantly with the much larger indoor market.
While it is the visibility of the street market that drives government policy and police
activity through the intermediary of citizen concerns, the vast majority of the sex market
is relatively invisible. The two sectors differ markedly in many characteristics, including
demographics, need for health and social services (Jeal 2007), and level of violence
(Sanders 2007a, O’Doherty 2007). The indoor market represents a higher socio-economic
class and educational achievement, has less requirements for care (but still experiences
barriers to access) and has an overall lower level of violence. Many have argued that even
if the public nuisance argument for suppression of the street market is accepted, there
remains little justification for leaving the indoor market within the reach of the criminal
law (Sanders 2007b). Paying the Price (2004) also recognises the need for a different
approach to the two sectors (p84).
Legislative approaches
Removing the indoor market from criminal law places it the reach of civil law, and it
becomes subject to regulation as a business, including health and safety, licensing,
advertising and planning considerations. A regulated indoor market is to be distinguished
from a legalised market which remains within police control, as was common in most
European countries in the nineteenth century. There were many problems associated with
2
this approach including uneven enforcement, police corruption and ineffectiveness. Overregulation of the sex trade is generally associated with a large illegal sector, since it tends
to be resistant, as noted in the Coordinated Prostitution Strategy (the Strategy). In the past
regulation tended to be based on moral and health considerations, but was not evidence
based. The model followed in New Zealand in 2003 in the Prostitution Reform Act is
referred to as a minimalist regulatory model. (Prostitution Law Reform Working Group,
Western Australia 2007).
“Decriminalisation removes all laws that criminalise prostitution. However, it
does not involve the State condoning or profiting from prostitution. It
removes the criminal penalties and criminal stigma from prostitution. A
decriminalised sex industry need not, however, be an unregulated industry, as
prostitution becomes subject to the same kinds of controls and regulations which
govern the operation of other businesses. This enables sex workers to have and
access the same protections afforded to other workers. The Working Group
was satisfied that the adoption of such a model is likely to increase the willingness
of sex workers to identify themselves as part of the industry. The Working Group
was also satisfied that such changes are unlikely to result in a significant
growth in the sex industry.” (Emphasis added)
(ibid p.12)
The indoor sector is however in itself diverse, as recognised in the Strategy (p.60), and a
number of countries including New Zealand and Western Australia have adopted
different regulatory frameworks based on the perceived needs for regulation in each area.
“The focus of the certification scheme is on the persons who control sexual
services businesses rather than the individual workers. The Working Group is
satisfied that an approach of registration/certification or licensing of individual
sex workers is inconsistent with a philosophy of minimalist decriminalisation.
The above exclusions recognise that it will always be difficult to regulate
individual sex workers, particularly those operating from private residences and
not working with others as part of an established business. Further, given the
stigmatisation of sex work and corresponding strong opposition of many workers
to any system requiring individual workers to be registered it is considered that a
requirement for individual certification would encourage many workers to work
outside the requirements and safeguards of the established system.
The Working Group recognises that, for safety reasons, it is reasonable to
extend the exception to small owner-operated premises of up to 2 workers.”
(Emphasis added)
(ibid p.19)
We have appended the relevant legislative texts from New Zealand and Western
Australia, noting that in New Zealand up to four operators are considered a small
business. The Strategy states
3
“there was considerable support for an amendment to the law to allow more than
one person to work together in prostitution. At present only one person may
work as a prostitute – more than that (and that can include a ‘maid’) and the
premises are classed (in case law) as a brothel. This runs counter to advice that
women should not work alone in the interest of safety. The Government will
make proposals for an amendment to the definition of a brothel so that two (or
three) individuals may work together.” (Emphasis added)
(at 5.6)
We concur with the conclusion that allowing women (or men) to work together is
important from the position of safety, and note that the Strategy found support for “more
than one person to work together” Later it is suggested that this might be two or three.
There is no evidence supporting any upper limit, and we are not aware of any concerns
that have arisen in New Zealand regarding their allowance of four individuals. It is the
principle that is more important, noting that both the New Zealand and Australian
legislation is based on there being no third part operator, and the sex workers involved
having control over their earnings, and by implication, working conditions.
Regulatory reform within the current legal framework
This is difficult and complex due to the multitude of statutes involved. Ideally those
sections of the Act dealing with prostitution (ss. 22-36) should be repealed (together with
the consequential amendments, eg Street Offences Act 1959, Sexual Offences Act 2003
etc) coming into force when suitable regulations have been developed and appropriate
consultation with local authorities undertaken regarding planning and business licensing.
Saving that, consideration of amending s. 33 of the Act in the interim could do much to
improve the health and safety of a number of sex workers, while reducing the regulatory
burden to the criminal justice system.
Proposed amendment
The tabled amendment seeks to add to s. 33 of the Act creating an exemption to the
offence defined therein. Should the remainder of ss. 33-36 stand in the interim, and
keeping in mind that ‘brothel’ has never been defined in statutes (Self 2003), although
much discussed in the courts, there is an opportunity to replace the old terminology with
the more accurate term ‘Sexual Service Business” (see Appendix), similarly prostitute by
‘sex worker’ and prostitution by ‘commercial sexual acts’. This is in keeping with the
spirit of the Bill (common prostitute), and as used in the Australian legislation.
We find that 33B(2) which adds conditions to 33B(1) unnecessary and likely to create
difficulties such as defining ‘trafficking’. These are not included under either the New
Zealand or Australian legislation. In each case there is extant legislation for dealing with
these issues on their own merits. Furthermore their inclusion is likely to send an
unfortunate message that commercial sexual acts are synonymous with such issues as
sexual exploitation of minors etc.
4
In keeping with the spirit of the Sexual Offences Act 2003, the wording should be gender
neutral.
5
Recommendations
1. That the provisions of the Sexual Offences Act 1956 relating to prostitution be
repealed, this coming into force when appropriate regulations have been
developed and consultations undertaken with local government.
2. That in the interim terms relating to brothels, prostitute and prostitution be
replaced with more neutral terms relating to commercial sexual services, and be
rendered gender neutral.
3. That in the interim, provision be made for small sexual services businesses to
be exempted from s. 33 of the Act by insertion of the wording set out below.
4. That further review of offences relating to prostitution be referred to an
independent commission of inquiry to examine expert evidence and make further
recommendations for the overall regulation of commercial sex within a single
statute.
Proposed wording of amendment to s.33 of the Sexual Offences Act
Insert the following new clauses“Exemption to offence”
(1) The sexual Offences Act 1956 (c. 69) is amended as follows.
(2) After section 33A insert“33B Small sexual services businesses not be subject to section 33A”
Section 33A shall not apply to premises considered small sexual services
businesses, where –
(a) not more than 4 sex workers, with or without staff who are not sex
workers, are working; and
(b) where each of those sex workers has full control over their
individual earnings from taking part in commercial sexual acts.
6
References
Home Office, A Coordinated Prostitution Strategy and a Summary of Responses to
Paying the Price. January, 2006
Jeal N, Salisbury C. Health needs and service use of parlour-based prostitutes compared
with street-based prostitutes: a cross sectional survey. Brit J Obstet Gynaecol 2007
114(7): 875-881
Laite J. Paying the price again: the ‘new’ coordinated prostitution strategy in historical
perspective History and Policy Paper 46 2006
O’Doherty T. Off-street commercial sex: an exploratory study. MA Thesis. School of
Criminology, Simon Fraser University, Vancouver, British Columbia 2007
Prostitution Law Reform Working Group. Prostitution Law Reform for Western
Australia. Attorney General (WA) 2007
Roberts M.J.D. Feminism and the State in Later Victorian England. The Historical
Journal 1995 Mar. 38(1): 85-110
Sanders T, Campbell R. Designing out vulnerability, building in respect: violence, safety
and sex work policy. Brit J Sociol 2007a 58(1): 1-19
Sanders T. No room for a regulated market? The implications of the coordinated
prostitution strategy for indoor sex industries. Community Saf J 2007b;6:34–44.
Walkowitz JR. Jack the Ripper and the myth of male violence. Feminist Studies 1982
Fall 8(3): 542-574
7
Appendix:
Legislation relating to Individual and Small Sexual Services Businesses
New Zealand
Prostitution Reform Act 2003
4 Interpretation
(1)
small owner-operated brothel means a brothel—

(a) at which not more than 4 sex workers work; and

(b) where each of those sex workers retains control over his or her individual
earnings from prostitution carried out at the brothel
5. Definition of Operator
(2)
Despite anything in subsection (1), a sex worker who works at a small owner-operated
brothel is not an operator of that business of prostitution, and, for the purposes of this
Act, a small owner-operated brothel does not have an operator.
34. Operators of businesses of prostitution to hold certificates
(3)
If a person who is charged under subsection (2) claims that he or she is not an operator
because he or she is a sex worker at a small owner-operated brothel and is not an operator
of any other business of prostitution, it is for the person charged to prove that assertion on
the balance of probabilities.
8
Western Australia
Prostitution Amendment Bill 2007
3.
“individual sex worker” means a person who solely
owns and carries on a sexual service business —
(a) involving the provision of a commercial
sexual act by that person only; and
15 (b) where that person has full control over his or
her individual earnings from taking part in
commercial sexual acts;
“sexual service business” means the business of
providing, or arranging the provision of, a
commercial sexual act;
“small owner-operated business” means a sexual
service business —
25 (a) in which not more than 2 sex workers work;
and
(b) where each of those sex workers has full
control over his or her individual earnings
from taking part in commercial sexual acts.”.
(Note: Both of these occur within Acts that totally decriminalize the indoor market, and
in addition in New Zealand, the street market. As in New Zealand, individual and small
business services are excluded from various regulations in Western Australia).
9