Deborah Orr: For most women, prostitution is not a life choice

"It is important to remember that men who use prostitutes are often damaged too"

Who would want to "pay for sex with a person controlled for gain"? No one, surely, whose capacity for empathy – which scientists claim is an innate human quality – has not been damaged, perhaps to a dangerous degree, or even entirely destroyed. So why should the Government's plans to make this act a criminal offence be so controversial?

The intent of this legislation, details of which are to be announced today, is clear. It presumes that women who sell sex under the management of a pimp, in order to pay a dealer for the drugs they are addicted to, or because they have been trafficked, are vulnerable. It presumes that they are being exploited not just by the people who pimp them, supply them with drugs, or traffic them, but also by the people who make such activities profitable, by paying to avail themselves of such services.

Jacqui Smith, the Home Secretary, has made it clear that ignorance of a woman's circumstances will not be a defence, although she's more hazy about how any prosecutions may proceed. Who is going to testify that a man was "paying for sex with a person controlled for gain"? The person controlled for gain? Their drug dealer?

Smith's contention is modest. She believes that the mere threat of a criminal record will make men consider the possibility that a woman is taking part in a transaction because her choices are limited, or absent. If the legislation prompts even a small reduction in the number of men buying sex, says Smith, then it will be worthwhile.

For some, Smith's resort to "gender stereotypes" in her locutions is in itself questionable, testament to a prejudiced mindset that always sees women as victims and always sees men as predators. Not all of these critics can be classified as being anti-feminist. On the contrary, many people who would describe themselves as feminists argue that any law that seeks to limit or eradicate a woman's right to dominion over her own body, is wrong, whatever her motivations.

Vocal among this group are prostitutes themselves. The English Collective of Prostitutes (ECP) points out that prostitution is not itself an offence, and that any legislation that criminalises customers also targets their legitimate activity, not only by intimidating prospective clients, but also by burdening prostitute women with an unacknowledged assault on their privacy. Why should they feel obliged to reveal their motivations and business arrangements to clients?

Further, the ECP argues, even renting a room to a prostitute woman might be considered "control for gain". This suggests that only people who are entirely independent – self-employed and with no overheads payable to others – could operate without fear of criminalising their clients.

Which brings us neatly to the much-pored-over Belle de Jour scenario, in which, supposedly, an attractive and intelligent young middle-class women with no abusive background and no lack of choices in her life, sells sex simply because she loves it. She embodies the libertarian idea that the moralistic state is attacking her freedom to choose her profession, and limiting her economic choices, just because they are sexual prudes who do not approve of her.

Whether Belle de Jour is "real" or not – and I can't say I personally care – there are plenty of people who insist that her arguments are legitimate. A lot of the women who sell sex – or who sell other sexual services – reject the mantle of victimhood. They insist that it is they who are doing the exploiting, while their clients are the ones at the vulnerable end of the equation.

Does this plea for free-market individualism to be applied to the buying and selling of sex have any legitimacy? It does, to a degree, theoretically at least. What we think we know about prostitution is slightly distorted, because what we think we know is very much based on our knowledge of street prostitution.

It is from the streets that the most vulnerable women among prostitute women operate. Those with drug problems are most likely to work on the streets, because saunas or brothels or escort agencies are no more keen to employ chaotic drug users than any other business. The same goes for underage girls and people with mental health problems. The vast majority of prostitute women prefer work in more formal settings because they are safer.

Yet anyone who sells sex in any formal setting is being "controlled for gain". People may believe that they are making a distinction between the victims and the exploited by criminalising the "demand side" rather than the "supply side". But in reality, there is no way of doing this. Both sides of the bargain have to be illegal, or neither, just as is the case in selling or buying drugs, or stolen goods.

The Government, I think, wishes to introduce this legislation because it wants to say that prostitution is wrong, without saying, once again, that prostitutes are wrong. One can understand what motivates such an impulse. Not all hookers are happy, whatever the ECP or Belle de Jour might say. It is not civilised further to demonise those who feel they are trapped by circumstance into work that they hate, even though the demonisation of prostitution has served to provide a crude control over its practice for many centuries.

Is it more civilised to try demonising the users of prostitute women a little more, instead of continuing to heap disapprobation on them? At least it is a fresh approach. It is important to remember that men who use prostitute women are often damaged people too. Maybe it is time to emphasise to some of those who use prostitutes that they are not parading their manliness, but instead advertising their own inadequacy.

In the end, all of the arguments against this legislation are arguments in favour of prostitution. Like the majority of citizens, I am not in favour of prostitution, because I believe on balance that it is a social ill. So I find protests against the move difficult to support.

From my limited understanding of business, I do accept that there must be many more clients than prostitutes, or else the latter would not be making much of a living. Logic dictates that discouraging a percentage of clients is more efficient than discouraging a percentage of providers.

I cannot say that I am against the idea that some potential clients might be inspired by this legislation to think a bit about the conditions under which the women they pay for sex with might be working. I cannot see either why all those prostitute women who claim to be lucky enough to earn money in the way they do because they want to, should be defending so passionately the right of people to have sex with those who are not so free or so lucky.

d.orr@independent.co.uk