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Chapter 1. The development of a definition
A key issue for the Working Group was the definition of adult entertainment. Sorting out a working definition had to be our first priority so that we could commission the public consultation exercise and related research.
We started off with this;
" Live sexual entertainment services with an intention to sexually titillate and/or that a reasonable person, acting reasonably, would assume that there was such an intention."
That was good enough to get us on track but we continued to discuss and debate the definition at each AEWG meeting. We wanted to find a definition that uses the simplest and most unambiguous terms possible. It is often difficult to provide a clear and easily applicable definition that meets these criteria. However it is important to try to define adult entertainment in terms which include those areas that we concluded need regulation (such as lap dancing), while excluding those that do not (such as artistic theatrical performances and private sexual behaviours).
It has been suggested that regulations licensing the commercial sale of sexual material in sex shops have included loopholes which allowed those regulations to be subverted too easily. A sex shop, for example, is defined as any premises…. which consists to a significant degree of selling, hiring….sex articles. Since it is for each Local Authority to interpret the words 'which consists to a significant degree' we find that a particular chain of 'sex shops' requires a licence in one area but not in another even where the stock on sale is identical in both areas . We wanted to take great care with terminology to prevent similar kinds of loopholes evolving within our definition. We have tried, so far as possible, to anticipate any ambiguities in formulating a definition of the area we think should be regulated.
We developed our recommendations about definitions and terminology based on the evidence gathered by the Group. In reaching a decision about whether or not regulations on adult entertainment should focus only on commercial transactions, we took into account some of the findings from our visits to adult entertainment venues. For example in one venue in Edinburgh, there was no charge for entry at the door of the bar, and there were free dances performed by fully naked women on top of the bar. The prices of drinks were similar to other non-adult entertainment venues in the area. Therefore, any definition that regulates only adult entertainment which is performed for money (or money's worth) would not regulate this kind of activity. For this reason we have omitted from our definition the requirement that there be a commercial element to the performance.
The kinds of activity that would be covered by a definition which referred to performances for financial reward could, however, include private dances in booths. Only one of the 12 adult entertainment venues visited by the group did not have private or semi-private booths. Since it is claimed that adult entertainment is a form of public entertainment, the AEWG took the view that "private" spaces within public bars or clubs are inappropriate. In effect, this would mean firstly that any adult entertainment performance in a public bar or club would be governed by adult entertainment regulations, and secondly that a condition of a licence for adult entertainment purposes would be that there would be no wholly private booths or spaces for performance.
So how did the definition of adult entertainment develop since its very early incarnation in the Public Consultation? We looked at other, existing definitions that might apply because of our concern at the lack of cohesion that exists. The one that best met our purpose is in The Protection of Children and Prevention of Sexual Offences Act, and we used part of Section 3(b).
The final definition
The definition that we recommend for the purposes of licensing of adult entertainment is:
" The performance in a public place of any activity that a reasonable person would, in all the circumstances, consider to be for the purpose of providing sexual gratification and/or titillation."
We need to explain the language we use and the terms performance, public, and gratification/titillation are discussed below.
a. Performance
An initial point to note is that we chose not to position the word "live" before performance. This is because the Group thought that this would too narrowly restrict the activities covered by the definition. Live is often defined in opposition to a recording, as in the Copyright, Design and Patents Act 1988 1. Adult entertainment venues which recorded an earlier performance of a lap dance or strip tease in order to show it to customers at a later time would not be required to obtain an adult entertainment licence.
There is scarce legal guidance on the meaning of live or performance. The Copyright, Design and Patents Act 1988 section 180(2) defines performance as:
(a) a dramatic performance (which includes dance and mime),
(b) a musical performance,
(c) a reading or recitation of a literary work, or
(d) a performance of a variety act or any similar presentation.
Section 19(2) of the same act goes on to elaborate that
In this Part "performance" in relation to a work -
(a) includes delivery in the case of lectures, addresses, speeches and sermons, and
(b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.
It would appear from this provision that should a similar definition of performance be used in the adult entertainment context, Section 19 2(b) could cover the presentation of a recording of a performance of dance previously performed. What is clear though is that an adult entertainment performance could fall under this generic list of types of performance.
However, it is also possible that a wide interpretation of the word performance would include artistic representations and dramatic performances: so far as the Group is concerned, this would not be the desired or intended outcome. We have, therefore, included the terms "for the purpose of providing sexual gratification and/or titillation" which, as discussed below, should exclude these artistic performances.
b. In a public place
i. Public space: Scottish criminal cases and legislation have tried to define "public" in relation to sexual behaviour. For example the Civic Government (Scotland) Act 1982 Section 133 has defined public as being: "any place, whether a thoroughfare or not, to which the public have unrestricted access, including doorways and entrances abutting on any "public place" and common closes, passages, stairways etc." Section 46 of the Act (soliciting for the purposes of prostitution) subsection 2 says that this includes: "(a) any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and (b) any public conveyance other than a taxi or hire car…". In addition, the 1902 Licensing Act governs licensing for "Any place to which the public have access whether on payment or otherwise".
Under the Civic Government (Scotland) Act 1982, section 41, a "place of public entertainment" excludes an establishment licensed under the Theatres Act 1968 or the Cinematograph Act 1909. It is assumed that our definition will also exclude such spaces on the understanding that they are regulated separately.
Although it seems that the majority of premises that offer adult entertainment are licensed to serve alcohol, there are apparently a number of other kinds of adult entertainment provision, such as mobile performers, usually managed through agencies, offering entertainment in non-licensed premises, for example in limousines. These performances would not be covered by regulations that were solely tied to alcohol licensing. Our recommendations, which are aimed at adult entertainment which happens in public, would also need to cover this kind of entertainment provision if it occurs in public.
ii. Vehicles: With regard to vehicles, the guidance to local authorities in England and Wales on the Licensing Act 2003 suggests the following:
"It should also be noted that the provision of any entertainment or entertainment facilities on premises consisting of or forming part of any vehicle while it is in motion and not permanently or temporarily parked is not to be regarded as a regulated entertainment for the purposes of the 2003 Act. For example, a band performing on a moving float in a parade would not require a premises licence if performances only take place while the vehicle is in motion" (para 5.63).
Thus adult entertainment in a moving vehicle in England and Wales would not be covered by the 2003 Act. We recommend that Scotland should regulate adult entertainment in moving vehicles.
iii. Pubs: Pubs and clubs have been held by the Scottish courts to be public places (see for example Lockhart v Stephen 1987 SCCR 642). However stripping in pubs has not been seen as public indecency, the court in Lockhart v Stephen saying that such conduct is not intended to "deprave and corrupt". Whether the place in question is a public place involves an assessment not of "whether the conduct occurred in a public place in any technical sense" but of whether (even if it occurred on private premises) it was visible to the public ( Webster v Dominic 2003 S.L.T. 975).
In the guidance to local authorities on the new English and Welsh legislation on licensing (the Licensing Act 2003), "Entertainment at a private event to which the public are not admitted becomes regulated entertainment, and therefore licensable, only if it is provided for consideration and with a view to profit" (para 5.16).
This would presumably cover adult entertainment at private clubs. However the guidance does go on to say - "Accordingly, a mere charge to those attending a private event to cover the costs of the entertainment, and for no other purpose, would not make the entertainment licensable as this would not be with a view to profit. The fact that a profit might inadvertently be made would be irrelevant as long as there had not been an intention to make a profit" (paragraph 5.16). This presents a possible loophole where private clubs could provide adult entertainment, unregulated.
In Scotland, until now, private members clubs have not been included within the term "public" but under the new proposed licensing legislation, this will no longer be the case. Public will then include private clubs, thus foreclosing a potential loophole that adult entertainment would simply relocate to "private" clubs.
c. Gratification/titillation
Adult Entertainment referred to in the guidance on the English and Welsh 2003 Licensing Act seems to mean entertainment with a sexual content, e.g. para 7.51. However this would at first glance include artistic representations of sexual matters, say for example a dance performance involving nudity or a play about a lap performer. We note that the performance in question has to have as its purpose sexual gratification or titillation (titillation connoting a rather less fulfilled sexual reward). Since artistic representations do not have sexual gratification or titillation as their primary goal, this would exclude such performances from the scope of our definition. We gather that the public understands the difference and note that there were, for example, no complaints about a dance performance in Edinburgh that depicted a lap performer. The Scottish Arts Council report that there have been examples of lobbying by pressure groups in relation to artistic performances, but on the grounds of religious offence rather than sexual or indecency grounds.
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