In March, a man was given an extended jail sentence for raping a sex worker after removing his condom during sex. The woman had specifically stated that all her clients must use protection, and he ignored her pleas to stop after removing the condom. The case highlighted the legal concept of ‘conditional consent’. This is the understanding that consent for sex is usually based on conditions – in this case, the use of a condom – and that, if those conditions aren’t met, consent is negated.
When it comes to sex work, consent is based on conditions such as services offered, protection used and payment. In an industry that is partially criminalised and rife with exploitation, abuse happens. However, sex workers’ trust of the police is low and offences often go unreported. In 2018, sex worker alert service, National Ugly Mugs (NUM), received 820 reports, detailing 1,152 crimes against sex workers, including 102 reports of rape and attempted rape and 63 reports of sexual assault. Only 21 per cent of victims were willing to formally report to police.
England and Wales have seen a significant fall in rape prosecutions. In the 12 months to 2017-18, there was a 23 per cent drop in the number of rape cases taken on by the Crown Prosecution Service (CPS), despite a 16 per cent increase in reports. The CPS has been threatened with being taken to court by women’s organisations, who claim cases are being dropped without good reason. Sex workers are particularly vulnerable.
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Angie*, a London-based sex worker, met Dan* on Seeking Arrangement. She tells i they arranged to meet outside a London train station but, at the last minute, he changed his mind and told her to come straight to his hotel.
“When I got there he sat me down and explained he would pay me after the meet via bank transfer,” Angie says. They began having sex. “It became too painful. I kept asking him to stop but he kept saying ‘in a bit’ so I gave up and decided to wait it out. I needed the money to pay my rent. When I left he texted me saying he was looking forward to the next meet. I was surprised that he reacted like that considering how I felt the meet went but I played along and sent him my details with hopes of at least getting paid.”
Angie says it wasn’t until later that she realised what had happened was rape. She made a report to NUM and went to the police. Angie describes her treatment by the police as “more traumatising than the actual rape”. She says communication was poor and infrequent and that she was accused of lying. Eventually, the Metropolitan Police told her they would be taking no further action on her case, claiming there was insufficient evidence.
With help from Women Against Rape (WAR) and the English Collective of Prostitutes (ECP), Angie put in a complaint to the Independent Office for Police Conduct and filed a request under the Victims’ Right to Review Scheme, which allows victims to ask for a review of a decision not to continue a criminal case. She also put in a Freedom of Information (FOI) request.
When the FOI results came back, Angie discovered her case had been dropped for a number of reasons, including the fact that she advertised ‘rough’ sex prior to the meeting. The FOI, which has been seen by i, also claimed: “non-payment may be deemed catalyst for allegation”.
“During this encounter the victim states that she has been raped […]” reads the FOI. “She did not want to carry on but she did not see any other way of paying her way through university. This again suggests that the victim is prostituting herself.”
The FOI includes a statement from an officer who expresses bafflement that Angie sought payment after the event and that her texts were, initially, friendly. “[Angie] explained the reason for her reply was because it was her job and she needed the money. [She] explained she wanted to ‘keep him sweet’.”
Angie says she was “furious, devastated and humiliated”. Not only did Dan refuse to stop when she asked him to, she says, “non-payment should be regarded as evidence of rape, as opposed to evidence to the contrary.”
‘Sadly, it’s often the most vulnerable groups – drug users, people with mental health issues, sex workers – whose cases are most complicated and end up being NFA’d (no further actioned) often because they’re deemed ‘unreliable witnesses’ – Katie Russell, Rape Crisis
Lisa Longstaff of Women Against Rape told i: “The lack of justice for Angie typifies the obstacles encountered by most rape survivors, aggravated by prejudice against sex workers. Nobody is a perfect victim. Cases are closed at the first hurdle, predicting a jury will be biased and not believe her. Perpetrators can count on almost complete impunity.”
Katie Russell, spokesperson for Rape Crisis England and Wales, agrees, saying, “Sadly, it’s often the most vulnerable groups – drug users, people with mental health issues, sex workers – whose cases are most complicated and end up being NFA’d (no further actioned) often because they’re deemed ‘unreliable witnesses’.”
Emma*, a sex worker living on the south coast, was assaulted at work and her assailant left without paying her. When she went to the police, she said was told: “You went over there with the intention to have sex with him.” By email, she was told that, by nature of her occupation, consent had been implied.
In an email, the police told Emma: “You agreed to have sex with this male, you turned up to have sex with him and he tried to have sex with you. Whether a fee was agreed or not you still went there to engage in sexual activity.” The police took no further action.
The issue of payment remains a grey area
Recognition of the conditional nature of sex workers’ consent is growing and the conviction of the man who removed his condom in March was welcomed by campaigners. The issue of payment, however, remains a legal grey area. The last time the law was tested on non-payment of a sex worker was 1995. In R v Linekar, the Court of Appeal ruled that, although consent was based on payment, the man’s refusal to pay after he had sex with the sex worker was only fraud and not rape.
Laurie-Anne Power, a criminal barrister at 25 Bedford Row, London, told i: “Some sex workers are being let down by the law.” Power says the reasons given by the police for dropping Angie’s case should not, in and of themselves, have stood in the way of a prosecution. “Rape doesn’t require force. It’s about consent and freedom of choice. Consent comes in many forms. For sex workers, if consent is provided on the basis of any condition – type of sex, payment – and then that freedom is taken away, the condition is not met.”
‘Courts have offered a robust interpretation of consent protecting sexual autonomy in a broad range of circumstances including in cases of conditional consent. There’s no reason why such an interpretation can’t be extended for the protection of sex workers’ – Prabha Kotiswaran
Russell says understandings of consent are seriously lacking. “There is frequent misinterpretation and misrepresentation of consent both outside and within our criminal justice system,” she says. “Consent must be fully and freely given, can be withdrawn at any time and can be conditional, as it is for sex workers, whose consent is based on payment, among other conditions.”
Prabha Kotiswaran, professor of law and social justice at King’s College, London, says it’s time for a change in how the law is interpreted when it comes to sex work. The precedent under which non-payment is classed only as fraud, in particular, is out of date. Kotiswaran says: “The only case law on conditional consent relating to non-payment for sexual predates the Sexual Offences Act, 2003. Being more than 20 years old, it’s outdated. Courts have offered a robust interpretation of consent protecting sexual autonomy in a broad range of circumstances including in cases of conditional consent. There’s no reason why such an interpretation can’t be extended for the protection of sex workers.”
A spokesperson for the Met told i: “We continue to strive to reduce the violence experienced by sex workers and are committed to tackling rape and sexual offences, regardless of a victim’s profession. We understand the barriers, fears and reluctance that sex workers might face when they consider reporting abuse, but we take all allegations of this nature extremely seriously and will investigate them fully.”
Talking about decisions to take no further action on reported rapes, a spokesperson for the CPS said: “Guidance requires the police to consider the strengths or weaknesses of the evidence available including witness credibility and reliability and anything that would undermine the prosecution case.” The spokesperson added: “Acceptance of rape myths plays no part in a police investigation.”
Angie says she’d like to see a wider conversation about ending sexual violence. “There needs to be more options than just prison. I’d prefer some sort of restorative justice or rehabilitation programme. This would be more effective and would not require such an elaborate, painful investigation process with no outcome other than additional trauma.”
*Names have been changed.
Frankie Mullin is a journalist and sex worker activist
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