provisions and prohibit and criminalize all forms of violence against women, but also

mechanisms for coordination between criminal justice agencies and with the social, health and
other sectors. They also include specialized expertise and adequate capacity of police,
prosecutors, judges and other justice officials, in order to increase the likelihood of successful
apprehension, prosecution and conviction of the offender, contribute to the well-being and
safety of women and prevent secondary victimization.

5. Gender and the right over one’s own

body.

TOPIC 9.
PROSTITUTION

Introduction

In England and Wales, the sale and purchase of sexual services between consenting adults is legal. It
is estimated that there are between 60,000 and 80,000 sex workers in the UK, the majority women,
working either on the streets, or more commonly now in a variety of indoor environments. It is estimated
(based on a small sample) that around 11% of British men aged 16–74 have paid for sex on at least
one occasion (which equates to about 2.3 million individuals). Various activities related to prostitution,
such as soliciting, kerb crawling, brothel-keeping and various forms of exploitation, are illegal. These
activities are controlled through legal provisions, with a view to protecting vulnerable people from
exploitation and reducing the negative impacts of prostitution on local communities.

Prostitution is a social issue where there is considerable variation in the legislative intent and
framework of different countries, even within Europe. Other countries around the world take different
views on the acceptability of prostitution and adopt a range of different legislative approaches.
Prostitution is illegal in many countries; most commonly, it is the sale of sexual services which is
prohibited, but since 1999 some countries have introduced a form of prohibition, commonly known as
the sex buyer law, which places the burden of criminality on those buying sex. In countries where
prostitution between consenting adults is legal, legislative provisions exist to protect children and other
vulnerable people and to prevent coercion, exploitation and other criminal activities which can be
associated with the sex industry.

In recent years, several countries have changed their approach to prostitution. Sweden implemented its
sex buyer law in 1999, criminalising the purchase of sex. Since then, a number of other countries,
including Norway and Iceland and more recently Northern Ireland and France, have adopted similar
approaches. In February 2014, the European Parliament adopted a non-binding resolution which
recognises prostitution as a violation of human dignity and an obstacle to gender equality, and states
that the Swedish model is one way of combating trafficking and improving gender equality. However,
other countries have chosen to decriminalise prostitution, such as Denmark in 1999, the Netherlands in
2000 and New Zealand in 2003. 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.

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The sex buyer law

The sex buyer law in other

countries

✓ Sweden

In 1999, Sweden became the first country to introduce a sex buyer law, making it illegal to pay for sex,
but not to be a prostitute (the client commits a crime, but not the prostitute). The legislative proposal
stated that it was shameful and unacceptable that, in a gender equal society, men could obtain casual
sexual relations with women in return for payment. It pointed out that prostitution resulted in serious
harm to both individuals and to society.

Several years after implementation, the Swedish Government commissioned an evaluation of the
legislation. It went on to conclude that:

⇒ Since the introduction of the ban on the purchase of sexual services, street prostitution in
Sweden had reduced by half, and there was nothing to indicate that the ban had diverted street
prostitution to the Internet; ⇒ There were no in-depth studies available about the extent of indoor
prostitution in which contact is made at restaurants, hotels, sex clubs or massage parlours (and so
no data or evidence to suggest that these had increased). It therefore concluded that “as far as we
can see” prostitution had not increased in Sweden since the implementation of the ban, therefore it
was reasonable to assume that criminalization had helped to combat prostitution.

Another evaluation of researching the “hidden population” of prostitution conclude

that:
 ⇒ Over the last decade, the proportion of individuals in Sweden who had bought and sold sexual
services had remained relatively constant over time; ⇒ Public support for the Swedish Act
prohibiting the Purchase of Sexual Services had remained
consistently strong; ⇒ Street prostitution had been cut by more than half since the estimate
made in 1995, which was 650
women at the time; ⇒ The number of escort advertisements had increased markedly from 304
to 6,965. However, this growth could have resulted from an increased use of advertising rather than
an increased number of individual sex workers. ⇒ Most sex workers were not Swedish: 77% of
escort services advertisements were for foreign sex
workers and most street prostitution involved foreigners.

✓ Norway

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Norway criminalised the buying of sex in 2009. Under the Norwegian Penal Code, it is illegal to buy sex
or to promote the prostitution of another person. The Government’s stated rationale was to prevent and
reduce human trafficking, but it also sought to change public attitudes to prostitution; to reduce the size
of the sex industry by reducing demand; and to reduce sexual exploitation of men and women in
prostitution. This evaluation concluded that the ban had made Norway a less attractive country for
prostitution-based trafficking than would have been the case if the law had not been adopted, and that
there was no evidence that the ban had led to an increase in violence against prostitutes.

Amnesty International published its own evaluation of the impact of the Norwegian sex buyer law in
2016. It found evidence that sex workers were subject to high level policing in order to “disrupt,
destabilise and increase the pressure on those operating in the sex sector”, and that the legal provision
banning the promotion of prostitution was being used to target sex workers.

It also pointed out that the Government’s conclusions that levels of sex work and trafficking had
reduced substantially as a result of the ban had been systematically questioned by academics on the
basis that there are too many uncertainties in the data used to claim success.

✓ Northern Ireland

Northern Ireland has become the first part of the UK to pass legislation making the purchasing of sex
illegal. Under section 15 of the Human Trafficking and Exploitation (Criminal Justice and Support for
Victims) Act (Northern Ireland) 2015, it is an offence to obtain sexual services in exchange for payment,
either by paying, or promising to pay, any person directly, or through a third party. The legislation came
into effect on 1 June 2015.

The Northern Ireland ban was opposed by the then Northern Ireland Justice Minister, David Ford, on
the grounds that there was inadequate evidence on the impact of prohibiting the purchase of sex. Mr
Ford also noted that the police did not support a ban as they believed it was unlikely to assist in
reducing human trafficking.

✓ France

France introduced a sex buyer law in April 2016, in a change from prostitution being legal in the
country. There has clearly not yet been time for any assessment of the impacts to be made but an
evaluation would assist in any consideration of a change in legislation in England and Wales.

Potential benefits of a sex buyer

law

a) Gender inequality and commercial exploitation

Those in favour of the introduction of a sex buyer law believe that prostitution is commercial
exploitation, reinforces gender inequality and is a form of violence against women and girls.

72
The APPG on Prostitution and the Global Sex Trade’s 2014 report suggested that the current law
normalises the acceptability of purchasing sexual services whilst stigmatising and penalising those
providing sexual services. It added that the failure of legislation to reflect the gender imbalance within
prostitution encourages assumptions that men have a right to purchase sexual services from women,
and that the law is detrimental to other strategies that promote gender equality.

b) Reducing demand for prostitution and deterring traffickers

Witnesses supporting the introduction of a sex buyer law argue that it is an effective way of reducing
demand for prostitution. Since the introduction of the sex buyer law in Sweden, there has been no lethal
violence against women in prostitution there; street prostitution has reduced by half; and reducing the
commercial sex market had decreased the contexts in which trafficking and other forms of violence
flourished.81Witnesses also argued that a sex buyer law would make England and Wales “a more
hostile destination for traffickers”.

Arguments against a sex buyer

law
 a) Provisions already exist for criminal offences associated with the sex
industry

Some witnesses argued that a sex buyer law is unnecessary, given the existing range of measures to
tackle crime associated with prostitution.

The Sussex Centre for Gender Studies said that criminalisation was likely to deter clients who had no
criminal intent but was less likely to deter those with the intention of abusing sex workers.

b) Demand is not reduced, just displaced

A number of academics argued that there is insufficient evidence that the sex buyer law actually
reduces demand. Professor Philp Hubbard of the University of Kent said that evidence from Sweden
suggested that criminalisation had simply changed the way sex was sold and that prohibition pushed
prostitution underground where workers were more liable to exploitation. The Sex Work Research Hub,
which includes 32 academics, suggested that “too much attention is given to reductions in numbers of
kerb crawlers and not enough to the purchase of sex in clubs, private flats and via webcams”.

c) Harassment and other negative effects on sex workers

Dr Jay Levy conducted fieldwork and research on the Swedish sex buyer law for over three years. He
described cases where sex workers had been targeted and harassed by the police and faced
consequences including eviction, removal of their children, deportation (of migrant sex workers) and
‘outing’ as sex workers. In addition, he reported cases where sex workers had been denied access to
health information, harm reduction interventions and condoms.

The International Union of Sex Workers said that “kerb crawling crackdowns”, such as those run by the
Swedish police, merely changed the way in which prostitutes worked and increased the risks to which

73
prostitutes were exposed including providing sex without a condom; working in more isolated locations;
having less time to assess potential clients or agree prices, boundaries, safe sex and other limits; and
finding themselves in situations they would have declined if they had more time to make a decision.
Action for Trans Health, a UK network campaigning for trans healthcare rights, argued that trans sex
workers were particularly vulnerable, and that the criminalization of clients would mean that sex
workers would be forced to undertake unsafe practices to ensure that their client base was not arrested
whilst they were working.

d) Health
The Sex Work Research Hub stated that criminal sanctions harmed sex workers’ broader health and
access to care, and that data from multiple countries linked criminalisation of sex work with up to a
five-fold increase in risk of HIV infection or other sexually transmitted infections.

e) Policing difficulties

Professor Peter Shirlow of the University of Liverpool was commissioned by the Northern Ireland
Ministry of Justice to conduct research into prostitution, prior to the implementation of the Northern
Ireland sex buyer law.

Feminists for Solidarity Sweden said that Swedish sex workers had become the targets for police
seeking evidence against sex buyers, and that sex workers had experienced having their homes under
constant police surveillance, many had been placed on a register for the government to keep track of
their movements, and others had experienced violent and traumatic police raids. ACC Nikki Holland
said that it would be “really, really difficult to police the internet”. Although it would be possible for the
police to go online and build up an intelligence profile of who was selling sex, “far more intrusive
techniques” would be required to identify who was buying sex. The Sussex Centre for Gender Studies
suggested that negative relations between sex workers and the authorities meant that they were less
likely to reach out when they witnessed trafficking, abuse and exploitative working, which would make
the job of the police more difficult.

The sex buyer law is a fundamentally different legislative approach to prostitution from that which is
currently in place in England and Wales. It is based on the premise that prostitution is morally wrong
and should therefore be illegal, whereas at present the law makes no such moral judgement. We
acknowledge that the intention of many supporters of the sex buyer law is to protect sex workers,
especially women, from the harm, violence and exploitation that can occur in the sex industry, but we
also note that the sex buyer law makes no attempt to discriminate between prostitution which occurs
between two consenting adults, and that which involves exploitation. Much of the rhetoric also denies
sex workers the opportunity to speak for themselves and to make their own choices.

We are not yet convinced that the sex buyer law would be effective in reducing demand or in improving
the lives of sex workers, either in terms of the living conditions for those who continue to work in
prostitution or

74
the effectiveness of services to help them find new ways to earn a living. Evaluations of the impact of
sex buyer laws are largely based on data about street prostitution, and therefore offer little insight into
the large parts of the sex industry which take place in various indoor environments, and there are
indications that the law can be misused to harass and victimise sex workers, who are the very people
whom the law is seeking to protect. We are not yet persuaded that the sex buyer law is effective in
reducing, rather than simply displacing, demand for prostitution, or in helping the police to tackle the
crime and exploitation associated with the sex industry.

The sex buyer law in Northern Ireland was only introduced in June 2015 and it was therefore too soon
for its impact to be assessed in time to inform our inquiry. Similarly, France introduced a sex buyer law
on 6 April 2016—only 10 weeks ago— and an evaluation of the impact of this change would provide
very useful comparative information for assessing the likely implications in England and Wales.

Other legislative models

Legislation

Some countries, rather than either totally prohibiting or fully decriminalising prostitution, take the
approach of establishing laws to control where, when and how prostitution is legally permissible.

✓ Netherlands

Prostitution in the Netherlands was legalised in 2000, when the general ban on brothels and the ban on
pimping were lifted, and more severe penalisation of undesirable forms of prostitution and the sexual
abuse of minors was introduced. The sex industry is regulated under administrative and labour law,
brothels are subject to a licensing scheme and adult consensual sex work is decriminalized. The
administrative responsibility is devolved primarily to local government, and municipalities therefore play
the most important role in determining local policy for prostitution. The six aims of the legislation were:
the control and regulation of voluntary prostitution through a municipal licence policy; more robust
tackling of exploitation of coerced prostitutes; protection of minors from sexual abuse; protection of
prostitutes; clarifying the distinction between prostitution and criminal activities; and reducing the scale
of prostitution by illegal foreign nationals.

In a 2007 evaluation of the impact of the legislation, the Dutch Ministry of Justice found that 95% of
prostitutes remained ‘self-employed’, despite “a high degree of control” by brothels, which meant they
did not have access to the social security system. Figures suggested that there had been no decline in
the number of prostitutes controlled by pimps.
Academic research published in 2014 by Jane Pitcher and Marjan Wijers, outlined the legislative and
policy framework of the Netherlands, compared it to legislation and policy in England and Wales, and
considered

75
the impact of the different regimes on offstreet sex workers. The authors argued that, although
decriminalization of sex work is a precondition to secure the labour and human rights of sex workers,
the involvement of sex workers in policy development and facilitation of different modes of working are
necessary to improve their working conditions and autonomy.

✓ Germany

Prostitution in Germany is legal, and subject to regulation. The legislation legalised the relationship
between prostitute and client meaning prostitutes could sue for payment. It also allowed for
employment contracts between prostitutes and brothel owners, although the usual right of an employer
to give instructions was restricted to protect the right of sexual selfdetermination, allowing prostitutes to
access the social security system. The aim of the Act was to improve the legal and social situation of
prostitutes, by restricting criminal liability to cases involving exploitation; enabling prostitutes to have
proper employment contracts and thereby to reduce their dependency on pimps; and to improve the
health and hygiene conditions for prostitutes at work. According to the Government’s 2007 review of the
impact of the legislation, the Prostitution Act was adopted following “a difficult political process” which
“was very much influenced by different basic ethical attitudes”, but ultimately took a view of prostitution
as: [ ... ] an autonomous decision that is to be respected by the law but which is typically
associated with considerable dangers and risks.

The Government’s review concluded that the Prostitution Act had only to a limited degree achieved the
goals intended by the legislator; that there had been little measurable improvement in working
conditions of prostitutes and little improvement in the ability of prostitutes to exit the sex industry.

It concluded that “a more broad-based approach to regulating prostitution is required” focused on

combating of trafficking, forced prostitution and prostitution involving minors, and that it should aim to
protect prostitutes as much as possible from violence and exploitation “not least by making the clients
of those forced into prostitution liable to punishment”.

Decriminalisation

✓ New Zealand

New Zealand decriminalised prostitution through the implementation of its Prostitution Reform Act
(PRA) in June 2003. The purpose of the legislation was: To decriminalise prostitution (while not
endorsing or morally sanctioning prostitution or its use); create a framework to safeguard the human
rights of sex workers and protect them from exploitation; promote the welfare and occupational health
and safety of sex workers; contribute to public health; and prohibit the use of prostitution of persons
under 18 years of age. The PRA also established a certification regime for brothel operators.

The PRA was evaluated on behalf of the Government by a Law Review Committee in 2008. Its main
conclusions included:
⇒ The enactment of the PRA had had little impact on the number of people working in the sex
industry.

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⇒ The PRA safeguarded the rights of those under 18 not to be used in sex work; the right of adults
not to be forced to engage in sex work, including the right to refuse a particular client or sexual
practice; and the right not to be subject to exploitative, degrading employment practices. ⇒ It had
had a marked effect in safeguarding the right of sex workers to refuse particular clients and
practices. ⇒ There were still some managed sex workers who were being required by brothel
operators to
provide commercial sexual services against their will. ⇒ Of those interviewees who felt able to
comment, the majority felt sex workers were now more likely
to report incidents of violence to the pólice. ⇒ Street work (comprising about 11% of the sex
industry) was dangerous for sex workers and caused concern and upset to communities. Street
based sex workers should be encouraged to either move to a safer, indoor setting, or to leave sex
work altogether.

Tim Barnett, who as a New Zealand MP sponsored the Prostitution Reform Bill during its passage
through Parliament, said that decriminalisation had led to a “massive improvement in police-sex worker
cooperation” which had enabled murders of sex workers to be solved; corrupt police and law breaking
brothel owners to be exposed and convicted; and traffickers of sex workers to be exposed.

✓ Denmark

Prostitution in Denmark was decriminalised in 1999, but certain related activities remain illegal. Both
buying and selling sexual services are legal, but activities such as operating brothels and pimping are
illegal, as is prostitution by non-residents. Sex workers are not entitled to the protection of employment
laws or unemployment benefits, but they are still required to register for and pay tax, although they are
do not have to declare prostitution as being their occupation. Part of the rationale behind
decriminalisation was that making it legal to sell sex would also make it easier to police
The Ministry for Social and Interior Affairs emphasised that prostitution in Denmark is considered to be
a social problem, not a criminal matter. Accurate information was very difficult to collect, but they
believed that there were probably around 2,900 prostitutes in Denmark. There were no data available
on whether decriminalisation had had an impact on the number of prostitutes, but demand appeared to
be stable.

There was a great deal of competition between prostitutes and prices for sex had not increased in
recent years. There was a significant proportion of street sex workers who had come from abroad and it
was suspected that at least some of them would have been trafficked. Prostitution seemed to be
moving off the street, either to massage parlours or internet-based. Decriminalisation had not ended the
social stigma attached to prostitution and prostitutes still tend to hide what they do: it was described as
“decriminalised but not legitimate”.

There is a higher incidence of drug and addiction problems among prostitutes than the rest of the
population and many have been subject to child abuse. Most prostitutes want to exit prostitution but feel
they cannot, often for financial reasons. There was a range of views even amongst the centre’s staff
about decriminalisation and whether a sex buyer law would be better and we were told that many
people disagree with the existing law but differ about what changes should be made.

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Potential benefits of full

decriminalisation

a) Better sex worker cooperation with the authorities

Some witnesses suggested that decriminalisation was a necessary step to enable sex workers to
engage with the authorities and to access support. It argued that while decriminalisation was not a
perfect legal solution, it provided women involved in street sex work with “better protection against
violence, increased chances of seeking justice against those who exploit or abuse them and increased
support in establishing routes out of street sex work”

b) Working together for safety

A number of witnesses said that the current legislation in England and Wales meant that women could
not protect themselves by working together, without fear of arrest. The English Collective of Prostitutes
stated that brothel-keeping provisions increased sex workers vulnerability to violence by forcing sex
workers to work in isolation, which undermined their efforts to stay safe and deterred them from
reporting attacks for fear of arrest.
That decriminalisation, as implemented for example in New Zealand, had allowed workers to operate
legitimately alone or in collectives and encouraged them to report instances of rape or violence.

c) Health

A number of health organisations, including the World Health Organisation, the Global Commission on
HIV and the Law and the Royal College of Nurses, support the decriminalisation of sex work on the
grounds that it facilitates the provision of health services. The National Aids Trust stated that
criminalising sex work undermined HIV prevention and treatment for a high-risk population, reduced the
ability of sex workers to negotiate condom use with clients, and increased the risk of HIV transmission.

Arguments against full

decriminalisation

a) Expansion of sex industry

Critics of decriminalisation argue that it leads to an increase in the size of the sex industry and
increases sexual exploitation. For example, the Nordic Model Information Network states that countries
where prostitution is legalised show expansion of the prostitution market.

b) Continued exploitation of sex workers

The Nordic Model Australia Coalition is an organisation for survivors of commercial sexual exploitation
in Australia, which supports the sex buyer model of legislation. It stated that issues have arisen as a
result of decriminalisation in Australian states, particularly New South Wales, which has “entrenched
exploitation of

78
persons in the sex industry, perpetuated stigmatisation and prevented real justice, support and
compensation for those who wish to exit the sex trade”.

c) Increased trafficking

“The researchers used a global sample of 116 countries and found that countries where prostitution
was legal tend to experience a higher reported inflow of human trafficking than countries in which
prostitution was prohibited”. However, he pointed to “the clandestine nature of both the prostitution and
trafficking markets” which make it difficult, and “perhaps impossible”, to find hard evidence to establish
a direct relationship between legalisation and trafficking. Working conditions could be substantially
improved for prostitutes—at least those legally employed—if prostitution is legalized. Prohibiting
prostitution also raises tricky “freedom of choice” issues concerning both the potential suppliers and
clients of prostitution services. We received evidence that the model of decriminalisation implemented
in New Zealand has worked successfully. Research suggests that it has resulted in a number of
benefits, including a clear policy message, better conditions for sex workers, improved cooperation
between sex workers and the police, and no detectable increase in the size of the sex industry or
exploitation of sex workers.

Our overall assessment of other legislative

models

All of the different approaches which we have examined have some advantages but none appears to
offer a complete solution and none would be directly transferable to England and Wales in its entirety
because the context in which it would be applied will always be different, particularly in terms of
employment law and the social welfare support available, as well as the wider criminal justice system
and policing.

At this stage, we are not recommending the adoption of any one of the three broad models of a sex
buyer law, decriminalisation or legalisation, because the evidence base for any of these changes is not
yet established. In the meantime, we have made clear our strong view that the first step of changing the
existing legislation on soliciting, and on brothel-keeping as it relates to sex workers sharing premises,
should be taken by the Government as a matter of urgency.

6. Sexual work and trafficking in

women.

TOPIC 10. ABUSING VULNERABILITY? CONTEMPORARY LAW AND POLICY

RESPONSES TO SEX WORK IN THE UK

There has been an exponential rise in use of the term vulnerability across a number of political and
policy arenas, including child protection, sexual offences, poverty, development, care for the elderly,
patient autonomy, globalisation, war, public health and ecology. Yet despite its increasing deployment,
the exact meaning and parameters of this concept remain somewhat elusive.

We suggest that the co-existence of these divergent approaches highlights the fluidity and malleability
of the concept of vulnerability. Using sex work as a specific case study, we explore the ways in which
vulnerability
 79
bears multiple meanings, and has been used in recent times in the furtherance of moralistic and
regressive agendas, which collude with, rather than challenge, state power.

We will explore the nature of initiatives designed to regulate commercial sex work, which have recently
been introduced in the UK under the banner of protecting against and/or redressing vulnerability; and
will critically examine their underlying assumptions, structural ‘blind-spots’ and paradoxical potential to
increase sex workers’ risk of harm. These initiatives have paved the way for more intrusive
interventions by agents of the state—whether in the guise of policing or social support—into the lives of
many sex workers. They have established as legitimate penal targets not only those individuals who
ensure the perpetuation of commercial sex markets through ‘pimping’ or trafficking, but also those who
purchase sexual services from controlled prostitutes and those who, despite opportunities for exit,
‘persist’ in selling sexual services on the street.

Contemporary turns in sex work regulation: the rise and rise of

vulnerability?

At some level, a concern about citizens’ vulnerability to harm (whether real or perceived) has always
informed states’ decisions regarding the scope of, and mechanisms for, intervention into individuals’
daily lives. In contemporary times, however, there has been an exponential rise in the discursive
emphasis placed upon the condition and experience of vulnerability by law- and policy-makers.
Whether or not this represents a radical departure from historically influential political theories, this turn
to vulnerability has clearly emerged in the UK in tandem—not coincidentally— with an increasing
rhetorical insistence on ‘victim-centred’ initiatives and with the adoption of more actuarial forms of
risk-assessment and management.

Mirroring this more general ‘turn’ to vulnerability in the contexts of domestic criminal justice and social
policy, the increasing currency that has been afforded to arguments grounded in the discourse of
vulnerability in contemporary sex work regulation in the UK is striking. At the same time, however, the
ways in which the concept has been deployed in prostitution and anti-trafficking policy, the rationales
that might underpin its deployment, and the impact that it has had, and is having, on the lives of those
on whom it operates have not been subject to sustained critical reflection.

We will argue that a close reading of recent policies on sex trafficking and prostitution reveals that the
concept has entered—and influenced—the political and legal lexicon with too little interrogation,
typically being deployed in loose and ubiquitous ways.

‘Vulnerability’ has been deployed variously, and powerfully, as a descriptive, rhetorical, and political
device. How it has been used to describe—with or without empirical evidence—the social condition of
those selling sex (in particular, the difficult position of those involved in prostitution); to defend the
imposition of criminal sanctions against those (clients, ‘pimps’, and traffickers) who abuse that position;
to support rehabilitative initiatives that aspire to remove the immediate circumstances (i.e. engagement
in prostitution) that are deemed to give rise to vulnerability; and to bolster the image of the state as a
benevolent force in providing these responses.

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The idea of ‘abuse of vulnerability’, which was further endorsed by the 2005 Council of Europe Anti-
Trafficking Convention, has also effectively made its way into domestic law in England and Wales via
the recent Policing & Crime Act 2009. Section 14 of this Act renders it a strict liability offence for anyone
to purchase or promise to purchase sexual services from a prostitute who is ‘subjected to force, etc’.
Though not expressly framed in the language of vulnerability, this offence— which extends to
transactions with any person subject to exploitative conduct by a third party, where that conduct is of a
sort likely to induce or encourage her engagement in prostitution and is undertaken in expectation of
gain for the third party, or someone other than the prostitute or client—was routinely justified and
delineated by policy-makers, parliamentarians and state officials through a discourse of vulnerability.

At the same time, the notion of the ‘vulnerable migrant’ has also been deployed to broaden out the
potential parameters of state intervention beyond those compelled to prostitute via more conventional
physical or coercive mechanisms. Reflecting the flexible approach to ‘abuse of vulnerability’ advocated
in the Council of Europe Anti-Trafficking Convention, the notion has been used to encompass those
individuals whose agency is implicated in a more complex way with their selling of sex: whose scope for
choice is recognised as being radically curtailed.

The Association of Chief Police Officers (ACPO) Project Acumen report (2010), for example, identified
as a discrete category of ‘vulnerable migrants’ an assemblage of persons falling somewhere between
what would formally be identified as ‘trafficked victims’ and more or less autonomous sex workers; and
whilst acknowledging that the majority of migrant sex workers engaged in prostitution in the UK would
be likely to fall within this category, ACPO used this to justify more rather than less expansive forms of
regulation in the name of protection.

Home Office Guidance has subsequently confirmed that coercion for the purposes of this offence is
exercised where a person exploits another’s vulnerabilities to incite or encourage their prostitution,
noting that these vulnerabilities could exist by virtue, amongst other things, of that person’s young age,
their drug or alcohol dependency, history of victimisation, irregular immigration status, economic
disadvantage, or social exclusion. Moreover, the Home Office has supported the Court of Appeal’s
insistence that a person who engages in prostitution as a result of emotional blackmail from a partner,
or because someone has held out ‘‘the lure of gain or the hope of a better life,’’ can also be seen to
have been coerced into engaging in prostitution, thereby now inducing client liability.
Though this sort of expansive rhetoric has been widely repeated at policy level, several commentators
have illustrated the extent to which this official conferral of ‘victimhood’ does not always translate into
on the ground protection.

For current purposes, what is particularly problematic about this approach is that it tends to generate a
rather ‘flat’ notion of vulnerability. Not only does it conflate too many different experiences and positions
under the header of ‘vulnerability’, but it fails to dissect and interrogate the multiple and complex causes
(both inter-personal and social) of that vulnerable condition, and pays insufficient attention to the voice
and narrative of the individual sex worker. What is more, it tends to attach the condition too firmly to the
individual herself and accepts uncritically the appropriateness of criminal law as a mechanism by which
to seek its eradication, or at least its recompense.

81

Several campaigners and policy-makers have endorsed these developments, insisting that they make a
progressive incursion into the supply/demand dynamic within prostitution, and will better enable state
agencies to recognise and respond to the experiences of victimisation encountered by those who sell
sex, whilst continuing to signal disapproval of the commercial sex trade. At the same time, however,
many outreach organisations, academics and some senior police officers have expressed concern that
these interventions may increase the risks and stigmatisation encountered by individual sex workers,
whilst doing little to redress the structural and socio-economic inequalities that often accompany their
engagement in prostitution.

At the heart of these disagreements over the wisdom of recent sex work policy in the UK lie, we would
suggest, at least two inter-connected sources of tension. The first, quite evidently, relates to competing
conceptions of the acceptability of prostitution, the legitimacy of it as a profession that may be freely
entered into, and the inevitability of harm and exploitation within commercial sex transactions.

But there is a second source of tension which we argue cuts across, and further complicates, these
axes of contention: and this stems from the amorphous nature of the concept of vulnerability which is
being increasingly invoked. Exactly what it means not only to be vulnerable but to suffer an ‘abuse’ of
that vulnerability is left markedly ill-defined, and the question of exactly what it is that a person is
vulnerable to is often marginalised, as the mere designation of vulnerability is afforded central stage.

This creates an environment in which claims to redress vulnerability operate both as a lever for
progressive change and as a mechanism for increased social control. The precariousness and duplicity
of this is particularly well illustrated in the context of sex work, since here sex workers are represented
both as vulnerable individuals in need of protection, apparently simply by virtue of their engagement in
commercial sex, but also as a source of vulnerability for those ‘others’ (for example, proximate
residents) who are negatively impacted by the practice of prostitution.
Vulnerability as a progressive force for social
justice?

Though lamentable, it is widely accepted that the meaning and parameters of the concept of
vulnerability have attracted little analytical attention to date. In 2003, the UN observed that: ‘‘the use of
the words ‘vulnerability’ and ‘vulnerable’ has been quite loose in policy contexts and has entailed
neither the theoretical rigour nor the degree of elaboration that one finds in analytical works’’.

Despite this, Fineman and several other theorists have nonetheless advocated increased reliance upon
the concept of vulnerability as a strategy and a mechanism to promote genuine social equality, on an
interpersonal and local, as well as global scale. Peader Kirby has insisted, for example, that ‘‘while
there is disagreement on the range of groups suffering vulnerability and on its sources, there is general
agreement that vulnerability is an important concept capturing the dynamic way that people’s well-being
in today’s world is affected by wider changes in the economic, financial, social, institutional, cultural,
and

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environmental sphere’’. For him, the concept of vulnerability provides a progressive lens through which
to deconstruct and challenge the negative impacts of globalisation.

Insisting that exploration of men’s and women’s vulnerability to abuse, exploitation and material
deprivation will provide a more illuminating frame than that afforded by abstract considerations of sex
(in) equality, Fineman claims the term ‘vulnerable’ for its ‘‘potential in describing a universal, inevitable,
enduring aspect of the human condition that must be at the heart of our concept of social and state
responsibility’’. Whilst not jettisoning a ‘‘rigorous anti-discrimination policy’’, Fineman argues that
vulnerability, which she suggests is more concerned with issues of privilege and disadvantage in
relation to access, rather than simply with equality of outcome, and is not conceptualised primarily in
terms of specific, inherited identity categories of defined minorities, provides a more effective
mechanism by which to promote social justice.

The condition of vulnerability itself involves a dual aspect. It refers to ‘‘a state of high exposure to
certain risks and uncertainties,’’ which exists in conjunction with ‘‘a reduced ability to protect or defend
oneself against those risks and uncertainties and cope with their negative consequences’’. At one level,
then, vulnerability is a universal condition. It is shared inevitably by all humanity on account of the
porosity of our embodiment, the interdependence and interconnectedness of our existence, and the
precariousness of our environment. But at the same time, the ways in which vulnerability is experienced
will be highly particular, framed by the unique contexts of individuals’ lives, as well as by the variable
resources for redress that are realistically available. The fact that vulnerability is shared does not,
therefore, entail that it is mutual or symmetrical.

Designations of a status or condition of ‘vulnerability’—particularly in policy discourses—will often be

reserved for specific individuals or groups (‘the vulnerable’) who are deemed, whether for innate or
circumstantial reasons, to be peculiarly exposed to risk, uncertainty or negative outcomes.

While Fineman insists, and celebrates the fact, that ‘‘the state’s responsibility is hugely magnified in a
vulnerability analysis’’, the merits and demerits of state involvement have long been debated within
feminist theory and the extent to which it is progressive both to increase the scale of state intervention
and to legitimate that encroachment as presumptively in the service of redressing vulnerability is
contentious.

According to Watts and Bohle, the prescriptive and normative response to vulnerability is—or should
be—‘‘to reduce exposure, enhance coping capacity, strengthen recovery potential and bolster damage
control (i.e. minimize destructive consequences) via private and public means’’. This entails securing
greater access for ‘the vulnerable’ to certain material entitlements, designing mechanisms that will
increase the empowerment of individual ‘vulnerable persons’ and/or engaging collectively with social
relations that structure different levels of coping capacity and resilience in the face of threats. Although
there are numerous ways in which such objectives might be pursued, the state (broadly defined) is
clearly envisaged as playing a pivotal role.

Thus, while Fineman and others have recently asserted that the ‘vulnerable subject’ would represent a
more compelling concept to place at the heart of social justice policy, since it replaces the partial,
abstracted, universal human subject that has defined the liberal legal and political tradition, there is a
risk that this approach fails to fully address the point that the vulnerable subject may itself operate in
exclusionary ways.

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Vulnerability as a lens and as a legitimating discourse can promote progressive outcomes, but—as will
be explored below—it can also serve as a key tool advancing a neo-liberal governance agenda, which
in turn may support more regressive practices of state power.

Vulnerability and Neo-Liberal

governance

Aligned in close, and often complex, ways to the peculiarly modern notion of ‘security’, assertions of,
and responses to, citizens’ ‘vulnerability’ to harm (or the risk of harm) increasingly frame the contours of
state regulation. At the regional and transnational levels, Hyndman has observed that governments’
attempts to champion the rights of vulnerable populations may simultaneously serve to ‘‘build legitimacy
for interventions to address security’’; and FitzGerald has identified a complex but mutually re-affirming
relationship between constructions of the ‘vulnerable subject’ and of the ‘vulnerable state’.

At the domestic level, this tendency is arguably most acutely observed in the contemporary context of
what Jonathan Simon calls governing through crime, where ‘‘the vulnerabilities and needs of victims
define the appropriate conditions for government intervention’’.

These initiatives have been depicted as necessary mechanisms through which the state is enabled to
respond to citizens’ perceptions of fear and insecurity, which derive in turn (albeit not necessarily in any
rational or empirically verifiable way) from their shared condition of vulnerability (Ramsay 2008a, b).
The language of vulnerability has been used explicitly by law- and policy-makers both to construct
these offences and to justify their necessity in a modern, (neo)liberal society.

✓ Concept or construct? Vulnerability and Neo-Liberalism in the context of sex work

regulation

Recently, we have argued that contemporary initiatives for regulating prostitution in the UK illustrate the
ways in which new normative frameworks are being forged, which both work with, and against, more
conventional understandings of harm, morality, citizenship and the state. While, at one level,
conservative and radical feminist discourses around the vulnerability of sex workers and the imperative
to assist in their ‘rescue’ are undoubtedly playing a key role in framing contemporary responses, at
another level, these developments must also, we suggest, be understood in the broader context of
‘‘structural shifts both in discourses of citizenship and in practices of criminalization’’.

There is, after all, an inevitable level of contingency and volatility in the translation of any regulatory
rationality or blueprint into its concrete effects, and this cannot, and should not, be ignored, for it
provides scope for subversive potential. It is doubtless too soon to fully assess the impact of the
Policing and Crime Act 2009 on commercial sex work, but concerns have been expressed over the
extent to which it may prove to be more coercive for sex workers than the previous fine and caution
system, with increased ‘‘protection’’ being mirrored in the increased policing of women’s lives. Any
symbolic value secured by acknowledging, under section 14, the perceived culpability of those
consumers who create a demand for (controlled) commercial sex may be undermined by the selective
targeting of sections of the sex trade where control is presumed to be most prevalent.

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That is more, while prosecution rates for the offence have been low and police forces have reported
that they do not find the provisions particularly helpful and/or do not have the resources for their
enforcement, the existence of this client criminalising offence may have a significant and detrimental
impact on the way in which commercial sex transactions are structured and negotiated. Fear of
prosecution may lead clients to insist on hastily made agreements or require sex workers to seek out
clients in less visible (and hence less safe) environments, transact with a riskier client base or engage
in less safe sexual practices. In these regards, an initiative implemented under the auspices of helping
sex workers (by quashing the demand that is seen to ‘entrap’ them in prostitution) may ultimately
render them more ‘vulnerable.’ Further, while the new regime for the disposal of persons convicted of
soliciting, which requires them to attend rehabilitation meetings with a supervisor, designed to secure
their exit from prostitution in lieu of conventional punishment, holds some progressive potential, the fact
that it only offers inclusion to those sex workers who responsibly exit and adopt ‘normal’ lifestyles
continues the hegemonic moral and political regulation of prostitution.

It promotes a close and mutually reinforcing engagement between criminal justice and welfare systems
that increases the scrutiny and discipline to which the sex worker is subject. It is a strategy that
‘responsibilises’ the individual seller of sex—it is no longer the job of the state to rehabilitate, but the job
of the prostitute to become compliant; and the ‘problem’ of prostitution is reduced to ‘‘one of recalcitrant
individuals unwilling to accept offers of help and support’’. This underestimates the difficulties of
imposing ‘order’ onto the frequently chaotic lives of sex workers, and distracts attention from the state’s
obligations both to tackle the social conditions that give rise to prostitution and to provide the material
resources necessary to support ‘exit’ and personal change. At the same time, it presumes and
preserves the criminal law’s role as enforcer of sex workers’ desistance and rehabilitation, offering them
the ‘opportunity’ to ‘be helped or else’.

The constructive nature of power in (neo)liberal societies operates not to constrain individuals, but
through the creation, shaping and utilization of human beings as subjects who voluntarily subject
themselves to discipline and control. In this context, as Cruikshank (1999) reminds us, any proliferation
of state-sponsored programmes of empowerment, including those framed in the normative discourse of
vulnerability, should be met with some measure of critical caution.

The interplay of the various meanings of vulnerability can produce, then, albeit sometimes
unintentionally, a number of far more regressive consequences than many of its advocates
acknowledge. To this extent, recent sex work regulation, with its focus on public places, risky practices
and dangerous people, demonstrates the potential darker side of the turn to vulnerability, which, we
argue, must be recognised in any attempt to develop and deploy the concept in feminist scholarship.
Vulnerability: A feminist friend or flexible foe?

While the concept of vulnerability may offer the potential to open up new avenues of inquiry and provide
new ways of framing responses, our aim in this article has been to highlight the dangers of any
uncritical adoption of a discourse of vulnerability, without an interrogation of who is recognised to be
vulnerable, under what conditions and why, as well as of the broader socio-economic and state
agendas that are served by the responses imposed. There are myriad factors, including the ways in
which ambiguities over its meaning and parameters are reconciled, that can impact negatively upon the
concept’s ability to work progressively. By seemingly

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accepting from the outset the core, empirical premise that human beings in a globalised world are
(increasingly) vulnerable, Kirby’s analysis risks depicting its discursive deployment in governmental and
intergovernmental policies as nothing more than a transparent reflection of reality.

Though drawing on Kirby’s work in many regards, Fineman—perhaps because of her grounding in
feminist analyses of power and exclusion—is not oblivious to these concerns. She acknowledges that
‘‘institutions are simultaneously constituted by and producers of vulnerability’’ and that, as such, they
can sometimes be ‘‘captured and corrupted’’, ‘‘damaged and outgrown’’, or ‘‘compromised by legacies
of practices, patterns or behaviour, and entrenched interests that were formed during periods of
exclusion and discrimination’’.Despite this, however, she continues to invoke Kirby’s characterisation of
state institutions as ‘‘assets’’: as ‘‘advantages, coping mechanisms, or resources that cushion us when
we are facing misfortune, disaster and violence’’ and that ‘‘provide individuals with ‘resilience’ in the
face of vulnerability’’.

Edstrom has suggested that most understandings of vulnerability have relied on ‘‘passive notions’’
(easily associated with women and femininity) and failed ‘‘to capture intention, desire, agency and
dynamics between people, or how those interactions are shaped by and also influence structural
contexts.’’ In turn, this has ‘‘force(d) the analysis back to individuals and their bodies (often
essentializing gender in the process) at the expense of power relations, accountability, structures and
dynamics’’. This is problematic, not only because it reduces the spaces within which we look for
strategies of prevention and redress, but because it distorts the meaning and conditions of vulnerability
itself. As Butler has explained, vulnerability cannot be properly thought of outside a differentiated field of
power, and—more specifically—outside of the differential operation of norms of recognition, which label
individual instances of vulnerability and, in so doing, ‘‘change the meaning and the structure of the
vulnerability itself’’. These patterns of inclusion/exclusion have recently been examined across a range
of contexts, including forced marriage, lesbian asylum-seekers, and people trafficking. Even if
vulnerability as a concept can work in progressive ways, then, its potential to serve regressive agendas
cannot be ignored, trivialised, or eliminated, since its construction and operation is mediated by
processes of recognition and complex relations of power. In the context of sex work regulation, the fact
that ‘vulnerability’ is tied so intimately to femininity and to the body means that analyses of the
transactional nature and structural (including legal) conditions of commercial sex are often side-lined.

We must acknowledge the fact that it is not some pre-existing ontological category, but a profoundly
political label and strategy for legitimation, the meaning, parameters and import of which fluctuate
across time, space, structure and context. That vulnerability has both objective and subjective
dimensions may further complicate this descriptive labelling and prescriptive responding process. There
may well be individuals or groups who perceive themselves to be peculiarly vulnerable notwithstanding
the absence of objective markers to support this assessment. Equally, however, there may be
individuals or groups who are particularly exposed to risk and uncertainty and who have reduced
capacity to deal with this, but who nonetheless fail to recognise themselves as vulnerable.
In the context of prostitution, where debates have raged over the allegedly distorting effects of ‘false
consciousness’ on sex workers’ experiences of agency, choice and control. Scoular and O’Neill invoke

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theories of radical democracy and sex workers’ demands regarding rights, recognition and
redistribution to counter the exclusionary aspects of neo-liberal citizenship. Meanwhile, Pitcher et al.
explore the complexity of the experience of sharing spaces where sex work takes place to move
beyond pre-existing binaries and reveal the potential for more supportive relationships between sex
workers and local communities, as well as between sex workers and law enforcement. Such
approaches demand that we do not silence ‘vulnerable’ stakeholders in the name of protection or
demarcate their activities as so harmful as to militate against their inclusion, but deal head on with the
complexity of their vulnerabilities, and their agency and rights, in situ. This may not be easily achieved
in the context of prostitution, where competing normative positions are fiercely defended and personal
narratives are often complex, fluid, and internally contradictory. Yet, it is crucial to achieving a ‘holistic’,
as well as an ethical and more feminist, account of human vulnerability.

Conclusion: the politics of vulnerability and the politics of

sex work

We have argued in this article that, while the recent call by feminist (and other) commentators to
embrace vulnerability as an analytical and reformist tool may not be entirely misplaced, we must be
mindful of the ways in which this concept is constructed and mediated, resist any temptation towards its
reification, and be aware both of what is left out of the frame when dominant constructions of
vulnerability are placed at the centre, as well as of whose interests may be served by those omissions.
In the context of contemporary prostitution policy and governance, we have argued that the concept of
vulnerability can be utilised in the service of regressive state agendas that increase intervention and
control over individual’s daily lives without providing meaningful assistance. It can re-cast boundaries of
inclusion and exclusion around one’s compliance with norms of ‘responsible citizenship’ and strengthen
the coercive hold of the criminal justice system, and its carcereal forms of redress, over sex workers,
which in turn places them at greater risk of abuse, loss and stigmatisation with less protective
mechanisms.

Our aim has not been to call for the abandonment of the concept of vulnerability per se but to call for
closer and more critical engagement regarding what it means to be vulnerable in this context, and to
insist that policy-makers engage more effectively with the complex realities of sex workers’ lives in
charting this vulnerability and determining how best to respond to it.

By enforcing the inclusion of sex workers within the polity and securing them access to the public
discourse of law, the Charter allowed the contested terms of ‘harm’, ‘dignity’ and ‘Canadian values’ to
be openly debated and tested in this case. Without displacing the role of the criminal law in dealing with
the harm experienced by sex workers, the judgement acknowledged the ways in which the criminal law
itself structures patterns of violence and designates certain groups as the instigators of offence and
nuisance, as well as subjects of vulnerability. Rather than ignore the narrative of the ‘vulnerable’, or
impose upon it a paternalistic interpretation, the court scrutinised the particularities of this condition and
created space for law to provide resistance to, as well as legitimation of, a form of governance that
coerces in the name of protectionism. It is this kind of nuanced, reflective and contextualised approach
that we believe is also necessary in the UK context, if the concept of vulnerability is to achieve the
progressive potential that has recently been ascribed to it in relation to (feminist) law and politics.

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