THE LAW HAS always had problems with sex. People bring so much baggage to the courtroom about how men and women should behave – and what happens in bed. With the sexual revolution in the sixties came the freedom of women to explore their own sexuality, and yet the double standard is still present in our courts. Promiscuous behaviour by heterosexual men brings down little condemnation. When it comes to homosexual men, however, promiscuous conduct is still frowned upon. We may have gay marriage but gay sex has to be rendered as wholesome as possible to gain acceptance, and the idea that women are autonomous sexual beings with sexual needs and desires is still too often a source of negative judgement. The double standard simmers beneath the surface in divorce, child custody and in every legal arena that women enter.
What has altered the terrain of the law dramatically is the Internet. Now there is rarely a case of any kind where email and text communications are not part of the evidence. The first thing the police look for is the mobile phone or the computer or tablet. In civil litigation and divorce, emails can be a litigant’s downfall. People condemn themselves with their ill-considered outpourings, their tweets and their sexting and their porn collections and their saved YouTube favourites. Facebook photographs are there to expose women as the flaunting sex bait that defendants say they are. Throwaway comments and jokes take on very serious meaning in the cold light of the courtroom. Every online search you have ever made can be used to show you have enquired about sex aids or bought Viagra or looked up dating sites or shown an interest in material which will be relied upon to show your guilt or your complicity or that you are not a worthy victim or a credible witness.
With the growth of the Internet and social media, the nature of intimate relationships is transforming. Interacting socially online is second nature to most people and while online dating is incredibly popular, it can also pose significant danger. Today, not only can you communicate with strangers who live across the globe you can also connect with strangers in your neighbourhood for sex. Police are increasingly caught up in cases involving the hazards of online dating. With tag lines like ‘Interested in sexual liberation at your fingertips? Well, of course there’s an app for that’, individuals are being pulled into a dangerous game of ‘Guess Who?’ As many of the sites are limited to a picture and a few lines of personal description, men and women are meeting complete strangers online and agreeing to meet up for a sexual relationship or just casual sex. While this is heralded as a sign of technology simply coming to terms with the sexual liberation of modern society, the use of such apps can lead to dangerous situations, including a wide variety of exploitation from child grooming to human trafficking and cases of rape. The conviction in June 2017 of Gayle Newland, who pretended to be a man and had sex using a prosthetic penis with a young woman while she was blindfolded, has been one of the most publicised accounts. The pair met via Tinder, with Gayle Newland using a male identity. The allegation was that having developed an intimate online friendship, she procured sex under false pretences because she persuaded her new friend to cover her eyes with a blindfold when they met as she was disfigured and did not want to be seen. This is just one of many cases where women have been lured into sexual situations where there have been unintended consequences, not least threats of blackmail.
The NSPCC has reported an increase in teenagers contacting the charity’s helpline with bad experiences after downloading ‘hook-up’ apps such as Grindr and Blendr, both developed by the same company. The app designers say users need to confirm their age (usually that they are above 17). However, stories appear in the media like that of the 13-year-old boy who was groomed by a 24-year-old man after using the app to meet up.
Grooming is where someone builds an emotional connection with a young or vulnerable person in order to win their trust and then sexually abuse them. It can happen on social network sites, gaming sites or in chat rooms and can also lead to face-to-face meetings between an adult and a child.
The MP Diane Abbott has also shed light on a trend that has been spreading internationally over recent years, and that is the rise of cyber-bullying of a sexual nature throughout social media. She drew attention to her own experience of sexual and racist abuse by anonymous trolls and expressed the view that this comes from our ‘Hypersexualised British culture in which women are objectified, objectify one another, and are encouraged to objectify themselves’.
Children are introduced to ideas of being sexy from a very young age through clothing and even dance videos on television. Sexual imagery is all-present. Schoolboys watch porn films openly on their phones and share them with classmates. As a result, girls as young as 10 and 12 say that their first introduction to sex is through being shown online clips of sex acts and being asked to perform oral sex on boys. Fellatio is now commonplace among adolescents and the idea of sexual reciprocity is never considered. The pleasuring of the girls does not figure in these transactions. The recording of a sexual activity means that it lives on to haunt girls as they grow older; such recordings are often used in courts to undermine the credibility of girls and demean them in the eyes of a jury.
The trend of sending sexual pictures has got politicians into trouble but they are not the only ones. Kids at school are doing the same without considering the consequences when shots of intimate body parts are shown around the class or neighbourhood. As are people, usually boys and men, who circulate intimate photographs of their girlfriends or wives after the break-up of relationships. In Canada, a judge was forced to step down from her position when her husband shared embarrassing sexual pictures of her with other men online without her consent. She was undoubtedly angry and distressed but did not divorce or leave her husband. She is still suspended, unable to sit as a judge because the court authorities feel she has lost her judicial esteem and would be a source of public scorn.
There are now over 30,000 sites dedicated to such postings. Revenge porn has become a significant problem in a culture where 18% of students have reported sending nude pictures to others. The effect on women is humiliation, breakdown, ruined lives and in some cases suicide. A wide range of people have been on the receiving end – from the ‘girl next door’ to actors and actresses. It should be accepted that revenge porn is one more example of coercive control, producing significant psychological harm. The impact on victims can be as violent and shaming as stalking, domestic violence and other forms of abuse. It has at times led to blackmail, exploitation and coercion of the victim to keep the images out of the public domain. As a result, revenge porn is now an offence under section 127 of the Communications Act 2003. Any Internet providers, search engines or websites publishing revenge pornography could be party to an offence. The charging criteria are whether any prosecutions are in the public interest and whether there exists a strong likelihood of conviction. There have been no prosecutions of Internet providers.
Beyond the act of putting out images without consent is the deeper issue of how porn culture pressurises women and girls to conform to male expectations set by their exposure to porn. It brings an acceptance of degrading behaviour and of levels of violence that should not be taken for granted. We should be teaching boys to ask at every turn ‘is this OK with you?’ but you never hear that in porn films. And it is never part of the accounts you hear in court. Not only are girls feeling the pressure, but boys too are pressed to lose their virginity at earlier and earlier ages to prove their manhood. They are made to believe that this stuff is what women want. The deleterious impact of the casualisation of sex and rape works to the detriment of both men and women.
Freedom of speech and freedom to publish is very important in a democracy and I am concerned about the calls for the banning of pornography. As a lawyer I am all too aware how hard it is to draft legislation that does not exceed its purpose and for this reason I have never been keen on criminalising pornography other than that which is extreme. The debate still rages over whether porn makes men rape. What I do know is that the repertoire in rape cases has now changed since I first started in practice. It is increasingly rare for women not to be penetrated anally as well as vaginally and orally in the rape cases that appear before the courts and that is undoubtedly from exposure to the prevalence of such acts in pornography. There is not much to see in missionary-position sex, which is why the whole panoply of filmed activity has to include rear penetration. While mainstream pop culture grows increasingly pornographic, the porn industry goes on to produce harder-core porn and explicit material which is more overtly cruel towards women and more widely accepted than ever. You only have to turn on the television or flick through a magazine or look at billboards to see that porn has become the blueprint for how the media represents women’s bodies. To understand the impact of pornography you only have to look at the numbers. The sex industry is the largest and most profitable industry in the world – its revenues are higher than the top tech companies’ put together. It includes street prostitution, brothels, massage parlours, strip clubs, human trafficking for sexual purposes, phone sex, child and adult pornography, mail-order brides and sex tourism – just to mention the most common examples. In this marketplace, women and children are commodities. It rarely comes before the courts. Extreme pornography, which means portrayals of sex that threaten a person’s life or are likely to cause serious harm, has now been made an offence in England and Wales under section 63 of the Criminal Justice and Immigration Act 2008. However, catching the producers of pornography in the net of the law is almost impossible.
According to research organisation Our Culture is Porn Culture, in 2010 13% of global web searches were for sexual content. Pornhub, which is the YouTube for pornography, receives over 1.68 million hits per hour. Internet porn in the UK receives more traffic than social networks, and more than sites for shopping, news, email, finance, gaming or travel combined. Porn films make more money than Hollywood, which is not surprising since a new porn movie is made every 39 minutes. And the sad fact is that the fastest growing consumer group for Internet porn is boys between the ages of 12 and 17. By their own accounts, they start by using it to obtain information about real-life sex. Ten per cent of adult men now admit to having an addiction to pornography.
What this tells us is that boys need help in working out how to have mutually satisfying sexual relationships. Porn is not the way. It serves up dominance and submission. And unfortunately it can create an appetite for ever stronger material. Our current porn culture shapes ideas about sexuality, relationships, masculinity, femininity and intimacy, and it feeds into popular imagery and culture in a way that in turn produces misogyny. Real-life women are not going to be able to fulfil the demands and fantasies created by pornography and so men turn to prostitution to act out their desires. Their inner life still categorises women as madonnas or whores, separating women who do the dirty stuff from the ones who don’t.
The explosion of porn and social media may be relatively new, but of course prostitution is anything but. In the past the declared aim of laws against prostitution was the ‘preservation of public decency’, curbing the nuisance of soliciting on the streets and protecting the prostitute herself from violence and exploitation. Contracting to provide sex for money is still not in itself unlawful. It’s the market, for heaven’s sake. This leaves women involved in prostitution in an ambiguous legal position. According to the famous Wolfenden Report in 1957: ‘The simple fact is that prostitutes do parade themselves more habitually and openly than their prospective customers, and do by their continual presence affront the sense of decency of the ordinary citizen. In doing so they create a nuisance which in our view the law is entitled to recognise and deal with.’
This seemed to justify making life difficult for the women involved in the business but not for the men who bought their services. The Street Offences Act was therefore introduced in 1959 criminalising a woman’s loitering or soliciting for the purposes of prostitution. Hence the law was invoked only to criminalise concomitant, ‘nuisance’ activity. This has helped sustain the fiction that the law is not concerned with morality. However, moral opprobrium is always present. Prostitution has been tolerated because of two sustaining concepts: the protection of the private sphere from the hand of the law and an acceptance of male promiscuity, which is not afforded women.
The double standard is all too evident. Eventually, legislation was introduced in 1985 and further refined in 2001 to make the male behaviour of kerb-crawling a crime, but only because ‘respectable women’ who were not prostitutes had to be protected from persistent propositioning by strange men. Very few are in fact prosecuted. It really has to be persistent before the police will act and now they often use an ASBO, or anti-social behaviour order, as a way of frightening the driver who can then be arrested for breach if found driving around in the area again.
The harm which society sought to regulate in the laws around prostitution all largely revolved around the nuisance effects on the public. However, as a result of women’s campaigns in the last 20 years, there has been growing recognition of the harm to the women themselves. Wolfenden asserted that ‘the association between prostitutes and ponces is voluntary and operates to their mutual advantage’. He was wrong. Men often force women into prostitution using coercion and violence, and in the current acceleration of sex trafficking there is little voluntarism by the women. Women’s groups have argued powerfully that prostitution is rarely a victimless crime but one which victimises women, children, families and communities. By 2003 the problem of prostitution had been reconstituted from one of private morality to one of victimisation. The activism of these groups had refocused the argument. As a result, the Sexual Offences Act of 2003 recognised that while some women choose prostitution wilfully, most are forced into it by necessity, manipulation or intimidation. Sections of the legislation deal with trafficking and child prostitution. But the main thrust of the Act was to establish ways of diverting prostitutes into the hands of social services and away from the criminal justice system. Its drafters recognised that certain vulnerable groups of girls and women are more likely to become involved in prostitution, particularly those who have suffered physical or sexual violence or neglect. They may be further marginalised by experiences that include running away from abusive situations, being taken into local authority care, being involved in crime and drug addiction and being excluded from education. Vulnerable and desperate, these girls and women are then ‘facilitated’ into prostitution as a result of grooming by pimps or other procurers who often start out treating them as girlfriends. Three-quarters of those involved in prostitution in Britain entered street prostitution before their 18th birthday. As the Court of Appeal noted in Regina v. Massey (2007), these ‘are often vulnerable young women with disturbed backgrounds, who have never known a stable relationship or respect from others and are therefore prey to pimps. It is all too easy for such a person to fall under the influence of a dominant male, who exploits that vulnerability for financial gain.’ The research of Dr Susan Edwards, an eminent feminist academic, has shown the alarming increase in the number of women forced into prostitution by hardship in Britain today. A significant proportion of these women are also feeding a drug habit.
Both national and international studies indicate that many women, men and children involved in prostitution experience physical, mental and sexual violence. Research carried out on the harm caused by prostitution to women involved in it found that 71% of those interviewed had experienced physical assault; 63% had been raped; 68% met the criteria for post-traumatic stress disorder. The danger prostitutes face is unimaginable. They are both wanted and reviled, so as well as being viciously attacked and raped by pimps they are frequently beaten by clients too but the women do not report the assaults to the police. Street workers often take their clients to isolated places where they are less likely to be interrupted but this also makes them more vulnerable. Off-street sex workers usually operate from massage parlours or saunas or in accommodation where there are other women, or a ‘maid’ who keeps an eye out for oddballs and acts as a doorkeeper. Many ‘maids’ are women who were themselves at one time ‘toms’, as the police call prostitutes. Off-street sex is much less risky but unfortunately the Sexual Offences Act of 2003 criminalised the role of maid, making life for sex workers far less safe; it is also increasingly the venue for paid sex because arrangements are made on the Internet.
Since Eve Was Framed the calls for the law to direct its attention to the men who use prostitutes rather than the women supplying the sex have grown louder. Many campaigners want the purchase of sex to be criminalised and this is the official policy of the Women’s Equality Party. This has been done in Sweden and recently in Northern Ireland. The jury is still out on whether it works or whether it simply drives the sale of sex underground with consequent higher risks for the women. Until there is better evidence from the places where this change has operated for a number of years, I remain very sceptical about the criminalisation of the male purchasers. I foresee sex workers being coerced by the police to testify against clients and threatened with prosecution for drug offences or other crimes if they do not. I see payment being arranged in other forms, such as the supply of drugs or the gifting of items which can then be sold on. Women have always been engaged in transactional sex. It just hasn’t always been called prostitution.
The legal treatment of prostitution reveals another prejudice – that of class. The British are famous for institutionalising social and moral hypocrisies. The well-bred unemployed are referred to as socialites; the poor on the dole are spongers. The upper-class divorcee is rarely included in the term single parent. The prostitute who can afford the title call girl and who has a flat in an expensive part of town does not face the indignities of the courts and runs few of the risks faced by her poorer sister, who works on the street. The laws against brothel-keeping still prevent two or three women sharing a flat for their work, which would reduce the risks of assault and provide companionship.
There was a great deal of media excitement in October 2003 when Margaret MacDonald, a British woman, was tried in France for running a high-class ring of more than 500 prostitutes and found guilty. She was sentenced to four years’ imprisonment and given a substantial fine. What intrigued the public was that this was a highly educated, convent-schooled woman, who spoke French, Spanish, Italian, Arabic, Japanese and Greek, had worked for Médecins Sans Frontières in El Salvador and also for a refugee agency in Nicaragua and who had then entered the world of business and marketing. She put the experience to use by setting up an agency ‘run by women, for women’. She had started working as an escort herself when she had run up some debts and then spotted a niche market. ‘It is the same skill, whether you sell computers or something else’ she told the judges. She charged up to 5,000 euros for an introduction and took 40% for herself, but explained that she produced the brochures and paid for upmarket advertising in journals and the International Herald Tribune.
There are women, operating on a less grand scale, who would vociferously endorse Margaret MacDonald’s description of their activities as ‘work’ and they are quite indignant that all sex work is classed as exploitation. There are women who would rather be sex workers than cleaners or care workers, as they earn much more money doing it, and until women’s work is better paid, they want to carry on without interference. They want middle-class feminists off their backs. When in high spirits, they also tell you they have been forced to have bad sex all their lives, so why not at least get paid; that sexual relations in the comfort of marital beds is often just as transactional, but that is not subject to state interference. They do not want to be drawn into the all-embracing straitjacket of women as victims. This is difficult territory, as legal scholars have pointed out. There is always a tendency to avoid defining exploitation because vast tracts of the labour market might be deemed inherently exploitative. There are also sex workers who have as their clients men with disabilities who have sexual desires but no opportunity to establish relationships with women. Or they have clients who have wives they love but who are seriously ill. The women are not judgemental about the needs of the men who pay for their services and they are often quite moving in describing their ability to provide friendship within purchased intimacy. These women feel they are doing something valuable for other human beings and are indignant about the revulsion they face and feel it is fed by a puritanical strand of feminism.
We should always be leery about a rush to legislation as the automatic cure for ills. Some working women claim that as soon as you make the purchase of sex illegal and criminalise the purchaser, women will be coerced by police to testify against the ‘consumers’. They will be used as agents provocateur when the police want to go after certain men. Women will be accused of luring men into criminality because as sellers of sex they will not be at risk whereas the buyer is. The purchase of sex will be driven further underground, they say, and this will inevitably make life more risky for the women involved. Some see the business of prostitution being commercialised by bigger crime businesses with no money changing hands between woman and customer but a salary for working casino tables, providing massage in sports clubs, waiting tables in restaurants, with the understanding that sex is part of the service. The prevalence of casual sex makes it hard to unveil the transactional nature of the interactions. I have very conflicted views on the issues of criminalisation and think the moral arguments are complicated. I also think that there is real confusion for many young women about what liberation means. Hooking up just for sex with the varnish that the woman is as much in control is illusory. To me, it is also corrosive of real sexual empowerment. I come at it as a feminist lawyer and would want to see evidence from a reliable source about the Swedish experiment and those in other jurisdictions to see if criminalising the purchase of sex actually works.
We must always look carefully at how law can be misused. The government’s antisocial behaviour orders are now being used to bar women from working certain streets or from associating with each other, although the original public rationale for the orders was about protecting the public from gangs of boys or bad neighbours creating a nuisance. Breach of an order can attract a maximum sentence of five years which means the reintroduction of imprisonment for prostitutes which had been removed in the Criminal Justice Act 1982. So while the rhetoric is all about helping women, England and Wales are fast becoming the most punitive countries in Europe for prostitutes.
Further legislation to address prostitution was introduced in the Policing and Crime Act 2009. This removed from the statute books the term ‘common prostitute’ which was offensive and unnecessary, but importantly it replaced the kerb-crawling offence with an offence of soliciting a person in a street or public place for the purpose of obtaining sexual services from them as a prostitute. It was addressed at the men who went out to buy sex in public. The previous legislation concerning kerb-crawling had required persistent behaviour which meant the police had to see more than one attempt to procure a woman, but this new law made that persistence unnecessary.
Who are these men who pay for sex? At the higher end of the scale are businessmen, playing away. But according to police, the ordinary trade is maintained by the fellow next door. There is no shortage of custom, and in our entrepreneurial times many women are taking to the streets, selling the one commodity they have which they know is in demand. Even more women are now advertising themselves online. If a man’s work is sorting out computer systems for organisations and it takes him to Land’s End or John O’Groats, he only has to go online and find out if there is a sex worker in the vicinity and book an appointment, along with selecting his preferred sexual practice. The women even have reviews by previous customers. Men who use prostitutes may raise sniggers in court, but that’s about all. When the Duke of Devonshire appeared at the Old Bailey in the early nineties to give evidence in a cheque-fraud case it came to light that he had been using the services of a call girl and paying with cheques. Everyone smiled benignly and just thought how daft he was. There was no question of his not being able to show his face in the club. Likewise when Allan Green, the Director of Public Prosecutions, resigned in 1991 having been seen round the back of King’s Cross, allegedly looking for a prostitute, the sympathy for him was shared by most of us in the profession. He had been the fairest of prosecutors in his days at the Bar and was an exceptional director, of unquestioned integrity and courage, who had the unenviable task of dealing with the Irish miscarriages of justice. Using prostitutes was not seen as a bar to lawyering.
I’m not sure that, as a woman, being a prostitute in my spare time would have gone down so well in the profession, though. Attitudes were very different indeed to prostitutes themselves. In her 1989 book Misogynies, Joan Smith highlighted the prejudice against prostitutes in the investigation of the Yorkshire Ripper killings. She recalls the words of a senior police officer at a press conference before Peter Sutcliffe was caught:
He has made it clear that he hates prostitutes. Many people do. We, as a police force, will continue to arrest prostitutes. But the Ripper is now killing innocent girls. That indicates your mental state and that you are in urgent need of medical attention. Give yourself up before another innocent woman dies.
This distinction, between respectable women and the others, whose lives seem to have a different value, was made repeatedly in the press, by the police and in court. One of the most prevalent kinds of serial murder is indeed that of the prostitute; she especially represents the myth of Eve, of woman as responsible for male concupiscence and carnality. So entrenched is the idea that prostitutes have it coming to them that, in order to allay speculations and emphasise the seriousness of the risk to real women, the police often feel obliged to stipulate that female victims are not prostitutes. Since the Yorkshire Ripper, we have had several other horror stories involving the serial killing of sex workers. There was the Ipswich murders of five prostitutes by Steve Wright in 2006, and, in 2009, the gruesome case of the Crossbow Cannibal, Stephen Griffiths, who picked up a crossbow and turned it on his neighbourhood’s prostitutes. He killed three women and dismembered their bodies with power tools and a samurai sword in a bathtub, dumping their chopped-up bodies afterwards in the River Aire – except for the bits he ate, mostly cooked but some raw.
In June 1990, a notorious pimp called Colin Gayle stood trial at the Old Bailey on 18 counts of rape, threats to kill, actual bodily harm and living off immoral earnings. The victims of his appalling assaults were the young prostitutes who became involved with him and who supplied him with money to pay for his cocaine habit. The evidence of brutal beatings with a metal rod and hammer sat uncomfortably with the love letters the women had written to him. Why would women beaten, bruised and disfigured return to their tormentor? Love poems were written to Gayle by one young woman who had received terrible injuries at his hands, resulting in damage to her kidneys as well as extensive cuts and bruising, because he did not think she showed enough respect. Some women have suffered so much in their lives, and their self-image and self-respect is so low, that they are grateful for any expressions of interest.
Among the prosecution evidence were letters written by Gayle promising that he would stop the relentless beatings; it was probably those careless pieces of self-incrimination which secured his conviction. Even so, he was acquitted of the charges in relation to one of the prostitutes because her evidence was so confused and, in the view of police, unsympathetic to the jury because of her swearing and filthy mouth.
The prosecution has a problem in cases where prostitutes are witnesses because the women are terrified of the consequences of giving evidence against their controller. The fear of reprisals from the accused or his friends is enormous and the women also know that they will be cross-examined in detail about their lifestyles in a way that will reinforce hostile views towards them. These women are often angry at the comparatively short sentences which are passed because the pimps are so soon back on the streets seeking revenge.
Prostitutes have come to expect poor treatment in the criminal courts, but they have problems in the civil courts too, particularly concerning the welfare of their children. Many prostitutes who appear before the courts say they do this work because it fits in well with their childcare arrangements; they can work during school hours or in the evenings, when they have a babysitter. Many are women living alone with children, with little prospect of any other kind of employment.
Charges of living off immoral earnings were introduced to reach the pimps who exploited women and forced them into sexual misery. However, many women complain that in fact they make their own choices about how they earn a living, and the law is frequently used against boyfriends and husbands or family members who exercise no control over them at all. The effect is to prevent these women having any semblance of a home life. Taxi drivers, particularly minicab drivers, are sometimes charged with living off immoral earnings if they provide a regular service for prostitutes and facilitate their work. The same is true for landlords and massage-parlour and sauna owners if the police take against them.
There is no specific offence for placing advertisements promoting prostitution in newspapers. However, the Newspaper Society has always advised publishers not to place advertisements for brothels and other illegal establishments, and there is now a law prohibiting the placing of adverts in telephone booths (which are almost redundant in any case). So far Internet websites and platforms seem to be immune. Google has a website called Backpage where prostitutes advertise and where victims of human trafficking are sold for sex. Backpage is involved in 73% of cases of suspected child sex trafficking in the USA. Efforts in the US to introduce cross-party legislation to target human trafficking with a Stop Enabling Traffickers Act is being scuppered by lobbyists working for the Internet behemoth, which takes the position that there should be no assault on freedom of the Internet.
In 2011 I chaired an Inquiry for the Equality and Human Rights Commission into Trafficking in Scotland. At that point there had been no prosecutions of traffickers in Scotland, but there was growing evidence of the problem there. Often police were raiding premises using drugs or arms warrants for men suspected of organised crime, and coming across women from abroad who did not have their own passports. While they recognised there was prostitution, the common practice was to hand the women over to the immigration authorities for assessment and deportation, making it an issue of immigration rather than crime.
Being the head of that inquiry gave me a very close view of the horror of the trafficking we know less about – the trafficking for cheap labour or domestic servitude. The gangmasters who bring over migrant labour claim the workers are self-employed when in fact many are like indentured labourers – doing back-breaking agricultural jobs or cockle picking or poultry cleaning and packing, living in inhumane conditions and being paid well below the minimum wage. Domestic servitude is even more shocking. The first cases which came to light in the UK involved diplomats bringing servants here, and ill-treating them but making it impossible for them to leave or complain because they had removed their passports. It came as a surprise to find that in some parts of the UK settled immigrant families often brought people from their home countries, then treated them like slaves, paying tiny wages to their relatives in villages back home. Many slept on mats in kitchens and worked all hours without any money to spend here.
But worst of all was the evidence of women and children who had been trafficked for sexual purposes. Sometimes it started as domestic slavery but became predatory and sexual with time. I thought I had heard about most inhumanity through my years of practice both nationally and internationally, but the stories of these trafficked victims were heart-wrenching. One of the things we have learned about our world is that cataclysmic events like wars and social unrest create terrifying risks for women and children. The end of the Cold War and the collapse of the Soviet Union, the disturbances in the Balkans, the unrest in the Middle East as well as upheavals across whole tracts of Africa have all created vacuums in which organised crime has flourished. The underbelly of globalisation and free markets in legitimate commodities is that the same developments which allow lawful trade to flourish also facilitate the trade in drugs, arms and human beings. Prostitution and people trafficking is now considered the world’s third most lucrative black-market activity, just behind arms and drugs. Global estimates by Interpol and UNICEF range from $19 to $32 billion in yearly profits. Thousands of women and children are spirited into Britain every year to work against their will as prostitutes, domestic slaves or exploited agricultural labour.
Sex trafficking preys on the most vulnerable and is a heinous sustained violation of human rights. There are many hundreds of flats, massage parlours and saunas selling sex in London alone, with 81% of the women in them from overseas. Research has concluded that a growing proportion of women ‘on the game’ were being coerced into prostitution through violence, repetitive rape and entrapment, and those conducting the research found evidence of trafficking rings operating in all parts of Britain, from Cornwall to Glasgow. The most common sources of women are Eastern Europe, South-East Asia, West Africa and China. The collaborative work made possible by the existence of Eurojust (the European Justice System agency) and the European Arrest Warrant for arresting traffickers in other parts of Europe and bringing them speedily to courts here or there is invaluable for the police. The Sex Offences Act 2003 introduced wide-ranging laws to tackle trafficking for sexual exploitation, but as the full extent of the problem became exposed, the government took further steps. In 2009 the National Referral Mechanism was set up as a process for identifying and supporting victims of trafficking. It is also the process for capturing data on potential human trafficking victims in the UK. But research by the UK Human Trafficking Centre in 2012 suggested 54% of victims were not recorded on the NRM in 2011. While greater numbers are coming to light it is believed that we still only have part of the picture. Of those referred, a third were children and most of them girls.
The government introduced the Modern Slavery Act in 2015 to give further powers to police and other authorities to confront the issue. In 2003 it had been made unlawful to traffic people, but the Modern Slavery Act increased the sentences, established a legal duty to report potential victims of trafficking to the National Crime Agency to build a clearer picture of this hidden crime, and created a new Anti-Slavery Commissioner role to galvanise law enforcement’s efforts to tackle modern slavery. In 2009 the Police and Crime Act made it an offence for someone to pay for sexual services from a prostitute who has been subjected to force, threats or any other form of coercion or deception to induce them into prostitution. This means it is a crime to have sex with a trafficked woman or girl. There is a similar law in Scotland where the legal system is different. It is not a defence for an accused to say that he did not know that the prostitute had been subjected to force or coercion. It is that rare thing, a strict liability crime. It is also a specific crime to pay for sexual services from a child, which means any young person under 18, and there are extremely heavy penalties.
It is clear that the law has to be accompanied by better measures to protect and support trafficked people. They need to be recognised as victims and not the perpetrators of crime. Some are anxious to return to their families, but others could be in danger in their home countries, particularly if they inform on organised criminals. The stories are heartbreaking and invariably describe being lured to Britain with the promise of legitimate work as a route out of poverty. Women find themselves trapped in a cycle of vice, imprisonment, abuse and the threat of violence to their families back home if they try to break free. The real way to stop trafficking is to address the problems women face in their home countries, where deprivation is usually rife and political systems are corrupt. Overseas aid plays a crucial role. But we also have to deal with this crime by cross-border collaboration, working with organisations like Eurojust and Europol (the European Police Agency) and using tools like the European Arrest Warrant to extradite gangmasters and the heads of crime syndicates to bring them to justice. It can never be solved by one country acting alone. The plan to leave the European Union never bore any of these vital considerations in mind.
In recent years I have represented several trafficked sex workers. Incapable of stepping out of the shadows, they are utterly controlled by their pimps. Ill health and fear of pregnancy stalk them and they are forced to have illegal abortions because they are too frightened to go near doctors. This is the sort of inhumanity we collude in when we take away legitimate routes out and systems of support.
In one case I defended a young Croatian woman who became a pawn in a turf war between pimps, arguing over ownership of different women. She was present when a pimp was murdered, her fingerprints found in the seedy hotel room that was the scene of his violent death. A terrible story of sexual grooming from the age of 14 came to light and a background of such horrifying cruelty that the court was stupefied. Even after she was given her freedom and the murderer was imprisoned, she was frightened out of her wits that he would have her killed.
At last some of the traffickers are coming before the courts. In 2013, seven members of a sex-grooming ring in Oxford were convicted of crimes including rape, arranging child prostitution and trafficking between 2004 and 2012. The six girls who were brave enough to testify suffered the abuse between the ages of 11 and 15. Twenty-five criminals were convicted and jailed in August of 2014, all of whom had been involved in Eastern European trafficking gangs. A Hungarian gang led by a man called Vishal Chaudhary trafficked at least 120 women into London where they were raped, beaten and forced to work in brothels across the capital. These gangs include women who provide a legitimate-looking front in persuading girls to come for straight employment. Tatiana Shmyrova, a Russian madam who ran a high-class escort agency in London, was convicted in May 2014 of luring a young woman who had been a successful athlete with the prospect of a job as a tour guide, only to find herself in the hands of a violent trafficking gang.
Child trafficking is a singular horror story.
Poverty and war and lack of opportunities present the perfect opportunity for traffickers to promise parents in poor countries a better life for their child in stable Western countries. Equally, a failure to uphold children’s rights, a lack of robust child protection services and living in abusive or neglectful circumstances make it all too easy for traffickers to target children for grooming. As we have seen in the refugee camps, as well as the temporary camps like Calais, refugee children can be particularly vulnerable to being trafficked because they are easily manipulated and physically controlled.
A better understanding of child abuse has led to intensive government action on child prostitution. It should be emphasised again that a person is a child under our law until they are 18. The children’s charity Barnardo’s led the front when it came to redefining child prostitution as sexual abuse: ‘There can be no such thing as a punter, or a customer or a kerb-crawler when discussing children … a man who winds down his window and asks for sexual services from a child or girl who is underage is a child sexual abuser.’ The way in which child abuse can lead to adult prostitution has also entered the official bloodstream:
The prostitute is a commonly vilified figure. This is often based on a general assumption that those involved are in control of their situation. However, the evidence is clear that this can be far from true. High levels of childhood abuse, homelessness, problematic drug use and poverty experienced by those involved strongly suggest survival to be the overriding motivation. (Home Office, 2004.)
In recognition of the high levels of coercion involved in prostitution, the government has adopted a two-pronged approach by using charities and other welfare-based organisations to deliver ‘soft law’ or social policy responses to divert women and children from prostitution, while reserving the full power of the criminal law for two categories of people: those who persistently return to prostitution and those who exploit individuals in prostitution.
The approach is at first glance a huge leap in the right direction. However, a very persuasive book by Joanna Phoenix and Sarah Oerton called Illegal and Illicit: Sex Regulation and Social Control analyses the hidden currents operating beneath the surface to the detriment of some women and girls. They point out that those who face the full rigour of the new law are women who choose prostitution voluntarily or for economic reasons, women who are poor and who have few options, or women who are forced into the netherworld of sex work and find it very hard to abandon it when a new demand for rent or electricity payment arrives. The Home Office consultation paper Paying the Price neatly demarcates the problem of prostitution into two categories: the problem of ‘victims’ and the problem of ‘offenders.’ Victim status is only conferred under specific conditions – there has to be a third-party coercer and the ‘victim’ must never return to prostitution after being offered help. Women who stay on the game after social work interventions therefore move beyond the pale. They must cooperate with the NGOs and the authorities and behave like good women or they are sacrificed to the criminal justice system.
On an initial reading of Paying the Price, the striking argument is the overwhelming level of victimisation experienced by women and children in prostitution and their need for support in their struggle with drug addiction and debt. It seems we are now living in a society where the prevailing thinking is that poverty is largely the fault of the impoverished. If they do not pull themselves up by their bootstraps, and the help of ‘back to work’ initiatives, they are making a lifestyle choice. Talk of poverty as a driver of human behaviours is out of favour. Victimisation is recognised as a valid excuse for prostitution but poverty is not. Poverty is seen as a lifestyle choice.
Even when women have been groomed into prostitution through abusive relationships, they have been forced to reveal past convictions for soliciting or loitering under the Street Offences Act when applying for jobs and visas or even for volunteering at their children’s schools under DBS (Disclosure and Barring Service) checks. It did not matter that they had been forced into sex work as teenagers. It meant that abused women could never move on from their pasts. A great victory was won in March 2018 in the High Court by a brave woman called Fiona Proudfoot and two other determined women who chose to remain anonymous. They fought a case against this stigmatisation and won a ruling that forcing women to reveal past convictions for prostitution was unlawful. They described to the court the cost to them not just in employment opportunities but in humiliation and mental anguish.
There are compelling arguments for and against the decriminalisation of street offences and the legalisation of brothels. Although some of the arguments are articulated on the grounds of keeping neighbourhoods decent and avoiding insult to citizens, the core argument is about the symbolic importance of punishing deviant sexuality. It would be quite possible to divert the police vice squads on to more pressing crime problems by abolishing the soliciting laws and using in their place, where it is occasionally necessary, offensive behaviour legislation. Where any passer-by is seriously affronted, public order charges of insulting words and behaviour can still be laid. At the same time, provisions protecting children from sexual exploitation and adults from coercion and fraud could be strengthened. It is interesting to look closely at the reforms in the Australian state of Victoria and in Holland. The creation of legalised brothels in both places has not removed all street soliciting but has greatly reduced the numbers. Brothels are not run by the state but have to maintain health standards for permits to be obtained, and their location is controlled by town-planning laws. Local residents can make objections at planning hearings if nuisance is a serious problem – all of which shifts some of the problems associated with prostitution away from the criminal courts. Failure to have a permit or planning permission means premises are closed down. Inevitably, advertising has to be permitted for a legalised brothel system to work, and strict codes are established regulating where such information can appear.
Police claim that ‘respectable clients’ who use street prostitutes would never risk entering a brothel for fear of being seen, and that likewise some women with children who work on a casual basis would not want to chance being discovered. However, risk is half the excitement for many of the men, and since danger of criminal prosecution has not dampened enthusiasm it is unlikely that entering a brothel would. The majority of women on the street would welcome decriminalisation and might feel differently if they realised a brothel scheme would not be run by the government.
There might even be tax benefits for the Treasury if the law was reformed. Lindy St Clair, a prostitute who lost her High Court challenge to the Inland Revenue’s taxation of her earnings from prostitution, wittily accused the government of living off immoral earnings. The outlawing of prostitution and then the application of fiscal regulations as if it were any old job is an indication of the double-think involved in the whole issue. The income from prostitution would probably write off the national debt if properly audited, but, as it stands, only women on the low end of the scale are ‘taxed’, in the form of regular fining. Women appearing in the central London courts describe the fine as their licence fee and get straight back on the job to pay it.
Saving women from prostitution must also mean removing sexual and economic inequalities, providing job opportunities, training and equal pay – in other words, by recognising the economic realities which drive most women to the streets. Unfortunately, economic realities do escape some members of the bench and the chasm of class misunderstanding still exists.
The power inequality of sex, and its transactional nature, plays out in other working environments too. Sex is a potent force in many workplaces. Hardly a woman exists who has not had to deal with unwelcome sexual attention, requests for sexual favours. Yet the subject is met with collective denial by many men, who think sexual harassment is about po-faced women having no fun. It was just a bit of playfulness, they say. It’s women who are the problem.
Of course, sexual attraction is a component in a lot of the relationships which compose our daily round. The gentle flirtation of our social commerce is a harmless and pleasant aspect of life, irrespective of gender. The positive exchange of sexual energy can be as creative at work as elsewhere, but sexual harassment is of a different order and both men and women know the difference. One involves a mutuality and the other is unwelcome. It is not the product of the fevered feminist imagination. Most women can give plentiful accounts of dealing with groping and risqué remarks, and some women with a quick wit can handle anything. However, the majority feel humiliated and demeaned by the experience. There is a sense in which women who complain are considered to be whingers who have let it happen – what has been described as an extension of the ‘good girls do not get raped’ theory. Men groan that things have got so politically correct that they are not able to enter the office and say, ‘That’s a nice dress, Doris,’ without letting loose the furies. It is disingenuous nonsense but is designed to marginalise women’s complaints.
The combination of sex and power is a particularly destructive one. All things are not equal when someone in a superior position within an organisation presses attentions or constantly comments in a very suggestive way about the appearance or clothing of a more junior member of staff, or insists on talking about sex, or engineers intimate interludes.
Sexual harassment is defined as unwanted behaviour of a sexual nature which violates your dignity; makes you feel intimidated, degraded or humiliated; or creates a hostile or offensive environment. The conduct can include sexual comments or jokes; physical behaviour, including unwelcome sexual advances; touching; and sending texts or emails with a sexual content. In the workplace it can involve displaying sexual imagery such as Here calendars or leaving porn around. It is a form of unlawful discrimination under the Equality Act 2010 and a victim could sue the perpetrator or bring a case before an employment tribunal. The problem is that legal aid is not available and court costs make it a prohibitive exercise for most women, though these are now being reviewed for that reason. Most large workplaces have established routes for complaint about colleagues who make a person’s life a misery, such as going to the human resources team or a manager or a trade union. However, most women take no action. Two out of five female barristers in a 2016 survey by the Bar Standards Board reported suffering sexual harassment.
It is hard to find a woman who does not have war stories to tell of dealing with gropers, touchers, strokers, squeezers, pressers, voyeurs and dirty talkers. It has been our lives since girlhood. It is miserable and depressing but women do not take action because they learn early on that there will be an even greater price to pay for speaking out. Why would a woman take a case to court to sue for assault or discriminatory conduct when she knows that she will be roundly attacked as Kate Maltby was when she described the conduct of the deputy prime minister, Damien Green? She faced a two-page spread of vitriol in the Daily Mail. Women know the consequences of speaking out. We have been warned.
Harvey Weinstein was one of the dominant figures in the film industry. By all accounts he was a horrible bully to men and women both, but in his relations with women he was a serial and serious predator. However, men just like him have got away with it forever because people would be too fearful to take them on. Think back to what happened to the lawyer Anita Hill in the United States. When Clarence Thomas, the right-wing black jurist, was proposed for the Supreme Court, she stepped forward to say that he was not an appropriate person to fill such a position of authority as he had systematically sexually harassed and abused her when she was his junior. She testified before a congressional committee, was accused of malicious falsehood and was taken apart by misogynistic male politicians who could not stomach a woman undermining their candidate. Why would a young black woman lawyer make such a claim against another African American and be able to describe in such detail the indignities to which he subjected her? She has since pointed out that she had no clout, and that it was over 20 years ago when women were less confident and powerful. I suspect that this is wishful thinking when it comes to the majority of women in ordinary workplaces. In the case of Donald Trump many women came forward during his campaign for the presidency to describe his assaults and harassment but were traduced in the media and beyond. What changed the narrative in Weinstein’s case is that a new generation of women are saying ‘enough already’ and our current celebrity culture has elevated some female film stars to new heights of fame and financial success, which has empowered them to challenge his abusive conduct without being attacked for daring to do so. As one woman said, it was just a pity that Donald Trump did not grope Angelina Jolie. If he had, he might not have become the president of the United States.
But even in Weinstein’s case, before the complaints turned into an avalanche, some women were saying ‘Why would you go to a man’s hotel room? What did they expect?’ Predatory sexual behaviour had become so normal that blaming the victim was the default position. The young actresses were invited to the hotel room of one of the most powerful figures in film-making ostensibly for business conversations about potential movie parts, often initially accompanied by women who worked for Weinstein, thus providing cover, but who subsequently made themselves scarce. Then the actresses would be subjected to violation, often starting with requests for massages or conversation as he lay in the bath and thereafter they would be jumped on for sex. The accounts revolted the world because they were so vivid, so corroborative of each other and because they were being related by beautiful film stars. That is what changed the weather. Even so, those actresses who said that out of fear they allowed him to abuse them were ‘slut-shamed’ by many as having put their ambition at the service of a man of influence.
What followed the scandal though was the brilliant use of the Internet with the #MeToo campaign encouraging women around the globe to give their own accounts of abuse, mainly in their working lives.
Predatory sexual behaviour has enjoyed ‘social proof’ for a long time. Social proof is conduct which becomes mimicked by people in a social group until it gains acceptance and finally becomes behaviourally normal. It has been shockingly ‘normal’ for certain men in certain situations to predate on women, but now it is suddenly sounding as though it may become un-normal.
Some of the behaviour complained about is of a really serious criminal nature while other accounts are of miserable overstepping of the mark. But if you want to change a culture, you have to deal with less significant transgressions too. Making complaints about the gropings, invasive behaviour and sex-talk does not minimise or take away from the urgency of dealing with allegations of rape. Calling an assistant ‘sugar tits’, asking an employee to purchase on your behalf sex toys, asking young women about their sex lives, taking a young woman’s hand and placing it on your flies, offering avuncular career advice and then being sexually suggestive; none of it is OK. A hand on the knee is made to sound utterly trivial. It is claimed it might just be a comforting pat in a friendly manner. Sure. But men and women know the difference between that and the creepy under-the-table stroking. The fleeting communication that means ‘I want more’. Its secret and slight nature is part of the turn-on for many men, especially if others in the vicinity – even their own wife – are oblivious. It is a covert signal. Another is stroking a woman’s palm when shaking hands.
Of course, the world over, women have learned pest-avoidance techniques. As we get older we become more adept at the off-the-cuff put-down and body swerve. However, it is tough when you are young. Young women are filled with self-doubt and wondering why this aged Lothario thought it was OK to come on to them. What have they done to deserve it? It is the classic self-blaming that women have been socialised to do and they are not helped when other women are dismissive or find fault with them for failing to handle it with a slap or cutting remark. We are all different and how we are able to handle these situations depends on so many factors about our own history and make-up. Women always have to make a calculation about what effect making a fuss might have. To be saddled with the reputation of being ‘that girl who got old Charlie the sack’ or simply as a trouble-maker or complainer can narrow a woman’s career options.
It is particularly disturbing when someone seems to be offering to mentor you and you find it is actually transactional and that person who is the same age as your father wants something in return. It feels grossly invasive and sickening but also undermining. It is important for men to know how it feels to young women. I mentor many young women in the law and I still hear stories close to my own experience when I was a pupil, when I had to escape the clutches of a senior member of the Bar. I once referred to this when asked about sexual harassment in a media interview and it drew down the rage of a senior prosecutor in the Old Bailey Bar Mess who asked who would want to harass me, an abusive insult that received much braying laughter among his cronies. I felt humiliated even though I was a confident, successful woman in my mid-thirties. This is still the kind of male riposte you often get for daring to mention sexual harassment.
There are few walks of life where this conduct does not take place. Having male approval is an important part of getting on. That is why women who succeed are often totally averse to any kind of boat-rocking. The law is a highly competitive world and those entering it are vulnerable because there are many people who might seek their favours in return for opportunities and advancement. At the Bar, women face this conduct from solicitors dangling tantalising briefs in important cases. It is incumbent on us to root it out of key institutions like the law and Parliament, otherwise what hope is there for women on the shop floors of factories or stores or offices around our country? The request to come to the basement to stock-take, where you are expected to perform fellatio on the boss if you want overtime or a raise or time off for a sick child, is all part of the same continuum.
If a woman is raped or physically assaulted at work, or in a work-related situation, a crime has taken place and she can go to the police. But for all the reasons already rehearsed many women have profound reservations about this course. If the conduct falls short of rape, attempted rape or assault, and would amount to sexual harassment a woman’s remedy is through her trade union or her employer’s HR department and warnings can be given. But in many smaller workplaces these support structures do not exist. If complaining does not get results she can take her employer to an industrial tribunal but legal aid is not available and free legal advice and advocacy hard to come by, unless the woman is in a union but fewer are now because of the assault by government over decades on trade unionism.
In 2013 the government introduced tribunal fees of £1,200, causing the number of discrimination cases to drop by 71%. It was forced to reverse the move after the Supreme Court ruled it was inconsistent with access to justice. The government also scrapped the legal requirement for employers to protect workers from abuse from third parties such as clients or customers, and removed the equality questionnaire which allowed claimants who said they had been sexually harassed to enquire whether other complaints of a similar nature had ever been made. As a result few women bring cases. The Deregulation Act 2015 removed the power of tribunals to make recommendations for the benefit of the wider workforce. None of this points towards a growing desire by the powers that be to see equality law enforced.
A woman may not have an employer as such. She may be part of the gig economy where she is deemed self-employed, getting a pittance on zero-hour contracts. What is her remedy then? The whole legal framework fails these women. In the United States the film stars who allege they were sexually abused by Weinstein are suing him but a woman seeking to do that here would need serious financial resource as there is no legal aid for civil litigation. The American stars are creating a fund through donations to help ordinary women there bring cases against their abusers.
When women are brave enough to complain and threaten to sue their employer for sexual harassment they are frequently paid off in an out-of-court settlement, but subject to a confidentiality clause so that no one gets to hear about the misconduct and abuse. Breach of a non-disclosure agreement will carry serious financial penalties. Gag orders and confidentiality clauses are the ‘get out of jail card’ for rich men. It is yet another way in which women are silenced. Harvey Weinstein used such clauses repeatedly. Young women are frequently paid off, encouraged by their lawyers to take the money and run rather than expose themselves to the full ruthless force of a disputed case where she will be branded a liar. Weinstein’s staff had such confidentiality clauses written into their employment contracts. These clauses are commonplace in the UK too but must be outlawed when they are covering up crime. This is an issue of public policy as it is against the public interest that contractual law should be used to silence women about criminal acts. The West expresses horror that in some cultures women are raped but her rapist may pay her family compensation or marry her to redress his crime, yet we are guilty of allowing similar conduct – the pay-off and gagging order to silence women.
To change behaviour, the threat of litigation and exposure has to be real. At the moment in the UK it is not. Legal aid has to be made available so that people subjected to sexual harassment and workplace discrimination – employed or self-employed – can get legal advice and representation and ultimately a remedy. Executives in companies come lawyered up with teams of experienced litigators to outgun the complainant. It is no wonder women agree to a secret pay-off rather than go through with a court case.
From time to time I have adjudicated in internal hearings within organisations on allegations of sexual harassment. Dispute resolution is a sensitive business and both parties have to feel the justice of the outcome. In each case the male party has accepted that he perhaps ‘went too far’ and has with hindsight recognised the issue of power imbalance. In these cases the most important lesson for the man is an understanding of the responsibilities that go with power, and the recognition that it is an abuse of his position to leave a woman uncertain about her right to say ‘no’ to his advances without fear of it jeopardising her career.
But sexual harassment is not just taking place in the workplace. It happens in clubs and pubs, in public spaces and on public transport. Women are touched and groped by strangers, subjected to comment and scuzzy insult. One new form of harassment is photographing up women’s skirts or down their blouses.
Sexual assault and harassment are usually assertions of power and abuse of it, but sometimes it is about men hating their own feelings of powerlessness. A perfect example of the debasement of women was the recent exposure that the journalist Toby Young frequently comments on the cleavage and breasts of female politicians in a prurient and disgusting way. Without feeling in the least inhibited, he responded to a comment about a photograph, in which he had been pushed into the back row behind the beautiful actress Padma Lakshmi, with the tweet: ‘Yes but I had my dick up her arse.’ Many other gross tweets about women had poured from his prolific Twitter account over the years until quickly deleted in the face of opprobrium. This was a man who was appointed to become an education regulator and who was defended as suitable by his political friends. It was pressure from women which forced him to step down. I suspect Young’s insults to women are about feelings of inadequacy and absence of power. For many men who have little power, watching women being successful and instrumental is a source of impotent rage, which finds expression in non-physical abuse.
The industrial scale of sexual harassment both in the workplace and elsewhere means that clear steps need to be available for women to seek redress. There should be a new government-supported advice line so that women can be talked through their options. Harassment is repeated unwanted contact which causes alarm or distress and it includes harassment by text or phone. It is both a criminal offence and a civil cause of action so that a person can take a case in either a criminal or civil court. The police should be much more active in dealing with women’s complaints but it will need resourcing as currently the police feel it is low on their list of priorities. The industrial tribunal system should also be streamlined and made more responsive to these cases so that women can take this route if it is one they prefer.
Abuse of women does not just happen at the hands of individuals. Sometimes the state plays a part, which makes it even more egregious. Nowhere is this clearer than in the scandal of undercover police officers entering into long-term relationships with women for intelligence-gathering purposes. Sometimes these Special Branch policemen met the parents of the women, proposed marriage, fathered children and then after years of intimate involvement simply disappeared, leaving behind distraught, confused and grieving partners who feared their man had committed suicide or had a fatal accident or rejected them for someone else. The long-term emotional damage is hard to fathom. Eight of the women brought legal actions against the Metropolitan Police and the Association of Chief Police Officers, and in November 2015 as part of a settlement the Met published an unreserved apology to the women and agreed that the conduct constituted abuse and gross violation with severely harmful effects.
A public inquiry under a senior judge was ordered.
The infiltration of left-wing groups by secret police to spy on political activity is nothing new to me. I was involved in political cases in the seventies and eighties where it came to light that MI5 had an agent embedded, and acted in Irish cases arising out of the Troubles where there were often informants and agents around and about. However, these women were used in the most callous way simply to gather information about environmental activism and anti-globalisation; none of them were suspected of terrorism or planned the overthrow of the state or the blowing up of Parliament and nor did their friends. One of the questions for any public inquiry is whether such police conduct can suborn the rights of individual women in order to pursue a police operation. New rules for undercover work have been created, but it remains to be seen to what extent this behaviour had become permissable, even institutionalised, the sexual exploitation of women seemingly of little consequence to police.
The judge appointed to preside over the inquiry, Mr Justice Mitting, was formerly the main judge in the Special Immigration Appeal Court (SIAC), which often sits in secret, dealing with intelligence in cases allegedly linked to terrorism. The women’s legal team, led by Philippa Kauffman QC, applied for the judge to sit with a panel of people with more diverse experience of gender and race discrimination, suspecting – not unreasonably – that he would prioritise protection of the intelligence services and the police, but Mr Justice Mitting turned the application down. He also ruled that there should be no disclosure of the identity of the managers and supervisors of the undercover police and expressed the view that it was unlikely that one particular officer would have had intimate relations while undercover because he had been married for many years. When the court gasped at this utterance he suggested that maybe he was naive and old-fashioned but that was his view.
The heroic Philippa Kauffman unloaded full barrels of powerful advocacy on the judge, saying that she, her team and her clients had no confidence in the prospect of his inquiry being properly probing or of his understanding the evidence. This was why she had applied for a panel; the precedent was the Stephen Lawrence Inquiry where Lord Macpherson was assisted in assessing whether there was institutional racism by having a multiracial panel of advisers including the black Archbishop of York, John Sentamu. Her challenge went like this:
The presence of our clients is pure window dressing, lacking all substance, lacking all meaning, and [will] achieve absolutely nothing other than lending the process the legitimacy it doesn’t have and doesn’t deserve. I’m sorry to say this but we have the usual white, upper middle class, elderly gentleman, whose life experiences are a million miles away from those who were being spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way you have approached these applications.
She then withdrew from the court together with her entire legal team until the issues she had raised were considered. The crass folly of the authorities in appointing such an ill-equipped judge to preside over such a sensitive case, which required emotional intelligence and a full understanding of what such abuse would do to a woman, is astounding and shows we still have a long way to go in creating a judiciary fit for the 21st century.