Regulation of the Sex Industry from a Criminal Law Perspective

This thesis examines the sex industry as a whole with the intention of establishing that prostitution should not be marginalised but integrated within the criminal law and regulated as other Sexual Entertainment Venues. I first establish a framework of analysis needed to illuminate the constraints put upon the different elements of commercial sexual activities. This framework stems from the Sexual Offences Act (SOA) 2003, the primary statute that regulates all sexual activities, whether commercial or non-commercial. It has four elements: consent, nature, purpose and visibility. By means of ‘black letter’ law and case histories, I then explore three areas within the sex industry: pornography, live sexual entertainment and prostitution in order to show that the element of consent is consistent throughout and relies solely on the SOA 2003 and is linked directly to the nature of the sexual activities. The nature of the sexual activities has its basis in non-commercial sexual activities, but is regulated in the sex industry in such a way that the nature differs between each commercial area. By contrast, the purpose remains constant in commercial sexual activities although it is at odds with non-commercial. All aspects of consensual sexual activities, whether commercial or non-commercial, must not be visible for unintended viewers. However, advertising of commercial sex is possible and thus visible, with the exception of prostitution. With regards to prostitution, legislation criminalises prostitutes who advertise and their mere presence constitutes a form of advertising. The public presence of prostitutes as well as the presence of their clients also creates the grounds for public nuisance. I then suggest, based on the above information, that statutory legislation could include the use of brothels, this stems from the New Zealand model, in order to respond to issues raised about consent and visibility, as well as extend the protection offered to prostitutes to other sectors of the sex industry when they are confronted with the issue of consent.