1/ Just popping back in to vent my spleen about the recent judgment on the supposed lawfulness of disabled people being able to (or not) "access the services of a sex worker", i.e., pay to access the inside of a woman's body. Some thoughts below (V. long thread)

2/ First: the use of "sex worker" throughout is very troubling, and betrays either a) a *preconception* as to the true nature of prostitution (ie, fluffy ~Pretty Woman~ type arrangement), or perhaps more troubling, b) an *ignorance* as to as to the true nature of prostitution.

3/ Eg: For example, in 1982 Silbert and Pines found that 70% of women in prostitution in San
Francisco had been raped by sex buyers (SBs); in 1993, Hunter found that prostituted women in Oregon
were raped on average once per week by SBs;

4/and in 1994, Parriott found that 85% of women in prostitution in Minneapolis had been raped during the course of being prostituted. In 2008 Farley et al interviewed 130 prostituted women in San Francisco, 82% of whom had been physically assaulted while in prostitution;

5/ 73% had been raped; and 59% had been raped more than five times while in prostitution. In Colombia, of 96 women who were interviewed as to whether they had a) been physically assaulted in prostitution, b) been raped in prostitution, and c) been raped more than five times
in

6/prostitution the figures were 70%, 47%, and 64% respectively; in Mexico, of 123 women the figures were 59%, 46%, and 44%; in South Africa, of 68 women the figures
were 66%, 56%, and 58%; in Thailand, of 166 women the figures were 56%, 38%.

7/A 2002 study across five countries undertaken by Raymond and others found that:
‘Rates and frequency of violence and control are extremely high, with physical harm (almost
80 percent), sexual assault (over 60 percent)… leading the indicators.

8/Further: '…acts…included being beaten, bit, burned… choked, crushed, dragged, hit with objects…
punched, scratched… smacked, strangled… thrown out of a car, twisted, and hair
pulled…being…urinated on, pinched in the breasts, sodomized, objects inserted in anus and

9/ vagina, bestiality… weapons used against women… being strangled with a bandana, burned… bound with extension cords, assaulted with…knives and guns, hit with shoes and a liquor bottle’.

10/ Sound like work to you? I don't think so.

Next.

11/ One of the issues identified before the court was: "whether the Sexual Offences Act 2003 can be read compatibly with
the European Convention of Human Rights, or whether the Court should
make a declaration of incompatibility". Remember this, because we'll come back to it

12/ Next. At para 22: "S.53A makes it an offence to pay for the
sexual services of a prostitute where, but only where, she or he is subjected to force,
threats, coercion or deception".

13/ The judgment, and presumably the arguments, blithely brush over the fact that prostitution is predicated on *coercing* people into sex *with* the exchange of money. Notwithstanding that this also doesn't even touch the other contexts in which consent would be precluded.

14/ Eg the influx of women from outside the UK in recent years cannot be ignored. In July 2020, the Centre for Social Justice found that all types of modern slavery – including sexual exploitation – were increasing.

15/ Of particular relevance here, the report found that the most common type of exploitation was
sexual exploitation (33%) During the Covid-19 pandemic there was a 280% increase in the advertising of sexual services online in the West Midlands

16/ with the women being of
predominantly Eastern European origin. Additionally, the Palermo Protocol precludes consent where trafficking is involved. It is simply WRONG to argue that prostitution as a system can be separated out from otherwise "consensual" prostitution.

17/Wherever there is prostitution, there is trafficking, exploitation, and a preclusion of consent for a staggering number of women. Yet at para 27: "Section 53A has, to my mind, little, if any, relevance to what is being contemplated for C". Ah, well that is convenient isn't it.

18/At para 28: "The focus here must be the protection of individual autonomy and an
accompanying vigilance to ensure that the vulnerable are not exploited or placed at risk
of harm."

19/ And at para 40: "The legislation seeks properly to emphasise the paramountcy of consent when sexual acts occur between adults."

20/ And at para 48: "the recognition that vulnerable adults share the universal right to a private life, which includes a sexual life,
and which is, in this jurisdiction, protected by ECHR" (this here is referring to the qualified Article 8 right).

21/ There is myriad more consideration on the balancing of the need for "maximum recognition to their sexual rights" (???), and the protection of autonomy. But here is where the balancing approach of rights runs into trouble.

22/As mentioned, Article 8 is a qualified right. It can be interfered with and restricted in certain circumstances. Now, the question of consent within sex has come up in ECHR law several times, with two key cases being MC v Bulgaria, and Aydin v Turkey.

23/These cases held that, amongst other things, the crime of rape was so grave that it could be considered Inhuman and Degrading Treatment and/or Torture under Article 3 ECHR. Art 3, unlike Art 8, is absolute, and affords NO derogations. It cannot be interfered with.

24/ Running parallel to this, Art 3 (and 8) entail what are called positive obligations. These are best conceptualised as the State being required to take *action* to prevent such treatment (as opposed to simply refraining from committing IDT/torture etc).

25/ Further to this, these positive obligations ALSO extend to private individuals in certain circumstances. In other words, the State is required to take active steps to prevent private individuals from treating others that would fall within the definition of IDT.

26/ This is not an absolute obligation, and it is not always clear when or where it arises/ends. However, prostitution differentiates itself in this regard. The concept of positive obligations are typically entwined with what is called the Due Diligence principle.

27/ I don't intend to go into great detail about that here because it's very complex, but suffice to say for these purposes it can be defined as ‘a duty to act with due diligence to protect individuals against human rights violations’.

28/ But, in the case of Osman, for a State to have failed to exercise due diligence, and thus be in breach of its positive obligation ‘to protect an individual whose life is at risk from the criminal acts of
another individual’, it was established that there needs to be

29/ a ‘knowledge condition’, where the State is aware of the victim and the risk. Whilst prostitution may be fundamentally violent, can it be said that there is *always* an identifiable risk and victim? For charity's sake, let's say no.

30/ HOWEVER, in the Masstromatteo case, which concerned a murder committed by
convicts on prison-leave, it was held that the victim-identifiability element in Osman was not necessarily required when discussing issues of general protection to society.

31/ It has been argued that ‘[w]hat is required is that the State is aware or should have been aware of the existence of a general problem.’

32/ This is supported by Judge Pinto De Albuquerque’s Separate Opinion in Valiuliene where he stated:
‘If a State knows that a segment of its population, such as women, is subject to repeated violence and fails to prevent harm from befalling the members of

33/ that group…the State can be found responsible". As outlined above, prostitution as a system *ALWAYS* results in repeated violence against women within it. This violence often materialises as rape, but also other physical violence falling within the ambit of Art 3.

34/ There is a "segment of the population" (women in prostitution GENERALLY) who are subjected to "repeated violence", enough for it to constitute a "general problem".

35/ Therefore, arguably the State's positive obligation to prevent this violence is engaged, and anything short of reducing the quantifiable instances of prostitution (which remember, *systemically* always entails violence) runs counter to this obligation.

36/ So let's go back to the case at hand. Remember all the way up in a tweet above where counsel identified whether the Sexual Offences Act is incompatible with the ECHR? I say, yes it absolutely IS incompatible with the ECHR.

37/ But not with regards to the qualified Art 8 right of the man who wishes to purchase sexual access, but of the Art 3 rights of women within prostitution who face mistreatment to such an extreme degree that it engages the State's positive obligations to prevent that treatment.

38/ Had the court had this before them, it should have been INCUMBENT upon them to make a finding that the SOA is incompatible with the ECHR, because it does not *protect* the bodily autonomy of the majority of women within prostitution by allowing men to purchase sexual access.

39/Prostitution is a human rights violation. Nobody has a right to sex, disabled or otherwise. It doesn't matter whether the current framework technically allows a care worker to facilitate such access, the question of ECHR compatibility is why the SOA allows this AT ALL /end

I'm back, @EmmaDixon_EU!