HCAW Blog #3: Should sex workers be included in the legal definition of hate crime?

On 16th October 2020 by INHS Blog Editor in Gendered violence, hate crime, Hate crime legislation, LEICESTER HATE CRIME PROJECT

Rosie Campbell and Teela Sanders

@RosieCa27236598 and @TeelaSanders

On 23 September 2020, the Law Commission published its consultation paper for its review of hate crime law. Associated media coverage focused on debates about whether sex or gender should be a protected characteristic in law in England and Wales. Media coverage only touched on the Commission’s work to also consider whether there is a principled case for recognising four other characteristics or groups in hate crime laws, one of these being sex workers. In recent years, we have been at the forefront of research which examines the conceptualisation of crimes against sex workers as hate crime.

Campbell’s research explored Merseyside Police Force innovative approach introduced in 2006 of including sex workers in police hate crime policy and procedure. This was introduced in the wake of a number of sex worker murders in Merseyside, concern about high levels of violent crimes against sex workers, the majority of which were under-reported to the police due to a range of factors amongst which a lack of confidence in the police amongst sex workers was a key one. ‘Perceived vulnerability’ a term used by Neil Chakraborti and Jon Garland to describe perpetrators who see ‘their target…as weak, defenceless, powerless, with a limited capacity to resist’ may be applicable. Chakraborti & Garland stress that the notion of perceived vulnerability does not assume that hate crime against any particular group is inevitable or that the group are passive victims.

Using such a conceptualisation alongside Perry’s established conceptualisation of hate crime, which foregrounds othering, discrimination and social marginalisation, speaks to much of sex workers experience of targeted victimisation.

Interestingly, the Law Commission’s consultation paper asks whether there is ‘a principled case’ for recognising sex workers in hate crime laws based on three criteria:

• Evidence that criminal targeting based on prejudice or hostility towards the group is prevalent;
• Evidence that criminal targeting based on hostility or prejudice towards the characteristic causes additional harm to the victim, members of the targeted group, and society more widely; and,
• Suitability: protection of the characteristic would fit logically within the broader offences and sentencing framework, prove workable in practice, and represent an efficient use of resources.

Whilst the Law Commission draw no conclusion they do present significant evidence that sex workers meet these criteria and include a consultation which asks for feedback on whether sex workers should be included as a hate crime category.

While sex workers are currently invisible in hate crime law, since 2014 the College of Policing’s ‘Hate Crime Operational Guidance’ has reinforced the message that forces locally have the discretion to include victim groups outside the monitored strands if doing so will help achieve community safety goals.  Merseysides’ inclusion of sex workers was cited as an example of this in the guidance.  National police guidance on policing prostitution for England and Wales first included reference to hate crime in 2011 when Merseyside’s inclusion of sex workers in hate crime policy was highlighted as best practice and it is still referred to in the National Police Chiefs Council’s ‘National Policing Sex Work and Prostitution Guidance’. In 2019 two further police forces included sex workers in their hate crime policy.

During the summer of 2020 the authors conducted a small study which documented how these three police forces implemented the approach of including sex workers in hate crime policy. Each recognised the under-reporting of crimes by sex workers and a historic lack of trust and confidence in the police amongst sex workers. Arguably, the hate crime approach is an important way of addressing these issues and better protecting sex workers. Indeed a primary objective for all three forces was increasing trust in the police and increasing reporting. 

The main advantages of the approach from a policing perspective were;  it prioritises safety and safeguarding, keeps crimes against sex workers on the agenda, has an educative and awareness raising function about the victimisation of sex workers and the discrimination they face, encourages a more coordinated approach to crime against sex workers and wider sex work policing, improves victim support for sex workers, utilises an established framework using methods familiar to police officers, leads to increased reporting of crimes by sex workers to the police, improves investigations of crimes against sex workers and  increases  prosecutions of those offenders who target sex workers.

We know from the experience of other hate crime groups – including those communities with fully protected characteristics – that hate crime policing does not rectify all issues those same communities have with the police. Nor does it rectify the structural inequalities which generate hate crime. Yet the Merseyside experience and emergent experiences in North Yorkshire and Cambridgeshire suggests such a policing approach can deliver practical improvements for sex workers including greater prioritising, better awareness and understanding amongst officers of sex workers experiences of victimisation and an improved policing service for sex workers who report crimes.

Teela Sanders is Professor of Criminology at the School of Criminology at the University of Leicester and has been working in the sex work studies field for over twenty years.

Rosie has been researching sex work and involved in the delivery of sex work support services in the UK since the 1990’s. She was one of the founders of  UK Network of Sex Work Projects and National Ugly Mugs (third party reporting scheme for sex workers). She was Coordinator of  Armistead Street & Portside sex work projects in Merseyside when the approach of treating crimes against sex workers as hate crime was introduced, going on to focus her PhD research on the approach. She is currently working freelance.