A potty proposal

ANTONY GREY writes:

Our first woman Home Secretary, Jacqui Smith, has come up with a mind-bogglingly bizarre plan to criminalise paying for sex with a woman who is 'controlled for another person's gain'. This new offence will, according to the Guardian's political editor, "carry a hefty fine and criminal record, which could prevent those caught from getting jobs in sensitive occupations". The legislation will cover not only trafficked women ['sex slaves'] - who are indeed in need of effective state protection but all too often don't get it despite the stringent laws against such trafficking - but also those who have pimps or who are drug addicts prostituting themselves in order to pay off their dealers.

Unsurprisingly, such a broad definition is expected to include "the great majority of Britain's 80,000 sex workers" [source of figure unstated]. Ignorance of the woman's circumstances will not be a defence. The egregious Ms Smith has stated: "It won't be enough to say 'I didn't know'. What I hope people will say is, 'I am not going to take the risk if there is any concern that the woman hasn't made a free choice.' It would be quite difficult for a man paying for sex in the majority of cases not to fall under this particular offence." [my italics] But she is graciously refraining from imposing a universal ban on paid sex because some women argued that they did it out of choice "and it's not my job to criminalise that".

There you have it! Ms Smith and her advisers don't have the bottle to make prostitution illegal and have done with it - so they concoct a new failsafe catch-all crime which, like so many new offences introduced by this civil liberty-trashing New Labour government, removes the burden of proving guilt from where it properly belongs - the prosecution - and dumps the burden of proving his innocence upon the accused. So much for traditional British justice.

I have spent a large part of my life publicly arguing for freedom of choice in sexual behaviour between consenting partners, because it seems to me that nothing less accords with the dignity of the individual, however immoral or depraved some folk think their freely made choices are. I heartily agree with one of Margaret Thatcher's more sensible pronouncements, when she said: "Free choice is ultimately what life is about, what ethics is about. The whole of the case for freedom is a moral case because it involves choice. Do away with choice and you do away with human dignity."

A guiding light of my political philosophy has been John Stuart Mill's seminal essay On Liberty [1859] - now sadly neglected - in which he lays down the principle that 'the only freedom which deserves the name is that of pursuing our own good in our own way'; that 'each is the proper guardian of his own health, whether bodily or mental or spiritual'; that 'mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest'; and that 'over himself, over his own body and mind, the individual is sovereign'.

This was reinforced and brought up to date by the Wolfenden Committee's 1957 Report on Homosexuality and Prostitution which stressed the "decisive" importance of allowing individual freedom of choice and action in matters of private morality: "Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business." Now, it would appear, Ms Jacqui Smith and her New Labour cohorts are bent on making such an attempt.

In 1972 the then Chairman of the Sexual Law Reform Society, Bishop John A.T. Robinson, delivered a lecture on The Place of Law in the Field of Sex in which he affirmed that the true function of law in a democratic society was "not to prohibit but to protect, not to enforce morals but to safeguard persons, their privacies and freedoms". I remain convinced this is right: privacy, protection and consent are the key issues in this area of personal behaviour.

It is always difficult to defend as harmless private consenting activity which is deemed immoral, offensive, or anti-social by others. It is almost impossible to get a hearing for the - surely plausible - view that not all consenting relationships between those above and below the legal age of consent are exploitive or damaging. It is equally hard to get a hearing for the far from absurd contention that many - if not most - prostitutes, male as well as female, take up their profession freely and willingly and enjoy their work. Yet this is the finding of more than one research study, and I myself have known such prostitutes who do not operate at the seedy or criminal end of the business. Yet telling this to the likes of Jacqui Smith and ideologically anti-prostitution feminists is like shouting at a brick wall. Whether it is true or not, they simply do not want to know.

Civil liberties and personal freedom have taken worse knocks under this New Labour government than at any time I can remember. How long will the too patient public continue putting up with this constant erosion of freedoms we took for granted throughout the twentieth century? It will be interesting to see.

To conclude, let me recall the words of John Addington Symonds, celebrated Victorian literary critic and bisexual: "Good Lord! In what different orbits human souls can move. He talks of sex out of legal codes and blue books. I talk of it from human documents, myself, the people I have known, the adulterers and prostitutes of both sexes I have dealt with over bottles of wine and confidences."