Bellwether Citizens: The Regulation of Male Clients of Sex Workers

Journal of Law and Society

Volumn 37, Issue 1, 2010, Pages 145-170

  Brooks Gordon, Belinda ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953317008     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2010.00499.x     Document Type: Note

References (129)

1. Mosley v. Newsgroup Ltd [2008] E.W.H.C. 1777 (Q.B.).
2. In Scotland the law is different; the Scottish Prostitution Act 2007 created an even more punitive legislative environment than in England and Wales.
3. See Release, Sex Workers and the Law. Drugs, The Law and Human Rights (2005).
4. A public place can be anywhere the public may wander, irrespective of their right to be there.
5. The Sexual Offences Acts 1956 and 1959.
6. The Sexual Offences Act 1985.
7. See, generally, T. Sagar, 'Tackling On-street Sex Work' (2007) 7 Criminology and Criminal Justice 153-68
8. S. Collins and R. Cattermole, Anti-Social Behaviour and Disorder. Powers and Remedies (2006, 2nd edn.); E. Burney, Making People Behave: Anti-social behaviour, Politics, and Policy (2005).
9. Street Offences Act 1959, as amended by the SOA 2003.
10. Sexual Offences Act 1985 s.1(4).
11. SOA 2003, s. 71.
12. Public Order Act 1986, s. 5.
13. Crime and Disorder Act 1998.
14. SOA 2003, s. 47.
15. Where, for example, it was not illegal to buy or sell sex unless either the prostitute or the client was married in which cases, the act contravened the sacrament that marriage was believed to be, and it was tried in the ecclesiastical courts as fornication.
16. From a peak of 124 offences recorded in 2005/06 the number of offences fell to 110 in 2007/08. This drop by a fifth occurs at the same time as the increase in other convictions against consenting adult sex worker following the financial inducement for the police, court services, and the Home Office to prosecute adults in sex work. It has to be questioned whether the increased criminalization of adults in sex work results in worse relationships with the police and a concomitant reduction in intelligence and prosecution of under-age offences.
17. The logic of blaming clients for the unrelated behaviour of traffickers is flawed, however, and to blame respectful clients engaged in consensual commercial contracts is rather like blaming conscientious savers for the rapacious behaviour of City bankers.
18. 483 HC Debs, col. 587W (19 November 2008).
19. A. Walker, J. Flatley, C. Kershaw, and D. Moon (eds.), Crime in England and Wales 2008/09, Vol. 1 Findings from the British Crime Survey and police recorded crime (2009) Table 2.04.
20. The Sexual Offences Act 2003, introduced in 2004, altered the definition and coverage of sexual offences.
21. Data here includes exploitation of prostitution and soliciting, but not prostitution itself (which is not an offence) and because this activity includes that involving consenting adults, it is particularly influenced by police activity.
22. 485 HC Debs. col 161 (4 December 2008).
23. Cuts of £22 million (2009-10) and £17 million (2010-11) to National Offender Management Service (NOMS) were also announced. Similarly, the Minister of Justice, Jack Straw, admits the budget will be reduced by £1 billion over three years (written answer to David Howarth MP, 483 HC Debs, col. 20W (17 November 2008).
24. Report of the Committee on Homosexual Offences and Prostitution (1957; Cmnd. 247; Chair, Lord Wolfenden).
25. For examples, see H. Kinnell and R.K. Griffiths, 'Male clients of female prostitutes in Birmingham, England: a bridge for transmission of HIV?', presentation to Fifth International Conference on AIDS, Montreal, Canada, June 1989; H. Ward and S. Day, On The Game (2007).
26. Mosley, op. cit., n. 1.
27. See R. Weitzer, 'Flawed Theory and Method in Studies of Prostitution' (2005) 11 Violence Against Women 934-49.
28. In cities where overall rate of men paying for sex is high, a proportion of these are paying men for sex. H. Ward, C. Mercer, K. Wellings, K. Fenton, B. Erens, A. Copas, and A. Johnson, 'Who pays for sex? An analysis of the increasing prevalence of female commercial sex contacts among men in Britain' (2005) 81 Sexually Transmitted Infections 467-71.
29. Given what we know about social trends, for example, that the United Kingdom has an ageing population more generally with declining mortality rate, there is a tendency for wives to outlive husbands, divorcees take on average three years to remarry. Indeed, official projections from the Office of National Statistics suggest that 16 per cent of men born in 1964 will neither have married nor be in a cohabiting union by the time they reach their fifties, compared with 8 per cent of men born in 1946: this factor would lead to a projected increase in the client population.
30. A. Jeannin, V. Rousson, G. Meystre-Agustoni, and F. Dubois-Arber, 'Patterns of Sex Work Contact Among Men in the General Population of Switzerland, 1987-2000 (2008) 84 Sexually Transmitted Infections 557.
31. id., p. 558.
32. T.M. Groom and R. Nandwani, 'Characteristics of Men Who Pay For Sex: A UK Sexual Clinic Survey' (2006) 82 Sexually Transmitted Infections 364-7.
33. M. Carael, E. Slaymaker, R. Lyerla, and S. Sarker, 'Clients of Sex Workers in Different Regions of the World: Hard to Count' (2006) 82 Sexually Transmitted Infections 26-33.
34. Aggragated data from nine countries.
35. This is the median figure, the mean was 3.5 per cent. Unless otherwise stated, subsequent means and medians are the same.
36. Data from six countries.
37. Jeannin et al., op. cit., n. 29.
38. Careal et al., op. cit., n. 32.
39. See L. Humphreys, The Tearoom Trade: Impersonal Sex in Public Places (1970).
40. This is not necessarily just because they have an impairment, or because of discrimination in the social world. Like non-disabled men, they have unfulfilled sexual desires for a range of reasons. See T. Sanders, 'The Politics of Sexual Citizenship: Commercial Sex and Disability (2007) 22 Disability and Society 439-55.
41. Harriet Harman MP, Minister for Women and Equality.
42. T. Sanders, Sex Work: A Risky Business (2005).
43. S. Earle and K. Sharpe, 'Intimacy, Pleasure, and the Men Who Pay for Sex' in Sex As Crime?, eds. G. Letherby, K. Williams, P. Birch, and M. Cain (2008).
44. B.M. Brooks-Gordon, The Price of Sex: Prostitution, Policy, and Society (2006) ch. 4.
45. See, generally, H. Kinnell, Violence and Sex Work in Britain (2008).
46. See, generally, H. Self, Prostitution, Women, and Misuse of the Law (2003).
47. R. Weitzer, 'The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade' (2007) 35 Politics & Society 447-75.
48. For example, following the Government Strategy on Prostitution in January 2006, the Home Office launched a kerb-crawler 'marketing' campaign which is arguably a morality campaign; available at: .
49. The rule was rescinded on 23 January 2009 by President Barack Obama.
50. A. Dworkin, Intercourse (1987); S. Jeffreys et al., Love Your Enemy? The Debate Between Heterosexual Feminism and Political Lesbianism (1981), see: .
51. Many lobby groups are headed by separatists. The ideological and political alliance is interesting because the three groups take conflicting views on issues like abortion or same-sex partnerships.
52. Examples of this alliance included a new All-party Parliamentary Group on Prostitution chaired by ex-minister Fiona McTaggart, funded by a fundamentalist Christian anti-prostitution group. The first meeting was addressed by a radical separatist feminist from Sweden whose expenses were met by the Christian group.
53. Including Equalities Minister Harriet Harman, Home Secretary Jacqui Smith, Solicitor-General Vera Baird, Barbara Follet, ex-minister Fiona McTaggart, and Maria Eagle. These female MPs were fiercely loyal to each other, and Harman, in particular, was keen to regain feminist credentials after removing benefits from single parents in 1997 and later cutting pensions, moves which disproportionately affected women.
54. For example, Brain in T. Brain, T. Davis, and A. Philips, National Strategy for Policing Prostitution: Guidelines for dealing with abuse and exploitation through prostitution (1999).
55. Charities Commission, Accounts for Eaves Housing (incorporating Poppy Project) (2008), available at . Such funds enable it to lobby the government, to furnish the public with prohibitionist tools such as 'objector packs' against lap-dancing clubs, and to produce various reports which have been discredited by academics and medical practitioners. See T. Sanders, R. Campbell, M. O'Neill, B. Brooks-Gordon et al., 'A Response to "Big Brothel" by J. Bindel and H. Atkins, Poppy Project' (2008); Home Office, 'Prostitution' at: .
56. The British Psychological Society, 'Memorandum of Evidence on The Criminal Justice and Immigration Bill (2008)', No. 388. Scrutiny Committee, Ninth Sitting (20 November 2007).
57. See, generally, N. Davies, Flat Earth News (2008).
58. Home Office, UK Action Plan on Tackling Human Trafficking (2007), available at: .
59. T. Sanders and R. Campbell, 'Designing out vulnerability, building in respect: Violence, safety and sex work policy' (2007) 58 Brit. J. of Sociology 1.
60. It does not see all sex work as invasive because a) it can be non-contact (for example, sex chat lines), b) non-penetrative, such as bondage, domination, or many S&M practices, or erotic massage ('hand relief'), and that sex workers separate their sex work from the sexual activity they have with non-commercial partners in a variety of ways.
61. Kinnell, op. cit., n. 44; Brooks-Gordon, op. cit., n. 43; Sanders, op. cit., n. 41; Self, op. cit., n. 46; H. Self, 'Regulating Prostitution' in Law and Psychology: Current Legal Issues (eds.) B.M. Brooks-Gordon and M. Freeman (2006); Sanders and Campbell, op. cit., n. 59; V.E. Munro and M. Delia Guista, Demanding Sex: Critical Reflections on the Regulation of Prostitution (2008); G. Scambler and A. Scambler (eds.), Rethinking Prostitution in the 1990s (1997); Ward and Day, op. cit., n. 24.
62. Ward et al., op. cit., n. 27; N. Jeal, C. Salisbury, and K. Turner, 'The multiplicity and interdependency of factors influencing the health of street-based workers: a qualitative study' (2008) 84 Sexually Transmitted Infections 381-5, available at:
63. Ward and Day, op. cit., n. 24; M. Goodyear and L. Cusick, 'Protection of sex workers' (2007) 334 Brit. Medical J. 52-3.
64. See, for instance, A. Bainham and B. Brooks-Gordon, 'Reforming the Law on Sexual Offences' in Sexuality Repositioned: Diversity and the Law, eds. B.M. Brooks-Gordon, L.R. Gelsthorpe, M.H. Johnson, and A. Bainham (2004); Brooks-Gordon, op. cit., n. 43; J. Scoular and M. O'Neill, 'Social Inclusion, Responsibilization and the Politics of Prostitution Reform' (2007) 14 Brit J. of Criminology 2, available at: .
65. International Union of Sex Workers, Declaration of the Rights of Sex Workers (2008), available at: .
66. A number of 'think tanks' and policy for a, for example, Institute of Economic Affairs, Liberty, and Justice argue that not only does prohibition not work, but it makes the sex worker more vulnerable.
67. These are: P. Aggleton, Men Who Sell Sex. International Perspectives on Male Prostitution and HIV/AIDS (1998); Ward and Day, op. cit., n. 24; Goodyear and Cusick, op. cit., n. 62.
68. See J. Weeks, The World We Have Won (2008)
69. J. Weeks, 'Among Men in Britain' (2005) 81 Sexually Transmitted Infections 467-76.
70. Brooks-Gordon, op. cit., n. 43; Sanders, op. cit., n. 41.
71. Sanders, id.
72. See L. Agustín, 'Migrants in the Mistress's House: Other voices in the "trafficking" debate' (2005) 12 Social Politics 96-117; L. Agustín, Sex at the Margins: Migration, Labour Markets and the Rescue Industry (2007) ch. 5.
73. Most notably seen in the New York moral crusade against escort agencies recently discussed in media coverage of the Eliot Spitzer case.
74. J. Meadowcroft, 'Prostitution' in Prohibition, ed. J. Meadowcroft (2008) 178-95.
75. Justis- og Politidepartmentet, Purchasing Sexual Services in Sweden and the Netherlands (2004).
76. For an exception, see R. Matthews, Prostitution, Politics, and Policy (2008).
77. A Ministerial group (including Vernon Coaker, Under-secretary at the Home Office and Barbara Follett, Under-secretary for Equalities) went to Sweden in January 2008 and returned saying that it was not the policy answer for England and Wales.
78. New Zealand Justice Ministry, Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 (2008) available at: .
79. The Policing and Crime Bill will amend the SOA 1959 and SOA 2003. See .
80. For a critical analysis, see B. Brooks-Gordon, 'Clients and Commercial Sex' (2005) Crim. Law Rev. 425; also, K. Soothill and T. Sanders, 'Calling the tune? Some observations on Paying the Price: a consultation paper on prostitution' (2004) 4 J. of Forensic Psychiatry and Psychology 1-18, at 15.
81. Home Office, A Coordinated Prostitution Strategy (2006) available at:
82. The Strategy is examined in Brooks-Gordon, op. cit., n. 43.
83. Not least the Safety First Coalition (which includes members of the church, the RCN, medical consultants, National Association of Probation Officers (NAPO) and the Trade Union and Professional Association for Family Court and Probation Officers, drug and prison reformers, anti-rape and anti-poverty organizations, residents from red-light areas, sex workers, sex-work projects, disability rights groups), the International Union of Sex Workers, and others working in harm-reduction programmes. There was concern that broadening the definition of persistence would increase the vulnerability of sex workers and would also result in net-widening, drawing more women in particular into the criminal justice system.
84. During passage of the Bill, medical service providers, academics, and sex-worker advocates provided evidence to the House of Commons and House of Lords and received considerable support from a number of politicians, and parliamentarians (including John McDonnell MP, Evan Harris MP, Lord Faulkner, Baroness Stern, Baroness Howe, Baroness Miller).
85. Home Office, Policing and Crime Bill Explanatory Notes (20 May 2009).
86. People convicted under the new law would face a fine of up to £1,000 and receive a criminal record.
87. There are already numerous offences against kidnap, rape, trafficking, and so on.
88. L. Longstaff, 'Accused: British Legal System That Fails to Protect Women' Tribune, 15 February 2008.
89. Niemitz v. Germany (1993) 16 E.H.R.R. 97.
90. In practice, persistence is currently interpreted as two or more occasions of soliciting in the same evening.
91. In evidence to the Criminal Law Revision Committee 1984 the Metropolitan Police said that 'cautions and charges' appeared to have little deterrent effect and it was observed that the 'women had no desire to receive a lecture from members of the social services with less experience of life than themselves'. It also reintroduces imprisonment for a prostitution offence, paras. 5.16 and 5.23. See Self, op. cit., n. 46, p. 275.
92. Clauses 15-17 are expanded versions of clauses that the government removed from the previous year's Criminal Justice and Immigration Bill.
93. Weitzer, op. cit., n. 47.
94. Estimated by most studies to be no more than 10-15 per cent of the entire industry.
95. Sanders, op. cit., n. 41.
96. J. Pitcher, R. Campbell, P. Hubbard, M. O'Neill, and J. Scoular, Living and working in areas of street sex work: from conflict to coexistence (2006).
97. R. Campbell and M. O'Neill (eds.), Sex Work Now (2006).
98. Sir William Shelton proposed The Sexual Offences Bill 1990, a private members bill for the removal of 'persistence' in kerb-crawling legislation. The Bill was, however, talked out by Ken Livingstone who recognized the removal of 'persistence' would be less safe for sex workers and could provide a Trojan horse with which to bring in a new 'sus' law to use against Irish, Black, or immigrant people whom the police might want to charge for other purposes. See B.M. Brooks-Gordon and L.R. Gelsthorpe, 'Prostitutes' Clients, Ken Livingstone, and a New Trojan Horse' (2003) 42 Howard J. of Criminal Justice 437-51.
99. See Brooks-Gordon, op. cit., n. 43.
100. If the kerb-crawler client is convicted, a fine is imposed, which if unpaid could lead to loss of liberty through imprisonment. This happens for one incident that causes no nuisance or annoyance to anyone, in pursuance of a legal activity. Policing kerb crawling like this is open to abuse by the current system of target-led policing.
101. Release, Response to Home Office Proposals (2008).
102. Home Office, op. cit., n. 85, para. 122.
103. id., para. 132.
104. At a public meeting in Parliament on 25 November 2008, the Safety First Coalition told how it had been inundated by women who had been raided, arrested, charged, and face imprisonment for running safe, discreet premises where no coercion was taking place with anti-trafficking legislation used to justify these raids.
105. See, for example, J. Scoular, J. Pitcher, R. Campbell, P. Hubbard, and M. O'Neill, 'What's anti-social about sex work? Governance, discourse and the changing representation of prostitution's incivility' (2007) 6 Community Safety J. 11.
106. Joint Committee on Human Rights, Twenty-Sixth Report, Legislative Scrutiny: Equality Bill (2008-09) HL 169, HC 736, available at: .
107. R. Dubourg S. Farouk, L. Miller, and S. Pritchard, 'People Trafficking for sexual exploitation' in The impact of organized crime in the UK: revenues and economic and social costs, retitled Organised crime: revenues, economic and social costs, and criminal assets available for seizure, eds. R. Dubourg and S. Pritchard (2004).
108. S. Butterworth, 'Open Door: The readers' editor on the studious reader's approach to "studies"' Guardian, 8 December 2008 (retracting figures talking up the percentage of women 'trafficked', it states that 'the article should not have made the claim. In doing so it (unintentionally) misled readers' into thinking that trafficking figures were higher than otherwise). Available at: .
109. This is not an unproblematic mathematic, see L. Cusick, H. Kinnell, B. Brooks-Gordon, and R. Campbell, 'Wild guesses and conflated meanings: Estimating the size of the sex worker population in Britain' (2009) 29 J. of Critical Social Policy 703-19.
110. J. Avenell, 'Trafficking for sexual exploitation: a process review of Operation Pentameter', Home Office Research Report 7 (2008), available at .
111. See and .
112. See and .
113. N. Rothschild, 'Prostituting Women's Solidarity: The UK government's call to British women to help combat "sex trafficking" amounts to a crackdown on immigration' Spiked, 27 November 2008, available at: .
114. Agustín, op. cit. (2007), n. 71.
115. For example, see C. Zimmerman, M. Hossain, K. Yun, B. Roche, L. Morison, and C. Watts, Stolen Smiles (2006).
116. B.M. Brooks-Gordon, 'State Violence Towards Sex Workers' (2008) Brit. Medical J. 337:a:908 doi:10.1136/bmj.a908.
117. See ; ; .
118. C. Pantazis, 'The Problem of Criminalisation' (2008) 74 Criminal Justice Matters 10-12.
119. On 17 November 2008, judges spoke out against the conflict of interests inherent in courts' funding reliance on court fines.
120. The obscure common law offence of 'aiding and abetting misconduct in a public office' was used to arrest Damian Green MP. He was questioned for nine hours and his homes and Commons office were searched after he was arrested on 27 November 2009. Mr Green had been given information about migration leaked by a member of Home Office staff. The case is highly unusual and it illustrates the degree to which the erosion of civil liberties and fundamental freedoms has occurred, and the sensitivity of the Home Office about its migration policies.
121. See K. Raymond, 'Brothels and safe red light areas are the only way forward' (2006), available at .
122. IPSOS Mori (2008), available at . The findings come despite the use of 'push-polling' questions, the fact that only women were mentioned, and derogatory stereotypes, words, and imagery were used, and mentioned only heterosexual prostitution and not same-sex or trans workers.
123. 'Massive support for legalisation of prostitution' Politics.co.uk, 27 November 2008, available at: .
124. I. Dunt, 'Prostitutes United' Politics.co.uk, 8 September 2008, available at: .
125. Brooks-Gordon, op, cit., n. 43.
126. Home Office Ministers and the Equalities Minister are already linked to organizations carrying out flawed and unethical research practices. As a result, government policy on prostitution is built on sensationalist studies that are inaccurate, see Butterworth, op. cit., n. 108.
127. This has already been seen in the laws around DNA sampling.
128. The Metropolitan police were ordered to destroy DNA samples collected and held unlawfully from kerb crawlers prior to the Police and Criminal Justice Act 2001.
129. The expansion of the DNA database to include innocent people was ruled unlawful in December 2008 by the European Court of Human Rights. The progression was a logical and predictable erosion of civil liberties.