Prostitution, Coercion and ConsentRoger Matthews

University of Kent

The Myth of Mutuality1. Equal partners and free choices

2. The simultaneous pursuit of sexual desires

3. Is coercion the exception rather than the rule?

4. Research on buyers suggests that they construct notions of agency and desires amongst women involved in prostitution

5. Buyers want a responsive embodied woman

6. In some accounts women are held to exercise control because they place some limits on the services available

7. Women involved in prostitution are not only subject to structural constrains but also to the powers of third parties

Prostitution and Rape1. “It’s like being paid to be raped”

2. The difference is the involvement of coercion and consent

3. Women involved in prostitution give their de facto consent whereas victims of rape do not

4. When buyers do not pay or engage in non agreed sex they are accused of rape

5. Many women involved in prostitution report rape often from an early age

6. Rape is often seen by the authorities as an occupational hazard

The Issue of Coercion1. The focus on sex trafficking and coercion

2. Early stories of abduction, entrapment and women being sold for sex

3. Widening the definition of trafficking to include notions of deception, fraud and exploitation

4. Problems of interpretation by authorities explains the gap between number of women ‘trafficked’ and number registered in different countries

5. Growing responsibilisation of buyers – “Enter a punter, Leave a Rapist”

Criminalising ‘Coercive’ Buyers

Shift from crimalising public order infractions (kerb crawlers) to criminalising

‘coercive’ buyers

1. Policing and Crime Act (2009) Strict liability offence where there is evidence

that the woman concerned has been subject to force

2. The crimalisation of buyers of trafficked women in Norway in 2009.

3. Considerations of criminalising buyers in Ireland and France

Coercion in Rape Cases

In a case at the Court of Appeal (2007 R vs Massey)

The judge stated that:

“There may be a variety of reasons why the other person does as instructed. It may be because of physical violence or threats of violence. It may be because of emotional blackmail. For example, being told that “If you really loved me , you would do this for me”. It may be because the defendant has a dominating personality and that the woman who acts under his direction is psychologically damaged and fragile. It may be because the defendant is an older person and the other person is emotionally immature. It may be because the defendant holds out the lure of gain, or the hope of a better life. Or there may be other reasons”.

Thus, there is wider consideration of emotional and psychological pressures in play.

Changing Definition of Coercion• In recent years we have seen a broadening of the definition of coercion in different areas of sexual relations

• As in sex trafficking it is increasingly recognised that people do not always need to exercise force to get people to do what they want.

• In the UK we have seen changing definitions of ‘coercion’ in relation to:

Rape

Domestic Violence

Forced Marriage

- Child Abuse

Theorising Coercion• Coercion involves the narrowing of options rather than being given unsatisfactory offers

• It is also the case that when consent is not forthcoming that the person has necessarily been coerced

• People delude themselves, make mistakes and poor choices.

The definition of coercion contains two elements:

a) The choice that an agent makes has been altered unfavorably or narrowed

b )The purposeful actions of others who have created that situation.

We may make bad choices or have choices restricted by social and economic constraints, or they may be subject to exploitation, but without the involvement of a ’controlling’ agent we cannot talk about coercion.

Deconstructing Consent

• The giving of de facto consent is limited by a number of consideration:

• Consent and choice. Consent is a moral category that essentially involves the granting of permission and ius only legitimate where coercion is absent. Choice involves the ability to act in different ways even if coercion is present.

• Informed consent involves full disclosure, act voluntarily and understand what is disclosed and involve people who have the competence to make rational decisions

• Active and passive consent. Active consent involves verbal or written agreement.

• Conditional consent means that consent is given subject to certain conditions (eg. wearing a condom).

• The fact that a person has consented does not nullify wrongdoing (eg plastic surgery).

Implications for Regulating the Demand for Sexual Services

• Women involved in prostitution can be deemed to have been coerced if they are subject not only to threats, violence, and force but also to deception, psychological and emotional pressures or forms of ‘grooming’.

•They cannot give consent if they are ‘children’ under the age of consent, are mentally ill or drug addicted and unable to understand the risks and implications of what they are doing.

• If the subject to a pimp/partner or third parties who control their activities and fall within the full definition of being ‘trafficked’.

ConclusionThus for prostitution and the purchase of sex to be legally defensible and

legitimate the women concerned would:

1. Have to enter prostitution at 18 or older

2. Not be subject to force, deception, or emotional pressure from controlling third parties

3. Not suffer from certain forms of mental illness

4. Not be a problematic drug user

5. Not be subject to coercion or deception from buyers