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Debating prostitution Policy and Law: Portugal and Scotland

This section summarises the historical, social and legal evolution of prostitution in Portugal and Scotland, by describing the discursive context at issue. Herein, an overview of the current law and policy in Portugal, and Scotland respectively is provided, including the contexts in which these laws and policies were formulated and enacted.


Writing Guidelines


Chapter four| Debating prostitution Policy and Law

Process and Outcomes

Section 3.0-3.3 of doc Prostitution and Sex Trafficking What are the Problems Represented to Be Carson and Edwards, 2011 may provide some insight on what is expected from this chapter

( 3000 words)                         

This section summarises the historical, social and legal evolution of prostitution in Portugal and Scotland, by describing the discursive context at issue. Herein, an overview of the current law and policy in Portugal, and Scotland respectively is provided, including the contexts in which these laws and policies were formulated and enacted.                  

Portugal

Structure

Historical and sociological framework/ background

Legal framework

Critiques/Issues

Document attached (Ferreira leite) has some/most of the information needed in regards to the portuguese laws and policies

Scotland

Structure

Historical and sociological framework/ background

  • UK: general context (1-2 paragraphs max)
  • Scotland: in detail – elaborated

Legal framework

  • UK: general context (around 2 paragraphs)
  • Scotland:

Critiques/Issues

Information collected regarding Scottish laws

https://www.gov.scot/publications/exploring-available-knowledge-evidence-prostitution-scotland-via-practitioner-based-interviews/pages/20/ http://www.gov.scot/publications/evidence-assessment-impacts-criminalisation-purchase-sex-review/

 

UK Law

  • Prostitution law and policy are devolved matters and criminal laws relating to prostitution vary between the different jurisdiction of the UK ( the Conservetive Party Human rights commission report, 2019)
  • The primary difference is that since 2015 it has been an offence to pay for sexual services in Northern Ireland,
  • Nowhere in the UK is it an offence to provide sexual services in return for payment. Nor is it an offence in Scotland, England or Wales to pay for sex services in circumstances not involving force or exploitation.
  • In all jurisdictions there are a number of offences related to activities connected to prostitution such as brother-keeping, soliciting in a public place and human trafficking
  • Crown Prosecution services (CPS) policy is primarily focussed on the prosecution of individuals who force others into prostitution, and who exploit and harm others with emphasis on offeces of causing inciting or trafficking.

For summary offences such as soliciting and kerb-crawling the police have discretion as to whether or not arrest of refer cases to the CPS.

How is the current Law Enforced?

The Conservetive Party Human rights commission report, 2019

  • In 2016, Freedom of information requests were sent to every police authority in the country
  • Responses revealed that some authorities will only arrest people who solicit for the purposes of selling and some authorities will only arrest people who solicit for the purposes of selling and some authorities will only arrest people who solicit for the purposes of buying,
  • South Wales, South Yorkshire and Thames Valley, for example, all recorded zero for the number of people arrested for soliciting for the purposes of purchase
  • Whereas Cleveland recorded double the number of arrests for soliciting for purchase than for common prostitute soliciting
  • From this evidence we can surmise that some police authorities will routinely neglect to arrest those who have been seeking to sell.
  • Other will routinely neglect to arrest those who have been soliciting for the purpose of buying

Scotland

The Conservetive Party Human rights commission report, 2019

  • The Home Office does not collect statistics on the scale of prostitution.
  • It has commissioned research into the scale of prostitutiom in England and Wales, but this is ongoing
  • In 2016 the Scottish Government commissioned research to explore available knowledge and evidence but did not conducts a new analysis or estimate of the scale of prostitution.  

The current data available is incomplete and inadequate.

  • Many of the existing studies focus on specific sections of those engaged in prostitution, and have a small sample size
  • Moreover those who are engaged in using services for additional needs are easier to contact and can be overrepresented in research focussed on such services versus those who engage in prostitution in private gomes with limited contact with other services 
  • In contrast research primarily conducted through online surveys or contact with those who use online advertising is largely inaccessible to (and this is not representative of) those who have do not have access to the internet, those whose loves may be less stable, are socially isolated or experiencing exploitation.
  • Within these limits there are some estimates available for the scale of prostituition in the UK,
  • It is currently estimated that there are 72, 800 people engages in prostitution in the UK, which 32000 are in London
  • The office of National Statistics estimated that there were approximately 58000 women engaged in prostitution in 2014 and that each of them had an average of 25 clients a week

UK Law related to Prostitution

Controlling prostitution for gain

  • It is illegal to cause or control the prostitution of another for gain across the UK
    • In England and Wales sections 52 and 53 of the Sexual Offence Act 2003 set out the offences of causing or inciting prostitution for gain and controlling prostitution
    • In Northern Ireland articles 62 and 63 of Sexual Offences (Northern Ireland) Order 2008 set out similar offences of causing or inciting prostitution for gain and controlling prostitution for gain,
    • In Scotland section 7(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 includes offences of procuring women to be engaged in prostitution. Sections 11 and 13 set out offences of living on the earnings of another person through prostitution,

Brothel-keeping

  • It is illegal to keep a brothel i.e a venue where more than one person offers sexial services for payment (not necessarily at the same time) across the UK
    • In England and Wales, the main offences are in sections 33 and 33A of the Sexual Offences Acts 1956. The offence in section 33A introduced by the Sexual Offences Act 2003 is triable either way and has a higher maximum penalty,
    • It was introduced to address situations where the offence of controlling prostition for gain in section 53 of the Sexual Offences Act 2003 is difficult to prove as the owner has put themselves at a distance from the actual running of the establishment,
    • It is also illegal in England and Wales for landlord to let premises to be used as a brothel, or for a tenant to permit premises to be used as a brothel or for prostitution (sections 33-36 of the sexual offences Act 1956)
    • In Northern Ireland article 64 of the Sexual Offences (Northern Ireland) Order 2008 makes it illegal to keep, manage or assist in the management of a brother. It is also an offence under the article for a tenant, lessee or occupier of premises to knowingly allow the premises to be used as a brothel.
    • In Scotland, section 11(5) of the Criminal Law (Consolidation) (Scotland) Act 1995 contains offences related to keeping a brothel or permitting premises to be used as a brothel

Human Trafficking for Sexual Exploitation

  • Human trafficking for the purpose of sexual exploitation is an offence across the UK
    • In England and Wales the general offence of human trafficking is found ion secrion 2 of Modern slavery Act 2015 with sexual explotation defined in section 3 (3). Section 57-59A of the Sexual Offences Act 2003 governs offences of trafficking into, within and out of the UK for sexual exploitation prior to the introduction of the Modern Slavery Act 2015,
    • In Northern Ireland, the offences of human trafficking is set out in section 2 of the Human Trafficking and Explotation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, sexual exploitation is defined in section 3 (3). Prior to the introduction of the 2015 Act trafficking for sexual exploitation was prohibited by sections 57-59 of the Sexual Offences Act 2003.
    • In Scotland, the Human trafficking and exploitation (Scotland) Acts 2015, section 1, sets out the offence of human trafficking with sexual exploitation defined by section 3(3)-(5). Section 22 of the Criminal Justice (Scotland) Act 2003 criminalised offences of trafficking for the purposes of prostitution prior to the 2015 Act.

Children

  • Across the UK is illegal to pay to pay for sex with a person who is under the age of 18 and also to cause or incite or control the sexual exploitation someone under 18
    • In England and Wales, section 47 of the Sexual Offences Acts 2003 is an offence of paying for the sexual services of a child. Where a child is aged 13-17 there is a defence of reasonable belief that the child was aged 18 or over. Sections 48-50 set out offences of causing or inciting, controlling and arranging or facilitating the sexual exploitation of a child, These offences were amended by the Serious Act 2015 to replace references to child prostitution and chilf pornography with term sexial exploitation which is defined in section 51 as provision of sexual services or services or the recording of transmission of an indecent image,
    • In Scotland the protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 includes offences related to the sexual exploitation of children including in section 9 offences related to purchase of sex with a chirld and, in section 10-12, offences related to the procuring or control of children for the purposes of sexual exploitation,
    • In Northern Ireland, articles 37-40 of the Sexial Offences (Northern Ireland) Order 2008 contain offences related to the sexuall exploitation of children including purchasing of sexual services (article 37) and causing or inciting controlling and arranging or facilitating child sexual exploitation in prostitution or pornography (articles 38-40)

Scotland legislation

In Scotland, prostitution itself is not illegal but there is legislation covering activities surrounding prostitution, such as soliciting, living off immoral earnings and trafficking.

For a comparison of prostitution regimes across nine countries see the 2009 report `Shifting Sands`

Buying Sex

The first piece of Scottish legislation to tackle the purchase of sex was introduced in October 2007.  This made it an offence to solicit or loiter in a public place for the purpose of obtaining the services of a person engaged in prostitution.  Prostitution Public Places (Scotland) Act 2007

Currently it is not an offence in Scotland to buy sex, other than “in a public place”. There have been a number of proposals to criminalise buying sex the latest being Rhoda Grant MSP consultation on the proposed Criminalisation of the Purchase of Sex (Scotland) Bill www.scottish.parliament.uk/S4_MembersBills/FINAL_consultation_summary.pdf

Selling Sex                                                                                                                                                                                                

Although the Scottish Government has recognised prostitution as exploitation and as part of the spectrum of gender based violence, those selling sex on the street continue to be criminalised.  Women and men selling sex can be charged with soliciting under Section 46 of the Civic Government (Scotland) Act 1982

  

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