Diverting Children Involved in Prostitution

Alisdair A. Gillespie

Reader in Law, De Montfort Law School, Leicester, UK

agillespie@dmu.ac.uk

I would like to acknowledge the Arts and Humanities Research Council who part-funded a research leave this academic year to examine issues surrounding children involved in prostitution.

Copyright © 2007 Alisdair A. Gillespie
First published in the Web Journal of Current Legal Issues.

Abstract

In the period between 1989 and 1995 there were nearly 4,000 convictions or cautions of children under the age of 18 for crimes relating to prostitution (Ayre and Barrett 2000, p50). Whilst, of course, some of these convictions and cautions would be for the same person it is staggering to think that less than 15 years ago there were that many prosecutions of children. At the turn of the millennia it was decided to adopt a new approach and to treat children involved in prostitution as victims not offenders (DoH 2000).

In this piece I seek to question the impact of this policy and question whether the criminal justice system does now divert children away from criminality and prostitution or whether it continues to expose them to the very real risk of prosecution.

Contents

Terminology

The use of terminology in respect of those involved in prostitution has always been controversial. The term “prostitute” is disliked because it carries with it connotations of whoring (see, for example, Ferguson et al 2000, p461) and this certainly leads to negative perceptions of those involved. When it is adults who are involved in prostitution it is common to hear reference to “sex workers” with this carrying the belief that the sex industry is an employment in its own right.

However where it is a child that is involved in prostitution the term “sex worker” appears inappropriate. Although some have argued that mature young people may exercise choice the vast majority of commentators agree that children and young people will enter prostitution without any choice (see Cusick 2002, p236) but there remains no agreement as to how these children should be identified. A common theme is to present these young people as victims of child sexual exploitation (Pearce 2006, p190, Brown 2006, p295). Others disagree and suggest that perceiving children as victims of abuse disguises the problem and focuses solely on issues such as “pimps” without recognising that there are almost certainly wider social and economic factors that may be the cause of a young person entering prostitution (Phoenix 2003, p156).

The law has traditionally not engaged with this debate. Whilst historically there was not statutory definition of a prostitute, the Sexual Offences Act 2003 (SOA) has altered this with s.51(2) defining a “prostitute” as:

This definition specifically relates to children and it could be considered unfortunate since it arguably labels a child a “prostitute” regardless of any compulsion. This is compounded by s.48 which refers to the offence of inciting a child “to become a prostitute”. It is regrettable that the law has not considered more carefully this debate that exists over the use of this terminology, something this author has commented upon before (Gillespie 2005, p285).

In this article the term “young person [or child] involved in prostitution” will be used which is the term used by other commentators (most notably Phoenix, see Phoenix 2003; Phoenix 2002) and also by the government in its policies (see, for example, DoH (2000)). This demonstrates that young people are concerned with prostitution without suggesting that they are complicit within it. However it also recognises the wider socio-economic factors that surround this situation and differentiates it from other forms of child sexual abuse where the conduct may be different. The debate about language is an important one and it will be seen later in this article that terminology may be one reason why some children involved in prostitution are still treated poorly.

Young People Involved in Prostitution

It has been suggested that:

This is a point that has been reinforced by others who suggest that this is particularly true of the involvement of children in prostitution which is “essentially a clandestine activity” (Ayre and Barrett 2000, p50) and so, by implication, one that is hidden from sight and awaits discovery.

The clandestine nature of child prostitution also means that it is difficult to identify how many children are involved. In part this is because there is some controversy over how the activity of prostitution should be classified. The classic definition of prostitution perhaps relies on the notion of a commercial transaction and arguably this has been fuelled by the prostitutes’ rights movements which have sought to classify the behaviour as either a profession or an occupation (Goddard et al 2005, p277). Whilst nobody would argue that children are involved in such an ‘occupation’ the language remains undoubtedly one of commercialism. However studies demonstrate that the involvement of children and young people in prostitution is significantly more complicated with many using sexual services as ‘barter’ for food or even a room for the night (Green 1992, p5). The legal definition of prostitute, as has been seen, has evolved to consider this ‘transaction’ since although s.51(2) requires ‘payment’, this term is defined as:

Thus the kind of bartering required to survive away from home would, it is submitted, be captured by this definition. When ascertaining a child’s involvement, however, another difficulty is that of perception. Many children will simply not consider themselves to be involved in prostitution but rather they believe that they are using sex to simply obtain something that they want (Chase and Statham 2005, p10), including things as simple as rides in cars, alcohol or cigarettes (Pearce et al 2002, p55). Even where money is involved the type of behaviour involved differs, and in some situations the exploitation is not out of any personal need but because of the perceived needs of others, most commonly a ‘boyfriend’. Yet it is clear that many young people involved in prostitution, even in these circumstances, will not consider themselves to be ‘pimped’ by their boyfriend but rather that it is a voluntary choice on their part (Moore 2006). Whilst nobody would suggest that it is a truly voluntary arrangement it does raise issues in terms of access, in that people who do not consider themselves to be exploited are unlikely to engage with agencies who seek to help the exploited and thus come to their attention.

Where the exploitation is for direct personal need then the situation does become more complicated in that it needs not, as noted above, be for money but could include, for example, a system whereby sexual services are ‘bartered’ for food or even a room for the night (Green 1992, p5). This is undoubtedly exploitation but again perhaps demonstrates the difficulty in identifying those who are exploited through prostitution because such people will not necessarily come to the attention of public services. Indeed arguably the ‘bartering’ system demonstrates this in particular because of the inherent socio-economic imbalance that exists. Some commentators have noted that one reason for entering prostitution was young people “reject[ing] and [being] rejected by the wider society, which ascribes no value and little meaning to their existence” (Donovan 1991 cited in Ayre and Barrett 2000, p49). This is an important point because their visibility within society will determine whether they are ‘counted’ in any assessment of the scale of prostitution. It will be seen later in this paper that socio-economic factors are important and unfortunately the law apparently fails to understand this.

So how to we estimate the scale of the problem of children involved in prostitution? One method is obviously to use official figures. Between 1989 and 1995 some 4,000 young people under the age of 18 (the age of majority in the United Kingdom) were cautioned for offences relating to prostitution. This figure cannot be described as anything other than not insignificant and yet it almost certainly does not represent the true scale of the problem since it is known that convictions and cautions only represent an extremely small proportion of most crime committed.

Alternative approaches to identifying the scale of the problem could rely on the use of services provided to the vulnerable but as noted above some children consider themselves rejected by society and it has been noted that this means they are often unknown to public-sector agencies, including those who should have a responsibility to deal with them (Cusick 2002, p232). Some studies have sought to extrapolate the official figures and suggest that upwards of 2,000 young people could be involved in prostitution each year (Bluett et al 2000 cited in Cusick 2002, p233) but even then commentators admit that it is, at best, guesswork as to how many young people are involved in prostitution.

Legality of Prostitution

It is often said that prostitution is not by itself illegal, i.e. that the payment of money or some other value to another for sexual services is not unlawful. However this statement does have to be qualified when one is discussing the issue of child prostitution. In order to understand the current legal position it is necessary to distinguish between those who pay for the sexual services of a child prostitute and the liability of a prostitute themselves.

Paying for Sexual Services

The Sexual Offences Act 2003 (SOA) reformed the law relating to those who use or control young people involved in prostitution. It does this in two principal ways. The first is to criminalise those who actually pays to receive the sexual service. Section 47 of the SOA 2003 creates a new offence of “paying for sexual services of a child” which criminalises someone who intentionally obtains a sexual service of a child for payment. Importantly the child itself does not have to receive the payment (i.e. it can be given to a third party) (s.47(1)(b)) and payment is defined widely to include any financial advantage including services (s.47(2)). Accordingly those who ‘barter’ with the child in return for food or accommodation will also be caught by these provisions, something that is undoubtedly necessary since this is undoubtedly exploiting the vulnerable position of some young people.

Section 47 is a serious offence but the mode of trial and punishment alters according to the age of the child. Where the child is under 13 and the “service” involves the penetration of either the adult by the child or the child by the adult, then it is triable only on indictment and punishable by a maximum sentence of life imprisonment (s.47(3)). Where the child is under the age of 16 and the service involves penetration then it is triable only on indictment and punishable by a maximum sentence of fourteen years’. Where the service does not involve penetration then it is a triable either-way offence and the maximum sentence is fourteen years’ imprisonment (s.47(4), note this would also capture the position where the offender is under 13 and it was non-penetrative). Where the child is between the ages of 16 and 18 then the offence is triable either-way and punishable by a maximum sentence of seven years’ imprisonment (s.47(5)).

Sitting alongside s.47 is a series of offences that deal with those who otherwise exploit the child. Three offences are created and the explanatory notes accompanying the Act make it quite clear that this is designed to tackle the ‘pimp’ who is seen to be influencing the child (Home Office 2003, paras 95-97). The first offence is causing or inciting a child to become involved in child prostitution or pornography (s.48) which is designed to deal with those who ‘recruit’ children into prostitution. The second offence is that of controlling a child involved in prostitution (s.49) and is designed to deal with those who ‘pimp’ the child. The third, and final, offence is arranging or facilitating child prostitution or pornography (s.50) and this is designed to capture those who do not directly control the child but who assist in the prostitution (e.g. through renting a room out etc). All three offences are triable either-way and carry a maximum sentence of fourteen years’ imprisonment.

The offences are relatively controversial and I have criticised their use before by suggesting that they do not adequately demark the line between exploitation and abuse (Gillespie 2004). It is accepted that this perhaps neglects the argument put forward by, for example, Phoenix who suggests that commercial sexual exploitation should not be seen simplistically as child abuse but to an extent this is a slightly different point. Phoenix suggests that the State fails children when they neglect to offer adequate welfare responses to the problem that caused the child to enter prostitution, whereas the same need not necessarily apply to a criminal response. Sexual intercourse with a child under 16 is illegal and it must be questioned why the law feels the need to differentiate between ‘abusive’ sex and ‘exploitative’ sex at this age. They are both inappropriate sexual contact with a child and should be treated accordingly. Slightly different considerations do, admittedly, apply to those over the age of consent where the law has (rightly it is argued) decided that exploitative sexual activity with a child under 18 is to be criminalised (and this is not just in the area of commercial exploitation but also through, for example, abuse of a position of trust (ss.16-24, SOA 2003)).

Liability of Prostitutes

The SOA 2003 has altered certain parts of the general criminal law relating to prostitutes but it mostly altered the law to make the terms gender neutral rather than to define ‘prostitute’ as meaning a person over the age of 18. Whilst a prostitute does not commit a criminal offence for receiving payment for the provision of sexual services, many of the ancillary aspects of prostitution are illegal. It is worth noting these.

Section 1 of the Street Offences Act 1959 makes it an offence for a “common prostitute to loiter or solicit in a street or public place for the purposes of prostitution”. Historically this was a crime that could only be committed by a female (see, for example, DPP v Bull [1995] QB 88) but the SOA 2003 altered the definition so that it can now also be committed by a male prostitute. It has been suggested that the term ‘common’ is “…not merely an unnecessary and irrelevant addition to the offence but instead imposes an important legal requirement” (Selfe and Burke 2001, p147). This important requirement is simply that a common prostitute is someone who has committed prostitution more than once, a single act of prostitution would not suffice. It must be questioned, however, whether this term remains appropriate since it undoubtedly stigmatises prostitutes (Hubbard 2006, p7). Given that the SOA 2003 altered the definition to include male prostitutes it can be questioned why they did not modify it to remove this term either.

The offence is not of being a common prostitute but rather of loitering or soliciting in a street or public place. Soliciting is not defined within the Act but it is a word that is known to the legal system and is in essence an invitation for business. However for the purposes of the 1959 Act the solicitation must be done in person and accordingly advertising on a notice-board cannot amount to soliciting within this provision (Weisz v Monohan [1962] 1 WLR 262). However where the ‘advertisement’ is the prostitutes themselves then this may amount to soliciting (see, for example, Behrendt v Burridge [1977] 1 WLR 29 where a prostitute sat illuminated by a red light in the window of a house)).

It has been suggested that ‘loitering’ is a wider offence (Rook and Ward 2004, p360) even though it, like ‘solicit’, is not defined in the Act itself. However in Rawlings v Smith [1938] 1 KB 675 it was decided that it meant, in effect, “lingering” or, in perhaps more modern colloquial language, “hanging around and area”. This must, of course, be placed in the context that it is an offence only to loiter for the purposes of prostitution, i.e. awaiting business. It is important to note, however, that loitering does not require any direct attempt at recruiting ‘clients’, waiting for people to approach her would suffice (Rook and Ward 2004, p361).

Perhaps an important restriction on this offence, at least in modern times, is the fact that the soliciting and loitering must take place in a “street or public place”. Modern communication technologies are increasingly being used to facilitate prostitution but the offence under the 1959 Act is restricted to the offline world. That said, the courts have been willing to ‘bend’ the meaning of the words of the statutes, perhaps the classic example being Smith v Hughes [1960] 2 All ER 859 where a prostitute was convicted under the 1959 Act even though the soliciting took place on a first-floor balcony. The Divisional Court held that the soliciting had still taken place in a street because people who were walking down the street were solicited and the mischief behind the Act was to ensure that people could walk down public footpaths without harassment (Rook and Ward 2004, p363). The concept of ‘public place’ is even less certain although the courts have stated that it is a place where the public go, regardless of whether they have the right to do so (Rook and Ward 2004, p364). Where, however, a place is private in that there is restrictions as to membership then this would not be classified as public.

Safeguarding Children Involved in Prostitution

It has been noted above that the criminal law has an inherent paradox within it now. The SOA 2003 has introduced significant reforms whereby a strong signal is sent that it is inappropriate to sexually exploit someone under the age of 18. The Act ensures that those who pay for sexual services, or allow sexual services to be traded for needs, will face significant criminal penalties. Those who are responsible for recruiting and facilitating the exploitation are also criminalised. This is a welcome step and whilst it has been noted above that there are some flaws within the individual offences, it does send out a strong message: children are victims of sexual exploitation. However the paradox exists because whilst the law on the one hand recognises that they are victims of sexual exploitation, it does not absolve them from all criminal ‘blame’. By not exempting them from criminal liability for offences relating to prostitution the law considers them complicit with their own exploitation.

In the period between 1989 and 1995 there were nearly 4,000 convictions or cautions of children under the age of 18 for crimes relating to prostitution (Ayre and Barrett 2000, p50). This position was untenable and voluntary sectors working with children involved in prostitution were complaining that the criminalisation of such youngsters was making it difficult for them to provide support in exiting the lifestyle. Eventually the government acted and published a policy document known as Safeguarding Children Involved in Prostitution (SCIP) (DoH 2000). This was a landmark document but it should be stressed at the outset that although it has made a difference in reducing the number of children who have been processed by the criminal justice system for prostitution, it remains a policy document, i.e. it does not alter the provisions of the criminal law.

SCIP is to be welcomed in that it was the first real step to official recognition of the fact that children were victims of crime and should be treated as in need of protection rather than as criminals. It has been suggested that this focus was brought about, in part, by international obligations (Phoenix 2002, p354) and this is probably true and certainly similar reasoning was provided for the changes brought about by the SOA 2003 (Gillespie 2004, p361). However SCIP does not suggest that all young people involved in prostitution should be treated as victims. Although it states that they should in the first instance be considered to be children in need (Phoenix 2002, p359) the guidance expressly contemplates some young people being prosecuted for offences relating to prostitution.

The guidance attempts to justify the continuing criminalisation of children involved in prostitution by stating that it will only apply to those who are acting in a ‘persistent’ or ‘voluntary’ manner. This very language makes it appear that the status of ‘victim’ and ‘perpetrator’ are mutually exclusive labels (Phoenix 2002, p366) and the natural consequence of this is that those who ‘persistently’ engage in prostitution are no longer victims but are instead criminals. The whole of the ethos governing SCIP appears to be ignored or, at the very least, put to one side.

A difficulty of this process is how does one decide persistence? It appears to turn away from the literature that suggests that there is often a controlling influence behind a young person involved in prostitution (see Cusick 2002, p236). If such a controlling influence exists then it would appear naïve to suggest that concentrating on the child will be of significant relevance. A solution may be, therefore, to decide as a matter of policy that where such an influence exists then the child will not be considered to be acting voluntarily or persistently. As a line in a policy document this may appear a solution but it would be completely unrealistic. It has already been noted that many young people will deny the existence of a controlling influence (above) and so how is an influence going to be directed?

However that is, to an extent, a side-step from the real difficulty that the suggestion of ‘voluntary’ or ‘persistently’ masks; that it completely ignores the reasons why young people enter prostitution and the manner in which they act. The concentration of a young person acting voluntarily and persistently does not address why they enter prostitution. It will be remembered that Green had suggested that young people involved in prostitution were those rejected by society and who reject society: re-engaging with society could be a long and difficult step. A particular difficulty with engagement is that the steps taken by the authorities can be the action the child takes. Numerous writers have commented that:

If the intervention is simply to return them to the status quo that existed prior to them becoming involved in prostitution then it is unlikely that the young people could be diverting from continuing in their involvement. Will this now be interpreted as persistent behaviour? Is it going to be the interaction with agencies? The government appears keen on ensuring that there is an ‘exit’ strategy for those who wish to escape prostitution (see, for example, Home Office 2006, pp41-52) and this is to be welcomed but interaction with agencies cannot be considered a key indicator since it has been noted several times already that vulnerable young people are sceptical about those in authority.

Anecdotal evidence suggests that one consideration is the manner in which the child behaves. At conferences and training events that I have attended some police and even some social workers have suggested that it is possible to ‘tell’ whether a child is persistent, presumably this instinct arising from the manner in which they behave. However the difficulty with this approach is that it again ignores the evidence that exists on the psychology of victims of abuse. It is known that victims of child abuse will often be ‘hardened’ against the abuse and will sometimes even deny their abuse even when presented with overwhelming evidence to show that it has occurred. Nor should a ‘streetwise’ attitude be necessarily considered to be an indicator of maturity. An incisive warning of the dangers of such an attitude is presented in a series of workshops looking at the participation of youth, with one saying “just because I didn’t act as if I was vulnerable didn’t mean I wasn’t” (Brown 2006, p308).

Unfortunately however the stereotyping of vulnerability does appear to influence the way in which policies may sometimes be implemented. It has been suggested by some that as agencies start to believe that welfare interventions continually fail the pressure for the matter to proceed through the criminal justice system increases (Phoenix 2003, p157). This pressure arguably increases the older a person gets. Rather worryingly Phoenix notes that:

This continues to occur now with voluntary-sector agencies reporting police officers approaching people close to their eighteenth-birthday and saying things like, “10 days to go [until you’re 18]” or “not long now”. The implicit basis of such comments is that the policy acts almost like a light-switch: whilst someone is under 18 they are vulnerable but the day they turn eighteen they throw off their shackles of vulnerability and assume the mantle of an offender. No longer do the police have to demonstrate that a person is persistent, they can feel the full force of the criminal justice system when their activities are noted on the streets. Would this change if street prostitution were decriminalised for young people? It is difficult to say. One possible argument is that it would not, and could indeed heighten the situation since before 18 the child could never be guilty of an offence whereas at 18 they may feel the full force of the criminal justice system. The second argument, however, may be the frustration of a person “getting away” with a crime is the reason why this targeting exists. If a person under 18 was not committing an offence the perception of them being a criminal who is being ‘let off’ as a result of a welfare interventionist strategy may be lost.

Criminalisation

The government, in SCIP, argued quite explicitly that they were not intending to decriminalise street prostitution in respect of young people because they believed that to do so may encourage children to become prostitutes (Moore 2006). This logic is perverse even by the standards of modern government policy where the criminal law is increasingly being used to ‘compel’ someone to do something rather than to punish a prohibited act. The policy of not decriminalising street prostitution is based on the premise that some juveniles will voluntarily enter prostitution despite the fact that the majority of the SCIP and subsequent official publications suggest that they do not. No figures are adduced for the number of juveniles who voluntarily enter prostitution nor any suggestion as to why they would somehow believe the numbers would increase if decriminalisation occurs. Whilst it may be difficult to argue that no person under the age of 18 enters the prostitution industry (in its widest meaning) voluntarily (although it is conceded that some writers would argue that no person ever voluntarily enters the ‘industry’) it is not sufficient to make wild assumptions without any evidence.

The government should quantify the scale of the ‘voluntary’ problem that it believes exists in order to justify the continuing criminalisation of young people. It is submitted that it is likely to be a minimal number of young people but the continuing criminalisation means that those who are involved in prostitution are less likely to work with the authorities to escape prostitution, a point made by the Magistrates’ Association and National Association of Probation Officers:

It is not enough to say that ‘most’ children will never be prosecuted not least because the young people on the street will not be aware of that. What they will know, or be told, is that it continues to be illegal and therefore they are at risk of prosecution. That alone is likely to make a young person sceptical at working with the authorities. More worrying, however, is research that suggests that continuing to criminalise young people in this way actively assists the controlling influence of those who exploit young people through prostitution. It has been demonstrated that ‘pimps’ of young prostitutes are able to exercise control by threatening to report the young people to the police (Cusick 2002, p240). Whilst, of course, this threat would never be carried out it may seem to the young person to be a very real prospect especially with the knowledge that street prostitution remains illegal. The use of threats within domestic child abuse literature demonstrates that such threats can seem real and exercise a controlling influence over a child or young person and yet again this literature appears to be ignored.

Of course it can be argued that continuing to criminalise street prostitution for young people is missing the point. It was noted above that commentators believe that a minority of young people involved in prostitution work on the streets although in some geographical areas that is not necessarily correct. If young people are forced to prostitute themselves off street then how does this criminalisation affect this choice? The first response to this, of course, is that it must be seriously questioned whether a vulnerable young person is likely to be au fait with the legal distinction and technicalities between street and off-street prostitution. They are more likely, it is submitted, to believe that much of the behaviour surrounding prostitution is illegal, especially if their controlling influence tells them this (irrespective of its validity).

However the illegality of street prostitution does, to an extent, miss the point but not in the way discussed immediately above. Elsewhere in this issue Koffman and Dingwall discuss the fact that there is now a “blurring of the distinction between conduct which is…criminal and that which is more widely…described as “anti-social” (Koffman and Dingwall 2007). This blurring certainly exists within the arena of prostitution and one commentator writing about the changes of policing prostitution over a decade notes that the use of anti-social behaviour orders (ASBOs), Acceptable Behaviour Contracts (ABCs) and what he terms “criminal anti-social behaviour orders” (CRASBOs, but which are as a matter of law, simply an ASBO made at the time of a conviction) has become the principal change in the policing of prostitution (Matthews 2005, pp883 et seq.). Indeed the commentator goes so far as to say that “…prostitution is [now] better viewed as a problem of disorder than one of quasi-criminality” (Matthews 2005, p882).

The consequences of this approach can, however, be stark and are accurately summed up by Phoenix thus:

This may appear to be a direct contradiction of SCIP but is accurate because of the blurring identified by Koffman and Dingwall. The new interventions that may be brought about by the authorities can impact on a child in a way that the previous cautions (and small) fines did not. This is not, of course, to suggest that the situation s to go back to this form of punishment but instead demonstrates how society continues to fail young people involved in prostitution.

So what are the aspects of current intervention that could amount to criminalisation? Leaving aside the illegality that has been discussed above (on the basis that, by now, the reader has probably understood that I do not see any benefit in this continuing) what other aspects contribute to the criminalisation and why do Phoenix, and others, contest that they amount to a harsher punishment?

Secure Accommodation

The first issue to examine is perhaps something that the authorities may not ordinarily consider to be a ‘punishment’ but looked upon as an intervention, and that is the use of secure accommodation. Whilst secure accommodation is used to house some young criminals (e.g. those subject to detention but who are too young to be in a Young Offender Institute or gaol) it may also be used by local authorities on a ‘welfare basis’. Where a child is under the care of a local authority (usually meaning a care order has been made) then the local authority can use secure accommodation on its own merits but only for a maximum of 72 hours in any 28-day period (reg. 10, Children (Secure Accommodation) Regulations 1991 SI 1991/1505). Where a longer period of accommodation is to be used then an application to the court must be made, the grounds being:

Interestingly the court must simply decide whether the criteria is met (s.25(3), (4)) and not whether they agree with the accommodation. Indeed it has been suggested since the court is only considering whether the grounds are satisfied, the ‘welfare principle’ enshrined in s.1(2), CA 1989 does not apply to these proceedings (Cretney et al 2003, p779). If this is correct then it is a significant and regrettable omission especially when considering the vulnerability of these young people.

Secure accommodation appears to be a measure of last resort (Cretney et al 2003, p780) but is increasingly being used for young people involved in prostitution. One reason for this has been the suggestion that it can be used to ‘cover’ an agency by removing a child from a situation where real harm could arise (Phoenix 2003, p165) and indeed that author recounted an interview with a member of social services who suggested that secure accommodation could be used to rehabilitate a child. Phoenix herself agrees that it could be a “useful resource” (Phoenix 2003, p165) but with the qualification that it is used properly. There needs to be an adequate support package put in place to ensure that the time spent in secure accommodation addresses the issues that led young people involved in prostitution and not simply used as a ‘breathing space’ whereby the authorities at least know where the person is for those few months.

Certainly if secure accommodation is used improperly then it will be of little or no benefit to a young person. There is also an argument whether the current arrangements necessarily assist a young person. One person who was placed in secure accommodation said:

The use of the words ‘lock up’ suggests that the child considered it to be the equivalent of gaol and that she considered herself to have been criminalised by this action. At any one time just over one-half of the secure accommodation is used by the Justice Board to detain people following conviction from a court (Cretney et al 2003, p780) and so if under current arrangements the vulnerable are housed with those criminally convicted (who, it is conceded, could probably also be considered to be ‘vulnerable’) it is likely that this is going to intensify the young person’s belief that the are being criminalised. Again this may cause difficulties in terms of the manner in which they will react to agencies etc. However it cannot be said that secure accommodation should never be used because Phoenix is undoubtedly correct that they could be a valuable resource if they are used in conjunction with appropriate assistance, including recognition of the social reasons for entering prostitution in the first place.

Behavioural Interventions

Writing elsewhere in this issue, Koffman and Dingwall argue the following:

The incremental approach appears to have become an accepted part of modern policing and is seen as an alternative to formal criminal justice responses, including the issue of reprimand and warnings (also discussed by Koffman and Dingwall). Originally behavioural orders (in this section I intend to deal with ABCs and ASBOs together since for the purposes of this article they are very similar) were used to combat anti-social behaviour that was stereotypically characterised by ‘yobs’ etc. (Collins and Cattermole 2004, pp2-6) but it has undoubtedly progressed beyond this into other avenues of what is described by the authorities as anti-social behaviour.

It has become increasingly clear that in recent years prostitution, or at least street prostitution, has begun to be viewed as an ‘anti-social’ issue rather than one of intrinsic criminality (Matthews 2005, p882). Certainly this position appears to be entrenched in recent government policy with the ‘co-ordinated strategy’ announced in 2006 focusing on this (Home Office 2006, p13). Considering prostitution as an anti-social problem means that behavioural interventions such as ABCs and ASBOs come to the forefront of any strategy.

Behavioural interventions are supposed to be quasi-supportive in that they are considered to be a formal method of securing compliance and the police appear to believe that this can be a useful method of encouraging young people to exit from prostitution, as noted by the comments of one police officer:

Phoenix admits to being somewhat cynical about this suggestion although she also notes that the police do have limited responses other than the use of such orders, arrest and detention. There is obviously the belief that an ASBO allows the opportunity to undertake work with the young prostitute in the way that arresting a person would not. However whether the ASBO is an appropriate method of doing this is perhaps seriously open to question given the consequences of breaching an ASBO. However some care does have to be taken in respect of breach.

It is often said that breach of an ASBO is punishable by up to five years’ imprisonment and whilst this is broadly correct, the specifics can be important here. Breach of an ASBO amounts to the commission of a criminal offence (s.1(10), CDA 1998). This means that proceedings are not automatic. Unlike an injunction and, to a lesser extent, a suspended sentence of imprisonment, the breach does not automatically attract a punishment. Instead it simply amounts to a criminal offence and an offender can be prosecuted for that breach. However this raises the issue of prosecutorial discretion since it has never been the case that because a person has broken a law he or she must be prosecuted for doing so (Gillespie 2007, p292). Accordingly even if a young person does breach an ASBO the Crown Prosecution Service could decide that it is not in the public interest to prosecute the offender for that breach. An ASBO in these circumstances could be considered a way of providing structure but without it necessarily leading to a criminal conviction but there remains, at the very least, the potential for a criminal conviction and is objectionable on that basis. There is, it is submitted, something very wrong about criminalising those young people who find themselves involved in prostitution and an ASBO continues to be a strategy of criminalisation, albeit a more indirect method.

The more serious objection to behavioural interventions is that they concentrate on the punishment of anti-social behaviour rather than the causes for that behaviour in the first place (Koffman 2006, p594). This is a common criticism and it is even more pertinent in respect of those who are involved with prostitution. It has been noted already that there can be many reasons why a young person may enter prostitution but many are undoubtedly based on social factors and the fact that interventions have traditionally failed to address these issues has been noted critically by commentators over the years (Phoenix 2003, p156). Without addressing these issues interventions can only be considered a proper attempt at diverting young people from the life of prostitution.

Conclusion

Koffman and Dingwall state:

Within the criminal justice system there was perhaps a sense that the ‘normal direction’ would be to investigate a potential crime, prosecute an offender and then punish him once the case had been proven. Within the area of prostitution there has, over recent years, been a recognition that this ‘normal’ route is not helpful and that a multi-agency approach had to be adopted (Matthews 2005, p881). This, to an extent, can be considered a diversion since it involved the use of agencies that do not have, as their objective, the prevention, detection and investigation of crime. More importantly, however, the diversion continued by trying to engage with those involved with prostitution to seek to help them exit from that lifestyle. This is the second form of diversion this article is discussing: the diversion from prostitution.

It would be difficult to apply the definition above to diversion from prostitution since it cannot be said that young people becoming involved in prostitution is a ‘normal direction’ but perhaps it may be an anticipated one (research is developing risk-factors that identify why people enter prostitution). However even if it does not follow this exact definition it would be appropriate to consider this to be a diversion as it is the aim of diverting (shifting) someone from one path (prostitution) to another.

The question that this article poses however is whether the criminalisation of young people involved in prostitution will assist in diverting them away from prostitution? It is submitted that the answer to this is “no” and indeed the current position adopted by the criminal justice system is arguably acting as a barrier to this diversion. By continuing to criminalise young people who are engaged in prostitution it provides an opportunity for people to exploit a vulnerable young person by using the threat of prosecution to coerce the child.

It is not enough to suggest that only a minority of young persons are actually dealt with via the criminal justice system because the children on the streets are not going to know that. Neither are they likely to be au fait with the circumstances under which a person will be the subject of criminal action. All the child will know is that they are, by their actions, committing a criminal offence and thus may be sceptical about assisting the authorities, especially the police who they may believe are going to arrest them. The concept of persistently returning to prostitution contained within SCIP does not assist and is contrary to the literature that exists as to why young people enter prostitution in the first place.

Where a child is to be the subject of a criminal justice response it is clear that this is more likely to be a method of action that can be classified as a diversionary step. However it is submitted that Phoenix is right to suggest that far from this being a way of reducing the criminalisation of the child it effectively amounts to a harsher penalty, at least from the child’s perspective, and can mean that the principal goal – the diversion of juveniles from prostitution – is actually set back.

Phoenix has identified the root of the difficulty that exists in the way the criminal justice system currently treats children involved in prostitution. It completely neglects the reasons why the child has entered prostitution in the first place (Phoenix 2003, p156). The criminal justice system, even in a multi-agency context, has limited options available to it. The criminal justice system has at its very heart the concept of trying to prevent criminality. Modern diversionary processes do not deviate from this approach and still work on the basis that a combination of development,  threats and action can make children decide not to continue to commit anti-social or criminal behaviour. It has been questioned elsewhere in this journal whether this is even possible but where it neglects to consider the reasons why a child felt it necessary to enter prostitution then it would appear to be doomed to failure. In this way it would appear, sadly, that the two forms of diversion identified above appear to pull in different directions and the diversionary measures adopted by the criminal justice system could actually impede the diversion of children from prostitution.

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