How policy is made matters. How gender power relations are implicated in the way policy is translated from first to final draft also matters. The journey of the proposal to criminalise the purchase of sex in England and Wales is an apposite case study for how a certain version of policy becomes authoritative while others are discarded.

Prostitution is a practice patterned by gender. Research in England and Wales and internationally shows that it is disproportionately men who pay for sex from women (and from men and children). This pattern is consistent with prevailing gender power relations, which, broadly speaking, have privileged masculine interests. Accordingly, English prostitution policy has traditionally focused on ‘managing women’ – from the Contagious Diseases Acts (1864–1869) through to the use of Anti-Social Behaviour Orders against street sex workers since the early 2000s. Concern for public decency has also brought visible buyers – kerb-crawlers – in to the legal spotlight.

Among other factors, recent international obligations in relation to the trafficking of human beings for sexual exploitation has shifted the political discourse to focus on ‘demand’ – on the sex buyer.  These developments made it possible for Gordon Brown’s Labour Government to introduce Clause 13 of the Policing and Crime Bill (2008), a proposal to part-criminalise sex purchase in England and Wales. I use the term ‘part-criminalise’ because the clause made buying sex an offence in certain circumstances, rather than representing an outright ban.

This initial proposal in December 2008 went through multiple iterations, emerging as Section 14 of the Policing and Crime Act 2009. My analysis of Hansard records reveals that around 25% of the time spent discussing the Bill was focused on this single clause. Moreover, the scope of the clause was narrowed over time from criminalising the purchase of sex from individuals ‘controlled for gain’ to individuals subject to ‘force, threats or deception’ by a third party.

A detailed analysis of the relevant parliamentary papers and records reveals that central to the discussion were contested definitions of ‘responsibility’ and ‘exploitation’. But we need to understand these contested definitions as evidence of gender and power in action – evidence of how gender is understood and organised in society.

The proposed offence was strict liability, a legal device that removes the requirement to prove that the defendant intended to commit the offence. Placing responsibility on sex buyers in this way caused significant consternation among members of both Houses. It was felt that strict liability was unfair, given that women may lie about whether they were ‘controlled for gain’ or forced in to selling sex. Some cited the honest punter, the ‘ordinary working-class man’ or ‘pensioner’, who would be unfairly penalised (an interesting misattribution of who pays for sex: in fact, men of every demographic).

The question raised of whether paying for sex with someone who is coerced might more accurately be termed ‘rape’ was set aside by MPs given that rape of women in prostitution would be ‘very difficult to prove’. A proposal to turn the clause into an offence of recklessness with a much higher sentence attached was also discussed but ultimately rejected and the strict liability element of Clause 13 remained.

However, the context of its application changed as the clause moved from concerning individuals “controlled for gain” to individuals subject to “force, threats or deception”.  More generally, there was disagreement between MPs who wanted to broaden the scope of the legislation – and therefore widen the criminal net – by keeping the language flexible, and those who wanted to narrow the focus by stating explicitly what is meant by exploitation.

Yet politicians’ preoccupation with the individual context of the seller and their choice/lack of choice neglects the wider context of gender relations (as well as relations of economic status, immigrant status, ethnicity, education level, and so on). Defining exploitation in terms of identifiable victims and perpetrators obscures the way in which exploitation is an outcome of unequal social relations. The failure of policymakers to wrestle with this in the development of policy both reflects and reinforces gender hierarchies.

In summary, the narrowing of Clause 13/14 through the policy process served only to redefine the boundaries of acceptable male sex purchase while leaving the practice of prostitution broadly intact. This is not to claim that policymakers intentionally act to maintain masculine interests: rather it is the cumulative outcome of countless individual and collective assumptions. This is what can make the operation of structural power devilishly difficult to pin down – and to challenge.

This question has practical significance. The way in which meanings are legitimated or excluded within the policymaking process has material effects on different groups in society. Hansard and other parliamentary records offer a tremendous resource to examine and contest structural power in action.

Note: the above draws on the author’s published work in the Journal of Public Policy.

This article first appeared on the LSE British Politics and Policy blog, and can be found here: http://blogs.lse.ac.uk/politicsandpolicy/what-the-development-of-prostitution-policy-tells-us-about-how-gender-is-understood-in-britain/