The conversation on decriminalising sex work is entering the mainstream. In 2019, New York and Washington DC both saw their legislative agendas focus on this issue.
Presidential hopefuls in the United States of America were questioned on the topic, and both Bernie Sanders and Elizabeth Warren expressed support for some form of decriminalisation. Both current presidential nominees – Joe Biden and Donald Trump - have been accused of sexual misconduct, making the question of decriminalising sex work even more pertinent in the upcoming presidential debates. This is because the occupational hazards of sex work - namely violence and exploitation - find their origins in the same socially embedded male-centric power disparities which arguably enable the current nominees.
As the topic begins to enter popular discourse, it is crucial to address two key questions: what is wrong with the criminalisation of sex work, and what are the alternatives to it?
WHAT IS WRONG WITH CRIMINALISATION?
The criminalisation of sex work promotes increased levels of violence against sex workers. A survey completed in 2003 found that of 850 sex workers interviewed from across nine countries, 71% had experienced physical assault. This is often because many fail to report crimes committed against them for fear of legal repercussion, which then fosters a sense of impunity within their clientele. This is especially dangerous because buyers often assume that, beyond purchasing sex, they are buying ownership over a sex worker’s body. Criminalising sex work also hinder workers from advocating for basic employment rights, such as access to healthcare, due to the fear of legal repercussion as well as the stigma associated with sex work.
WHAT ARE THE ALTERNATIVES TO CRIMINALISATION?
There are three possible legal frameworks which could replace criminalisation; decriminalisation, the Nordic Model (a.k.a partial decriminalisation), and legalisation.
1. Decriminalisation
Decriminalisation removes the laws specific to sex work, and the general laws governing employment and business become the applicable legislation. New Zealand is currently the only state which has fully decriminalised sex work with the Prostitution Reform Act 2003. It should be noted that whilst the illicit nature of sex work makes statistics difficult to ascertain, it is estimated that the number of sex workers in New Zealand has not increased since decriminalisation, and approximately 90% of sex workers reported that decriminalisation granted them more employment rights.
There is the lingering concern that decriminalising sex work increases demand for it, and that a lack of voluntary sex workers to meet this demand may cause a rise in sex trafficking. Sex trafficking is a major human rights violation. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) recognises the severity of the issue, and imposes numerous obligations on its signatory states to prevent human trafficking. While the New Zealand Police Department noted that buyers concerned about trafficking would be less likely to contact them if there were legal repercussions for doing so, one could argue that an increase in trafficking would mitigate that benefit.
2. The Nordic Model (partial decriminalisation)
Detractors of decriminalisation argue that without a market for sex work, sex trafficking would decrease, a criticism which has catalysed the rise of the Nordic Model. This model aims to erode the market by ensuring that while sex workers face no legal repercussions for their work, the purchase of sex is prohibited. The European Union (EU) favours this model, issuing a non-binding resolution in 2014 that all EU countries should reduce the demand for sex work by punishing buyers.
The Nordic Model seeks to provide the necessary resources for sex workers to exit the industry, such as legal advice, counselling and housing. By criminalising the purchase of sex, the model also offers an avenue for sex workers to secure justice for any abuse suffered. Figures released in the United Kingdom in 2019 showed that of the approximately 60,000 rape allegations made that year, only 3.3% resulted in successful prosecutions. Prosecuting abusive clients for buying sex could be an alternate avenue for legal redress.
The motive to eradicate the market stems from the idea that sex work is inherently harmful. The merits of that assumption will not be considered here. However, through this premise, the Nordic Model perpetuates the stigma associated with sex work. If purchasing sex is illegal, sex workers will be forced to operate covertly in order to maintain business, which could threaten their safety. Moreover, the model increases the aforementioned risk that buyers will not report trafficking concerns for fear of prosecution.
3. Legalisation
Under a legalisation framework, both buying and selling sex are legal, but only under specific conditions; licenses may be needed and limitations may be imposed as to where sex work can take place. Whilst this may make sex work safer for some, it poses significant risks for others. Regulation increases the control which managers have over the workers, due to bureaucratic requirements and the reduction in areas where sex workers can legitimately operate. Undocumented sex workers will also be forced to work underground, further jeopardising their safety.
IS THERE A SOLUTION?
Whichever side of the debate you fall on, all of these models would improve the overall safety and access to rights of sex workers, when compared to their situation under a framework of criminalisation.
Perhaps the biggest oversight made on this issue, is that all of these models are cures for the problems of sex work, when the focus should primarily be on prevention. Sex workers are often comprised from those most vulnerable to society’s structural inequalities; issues of race, sex, class and sexual orientation can often inform the choices, or lack thereof, of sex workers. A study conducted by academics at The University of Bristol found that of the sex workers interviewed, most were doing the job to make ends meet. The primary question that Joe Biden and Donald Trump should be asked, therefore, is how they plan to restructure the socio-economic environment to ensure that society’s most vulnerable do not have to resort to the commodification of their bodies in order to survive.
Bethany is a law student with a keen interest in human rights, especially as relating to women and intersectionality. Having just completed her law degree at the University of Bristol, she will begin the LPC in September before embarking on a training contract in late 2021.