Until April 2012, it used to be simple to write: “In the UK, paying to be sexual with an adult is legal.”

Now, thanks to the introduction of the Policing and Crime Act 2009, it is more complicated.

s14 introduced a new section (53A) into the Sexual Offences Act 2003 (and an equivalent one for Northern Ireland):

53A Paying for sexual services of a prostitute subjected to force etc.

(1) A person (A) commits an offence if—

(a) A makes or promises payment for the sexual services of a prostitute (B),

(b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

(c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).

(2) The following are irrelevant—

(a) where in the world the sexual services are to be provided and whether those services are provided,

(b) whether A is, or ought to be, aware that C has engaged in exploitative conduct.

(3) C engages in exploitative conduct if—

(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or

(b) C practises any form of deception.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

What’s that mean? Well, it’s easier to say what its intention is: to put people off being clients. As originally introduced, the clause was going to criminalise paying to be sexual with anyone ‘controlled for gain’. As ‘control’ has no implications of coercion, force, or anything else abolitionists go on about, that would have included every single person working for an agency or in a brothel!

Fortunately, this replaced by the current wording. As far as is known, it has yet to be tested in court, so the following is speculation and, as ever, does not constitute legal Advice. It could well be right though

new clause related to escort:

1. The offence is committed by the person who pays for sexual services, whether or not they receive them, with someone who has a third party – who expects that they (or someone else) will gain as a result – use coercion, threats or deception in order to encourage them to provide those services.

2. This is the most offensive bit. Part (a) extends this to everywhere in the world and, highly controversially, part (b) makes this a ‘strict liability’ offence. There are very few of these – motoring offences like speeding are the main examples – and it means that there is no need for the prosecution to prove that you knew (or didn’t care) that it was happening.

The effect is to make it impossible to know for sure whether any particular booking is legal. The clear intention is to discourage paying for legal sexual services, in a way that avoids having numerous Parliamentarians vote to make their own ‘punting’ illegal.

3. Defines ‘exploitative conduct’.

4. Says this is something to be dealt with in a Magistrates Court, without a jury. The maximum fine is currently £1,000..

.. should anyone be found guilty of this.

What are the chances of that? Well, they’d have to find them first, prove they paid for sex (only the person paying commits this offence), and that the worker had been exploited, in a way that encouraged them to do something they would not otherwise have done. None of that is going to be easy.

Even if that can be done, many clients have requirements beyond the actual act itself: they don’t just want ‘oral sex’ as a service, for example. Instead they want – and pay for – ‘oral sex from a person who fits a particular description’. Most ‘punting’ message boards are appallingly homo- and transphobic and most of the men using them only want to buy sexual services from people they count as women, i.e. part of the sexual service they buy is ‘oral sex from a non-transgendered woman’. (Typically, there will be a list of other additional clauses to the desired service, individual to each client, covering issues such as age, appearance, etc of the other person.)

So one argument may be that the sexual service required involved, for example, being an entirely willing partner. (Reliable research on clients demonstrates that very few clients want to be sexual with someone who is not.) How do you coerce someone into providing that service? By definition, it’s impossible.

So there may well not be many convictions, even without considering the low level of exploitation, but this law is an example of the worst kind of gesture politics: getting convictions isn’t the point.

Back to what’s easy…

What’s illegal:

paying for sexual services of a child. If they’re aged 13-17, a ‘reasonable belief’ that they were at least 18 is a defence to the charge which carries a maximum penalty of 7 years (if they are 16 or 17) or 14 years (if they are 13-16). If they’re under 13, you have no such defence, and the maximum penalty is life imprisonment.
kerb-crawling – soliciting from or near a motor vehicle you have just got out of. Since kerb-crawling was originally made illegal in 1985, the powers of the police have been increased: you can now be arrested for kerb-crawling and lose your vehicle. Some areas publish details of people who have been convicted or accepted cautions for kerb-crawling.
persistently soliciting in general for the purposes of prostitution. This involves approaching multiple people on the street or similar area, or pestering the same person multiple times. A case in February 2011 established that, if you’re on foot, approaching one person once for sexual services is not an public nuisance offence, even if done in an area known for prostitutes working on the street.
Making it illegal to pay for otherwise legal sex with a 16 or 17 year old was part of the Sexual Offences Act 2003. One of the big changes in the male escorting scene in the 1990s was that the ‘age of first sale’ shot up dramatically. When the Streetwise Youth service was created in the 1980s, if someone hadn’t sold sexual services by the time they were 18, they were unlikely to use the project. By the turn of the century, it was vastly more common to have made a choice to start selling in the early 20s and hardly any new service users had started under 18.