Confirmation bias and rhetoric makes a poor basis for legal reform

Ash Regan’s private members bill, the Prostitution (Offences and Support) Bill, goes to a Stage 1 vote in the Scottish Parliament on 3rd February. It comes as no surprise that the same old arguments about decriminalisation and the harms of criminalising the purchase of sex start to circulate in the press. One such example was Kate Lister’s “Today’s sex workers, like their Victorian sisters, don’t want saving”. This is my attempt to debunk a few of the ideas because, on the surface, Lister’s arguments have a certain popular appeal. But, as this blog demonstrates, the arguments are not based in the realities of law making or prostitution.

Kate Lister’s article, “Today’s sex workers, like their Victorian sisters, don’t want ‘saving’”, opens with flourish and certainty. It is rhetorically confident, morally positioned, and politically legible. What it is not, however, is analytically careful. The opening paragraphs present anecdote as evidence, anaolgy stands in for argument, and certainty replaces scrutiny and analysis.

One of the most striking features of Lister’s piece (and, sadly, the evidence she cites) is its reliance on what I would describe as confirmation bias. The article begins with a set of claims that are already ideologically settled — sex workers do not want intervention; legal reform which is not full decriminalisation is paternalistic; criminalising the purchase of sex has caused harm — and then selects only those examples of research that confirm that position. It is in her very definitions. Sex work is everything that is not sexual exploitation — as though the sex industry is neatly and clearly bifurcated.

Leaving the myth of good and bad prostitution to one side, there is a problem that Lister - as someone who has done research on the history of prostitution - never acknowledges. It is a problem endemic to prostitution research. Researchers tend to conduct research which confirms their pre-given ideological position. It is inherent in prostitution research because all research starts with definitions. Someone who believes that sex work is different from sexual exploitation will define what they are studying as any form of commercial exchanges of sex for money that does not involve exploitation. They will then design a piece of research that can only ever end up confirming that ‘the real problem’ of prostitution policy is that it is not treated as legitimate work, with all that means.

Let me put it extremely blunt: the research that Lister cites is tainted and far from ‘objective’. In this sphere of research, many academics have an axe to grind. The claims of the harms of the Nordic model have not been proven. Apart from anything else, it is assumes that any changes to the experiences that women in prostitution have were a simple cause and effect result of criminalising the purchase of sex.

But, back to Lister. What is absent in this short piece is any sustained engagement with counter-evidence, structural constraint, or law. Women ought to be given choice to engage in sex work and criminalisation of any aspect of sex work is harmful. Full stop.

Let me be clear: I am not disputing what she says about how some women working in the sex industry do, indeed, articulate their experiences in terms of choice, autonomy, or resistance to intervention. Of course they do. What makes her claim problematic and rhetorical is the leap from some voices in some locations to a general claim about sex work as such, and the further leap from that claim to the assertion that any form of criminalisation of any aspect of prostitution is therefore illegitimate. That is not careful. It is selective listening and biased argument.

Plus, making law does not work like this.

We do not draw the line between the lawful and the unlawful “in consultation” with those affected in the way Lister’s argument implies. If we did, most criminal law would collapse overnight. I sometimes call this the “turkeys should be consulted about Christmas dinner” fallacy: the idea that the legitimacy of law rests on the consent of those whose conduct is being regulated. That is not how law functions, nor how it ever functioned.

The real question to me is not whether those currently selling sex want the law to change, but why the law looks the way it does, whose interests it has historically served, and who has borne the burden of its enforcement.

Our current prostitution-related legal framework in England and Wales is rooted in the Wolfenden Report (1957) — the same report often celebrated, rightly, for recommending the decriminalisation of sex between men. Wolfenden famously drew a distinction between law and morality, arguing that there must remain “a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”

Prostitution, the Committee decided, fell into this category — unless it was visible.

This is the origin of the profound asymmetry that continues to shape prostitution policing today. Prostitution was treated as a matter of private immorality, not criminality, unless it occurred in public space. The legal response, therefore, focused not on the purchasers of sex but on the women whose presence made prostitution visible. Soliciting offences were justified not to protect women, but to manage “public nuisance” and prevent offence to “decent ordinary people.”

The result was predictable and enduring: a legal regime in which the burden of policing fell overwhelmingly on women selling sex, not on the men buying it; where harm was rendered secondary to visibility; and where women’s exposure to criminalisation, surveillance, and stigma was structurally embedded.

This history matters. Yet today’s sex work is work and the Nordic model will cause harm campaigners barely acknowledge the legacy of history.

Instead, we are offered a narrative in which contemporary law is implicitly framed as the product of moral panic or feminist overreach, rather than the legacy of a legal framework that has always prioritised public order over women’s safety. The irony is stark.

To drive the point home further, it is quoting what Wolfenden said about women in prostitution. While the report is rightly lauded for its role in decriminalising sex between males, its treatment of prostitution was, quite frankly, atrocious and blinkered in failing to acknowledge the realities of poverty and male violence.

It would have taken us beyond our terms of reference to investigate in detail the prevalence of prostitution or the reasons which lead women to adopt this manner of life. On the former point we have something to say below in connection with street offences. On the latter point we believe that whatever may have been the case in the past, in these days, in this country at any rate, economic factors cannot account for it to any large or decisive extent. Economic pressure is no doubt a factor in some individual cases. So in others, is a bad upbringing, seduction at an early age, or a broken marriage. But many women surmount such disasters without turning to a life of prostitution. It seems to us more likely that these are precipitating factors rather than determining causes, and that there must be some additional psychological element in the personality of the individual woman who becomes a prostitute. Our impression is that the great majority of prostitutes are women whose psychological makeup is such that they choose this life because they find in it a style of living which is to them easier, freer and more profitable than would be provided by any other occupation. As one of our women witnesses put it—

In short, Wolfenden never took account of sexual exploitation.

The report went on to quote the place of law when dealing with prostitution:

“As a general proposition it will be universally accepted that the law is not concerned with private morals or with ethical sanctions. On the other hand, the law is plainly concerned with the outward conduct of citizens in so far as that conduct injuriously affects the rights of other citizens. Certain forms of conduct it has always been thought right to bring within the scope of the criminal law on account of the injury which they occasioned to the public in general. It is within this category of offences if anywhere that public solicitation for immoral purposes finds an appropriate place.”

And with that, Wolfenden created the legacy of policing we are still dealing with. Women were positioned as sources of disorder rather than as subjects of harm; male demand was taken as a given; exploitation not meaningfully acknowledged.

Against this backdrop, to dismiss calls to criminalise the purchase of sex and support women out of prostitution — including proposals such as Ash Regan’s private member’s bill — as merely another form of moral rescue is historically and analytically lazy.

The purpose of law is to mark the line between what is considered acceptable to a society and what is not. This brings me back to confirmation bias.

Lister’s article repeatedly collapses autonomy and choice into absence of harm. If a woman says she does not want saving, the conclusion drawn is that saving is unnecessary. But decades of research on prostitution — including my own — show that women’s accounts of choice coexist with coercion, constraint, violence, and survival strategies. These are not contradictions; they are social realities produced under conditions of inequality.

To foreground ‘autonomy’ and invoke research that starts from an a priori position that sex work is work while backgrounding law, policing, and male violence is not neutral. It is a deeply political move.

What is missing from Lister’s account is precisely what matters most: how law structures risk; how policing practices shape women’s options; how criminalisation continues to fall on sellers (women) rather than buyers; and how violence persists despite decades of supposed tolerance and reform of law. None of this is engaged with. Instead, opposition is reduced to a straw feminist rescuer, and history is drafted as a rhetorical ally.

It is advocacy dressed as analysis.

I changed my own position on the criminalisation of the purchase of sex not because of ideology, but because the evidence forced me to. After decades of legal reform from the 1990s onwards that left the basic structure intact, the harms did not diminish. Violence did not recede. Exploitation did not disappear. At some point, intellectual honesty requires us to ask whether the framework itself is part of the problem.

This is the conversation we should be having.

I hope that MSPs move beyond a superficial reading of ‘evidence’, see the research that is claimed to show that criminalisation harms women in prostitution for what it is: advocacy dressed up evidence.