Beyond Trafficking and Slavery

Little tolerance for zero tolerance: prostitution reform in Scotland

A new bill seeks to shift Scotland from zero tolerance of prostitution to full decriminalisation. Can it successfully make the transition to the New Zealand model?

Fraser Crichton
11 May 2016
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Toronto 2008. Eric Parker/Flickr. (CC 2.0 by-nc)

Last September Jean Urquhart, a member of the Scottish parliament for the Highlands and Islands, launched a consultation on a new bill that would decriminalise sex work in Scotland. It would do so along the lines of the 2003 New Zealand’s Prostitution Reform Act (PRA), which fully decriminalised sex work, brothel keeping, and living off the proceeds of sex work. The consultation received an overwhelming 70% positive response supporting the proposed legislation and the bill will be reintroduced in the next session of the Scottish Parliament after the May elections. This is the first time in Scottish history a coherent review promoting the decriminalisation of prostitution has been proposed.

Urquhart worked closely with SCOT-PEP, a peer-led charity that advocates for sex workers, while preparing the bill. Nadine Stott, the co-chair of SCOT-PEP, describes Scotland’s current legislation as mismatched laws, shaped at different times, with different intentions, “albeit, none that are really about the safety of people who sell sex”. In contrast, New Zealand’s PRA is mature, coherent, comprehensive legislation that has undergone formal review and puts sex workers’ rights at its heart.

How we got here

The police in Scotland are not developed enough to realise that people who aren't women sell sex

In Scotland, stigma against sex work is overwhelmingly intense and isolating. “It just seems to come from everywhere”, said Tammy, a sex worker based in Glasgow. Police, health and support services, personal relationships, and the increasingly loud ‘end demand’ campaign have all contributed to the climate of hostility toward prostitution that exists in Scotland today. Even approaching support services – e.g. health and social work – is fraught with danger. “Rape crisis for example, would you go to the sexual assault helpline?” Tammy asked. “I know a lot of workers who say they wouldn’t approach them for fear of being outed”.

Tammy started sex work to fund her masters programme in Scotland. She currently shares a flat with a small group of friends who also work and share bills. Whilst indoor sex work is legal in Scotland, more than one person working together is considered an illegal brothel. Tammy and her friends are careful about not working at the same time. “Yes, it’s technically illegal”, Tammy said. “I did think about that a lot, but for me the safety aspect of sharing a flat with other people was paramount”.

Scotland’s brothel keeping law, said Stott, forces people “to choose between working alone and being within the law, but feeling much more vulnerable to violent people, versus working with a friend and feeling vulnerable to arrest”. The risks associated with working alone are incredibly high, as the 2016 murder of Jessica McGraa in Aberdeen, Scotland sadly attests.

In Scotland 90% of sex workers work indoors from private or commercial premises, however as policing has become more repressive more and more have been forced underground. In Edinburgh, saunas and massage parlours were tolerated by the local council until 2013 when Police Scotland adopted a zero tolerance approach and began a series of raids using condoms as evidence of commercial sex. A number of people were arrested, but all charges have since been dropped. And now commercial sex workers no longer have access to condoms in the workplace. Police Scotland have subsequently continued to conduct raids using human trafficking as a pretext. Undercover police now monitor online advertising sites and target people working together. Stott said sex workers are “low-hanging fruit” for police under pressure to meet conviction targets. “It’s not complicated. It’s not dangerous. It’s so easy for them,” said Stott.

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Police Scotland promotes a new leaflet entitled 'Human Trafficking - Reading the Signs' in 2013. Andrew Milligan/PA Archive/Press Association Images. All rights reserved.

This approach exists in part because prohibitionists have astutely spun prostitution into a moral outcry over human trafficking. “I think they’ve got an ideal of a trafficking victim, who seems a lot more appealing to the public than a prostitute”, Tammy said. “A trafficking victim is a lot more voiceless and they can project quite a lot of victimhood stuff onto them.”

This hides the complexities of migrant sex work and does a terrible disservice to genuinely trafficked people. Mainstream ideas about prostitution and vulnerability have also led to gender- and sector-based stereotypes that concentrate efforts on some areas while leaving other, potentially equally exploitative areas untouched and invisible. There are many undocumented or semi-documented migrants working in Scotland in many industries, but according to Stott, Police Scotland’s obsession with sex trafficking has lead to a disproportionate targeting of migrant women sex workers. All of those who have approached SCOT-PEP having been prosecuted for brothel keeping as a result of working informally together have been migrant women. “The police in Scotland are not developed enough to realise that people who aren't women sell sex,” said Stott. Urquhart's Bill will recognise that not all sex workers are women.

Stott described the first raids targeting migrants in Edinburgh’s saunas as inducing panic among employers who within two hours dismissed every single migrant sex worker. “So if you’ve been dismissed from your job unexpectedly that morning, you’re in a pretty urgent situation. You’re really vulnerable to exploitation through third parties in that way”, said Stott.

The police now regularly raid and prosecute small groups of women working together – just like Tammy – across Scotland. Many are conducted ostensibly as ‘welfare visits’ but result in arrest. Urquhart’s bill would repeal the brothel keeping law and allow up to four people to work together, introducing a licensing system for larger premises.

Blocked from brothels, vulnerable on the street

The distrust sex workers have for Police Scotland’s zero tolerance approach is tangible. Stott said it would be “laughable” for anyone she knows to contact the police if they were the victim of a crime. Nowhere is that more so the case than for those working on the street.

Street-based sex workers experience far more violence than indoor workers. In Presbyterian Scotland the local community frequently vents its intolerance openly and cases of vigilante attacks with baseball bats, spitting, and bottles and fireworks being thrown at sex workers are not uncommon.

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Nadine Stott. Photo by Fraser Crichton. All rights reserved.

Street-based sex work was criminalised in Scotland under the Civic Government (Scotland) Act 1982. The 2007 ‘kerb crawling’ laws criminalised clients for soliciting sex workers in a public place. Stott said that when these were first introduced “there was just this kind of weird, collective fiction that simply criminalising clients would in itself decriminalise sex workers.” Stott said that in the last ten years 4,000 women have been arrested and 2,000 prosecuted for soliciting under the old 1982 Act. Conviction brings pressure to pay fines though sex work and makes it harder to transition out of sex work.

Stott says that clients now pressure sex workers to negotiate inside the client’s car rather than on the street, making it harder to asses if a client is drunk or aggressive before getting in the car. The kerb crawling laws led to a horrific 95% increase in violent attacks within six months of their introduction in Edinburgh. The kerb crawling laws have clearly made street based sex workers even more vulnerable to violence. Street-based workers now hide from the police. They also have fewer clients, and so more pressure to accept clients they may not previously have. Stott believes the combination of the kerb crawling and soliciting laws makes sex workers more vulnerable to violence, “It suggests to perpetrators that street-based sex workers are outside of the law and therefore legitimate targets for violence”.

To add to this, there is much vocal support for expanding the ‘kerb crawling’ laws into the complete ‘Nordic model’ – legislation that criminalises sex workers’ clients in general rather than only public soliciting. This comes from radical feminist and hardline Christian groups, but attempts to introduce such legislation by Labour MSPs have been consistently rejected. SCOT-PEP vigorously opposes the Nordic model primarily on grounds of safety, stigma, and access to human rights. The Nordic model has many criticisms including that it still criminalises people working together; living off of the earnings from sex work; and results in the deportation of migrant sex workers.

A new way forward

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NYC Pride Parade 2011. Jason Pier in DC/Flickr. (CC 2.0 by-nc)

Urquhart’s bill, in contrast, has support from SCOT-PEP, HIV Scotland and the National Union of Students - Scotland. Internationally decriminalisation is supported by the World Health Organisation, the Global Alliance Against Trafficking in Women, and Human Rights Watch, among others. Decriminalisation is fundamentally different from the Nordic model as the police are no longer de facto regulators of the sex industry. Urquhart's bill would repeal both the soliciting law and the kerb crawling laws, fundamentally changing the relationship between the police and sex workers. This is similar to what New Zealand did when it passed the Prostitution Reform Act (PRA) in 2003 and began a radical experiment in full decriminalisation.

Sex workers in New Zealand frequently cite the example of police officers escorting a client to a cash machine to ensure payment for a street sex worker as an example of the change in approach there. The Review of the PRA five years after its introduction found there was no increase in the number of people in the sex industry, and that over 90% of sex workers believed they now had significantly better employment, legal, and health and safety rights. Indeed, in 2015 a sex worker from Wellington, the capital of New Zealand, successfully prosecuted a brothel owner for sexual harassment through the Human Rights Review Tribunal.

The review also found that police attitudes to sex workers changed for the better. Lynzi Armstrong, a lecturer at the Victoria University of Wellington, found in a three-year study on interactions between the police and street-based sex workers in New Zealand that decriminalisation changed “the power imbalance” between the police and sex workers. The police, she writes, are no longer there to control and punish sex workers; their role is to attend to real crime and ensure people’s safety.

Armstrong also found the police welcomed the open dialogue they now have with sex workers and clients. The murder of three sex workers in Christchurch shortly after decriminalisation is frequently used to suggest decriminalisation failed. Armstrong, however, points out that “no legal framework can be expected to prevent violence”. The perpetrators were arrested and received lengthy sentences, “a particularly compelling example of the very positive relationship that is possible between police and sex workers when sex work is decriminalised”.

Tammy, the Glasgow-based sex worker, worked for six months in a Wellington brothel and thus has a unique perspective on both systems. “I really do miss my days of working in New Zealand because it was just much easier to be able to work in a safe environment, but more so for me to be able to work with friends and not feel that isolation of being a sex worker on my own”. With the fear of arrest gone, Tammy said stigma also reduces. “We were quite open in New Zealand, and for me the reaction to that was a lot more moderated than it would be here”.

In a decriminalised environment structural stigma continues, but Tammy found that “sex workers in New Zealand would complain about things they wouldn’t even think about complaining about here. For example, if they were refused a loan because they couldn’t justify their income, or they wouldn’t say outright what they did; I wouldn’t even go into a bank here and ask for a loan based on my income from sex work”.

A tipping point is coming in Scotland. The current legislation is woefully inadequate. It has to change. With the Scottish elections happening on 5 May this year, perhaps the loud Labour ‘end-demand’ campaigners won’t have the platform they’ve held until now. Finally the laws that Jean Urquhart proposes could address the fundamental rights of a population that law has until now failed. Scotland and New Zealand, so far apart, and yet suddenly so much closer.

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