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Regulation of the Sex Industry from a Criminal Law Perspective Audrey Regulation of the Sex Industry from a Criminal Law Perspective Audrey Woraker A Thesis submitted for the degree of PhD School of Law University of Essex July 2017 i Acknowledgments I would like to thank the following: To my supervisor Dr Audrey Guinchard: thank you for being a wonderful supervisor who, sometimes gently and sometimes forcefully, kept me going through this insane process. To my long-suffering partner Scott Forrest: thank you for simply being you. Your post as chief cook and bottle washer was very much appreciated. To my dear friend Wendy Jones who sent messages of support just about every day. To my sons Daniel, Matthew and Richard who supported me all the way. And especially to my cats: a huge thank you to Cully Cat who sat on my lap (and often on the keyboard or printer) whilst I worked on the thesis and Missy Miss who by sitting on my books became the prettiest page marker, and to the two newcomers: Pickpocket and Kizzcog who also felt it necessary to argue over who is going to sit on my chair and the desk. I am sorry I did not feed you on time every time but let’s face it girls, your idea of ‘on time’ gets earlier and earlier every day! ii Abstract This thesis examines the sex industry as a whole with the intention of establishing that prostitution should not be marginalised but integrated within the criminal law and regulated as other Sexual Entertainment Venues. I first establish a framework of analysis needed to illuminate the constraints put upon the different elements of commercial sexual activities. This framework stems from the Sexual Offences Act (SOA) 2003, the primary statute that regulates all sexual activities, whether commercial or non-commercial. It has four elements: consent, nature, purpose and visibility. By means of ‘black letter’ law and case histories, I then explore three areas within the sex industry: pornography, live sexual entertainment and prostitution in order to show that the element of consent is consistent throughout and relies solely on the SOA 2003 and is linked directly to the nature of the sexual activities. The nature of the sexual activities has its basis in non-commercial sexual activities, but is regulated in the sex industry in such a way that the nature differs between each commercial area. By contrast, the purpose remains constant in commercial sexual activities although it is at odds with non-commercial. All aspects of consensual sexual activities, whether commercial or non-commercial, must not be visible for unintended viewers. However, advertising of commercial sex is possible and thus visible, with the exception of prostitution. With regards to prostitution, legislation criminalises prostitutes who advertise and their mere presence constitutes a form of advertising. The public presence of prostitutes as well as the presence of their clients also creates the grounds for public nuisance. I then suggest, based on the above information, that statutory legislation could include the use of brothels, this stems from the New Zealand model, in order to respond to issues raised about consent and visibility, as well as extend the protection offered to prostitutes to other sectors of the sex industry when they are confronted with the issue of consent. iii Contents Regulation of the Sex Industry from a Criminal Law Perspective .................................. i Acknowledgments ................................................................................................................ ii Abstract ............................................................................................................................... iii Primary sources: .............................................................................................................. viii List of cases.................................................................................................................... viii Introduction ............................................................................................................................ 19 0.1 The background ......................................................................................................... 20 0.2 The Reasoning for the Project.................................................................................... 21 0.3 Methodology .............................................................................................................. 27 0.4 The Findings ............................................................................................................. 33 Chapter One – Establishing the framework for permissible and non-permissible sex. .. 34 Introduction ........................................................................................................................ 34 Section 1 - The required consent ...................................................................................... 37 1.1. The first statutory definition of consent .................................................................... 38 1.2 Age restrictions .......................................................................................................... 39 1.3 Capacity to consent – mental and physical disabilities .............................................. 44 1.4 Consent to a sexual act within marriage .................................................................... 46 1.5 Issues raised by behaviour ......................................................................................... 47 Section 2 - The nature of the sexual activities ................................................................. 65 2.1 The changes of legal and moral attitude toward the nature of the sexual act ............ 65 2.2 Sexual activities involving an unwitting partner. ...................................................... 67 2.3 Criminal law approach to a sexual act potentially involving harm ........................... 69 2.4 Civil law boundaries on the nature of the sexual activities within marriage ............. 72 Section 3 – The purpose of non-commercial sexual activity .......................................... 76 3.1 Procreation as the purpose of sexual activity ............................................................. 76 3.2 Pleasure as the purpose of sexual activity.................................................................. 77 Section 4 - Visibility ........................................................................................................... 79 Conclusion ....................................................................................................................... 84 Chapter 2 – Pornography ...................................................................................................... 86 Section 1 - Consent and pornography .............................................................................. 88 1.2 Consent of the performer(s) ....................................................................................... 89 1.2 Consent of the pornographers (producers, distributors and film crew) ..................... 92 iv 1.3 Consent of the viewer ................................................................................................ 92 Section 2 - The nature of sexual activities within pornography .................................... 94 2.1 The meaning of ‘pornography’ and ‘obscene’ ........................................................... 94 2.2 The range of prohibited sexual acts ........................................................................... 97 Section 3 - The purpose of pornography ....................................................................... 103 Section 4 – the visibility of pornography ....................................................................... 105 4.1 Children, pornography and vulnerability ................................................................. 106 4.3 Permitted visibility ................................................................................................... 108 4.4 Constraints on visibility ........................................................................................... 111 Conclusion ..................................................................................................................... 115 Chapter 3 – Adult Live Sex Entertainment ....................................................................... 118 Section 1 - Consent ........................................................................................................... 119 1.1 Telephone sex chat lines .......................................................................................... 120 1.2 Burlesque and strip-tease ......................................................................................... 121 1.3 Hostess bars ............................................................................................................. 122 1.4 Exotic dancing ......................................................................................................... 122 1.5 Peep shows ............................................................................................................... 124 Section 2 - The Nature of Sexual activities within the Live Sexual Entertainment Sphere................................................................................................................................ 126 2.1 Telephone sex chat lines .......................................................................................... 126 2.2 Burlesque and strip-tease ........................................................................................
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