Prostitution In Scotland: Legal Context
While this review focuses on evidence relating to the criminalisation of the purchase of sex, a brief overview of the current legal and policy context in Scotland is provided to give an indication of the areas which may be affected by a different legislative approach. This should not be taken as an indication that the Scottish policy context will inevitably point to any specific intervention (such as criminalisation of the purchase of sex) but rather, to provide background and overview of current practice in terms of legislation and policy.
The settled approach to criminalisation in Scotland has been to prosecute individuals involved in prostitution (known to the police following two police warnings) for soliciting and loitering offences. The behaviour of the person offering sexual services is criminalised although until 2007, the purchaser was not subject to prosecution. In 2007 a commitment to penalise kerb-crawlers, and thus the demand for prostitution, came into force (Prohibition and Public Places Act (2007)). During the mid-1990's, legislation was introduced in relation to 'brothel-keeping' and 'immoral earnings'. This has been galvanised more recently by concerted efforts in confiscation of criminal earnings. Trafficking for the purposes of prostitution was first criminalised in the Criminal Justice (Scotland) Act 2003, section 22, however recent legislation has codified the law on all forms of human trafficking.
The Human Trafficking and Exploitation (Scotland) Act 2015, section 1 (offence), 3 (definition of exploitation) and 9 (support for victims) introduced legislation to specifically make it an offence to exploit another human being. Exploitation is defined within the Act and covers sexual exploitation. Trafficking can be within one jurisdiction and does not need to cross borders. This legislation also makes specific provision for support and assistance to victims of trafficking. The 2015 Human Trafficking and Exploitation (Scotland) Act does not set out explicit measures to tackle prostitution in Scotland. The Scottish Government has indicated that it is committed to meeting its EU and UN obligations (Scottish Government 2010 and 2015) with express commitment given to the:
i. European Convention of Human Rights
ii. Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence
iii. UN Platform for Action
iv. United Nations Convention for the Elimination of all forms of Discrimination Against Women ( CEDAW)
v. United Nations Convention on the Rights of the Child
vi. Council of Europe Convention on Action against Trafficking
vii. The Trafficking (or Palermo) Protocol (to supress and punish trafficking in persons, especially women and children).
While there are clear links between human trafficking and commercial sexual exploitation ( CSE), there are ongoing debates about the inclusion of prostitution per se as a form of exploitation closely linked to trafficking, although there have been suggestions from Europol representatives that trafficking in human beings, particularly of women and girls, has increased in countries where prostitution has been legalised (see also Ekberg, 2004; Di Nicola et al, 2009; Kelly et al, 2013; Schulze et al, 2014). The most recent report by the European Parliament Women's Rights and Gender Equalities Committee reflects recent trends towards the criminalisation of the purchase of sex by calling upon EU member states to adopt the Nordic Model although this has been criticised by opponents of the approach.
Recent developments in Scotland are set out in the Review of Prostitution in Scotland, however in summary, following the establishment of an Expert Group which reported to the (then) Scottish Executive (Scottish Executive, 2004) and after considerable consultation, the Scottish Executive (2005) indicated that it would:
- address street prostitution within the context of an overarching approach to tackling violence against women and of building safer, stronger communities;
- issue guidance to local authorities on their powers and on how they (and other participants in Community Planning) should address street prostitution as part of the Community Planning process in order to prevent involvement in prostitution, to reduce the harm to the women involved, to assist those ready to exit and to ensure the safety of local communities;
- promote good practice in developing local responses which involve all agencies in the delivery of services;
- establish a new offence to focus on harm, offence and nuisance caused to communities from prostitution-related activities, whether by sellers or purchasers (to replace the existing offence of soliciting).
Guidance for Local Authorities and Community Planning Partnerships was issued in July 2007 (Scottish Government, 2007) providing advice and best practice examples in five key areas:
- Challenging attitudes which lead to a demand for prostitution;
- Preventing vulnerable young people from becoming involved in prostitution;
- Minimising the harm and risk encountered by women who are involved in street prostitution;
- Assisting women to leave prostitution;
- Enforcing the law, disrupting street sex markets and protecting communities affected by the presence of street prostitution.
This Guidance, which was written before the advent of a single force, Police Scotland, is referenced in the Lord Advocate's Guidelines (2012) to Chief Constables as being the current Scottish Government approach  . The Lord Advocate sets out the demands of the public interest: enforcement against purchasers; minimising the impact on communities affected by street prostitution; and not increasing the risk to vulnerable people through displacement.
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