A long-awaited judgment
Love is not a human right and neither is sex. (Remember when Amnesty International decided it is? I do. How can you make sex a human right without implying a requirement? Who are the people who would be most subject to that requirement?)
This morning the Court of Appeal handed down a long-awaited judgment in the case of Re C, a legal case fraught with tension due to the sensitive and complex nature of what lay at its heart.
In short, C, a learning-disabled man, wished to seek out the “services” of a prostituted woman to pay her for sexual access, but he lacked the mental capacity to make such arrangements for himself.
One of several legal issues at hand was the fact that, if such a care worker was permitted to make such arrangements, they may be committing an offence under s.39 of the Sexual Offences Act 2003, which prohibits care workers from “causing or inciting sexual activity”.
To cut a long legal story short, the Court of Appeal overturned the original ruling of the Court of Protection, and stated that in this instance C’s care workers were categorically not permitted to facilitate the purchasing of sexual access on behalf of their learning-disabled client.
Access to a vagina is not a human right. It can’t be. If it is treated as a human right, women become tools for other people.
Love, sex, companionship, corporeal contact, entertainment, and a sympathetic ear are all human needs, as near to universal as they get. A life lived without one or more of them is certainly an impoverished one compared to a life lived with all of them. Some of these needs are also deep and primitive urges, compulsions and desires which we did not choose and cannot easily temper, though temper them we must.
But a need is not necessarily a right, and a right is not necessarily grounded in an individual need; rights are an abstraction, an ideal set of circumstances one should reasonably expect, or liberties one should be allowed to exercise. The ACLU, Amnesty, and it seems far too many young and supposedly-educated people cannot see the distinction between a human need and a human right, especially human needs grounded in compulsive desires.
In any social setup worth having, anywhere, sexual intercourse can only take place between consenting adults, and usually in private. Thus it can never be a ‘right’ for any specific human to have sex with any specific other, except under the condition that both parties are consenting. Biology dictates that this be a one-to-one relationship, though bizarre alternatives are possible..
To decide otherwise would appear to make the care workers into touts and pimps. But at the same time the long history of prostitution and the law shows that making the first illegal sooner or later corrupts the second. Astounding as it may seem, cops have been known to extort protection money from prostitutes and others involved in the sex trade.
The best answer would seem to be to teach C how to approach a prostitute and ask for sex, with the carer/s watching on from a safe distance to ensure that their protege does not get into trouble on the street.
@Omar:
But if one takes the (in my opinion highly defensible) view that buying sex is at is core a human rights violation, then there is no ethical way to teach C to buy sex, just as there is no ethical way to teach him to buy a kidney. Why should C’s carers be obliged to help him find sex with a partner who does not want to have sex with him?
There’s a difference between making prostitution illegal and making pimping and buying sex illegal.
It seems reasonable to infer from the legality of selling something that buying that thing is also legal, because to sell something isn’t just to offer it. When I say, “I sold my house,” you don’t infer that I still have my house, because “to sell” has two (relevant) meanings. Differentiating these is often done through tense. In the progressive, it refers to the act of offering for trade, as in, “I am selling my car.” In the past, it refers to a completed transaction, as in, “I sold my car.” However, tense alone isn’t always sufficient. To wit, the progressive can refer to repetitive offering and trading simultaneously, as in, “He’s selling drugs to neighborhood kids.” The salient issue isn’t that drugs are offered, rather it’s that kids are acquiring them.
The semantic connection between buying and selling is really rather tight. Oh, I know we try to separate the two in all sorts of ways, but it’s always going to be a tough, um, sell. (ba dum tiss) Really, the problem is that they refer to the same thing seen from different perspectives. A sale and a purchase are not two events; they are one, a single transaction, described from different sides of the counter. Likewise, one can’t receive a gift unless someone gives it, except metaphorically, as receiving and giving name the same event, an exchange, from opposite directions. One can’t accept a bribe if a bribe is not offered, either.
ATSRU: The prostitute, wherever he or she practises his or her trade, usually does so on a voluntary basis, though prostitutes probably have above average probability of being raped by clients or forced to do things they do not want to do, and many if not all of them would rather make a living some other way. But presumaby in C’s case, the prostitute-client relationship would be a purely commercial one, and voluntary on both sides.
Where it is illegal for the carers of C, “a learning-disabled man” to procure the services of a prostitute on his behalf, C for better or worse, will just have to negotiate the deal for himself, as best he can. Though I am not a lawyer, teaching him to identify and approach a likely woman on the street, and how to offer a deal in that circumstance, would probably not be illegal, though it could get him into a lot of bother under some circumstances.
Another possible way would be for the carers to contact a female prostitute and tell her that at such-and-such an address there is a man who would like to do a commercial deal with her, and leave it to her to take it from there. Though a judge might consider that to be procuring. As defence counsel (with pub training only) I would argue informing, not procuring, as the final decision would be the seller’s.
No other way round it, as far as I can see.
“There’s a difference between making prostitution illegal and making pimping and buying sex illegal.”
As Nullus notes, this is actually somewhat problematical. If prostitution is not illegal, then how can buying sex be made illegal? Just like with illegal drugs, one (failed) policy is to make drug possession and use “legal” yet still making the selling of such substances a felony. That just seems illogical to me and doomed to failure.
Not all sex work is dangerous or ill-chosen. (As an Ace I am not really speaking from experience). Even if those of us on the outside find it a little icky.
IIUC this is the Nordic Model. The idea is that police won’t police prostitutes. They won’t necessarily police johns, either, unless a prostitute accuses one of abuse. Then the john can be prosecuted for abuse AND for buying sex.
The attempt to protect people selling sex from harm appeals to me, though I agree that legally it looks sticky at best, logically incoherent at worst. Anybody know how it actually works in Scandinavia?
Omar:
One can make the same argument for selling organs. There are thousands of desperately poor people in rural India suffering from the lifelong health effects of having one kidney because they—ostensibly voluntarily—sold the other one.
Here’s another, more obscure analogy: midget bowling. If you are fortunate enough to be unfamiliar with this phenomenon, it’s the practice of tossing a little person down a bowling lane in place of a bowling ball, which is apparently high comedy to certain crass fratboy types. Some little people rent themselves out to would-be midget bowlers, but some state legislatures have passed laws prohibiting the practice, on the grounds that it is inherently hazardous to the person selling the service (being tossed around like a literal ball is dangerous for anyone, but especially dangerous to little people, who tend to have fragile spines). Simply put, laws against midget bowling boil down to the conviction that it’s not okay for a bunch of dudes to have a good time by putting other people at real risk of serious harm, even if the people taking the risk have agreed to do so in exchange for money.
Of course, one can take the extreme libertarian position that any transaction should be permissible as long as there is the appearance of consent; the exchange of money sanctifies anything that the payer might do to the payee. Sweatshop workers, diamond miners, gestational surrogates, organ sellers, midget bowling balls, prostitutes—they all knew the work and the wages and they chose to accept. If it’s all right for me to grind away at my tedious and stressful white-collar job because I need the money, then it must also be all right for a homeless eighteen-year-old girl to allow strange men to ejaculate in her orifices because she needs the money. Really, what’s the difference? Everyone hates their job.
But I’m less interested in abstract questions than I am in concrete realities. Overwhelmingly, the women and girls (and the smaller number of men and boys) who are in prostitution are harmed by it and do not want to be there. Many of them are trafficked, many of them are drug addicted, many of them come from abusive backgrounds, many of them are being exploited by pimps, and many of them develop PTSD. The large majority of prostitutes—around 90%—interviewed in several countries say that they would leave the sex industry immediately if they could. As one study (from 2006, but I doubt much has changed since then) dispassionately concludes, “Sex work is associated with excess mortality and morbidity including the sequelae of STI, mental health problems, and substance misuse.” In plainer terms, buyers of sex do very real damage, both physical and psychological, to the people (mostly women and girls) whose bodies they buy.
Addendum/clarification: apparently, midget bowling is less common than the closely related “sport” of dwarf tossing, which involves tossing the little person against a velcro wall rather than down a bowling lane.
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Gosh, how humane.
@# 9: As former Australian conservative PM Malcolm Fraser famously said, “life wasn’t meant to be easy.” A well-established consequence of legal bans on goods and services for which there is an established martket is the creation of a black market and all that goes with it: police corruption, gangsterism, cartels, etc etc. So the choice of ‘to ban or not to ban’ carries multiple consequences each way, many of them not pretty whatever way is chosen.
But information is power. Drug dealers commonly give free samples of their wares away to fresh-faced innocent beginners. One hooked, they will do damn near anything for a fix, and from there on down it is The Rake’s Progress. Children, I think should be supportively informed of this. (As through consideration of “Come into my parlour said the spider to the fly.”)
I am reminded here of the brothers Grimm, who collected popular folk tales told and retold down the generations to inform children in a supportive way that evil exists in the world; though they had their bias, particularly in relation to stepmothers. (No prizes for guessing why that feature helped their tales to become popular with mothers.)
The Nordic Model Now! web site has a lot of good articles on the how and why of the model, along with history and case studies. Perhaps start here.
There is a lot more to the Nordic Model than retaining criminal penalties for johns and pimps while decriminalizing those who are prostituted. The main objective is based on trying to help people survive and find resources to exit prostitution, under the assumption that the vast majority are in the “business” under duress or coercion. Full decriminalization does little to help these women.
I believe there a number of kinds of transactions where buying and selling are not treated equivalently under the law. Drugs, cigarettes, stolen property, and firearms come to mind. I don’t think this aspect of the Nordic Model is particularly unusual, except perhaps that it’s the buying side that retains penalties.
Sackbut, that second Nordic Model link is on the money, IMHO. As with marijuana and other drugs, decriminalisation without legalisation looks to me like the way to go. PLUS penalties for buying and dealing.
The problem with decriminalizing johns (let alone pimps and brothels) becomes evident the moment we look at the world as it exists today. Namely, the existence of “sex tourism”.
A great many men travel, whether it be once in a lifetime, or on a regular basis, to distant destinations where prostitution is legalized, or at least decriminalized. Meanwhile, very few women–even those involved in the sex trade in their hometowns–make the same decision. There is no vast, untapped well of women just dying to be prostitutes, if only it were legal.
Universal decriminalization would only increase the demand–the existing johns would have lower barriers to being able to afford these ‘services’, after all, since they would neither have to purchase transportation, nor take time for their ‘vacation’. Meanwhile, some men who currently feel that the expense of sex tourism is too high to be afforded, and who also fear arrest at home, will now feel free to spend a more modest sum, and without fear of prosecution.
So, a vast increase in demand, but no matching increase in supply. Now, for existing prostitutes, this might be of some benefit–prices would go up. But there would also be a massive incentive, for the brothels and pimps, to find a way to increase the supply. Result: An increase in trafficking seems almost inevitable..
Hence, the Nordic Model seems the best compromise, though it still has weaknesses. (A big one centers around the issue of defining a brothel for legal purposes. In some countries using the NM, landlords will oust suspected prostitutes rather than risk being accused of running a brothel. This, of course, increases the risk to the women, since they must operate covertly and not in a space they can control; it also prevents multiple prostitutes from living in the same building, where they can support one another. OTOH, as noted above, it’s child’s play to set up a shadow-brothel where the women pay ‘rent’ to the landlord, who keeps the rents high enough to force the women to keep working, and to accept johns they would otherwise pass on, since they cannot afford to not collect every dollar possible. It’s damnably complicated.)