The British Gazette

The British Gazette’s short answer to this question is: No.

However, the problem demands much more attention than such a glib answer. The British Gazette’s answer of “No” is informed by the consequences of another liberal reform in the 1960’s – the decriminalisation of homosexuality. Now let us be clear – these are very different issues but the long term effects of legalising homosexuality – that were probably not imagined by many of those MPs who voted for legalisation – illustrate how society’s values can change dramatically over time. This is best illustrated by the case of the Scottish hotelier who refused to let a room to two homosexual men. Measures were taken against his business by the authorities. Sixty years ago measures would have been taken against such a hotelier had he knowingly allowed and encouraged two such men to use his hotel for sex. In other words, on this issue society’s attitudes have been virtually reversed. The old saying that; “…the past is a foreign country, they do things differently there…” is most apposite here.

The British Gazette feels it is important that parliament should see to it that the law of the land takes a very firm and principled stand here. This is still in theory a Christian county. It still has (for the time being) an established church whose supreme governor is also head of state. It therefore should never be the case that society’s values should be allowed to reach such a nadir that prostitution should ever be considered a proper and respectable career choice for a young woman – or young man. The idea that in the future we could have colleges of further education offering NVQ courses in “massage parlour management” or “escort management” or even, in “escorting” must be an anathema to all right minded decent folk. Be in no doubt: if prostitution was to be fully legalised and officially regulated there would be the danger – in time (50 years) – of such a situation coming about. The British Gazette would remind its readers that Christ made it his business to seek out and persuade prostitutes to quit being prostitutes. Since the Almighty in His infinite wisdom is of the opinion that being a prostitute is not an acceptable career choice, the British Gazette would not support any attempts to make it so!

Having stated thus, the British Gazette does not support Harriet Harman’s feminist inspired piece of lopsided wrong headed legislation that is Section 14 of the Policing and Crime Act, 2009. Harman’s original proposal was to create a new strict liability offence of paying for sex with a prostitute when a third person was said to be “controlling the prostitute for gain” – which could have been interpreted to mean a proprietor of a brothel or “massage parlour” even where the prostitutes were not being coerced or pressured “by the management” in any way. Harman’s plans were frustrated in the committee stages in both the Commons and the Lords to produce Section 14 thus:

Paying for sexual services of a prostitute subjected to force etc.

(1) A person (A) commits an offence if—

(a) A makes or promises payment for the sexual services of a prostitute (B),

(b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

(c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).

(2) The following are irrelevant—

(a) where in the world the sexual services are to be provided and whether those services are provided,

(b) whether A is, or ought to be, aware that C has engaged in exploitative conduct.

(3) C engages in exploitative conduct if—

(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or

(b) C practises any form of deception.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”

The trouble with this piece of legislation is threefold:
Firstly, criminalising a person for doing something without knowing, let alone intending, to do it is potentially very unfair. Most criminal offences consist of two elements – the act of doing the prohibited thing, and the state of mind of the person doing it. The mental element does not necessarily need to be proved by showing the person positively intended to do something; for some offences it is enough that you are reckless about the consequences of your actions; for others mere negligence is enough.
But there are also a small minority of offences that do not require mental culpability at all. These are mostly health and safety, environmental, motoring or other regulatory offences and they are known as “strict” or “absolute” liability offences. To take a random example, it is an offence for a landowner to cause a polluting substance to enter controlled waters, even if the person or company who owns the land does not know it is happening and it is not the result of negligence.
Section 14 also creates strict liability because a person will be guilty of it even if he or she had no reason to believe that the prostitute had been exploited. All that needs to be proved is that the person paid for sex with a prostitute who was in fact exploited by a third person. Defendants prosecuted under section 14 are completely denied any defence on the basis of lack of knowledge – indeed, a person would be guilty even if he or she had made concerted efforts to check that the prostitute had not been trafficked or otherwise exploited.
The British Gazette therefore proposes that Section 14 be amended thus:
Paying for sexual services of a prostitute subjected to force etc.

(1) A person (A) commits an offence if—

(a) A makes or promises payment for the sexual services of a prostitute (B),

(b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

(c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B), and

(d) A knew that C engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment.

(2) C engages in exploitative conduct if—

(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or

(b) C practises any form of deception.

(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”

Secondly, it fails to address some of the practical issues arising from the practise of prostitution.

Thirdly, it repeats an earlier practise of this government of extending the power of the state over the citizen beyond its borders. This is a dangerous precedent, of which more later.

To return to the issue of prostitution however, whilst the British Gazette wants to see the criminals involved in trafficking women into the UK and forcing them into prostitution prosecuted and if convicted given long prison sentences, it does not seek to punish any man (or woman) who unknowingly and naively pays for sex from such a woman (or man).

However the British Gazette suggests that Sections 52 (Causing or inciting prostitution for gain), 53 (Controlling prostitution for gain) and 54 (interpretation of 52 & 53) of the Sexual Offences Act (SOA), 2003 be amended along the lines of the “exploitative conduct” definition contained in Section 14 of the Policing and Crime Act, 2009. This would mean that brothel keepers could only be convicted were it proves that they used force, threats (whether or not relating to violence) or any other form of coercion, or practised any form of deception. Thus the amended sections could be entitled thus:
Section 52: Causing or inciting prostitution for gain through the use of exploitative conduct.
Section 53: Controlling prostitution for gain through the use of exploitative conduct.
The British Gazette admits that these amendments would have the de facto effect of decriminalising prostitution when managed in such a way that does not amount to “exploitative conduct.”

The British Gazette however is emphatic that it does not want to see prostitution legalised. It proposes that in addition to amending of Sections 52 to 54, Section 55: Keeping a brothel used for prostitution, should be amended and re-titled viz: Keeping a brothel.
The new Section 55 should repeal Sections 30 through to 36 of the Sexual Offences Act (SOA), 1956 which would also include repeal of the extension of Section 33 introduced in the SOA, 2003

The new Section 55 should read:
1. It is an offence for a person to keep a brothel, or to manage, or act or assist in the management of, a brothel without ensuring that all persons, prostitutes and their clients, possess qualifying Private Health Insurance as set out in [Schedule ?] of the Act.
2. Any non payment in money or money’s worth relating to the provision of sexual services, whether by a person promising payment to a prostitute or any of their agents or servants, for a sexual service or by a prostitute or any other person promising payment in money or money’s worth to a brothel keeper or any of their agents or servants, relating to a sexual service, shall not be enforceable against the debtor.

It is a very important aspect of the amended statute is to ensure that any debt incurred vis-à-vis the provision of sexual services unenforceable in [civil] law. This is important as the state should make it clear that whilst it will not bring criminalise the practise of the trade in sexual services, it will not bestow the privilege of contractual validity.

The importance of this part of the legislation is demonstrated in a recent case in Germany where an unemployed woman had her unemployment benefits restricted following her refusal to consider taking a job in a brothel! If however parliament legislates to remove the validity of contract, it becomes legally impossible to argue that the occupation of a prostitute can be regarded as an employed position as no demand for payment can be enforced.

Other practical effects of this would be that the prostitute would have to manage her business in accordance with a statement many of them make on the websites promoting their services; “….any money paid to….” “…..is understood to be for her time and companionship only. Anything else that happens during your time together is the result of the independent actions of consenting adults….”
Enacting the unenforceability of contract would give legal effect to such a statement. This would mean that any expenses incurred by the prostitute that were directly related to her sexual activities, e.g., condoms, could not be set against any income generated, whilst heating and lighting of the premises used could, in part be offset, however such costs such as laundry fees would not be.

Therefore, rather than seek to criminalise prostitutes and their customers for the act of selling and buying sex, the British Gazette would suggest that legislation be introduced to regulate such activities in the form of Public Health Legislation.

The British Gazette proposes, that it should be an offence for any person to make or promise payment for sexual services or to offer such services for reward in money or moneys worth, without such a person having a valid and appropriate Private Health Insurance policy to cover such activities.

As such, the proposed legislation would not criminalise or legalise the activity of prostitution per se, but it would cause those involved (both supplier and customer) to be guilty of committing an offence if not insured. The legislation would also extend to those controlling or otherwise associated with the providers (brothel keepers). This would mean that all “escort agencies” and “massage parlours” would have to ensure that all the women working for them would have up to date and valid insurance policies and that all customers had the same. Such evidence could be put onto the ubiquitous “chip” found on credit and debit cards. It would be a simple affair for each customer’s card to be “swiped”.

The reason for this legislation would be public health and the protection of the wives who are been cheated on by unfaithful husbands. Any insurance company offering such insurance would insist on their policy holders (be they providers or purchasers of sexual services) of regular tests for all forms of sexually transmitted diseases. The British Gazette envisages that with the computerisation involved such tests would be demanded at varying intervals depending on the number of times the customer sought such services.

Such legislation would not legalise prostitution, but it would introduce a de-facto system of regulation. For those offering and obtaining sexual services outside this regulatory scheme, criminal sanctions would be applied.

Now to the latter aspects of Harman’s legislation, namely, the extension of the power of the state over its citizens to cover extra-territorial activities. Strangely enough this precedent was established back in the reign of Queen Victoria when the British state felt it important to ensure that the crime of murder should be prosecutable were it committed by a British subject outside the territories of the British Empire. It is called “Extra Territorial Jurisdiction” (ETJ) and is currently enshrined in UK law Extra Territorial Jurisdiction (ETJ) for Terrorist Offences – Part 2 of the Crime (International Co-operation) Act 2003. It is also enshrined in Section 72 of the Sexual Offences Act, 2003, in relation to sexual offences against children.

The British Gazette is very unhappy about the increasing practise of extending territorial jurisdiction for once the precedent has been set, experience shows us that the politicians will seek to expand on it. The UK has draconian laws against the possession and the use of firearms. As a result many Britons regularly travel to other countries, including the Czech Republic and the U.S.A. to indulge in the activity of shooting. Thus it is that many Britons can lawfully use handguns, automatic and semi-automatic weapons. How long will it be before a British politicians thinks that such trips are “potentially dangerous” and should be outlawed?