How Different Legislative Approaches Impact Sex-Workers


Prostitution is a stigmatized societal issue from which contentious debate has always flowed. The lack of consistency in international approaches to prostitution speaks to its controversial nature. The practice is associated with the transmission of sexual diseases, human trafficking, and a variety of criminal activity. Globally, there are over 42 million prostitutes. With 80% of prostitutes identifying as female, prostitution is predominantly treated as a gendered issue.

The discourse around prostitution has organized itself into two perspectives; some argue that prostitution is exploitative, and others believe prostitution is legitimate work and should be recognized as such. The latter stance is taken by liberal feminists, who contend that prostitution is empowering work, which can be beneficial to both women and men under consensual circumstances. Radical feminists affirm the contrary, concluding that prostitution is a medium that reinforces violence against women.

The United Nations 1979 Convention on the Elimination of All Forms of Discrimination against Women more closely reassembles the argument of radical feminists, imploring states to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” Overtime, UN Women has embraced a more liberal perspective towards prostitution, adopting the terminology “sex work” rather than prostitution. However, the organization maintains the exploitative connotation of the profession and holds its neutrality on the issue, calling neither for decriminalization nor legalization of prostitution/sex work. This disaccord within UN Women is reflected in international legislation, with countries enacting a variation of three approaches to control prostitution; criminalization, legalization, and decriminalization.

Criminalization 

Criminalization makes prostitution illegal subject to provisions of a national Criminal Code. The goal of criminalization is to reduce the accessibility of prostitution by prohibiting the activity of some or all parties involved in the trade. Criminalization can be divided into three sub-categories; “prohibitionism”, abolitionism, and neo-abolitionism.

First, prohibitionism eliminates all forms of prostitution through criminal law and law enforcement. Under this approach, prostitution is seen as a degrading profession that opposes the fundamentals of human dignity. Prohibitionism has been embraced by the majority of states in the USA, as well as countries in the Middle East.

Second, abolitionism aims to limit prostitution by penalizing all related activities, such as pimping, brothel-keeping, and procuring, as opposed to prostitution. This method demands the ban on public solicitation, recognizing the negative social impact of openly practising the profession.

Third, similar to abolitionism, is neo-abolitionism or the Nordic/Swedish model. The neo-abolitionist approach deviates from abolitionism by criminalizing the purchase of sex services. The logic behind neo-abolitionism is to decrease the demand for prostitution by targeting the client. This model has been adopted in places such as Martinique, Belize, Canada, Iceland, Northern Ireland and Ireland and supposes that reducing the demand for sex work will limit the supply of sex services. Still, a drop in demand sometimes pressures women to lower their prices or to seek the help of third parties to acquire a larger clientele. Also, under this model, the clientele of a prostitute is reduced to people who are willing to break the law, which can occasion high-risk or violent encounters between the buyer and seller.

Ultimately, criminalization hopes that the fear of arrest will deter people from entering and participating in the industry. However, there is little evidence to affirm the efficacy of the three criminalization approaches. In many cases, criminalizing prostitution creates more problems than it solves. Under the prohibitionist and abolitionist models, when women are charged with prostitution or crimes relating to prostitution, they are often fined or arrested. Instead of acting as mediums of prevention, a penalty by fine or arrest can further promote prostitution. In most instances, when burdened with a fine, women continue to prostitute themselves to pay off the fine and when charged with an offence, a criminal record jeopardizes future employability, which forces women to remain in the industry.

Criminalizing prostitution also makes women susceptible to mistreatment by law enforcers. In Cambodia, for example, police officers have used the law on the Suppression of Human Trafficking and Sexual Exploitation to exploit and abuse sex workers. Police officers often use the prohibition of “solicitation” as an excuse to publicly harass and assault prostitutes. In some cases, sex workers have been forced to pay bribes to avoid arrest or have been raped by officers after being detained.

Legalization 

Legalization considers prostitution a legal profession only under state-specified circumstances. Prostitutes are only permitted to sell sex services under regulations governed by labour law, criminal law, and other legislation. Typical regulations include mandatory health checks, work permits, and adhering to licensing/tolerance zones. Legalization has been adopted in places such as the Netherlands, Germany, Austria, Greece, Turkey, Senegal, the USA state of Nevada, and some Australian states.

Legalization has not, however, been immune to scrutiny. In the Netherlands, prostitution is legal, but the government imposes stringent regulations on the industry, such as controls on brothels, mandatory registration, and background checks on owners and operators. Under Dutch law, brothels must adhere to health and safety regulations. Many have criticized that these costly requirements have put individual and small operations out of business and allowed large brothels to monopolize the industry. Although regulation benefits sex workers of Dutch nationality, who can comply with registration requirements, those who cannot – mostly immigrants or women in precarious situations- must work illegally, and as a consequence, find themselves more exposed to the risks of sex work.

Decriminalization 

Decriminalization treats prostitution as a legal profession, repealing all laws that criminalize prostitution and other aspects of the trade. The primary distinction between legalization and decriminalization is the absence of regulations and laws tailored for prostitution. Like workers specializing in other business sectors, prostitutes must comply with standard rules and laws; for example, they are required to pay taxes. The goal of decriminalization is to stop sex work from going underground by affording prostitutes the same rights as other workers. Decriminalization has been implemented in places such as New Zealand, Cape Verde, and in other Australian states.

Many sex workers have praised New Zealand’s approach to sex work, in particular, believing their laws grant the profession the legitimacy it deserves. In 2003, New Zealand introduced the Prostitution Reform Act, which, amongst other provisions, allows women to work in groups for greater security and requires licences from any third-party operators. Since its enactment, 60% of sex workers felt more empowered to refuse clients, and 95% felt that their rights were better protected.

However, many believe that decriminalization should not be recognized as a universal approach, asserting that it propagates Western values of prostitution. Although women in New Zealand have found greater protection under decriminalization, they are not representative of the entire sex worker population. In developing countries, where women are socially disadvantaged and forced to turn to prostitution out of desperation, decriminalization may only exacerbate gender inequalities and limit the economic potential of women.

In March of 2020, the UN will hold the annual conference of the Commission on the Status of Women, followed by two Generation Equality forums, held in Mexico City in May and Paris in July. UN Women has been forming an advisory panel to lead policy debate in 2020. With 15% of panel applications coming from the United States, there is already concern that the panel will be unrepresentative of the global uneasiness surrounding prostitution. To promote gender equality, future discussions surrounding this issue must focus on granting more rights to sex workers and be tempered with concerns of providing equal economic opportunities to women.