Decriminalizing sex work
The decriminalization of sex work is the removal of criminal penalties for sex work (specifically, prostitution). Sex work, the consensual provision of sexual services for money or goods, is criminalized in most countries. Decriminalization is distinct from legalization and regulation.
The decriminalization of sex work is a controversial topic. Advocates of decriminalization argue that removing the criminal sanctions surrounding sex work creates a safer environment for sex workers, and that it helps fight sex trafficking. Opponents of decriminalization argue that it will not prevent trafficking and could put sex workers at greater risk.
Organizations such as UNAIDS, WHO, Amnesty International, Human Rights Watch, UNFPA, and the medical journal The Lancet have called on states to decriminalize sex work in the global effort to tackle the HIV/AIDS epidemic and ensure sex workers' access to health services.
A European Parliament resolution adopted on 26 February 2014, regarding sexual exploitation and prostitution and its impact on gender equality states that, "decriminalising the sex industry in general and making procuring legal is not a solution to keeping vulnerable women and under-age females safe from violence and exploitation, but has the opposite effect and puts them in danger of a higher level of violence, while at the same time encouraging prostitution markets – and thus the number of women and under-age females suffering abuse – to grow."
In June 2003, New Zealand became the first country to decriminalize sex work, with the passage of the Prostitution Reform Act. The one remaining criminal law surrounding commercial sexual activities in New Zealand is a requirement to adopt safer sex practices. Despite decriminalisation the industry remains controversial, with some issues remaining.
Legal models of sex work
There are a wide variety of legal approaches to regulating prostitution. NGO's, academics, and government agencies typically use five different models to organize the different approaches.
In nations that employ a prohibitionist model, all aspects of prostitution are criminalized. Those who support prohibition often believe that the sex trade is a violation of moral or religious beliefs. This is also known as criminalization.
In nations that use an abolitionist approach, prostitution is legal, while third-party involvement is usually prohibited. Solicitation is also typically prohibited. Supporters of abolitionism often believe that although some sex workers may choose the career, the practice of sex work is morally wrong.
Neo-abolitionism, also called the Nordic or Swedish model, is used in Sweden, Norway, France and other countries. While selling sex is not criminalized under this approach, the buying of sex is illegal. Neo-abolitionists claim these models do not punish prostitutes, but instead penalize those who purchase sex from sex workers. This model is criticized for causing sex workers to do their business in areas with less police, which often makes it more dangerous.
Legalization is also referred to as "regulationist". In countries that legalize prostitution, it is no longer prohibited, and there is legislation to control and regulate it. The extent and type of legislation varies from country to country and may be regulated by work permits, licensing or tolerance zones.
Decriminalization is the removal of criminal penalties for sex work. In countries that decriminalize sex work, sex workers receive the same protection and recognition as workers in other industries.
Negative effects of criminalization
According to the World Health Organization (WHO), sex workers are considered one of the key populations at risk for HIV infection, and sex workers who inject drugs are at even more risk due to unprotected sex, syringe sharing, alcohol or drug dependence, and violence. Stigma, poverty, and exclusion from legal social services have increased their vulnerability to HIV infection. Health risks and transmission of HIV as well as other sexually transmitted infections (STIs) are increased in incidences where condom usage and accessibility is limited or used to identify and criminalize sex workers. Many sex workers are managed by 'gatekeepers' who may be brothel owners, clients, or law enforcement figures, who often dictate condom usage. In Cambodia, a survey showed that 30% of sex workers who refused to put on condoms were sexually coerced. Fear of law enforcement and incarceration also discourages possession of condoms since they provide evidence for officers to prosecute and arrest. Evidence suggests that HIV risk can be sharply reduced when sex workers are able to negotiate safer sex. Decriminalization of sex work decreases the risk of HIV infection by breaking down stigma and increasing access to health services, reducing the risk of HIV/AIDS and STIs.
Discrimination and stigma
Sex workers experience significant stigma and discrimination as a result of criminalization. Though they consider sex work a legitimate income-generating activity, sex workers are viewed as immoral, deserving of punishment, and thus excluded from healthcare, education, and housing. Criminalization laws exclude sex workers from health systems that provide access to preventative care such as condoms and regular HIV or STI testing.
Human rights abuses
Sex workers, as a population that suffers disproportionately from HIV/AIDS, are often denied many human rights such as the right to freedom from discrimination, equality before the law, the right to life, and the right to the highest attainable standard of health. A study conducted in more than 11 countries by Sex Workers' Rights Advocacy Network (SWAN) concluded that more than 200 sex workers have experienced violence and discrimination. These acts of violence toward sex workers often include abuse, rape, kidnappings, and sexual violence. Sex workers also face extortion and unlawful arrests and detention, which profoundly impact their mental, physical, and social wellbeing. It is difficult for sex workers to seek criminal justice when it is reported that many police officers are partaking in the sexual and violent abuse. In Macedonia, police violence towards sex workers is particularly high: 82.4 percent of sex workers were assaulted by police in 2007. Criminalization laws such as bans on buying, solicitation, and the general organization of sex work perpetuate an unsafe environment for sex workers, provide impunity for abusers, and prevent sex workers from reporting the crime to the police.
Decriminalization and criminalization
Canada's prostitution law was challenged in 2013 by Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott in the Bedford v. Canada case. The plaintiffs argued that the criminal laws disproportionately increased their risk of violence and victimization by preventing them from being able to employ safety strategies during the course of their work. In a 9-0 ruling, the Supreme Court of Canada determined that the communication provision, the bawdy house provision, and the living on the avails provision violated sex workers' rights to security of the persons. To give the Government of Canada time to respond, the declaration of invalidity was suspended for one year.
In 2014, the Government of Canada enacted the Protection of Communities and Exploited Persons Act (PCEPA). This legislation is modelled after the Nordic Model, and criminalizes buyers of sexual services as well as third-party supporters.
In 2016, the French federal government estimated that there were around 30,000 prostitutes in the country, and 93% of them were foreign. In April 2016, the French National Assembly passed a law that partially decriminalized sex work. While selling sex, loitering, and public soliciting by prostitutes is now legal, paying for sex carries a fine of around 1,500 euros. People found guilty of paying for sex may also have to complete an "awareness-raising course on the fight against the purchase of sexual acts".
The French government also attempted to fight prostitution by providing compensation to sex workers who wanted to leave the sex industry. However, although the government hoped to help 600 prostitutes by 2018, only 55 sex workers signed up for the program. Some sex workers argue that the monthly stipend, which is 330 euros, is not enough money to make ends meet.
The 2016 law has also resulted in increased violence against sex workers. Because of the heightened police presence, the sex work that does happen has been pushed off the streets and into areas with limited surveillance. This has created more dangerous conditions for prostitutes that continue to work. According to a survey conducted by the French NGO Médecins du Monde, 42% of percent of prostitutes in France say that they have been exposed to more violence since the law took effect in 2016.
In Denmark, prostitution was decriminalized in 1999, allowing for both selling and buying of sex to be legal as long as both participants are above the age of 18. Brothels and pimping, however, still remain illegal in the country. Previously, sex workers were permitted to work as long as it was not their only source of income.
Germany legalized sex work in 2002. The 2002 law mandated that sex workers register themselves and pay taxes. In return, their employers would have to provide benefits like health care and paid leave. In addition, customers of sex workers are not allowed to deny payment because they "aren't satisfied". After the law was put in place, the German sex industry boomed. According to 2005 estimates by the German federal government, there are about 400,000 women working in the German sex industry, and over 1.2 million men pay for their services every day.
The implementation of the law was flawed because of a lack of outreach and training. As a result, the law was interpreted differently in different cities. In Berlin, the law was interpreted in ways that are favorable to sex workers; in Cologne, a "pleasure tax" that only applies to sex work was imposed.
While this law was designed to protect the rights of individual sex workers and legitimize their occupation, it has instead resulted in massive, multi-story brothels and the invention of roadside "sex boxes".
Nevada, United States
Nevada is the only state in America where sex work is not illegal. There was no state law on prostitution in Nevada until 1971, when a section of the Nevada Revised Statutes effectively legalized prostitution in counties with a population of under 400,000.
In the mid-1970s, a man named Walter Plankinton attempted to open a brothel in Nye County, Nevada. County officials initially blocked him from opening the brothel (which he planned to call "Chicken Ranch"), citing a 1948 state law that called brothels a "nuisance". However, this law was later overturned by the Nevada Supreme Court in 1978.
In 1980, the Nevada Supreme Court officially legalized prostitution in counties with a population of under 400,000. However, prostitution outside of a "licensed house of prostitution" wasn't banned until 1987, when the Nevada Revised Statutes made it explicitly illegal.
Sex work in Nevada is regulated in 10 counties and 5 cities. Prostitutes are regulated by a "patchwork" of both state and local laws that address a number of different areas. Zoning laws in Nevada prohibit brothels from being located near a school, house of worship, or main road. Brothels are also barred from advertising on public roads or in districts where prostitution is illegal. Other existing regulations mandate STI testing before prostitutes are hired, and weekly testing once they are employed. Sex workers with HIV are also prohibited from working. Sex workers who continue to work after testing HIV-positive can be punished with two to ten years in prison or a $10,000 fine.
New South Wales, Australia
Laws covering sex work in Australia are state and territory based, with different regulations in different places. New South Wales decriminalised sex work in 1995, after the Wood Royal Commission into Police Corruption showed that police were inappropriate regulators of the sex industry. A governmental review in 2016 resulted in continuing support of decriminalisation of sex work "as the best way of protecting sex workers and maintaining a more transparent sex work industry".
New Zealand became the first country to decriminalize prostitution in June 2003 with the passage of the Prostitution Reform Act. The purpose of this law was to "decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use); create a framework to safeguard the human rights of sex workers and protect them from exploitation; promote the welfare and occupational health and safety of sex workers; contribute to public health; and prohibit the use of prostitution of persons under 18 years of age." The PRA also established a certification regime for brothel operators".
Catherine Healy, the national coordinator of the New Zealand Prostitutes Collective (NZPC), who was part of the driving force for the original 2003 law, in an interview twelve years later, had "detected a marked change in police-sex worker relations after passage of the PRA. 'After decriminalization that dynamic shifted dramatically, and importantly the focus on the sex worker wasn't on the sex worker as a criminal. It was on the rights, safety, health and well being of the sex worker.'" Further, "sex workers in New Zealand are beginning to assert their rights now that the stigma associated with sex work has begun to decrease" as demonstrated by a sex worker successfully prosecuting a brothel owner for sexual harassment by her employer.
Sweden partially decriminalized sex work in 1999 with the passing of an abolitionist law. While selling sex is legal, buying sex is not. Since the implementation of the law, supporters of this approach have claimed the number of prostitutes has decreased. However, this may just be a result of the increased police surveillance, as many sex workers are leaving the streets and turning instead to other spaces, including the internet.
Pye Jakobsson, a spokeswoman for the Rose Alliance and a representation for sex workers, believes that this reduction in numbers may not necessarily mean less prostitution. Jakobsson claims that "you can't talk about protecting sex workers as well as saying the law is good, because it's driving prostitution and trafficking underground, which reduces social services' access to victims."
The Swedish example is often cited as a form of partial criminalization, rather than decriminalization, since the purchasing of sex remains a crime. Both the Swedish government and sex workers agree that this model has increased stigma against sex workers. However, the Swedish government views this as a positive outcome, arguing that sending a message about sex work is more important.
Sex workers have reported a number of human rights violations as a direct result of these laws, including the deportation of sex workers, increased evictions, increased vulnerability to homelessness, and high rates of discrimination from authorities. This partial-decriminalization has also led to sex workers being used as witnesses by the police in cases that they did not want to be a part of. In addition, because police oftentimes use used condoms as evidence in these cases, condom use has gone down among Swedish sex workers and customers.
- Bodily integrity
- Prostitution law
- Sex workers' rights
- Sex-positive feminism
- Sex-positive movement
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