The Trusty Servant

The ineffable Jacqui Smith was interviewed on the Today programme this morning. The report (.pdf available on the Home Office website) has as its main recommendation the creation of a

specific strict liability offence of paying for sex with someone who is controlled for another person’s gain, in order to protect vulnerable individuals, for example those who have been trafficked or exploited by any other means.

Anyone familiar with New Labour might wake up at the “for example”. Is some draconian new offence to be introduced with much hoopla about action against trafficking, when actually it will be drafted much more widely, and not really aimed at trafficking at all? There is the unfortunate precedent of the “living off immoral earnings” prosecutions which interpret the offence so widely that a landlord cannot safely let a flat to a prostitute.

Before Jacqui Smith came on, we heard an unenthusiastic Niki Adams, a spokeswoman for the English Collective of Prostitutes, making just this point. She thought it could be used to cover the common case where the prostitute had a geunuine boyfriend who derived some benefit from her earnings. She also thought that Home Office suggestions that 80% of prostitutes had been trafficked were just plucked out of the air. She thought the proportion was small. But there was no good data.

As expected, Jacqui Smith started with the evils of trafficking:

We are very clear that what we are making an offence is paying for sex with someone who has been exploited, who has been trafficked, who is actually involved in prostitution against their will … When we talk to the public about their views on this, there really isn’t strong support at the moment for a total ban on paying for sex, and we wanted to focus on where there clearly is exploitation, where women are not making a free choice

But she claims that Nick Adams is wrong. The offence will be narrowly defined. Unfortunately, time did not permit any discussion of that, so we will find out later. The interviewer focussed on the strict liability aspect:

A man who makes a reasonable effort to find out if a prostitute is trafficked or not is prosecuted because he was wrong, he got the wrong conclusion, and she was trafficked, and he thought she wasn’t. And is that your proposal? And is that fair?

JS: It is my proposal that men should actually think twice about paying for sex. The reason that they should do that is because actually the majority of women don’t want to be involved in prostitution …

So the unfairness is justified by the fact that the majority of women are, according to Jacqui Smith, in prostitution against their will. The interviewer is not happy:

… But I have given you a specific case that seems unfair. He makes a reasonable effort to ascertain if the prostitute is trafficked. Perhaps he asks her, she tells him she isn’t trafficked. It turns out she is trafficked, and then he is arrested for having procured the services of someone who controlled for someone else’s gain. Now is that the intention of the law, because it doesn’t seem terribly fair?

JS: Yes it is the intention of the law. I will tell you what I think is more unfair. That is that there are women in this country who are effectively held in slavery …

Interviewer: That is a different unfairness! It is not up to the client of the prostitute, who is making his best effort not to support the trafficking trade, to do the job of the police in .. out and uncovering trafficked prostitutes in this country.

JS: You understand that there wouldn’t be exploitation, there wouldn’t be this supply of women controlled in the way in which they are if there wasn’t a demand for prostitution. … Frankly, trafficked women don’t have a choice, men do.

So we have a proposal for a fundamentally dishonest piece of legislation. Jacqui Smith recognizes that she does not have public support for a ban on prostitution. But she proposes to deter men from using prostitutes by prosecuting them anyway for a different strict liability offence which they can only be sure of avoiding by avoiding prostitution altogether. She hopes that the public won’t spot what is going on because she will keep on talking about the evils of trafficking.

Just to be clear, trafficking is clearly an exceptionally evil crime. I have read two books on it over the years. The last one had a particularly unedifying account of the UN troops who were supposed to stop it (as one of their responsibilities in former Yugoslavia) accepting sexual favours from the trafficked women instead. There were also appalling accounts of girls being repeatedly raped at staging posts along their journey to get them used to their new job.

It would certainly be good if more users of prostitutes were alert to the possibility that the girl might be held against her will, and were willing to tip off the police. But prosecuting the users as a strict liability offence is a rather vicious way of prosecuting a random group of men for using prostitutes. Vicious because the trafficking stigma is likely to attach to them.