Governing Sex Work Through Crime
| Author | Laura Graham |
| DOI | 10.1177/0022018317702802 |
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Governing Sex Work Through
Crime: Creating the Context for
Violence and Exploitation
Laura Graham
Northumbria University, School of Law, UK
Abstract
This article uses Jonathan Simon’s concept of ‘governing through crime’ as a framework to argue
that the state has framed sex work, and its surrounding problems, as issues of crime. There has
been a privileging and proliferation of criminal justice responses to sex work in England and
Wales, at the expense of more social or welfare-based responses and at the expense of creating
safer environments for sex workers to work. Criminal law is used to manage and control sex
work, to reinforce other policies, such as immigration and border control, and to appear to be
doing something about the ‘problem’ of sex work without providing rights to sex workers. By
framing sex workas an issue of crime, withsex workers being both the perpetratorsof crime and
the potential victims of exploitative crime, the state is able to legitimise its actions against sex
workers, while ignoring the harm done to sex workers by the state.
Keywords
Governing through crime, sex work, crime, violence, exploitation
Introduction
Early in 2016, the government launched an inquiry to assess whether the ‘burden of criminality’ in sex
work
1
‘should be shifted to those who pay for sex rather than those who sell it’, in order to ‘discourage
demand which drives commercial sexual exploitation’.
2
The inquiry was the latest step in a decade-long
public re-examination of sex work in England and Wales.
3
Deviating from the more punitive approaches
Corresponding author:
Laura Graham, Northumbria University, School of Law, UK.
Email: laura.n.graham@northumbria.ac.uk
1. The term sex work is used in this article to refer to the provision of direct sexual services.
2. Home Affairs Committee Prostitution inquiry (2016). Available at: http://www.parliament.uk/business/committees/commit
tees-a-z/commons-select/home-affairs-committee/inquiries/parliament-2015/prostitution/ (accessed 15 January 2016).
3. Home Office, Paying the Price: A Consultation Paper on Prostitution (Home Office: London, 2004); Home Office, A
Coordinated Prostitution Strategy (Home Office: London, 2006); Home Office, Tackling the Demand for Prostitution: A
Review (Home Office: London, 2008); APPG, All Party Parliamentary Group on Prostitution and the Global Sex Trade,
The Journal of Criminal Law
2017, Vol. 81(3) 201–216
ªThe Author(s) 2017
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DOI: 10.1177/0022018317702802
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taken previously, the Home Affairs Select Committee, which is undertaking the inquiry, recommended
in June 2016 that elements of the law relating to sex work—namely, brothel keeping and soliciting—be
decriminalised to remove the criminal burden from sex workers and promote their safety.
4
The inquiry,
however, has yet to be completed and no action has yet been taken by the government in response to the
report. It is, therefore, timely and important to explore whether a continued reliance on any burden of
criminality is advisable in the regulation of sex work. This article will argue that the continued over-
reliance on criminal law to respond to sex work is misjudged and that, rather than protecting sex workers
from exploitation, governing se x work through crime creates a contex t within which violence and
exploitation is able to flourish in the sex industry.
Currently, sex work is regulated through a range of (primarily criminal) laws whereby the selling and
buying of sexual services is legal, but a range of activities related to it is criminalised. This leaves it
possible to sell sex legally only if the sex worker is ‘working alone, in a property she owns, without
explicitly advertising or financially supporting another person’.
5
Sex workers’ power to negotiate the
industry is, as such, weakened by potential prosecution and a lack of labour rights and protections.
Moreover, state reticence to legitimise commercial sex through more active regulation of the industry
has permitted the growth of unregulated sex markets that are open to coercion,
6
and wherein workers are
at heightened risk of exploitation.
7
This article uses Jonathan Simon’s concept of ‘governing through crime’
8
as a framework to argue
that the state has framed sex work and its surrounding problems as issues of crime. There has been a
privileging and proliferation of criminal justice responses to sex work, at the expense of more social or
welfare-based responses and at the expense of creating safer environments for sex workers to work.
9
The
governing through crime framework is used to argue that the law is not simply governing crime—that is,
the state responding in a way that is ‘proximate and proportionate to the crime threat experienced’.
10
Rather, criminal law is use d to manage and control sex work, to re inforce other policies, such as
immigration and border control,
11
and to appear to be doing something about the ‘problem’ of sex work
without providing rights to sex workers. By framing sex work as an issue of crime, with sex workers
being both the perpetrators of crime and the potential victims of exploitative crime, the state is able to
legitimise its actions against sex workers, while ignoring the harm done to sex workers by the state.
To begin, Jonathan Simon’s argument in Governing Through Crime is outlined to provide a clearer
distinction between governing crime and governing through crime. The framework of governing through
crime is then used to explore the way that sex work has been constructed as a crime, and sex workers as
criminal, since the Wolfenden Report in the 1950s.
12
The relatively recent shift to framing sex work as
Shifting the Burden: Inquiry to Assess the Operation of the Current Legal Settlement on Prostitution in England and Wales
(APPG: London, 2014).
4. House of Commons Home Affairs Committee, Prostitution, HC 26 (2016), para. 102.
5. T. Sanders, Sex Work: A Risky Business (Willan: Devon, 2005) 94.
6. A. Goldman, ‘Cultural and Economic Perspectives Concerning Protection of Workers’ Social Dignity’ in R. Blanpain (ed.),
Labour Law, Human Right and Social Justice (Kluwer Law International: The Hague, 2001) 9–29.
7. R. Hensman, ‘Defending Workers’ Rights in Subcontracted Workplaces’ in A. Hales and J. Wills (eds), Threads of Labour:
Garment Industry Supply Chains from the Workers’ Perspective (Blackwell: Oxford, 2005) 189–209.
8. J. Simon, Governing Through Crime (OUP: New York, 2007).
9. J. Scoular and M. O’Neill, ‘Legal Incursions into Supply/Demand: Criminalising and Responsibilising the Buyers and Sellers
of Sex in the UK’ in V. Munro and M. Della Giusta (eds), Demanding Sex: Critical Reflections on the Regulation of Pros-
titution (Ashgate: Aldershot, 2008) 13–34.
10. Above n. 8 at 15.
11. S. Fitzgerald, ‘Vulnerability and Sex Trafficking in the United Kingdom’ in S. Fitzgerald (ed.), Regulating the International
Movement of Women: From Protection to Control (Routledge: London, 2011) 154–75; V. Munro, ‘A Tale of Two Servitudes:
Defining and Implementing a Domestic Response to Trafficking of Women for Prostitution in the UK and Australia’, 14
Social and Legal Studies 91 (2005).
12. Home Office and Scottish Home Department, Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247
(1957).
202 The Journal of Criminal Law 81(3)
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