COVID-19: Distinguishing crime
Sex work. Prostitution. We all have an idea of what these terms mean. For some women (95% of sex workers are said to be women) entering sex work is a choice, a consensual transaction. Some enter for financial gain. Others are more vulnerable, exploited in their circumstances by virtue of drug addiction, homelessness or groomed by pimps. Whatever the reason for entering into sex work, workers are much more likely to be criminalised for their behaviour than sex buyers. In 2013/14 there were more charges for loitering and soliciting (‘selling sex’) than for the crimes of pimping, brothel-keeping, kerb-crawling and advertising prostitution combined. Similarly, in 2014/15 there were 456 prosecutions for loitering and soliciting, yet only 227 prosecutions for kerb-crawling.
There are some safeguards in place for those who have committed criminal offences in the past. The Rehabilitation of Offenders Act 1974 (‘the Act’) means that some cautions and convictions become ‘protected’, for example an instance of theft, where the punishment was a fine. This means that after a period of time they are no longer required to be disclosed unless specifically asked about. Many employers will state on forms that you are required to disclose cautions and convictions unless they are protected. It is worth noting that protected and spent are two different things; ‘spent’ means:
Whereas the characteristics of a protected caution or conviction in England and Wales are as follows:
The protected status of certain cautions and convictions allows members of the public who have committed relatively minor offences to move on with their lives and prevent on-going prejudice against them, such as in a work environment.
However, certain criminal offences are so serious that that they cannot become protected. These crimes are known as ‘listed offences’ under the Act and are normally reserved for crimes which result in a prison sentence. As indicated above, a person can also only benefit from a conviction becoming protected if they have no other convictions.
It may therefore come as a surprise that crimes associated with prostitution are described as ‘listed offences’. Although it is widely known that soliciting or loitering are considered crimes in the jurisdiction of England and Wales, they are not ones, I suggest, that sit well with the narrative of what we consider criminal. The general understanding of prostitution (although of course there are many sex workers who are not part of this narrative), is one of young vulnerable women forced in to sex work by dire circumstances where they remained trapped. The NPCC’s National Policing Sex Work Guidance notes that “the murder of sex workers continues to take place at an alarming rate” and that at the time of writing the guidance, “152 sex workers had been murdered since 1990.” It is therefore clear and seems almost accepted that sex workers are overwhelmingly at greater risk of violence and harm.
The case of R (QSA and others V SSHD and SSJ was argued in the High Court on the 17th and 18th of January 2018. The case is brought by three former prostitutes who each have multiple convictions for soliciting.
The status of crimes associated with prostitution as a ‘listed offence’ and the consequent on-going disclosure of what may be a violent, difficult and emotionally scaring history, is the reason behind this recent judicial review, which has been brought by a group of women formerly involved in prostitution and supported by the Centre for Women’s Justice, Justice for Women and the charity Nia. The primary argument upon which these prostitution survivors rely is that this forced disclosure under the Government legislative scheme
… discriminates against women and is contrary to the UK’s legal obligations in respect of the trafficking of women. They will also rely on previous findings that the scheme is a disproportionate interference of their private life.”
In 2014 the European Parliament in a non-binding resolution stated that “…prostitution [is] a violation of human dignity and an obstacle to gender equality”. The House of Commons Home Affairs committee found that “Decriminalisation is supported by a number of international organisations, including the World Health Organisation, on the basis that it would help to prevent the spread of HIV, and Amnesty International, which argues that criminalisation of sex workers, makes an already disadvantaged group of people more vulnerable to violence and other violations.”(ibid)
The judicial review, European Parliament resolution and the Home Affairs select committee are striking in that whilst their purposes are very separate they all realise that criminalisation of sex workers is not the answer.
Whilst we wait to see whether legislative changes will be made to stop the criminalisation of sex workers, and push for further criminalisation of sex buyers, efforts must also be placed on ensuring that the status of sex workers’ previous convictions is ‘protected’. This is key for survivors of abuse or those who want to move away from sex work, so that their past does not disproportionately and unfairly impact on their present and their future.
Disclosures of this nature are far reaching, impacting these women’s opportunities for involvement in their children’s schools, voluntary work, and professional life.
DBS checks, required for all of these areas, will reveal the women’s so called criminal history, meaning that this could be disclosed to any number of non-professional persons.
Looking at this from an employment/employer perspective, the women applying for roles requiring DBS checks would naturally be discriminated against by virtue of their convictions but also, if they are invited for an interview, they could be asked questions about the offences, naturally causing them to re-live the trauma they have likely worked hard to escape. This creates an on-going cycle of trauma and prejudice against the survivors.
Judgment in the above case has not yet been handed down but hopefully it will go some way to pushing for a legal change to protect these women and prevent this type of discrimination.
In the meantime, it seems that such disclosures will continue to follow these women, to their employers, school councils, and in any voluntary role involving the care of adults and children. Protecting vulnerable people is naturally one of the highest priorities for employers and should always remain so, but the balance must be struck between protecting the vulnerable and allowing these women to make positive changes to their lives. In fact, it could well be argued that these women are better suited to protecting the vulnerable and helping society push for change by using their experience to protect others. Irrespective of the reasons for entering prostitution, no one chooses to be groomed, raped or abused – why should these women be prejudiced for life?
This blog was written by Alecsandra Manning-Rees, Associate in the Regulatory Team.
IWD is an opportunity to build on the progress that has been made towards gender parity and to celebrate the achievements of women on a global scale. This year, #PressforProgress.
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