Richard Ekins: A modest proposal: prudence, proportionality and (forced) prostitution

richardekins2009-200x300Late last year, in Bedford, the Supreme Court of Canada struck down a set of legislative provisions prohibiting the running of brothels, living on the proceeds of prostitution, and communicating in public with clients.  The court ruled that while Parliament had authority to regulate nuisances, the legislation in question was grossly disproportionate to this end, arbitrarily undermining the life, liberty and security of prostitutes engaged in their – lawful – trade.  The legislation in question is subject to a suspended declaration of invalidity, such that Parliament has one year within which to enact alternative legislation if it wishes.

Meanwhile, on the other side of the Atlantic, the French Parliament has acted to repeal the equivalent provisions, but has at the same time imposed criminal liability on clients, specifically a fine of €1,500, rising to a maximum of €3,750 for repeat offenders.  Thus, France is following Sweden, with other European countries reported to be considering similar change.  In arguing for this change, I understand the French government stressed the high proportion of prostitutes in France who are victims of people trafficking.

The Canadian and French experience confirms the obvious: legislation about prostitution is always controversial.  The controversy, as with so many issues in our public life, plays out in part in constitutional law and practice.  This blog post considers the constitutionality of legislating about prostitution by thinking through the proportionality (and prudence) of a proposal for legislation, outlined below, which addresses the problem of forced prostitution.  The problem is that, while accurate figures are hard to come by, it would seem that a high proportion of trafficked persons are bound for the sex trade, which means that at least some proportion of prostitutes in the Western world have been trafficked and are forced to undertake and to endure sexual acts without consent.  That is, these women (and men, and sometimes children) are the victims of repeated rapes, for which those who profit as well as the rapists themselves should be held criminally liable and severely punished.

But is the client of a forced prostitute a rapist?  Perhaps not, for there is an asymmetry in the law of rape, especially stark in cases where a person is sold into prostitution, is forced into sexual acts – maybe even (often) is forced to seem willing, to act as if consenting.  The asymmetry is this: the woman so forced does not in fact consent and yet the person(s) paying for sex with her may reasonably (or at least arguably, which may be sufficient to avoid conviction and hence even to deter prosecution) believe that she consents.

The possibility that any particular ‘prostitute’, even if British (and hence unlikely to have been trafficked from elsewhere in the world), does not in fact consent is one that should weigh heavily in the judgment of any reasonable person as to whether in fact she consents.  That is, it may very often be unreasonable to believe that a woman with whom a man has paid for sex in fact consents.  But this is a very thin reed on which to secure a rape conviction of a man who pays for sex with a person who, it turns out, is forced to be a prostitute.  And perhaps rightly so, for the man who fails to consider the possibility that the woman in question has been trafficked – who has not thought about the reach of person trafficking – may simply be careless and unthinking, not vicious or reckless, such that it would be wrong to condemn his action as an instance of that most serious sexual crime, rape.

Interestingly, the criminal law does rule out, or at least sharply bears on, certain kinds of argument about whether it was reasonable for the accused to believe that the complainant consents.  Section 75 of the Sexual Offences Act 2003 provides a rebuttable presumption that the complainant did not consent and that the defendant did not reasonably believe she consented if the defendant is aware that at the time of the relevant act, or immediately before, the complainant was in fear of violence (against herself or another), was unlawfully detained, was asleep or otherwise unconscious, was incapable of communicating consent by reason of physical disability, or was subject (without her consent) to a stupefying substance.  Section 76 provides that the accused does not have a reasonable belief in consent if he intentionally deceives the complainant about the nature or purpose of the relevant act or if he intentionally induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

The equivalent New Zealand legislation, s 128A of the Crimes Act 1961, is more prescriptive still, specifying various circumstances (including excessive consumption of alcohol or other drugs) in which a person does not consent.  However, while this rules out any argument that the complainant in fact consented, it does not in terms specify that the defendant cannot reasonably believe the complainant consented (if drunk, etc.).  Still, the significance of these provisions is that they limit the scope for argument, avoiding some uncertainty about when and why it is reasonable to believe the complainant consented.

Consider this modest proposal.  Amend s 76 of the Sexual Offences Act to provide a conclusive presumption that no complainant consents, and no defendant reasonably believes she consents, when (the defendant knows that) the payment of money (by the defendant or on his behalf) is a condition of the defendant doing the relevant act.  Would this amendment be reasonable?  Would it be constitutional?

One might argue that this proposal, which would make it impossible in law for any person paying to have sex with a ‘prostitute’ to be reasonable in his belief that she consents, interferes with his right under Article 8 of the European Convention on Human Rights, if respect for one’s private and family life is ‘engaged’ when one makes unlawful paying for sex.  (I set aside an analogous argument that a willing, non-trafficked prostitute might make: by hypothesis, any interference would be with her trade not her private life).  I doubt whether one should think that respect for one’s private life requires respect for one’s desire to pay for sex, but Article 8(1) is understood so capaciously that likely it would be so understood (indeed, perhaps it already has been).  The interference would not, on my argument, be intended for the protection of health or morals but rather for the protection of the rights and freedoms of others, viz. the bodily integrity and personal liberty of the trafficked persons whom, absent the proposed amendment, the unsuspecting customer is otherwise free to rape.  Relatedly, the interference would be intended to prevent crime to the extent that it would imperil the market for trafficked persons, deterring (somewhat) the crimes involved in forcing women into prostitution.

The interference would be a rational means to the ends in question, for it would vindicate the rights of the trafficked woman to be free from sexual acts to which she does not consent by bringing closer into line the man’s legal liberty and her actual non-consent: that is it would close the asymmetry in a way consistent with the law’s focus on the reasonableness of the defendant’s belief.  And by exposing every client to liability for rape the interference would very sharply deter at least some (and increasingly more if the regime were applied forcefully) from paying for sex or even from considering paying for sex.  I take it that the question of proportionality stricto sensu is easily answered: securing the rights of all persons to be free from rape is not an end to be set aside because it involves limiting, or expunging, the freedom to pay for sex, which freedom is close to worthless.

The hardest question might be whether the proposed amendment is the least restrictive alternative.  For why amend s 76 when one might just as easily, and perhaps more obviously, amend s 75?  That is, why not introduce a rebuttable presumption that if money is paid (by or on behalf of the defendant) the complainant does not consent and the defendant does not reasonably believe she consents?  This narrower presumption would avoid an obvious implication of the broader proposal, which is that the latter deems some persons (willing, non-trafficked prostitutes) not to have consented when in fact they have consented.  This deeming is an awkward fit with the structure of ss 75-76, which take for granted that the presumptions – conclusive or rebuttable – track the facts.  Hence, avoiding this artificiality might be thought an obvious advantage of the narrower formulation, such that the broader is disproportionate.  However, there is an advantage to the broader, which is that it constitutes a clear rule, which makes unarguable the proposition that it was reasonable to believe the complainant consented because she was a prostitute.

The question of whether to privilege the narrower is a difficult question, not to be answered solely on the grounds of the apparent logic of proportionality.  The artificiality of the broader proposal would be intended precisely to protect the persons who will suffer from a vaguer proposition which aims to discern the actually consenting from the non-consenting.  Further, the proposed amendment may be understood not just, or even mainly, as an evidential rule concerning what is or is not reasonable belief in consent, as s 75 clearly is and s 76 is in part, but rather as a provision that makes it the case that there is no reasonable belief in consent in these circumstances, even if some (even many or most) prostitutes are willing, non-trafficked and in some sense do in fact ‘consent’.  The law in question would, in one way, make the latter persons incapable of consenting to sex in exchange for payment, which incapacity (which would not change their legal position save to the extent of removing a power to make what would otherwise be rape not rape) is imposed for the sake of the (unknown number of) persons who do not consent and are forced into prostitution.

An amendment to s 76 would thus perhaps be proportionate, consistent with Article 8.  In one sense, of course, it would not be at all proportionate, for it has the effect that men who pay for sex are liable for conviction for rape, even when the person with whom they have sex in fact consents, which seems heavy-handed at best.  Doubtless such persons would be sentenced much more leniently than other rapists (rapists properly so-called even), and doubtless the authorities would prosecute only a fraction of those persons.  This gives rise to a general worry, which is that while the proposal may not be obviously illogical, it may be wildly imprudent, for it introduces into law a strained artificiality that sharply extends the scope of the criminal law in a fashion that is unlikely to be publicly supported.  I refer here not to the related worry that no Parliament would ever enact this proposal, but rather to the prospect that the (liability to) conviction for rape of many men who pay for sex would be viewed as absurd, as devaluing the gravity of the charge of rape.

These are, I think, difficult questions.  The merits of the proposal turn in part on one’s sense of the scale of the relevant problem and on one’s speculation about how the introduction of the new rule would change the practice of persons who would otherwise pay for sex, persons who are in the business of preying on the vulnerable to supply the former with objects for their gratification, and of the authorities charged with enforcing the law.

Proportionality is a virtue, but it does not rule out sweeping rules that sharply change the legal position.  Prudence is another (related) virtue, which may rule out exactly such rules.  It is obviously imprudent (not to mention straightforwardly illogical) to reason that something must be done, that this is something, and hence it must be done.  Still, the desperate plight of the unknown numbers of persons forced into prostitution at least warrants consideration of such changes, however sweeping, as may perhaps prove to be intelligent, if inevitably partial, means better to protect them.  And if nothing else, thinking through the (limited but nonetheless real) appeal of what is clearly a rather extreme proposal has the virtue of putting the Swedish and French laws in perspective, making clear that they are not arbitrary interferences with someone’s lawful trade (as the Canadian courts might say), but are prudent, measured attempts to address very serious injustices.

Richard Ekins is a Fellow and Tutor in law at St. John’s College, Oxford.

Suggested  Citation: R. Ekins, ‘A Modest Proposal:   prudence, proportionality and  (forced) prostitution’  U.K. Const. L. Blog (12th Feb 2014) (available at