Freedom Growing For Sex Workers Around the World... Not So Much In the U.S.
Sex work is a particularly taboo topic in American society. The exchange of sexual services for money or goods remains illegal in all American states except Nevada, where brothels are licensed in some areas. In most U.S. jurisdictions, prostitution or solicitation is a punishable offense accounting for 62,760 arrests annually in 2010, according to recent Bureau of Justice statistics. Advocacy groups contend that the government invests some $11.4 million per year into police resources solely to round up sex workers, forcing many in the industry to work undercover to avoid prosecution.
While efforts such as Proposition K to legalize sex worker rights in the United States have certainly been vocal, all moves for decriminalization have thus far been defeated by strong campaigning from government officials who believe legalizing sex work would hinder law enforcement’s ability to curb sex trafficking. This tendency to conflate legitimate sex work with human trafficking has been the greatest hurdle to reaching consensus on how best to address the issue, provoking strong debate within the feminist movement.
On one side are the outspoken sex worker advocates who don’t seem to acknowledge the plight of those forced into trafficking as legitimate victims, instead depicting all sex work as a meaningful and enjoyable profession. On the flip side are women’s rights and anti-trafficking organizations increasingly intent on branding all people who engage in the sale of sex as victims, inflating sex trafficking statistics and refusing to believe sex workers have agency over their work and bodies. All prostitution, they believe, constitutes violence against women.
Clearly, both views are skewed and hinder policy development in the United States, as the divide between the agent-versus-victim sex worker classification intensifies. In response, the government has attempted to address the issue by imposing punitive measures on those who buy sex services through FBI sting operations and “John schools,” where men arrested for solicitation pay a fine and/or take a class to learn about the harmful consequences of their actions.
Legislation such as the Trafficking Protections Victims Act (TPVA) has been enacted, but it's aimed primarily at ending sex trafficking rather than recognizing sex work as a legitimate occupation or that those that who engage in sex work should be afforded basic labor protections including health and safety. These laws have only expanded the state’s police powers further perpetuating the myth that sex work is a “universally victimizing activity,” according to Carisa Showden, co-author of Negotiating Sex Work.
Such efforts have also had the unintended consequence of placing sex workers at greater risk of violence, forcing them to operate in clandestine locations as well as increasing criminal penalties like arbitrary arrests for failing to comply with law enforcement. Such restrictions also deter sex workers from carrying condoms, exposing them to disease and pregnancy for fear that condom possession may be used by police as evidence of prostitution. “In essence, if a woman doesn't fit the stereotype of an innocent girl forced into prostitution, she becomes a criminal,” Showden writes.
While this victimization paradigm of sex worker laws in the United States undoubtedly falls short of representing the needs and rights of sex workers, the question remains whether decriminalization or legalization is more effective in guaranteeing protections for sex industry workers. Some 50 countries around the world have now legalized sex work, including all of Central America and the entire continent of South America (minus three nations), while pimping remains illegal, thus encouraging the agency of sex workers in most of these nations. Virtually all of Western Europe has legalized sex work to varying degrees, which even extends to pimping and brothels in some countries. Such measures inevitably raise pros and cons and present their own unique challenges. Here's how other nations around the globe handle the scope of sex worker rights.
The Swedish model introduced in 1999 has been both commended and criticized for its “feminist abolitionism” stance on sex work aimed at ending demand by punishing traffickers, pimps and the purchase of sex, rather than the sex worker. Political leaders take the view that patriarchal society allows men to buy sexual services from women, and so banning the purchase of sexual services is in line with the idea of gender equality with sex work considered a form of violence against women.
While the laws have undeniably had a positive effect on reducing human trafficking and have almost wiped out street prostitution, sex workers says the result of the law has been to push sex work underground, making working conditions more dangerous as workers are forced to go to more isolated locations increasing the risk of violence.
The laws also fail to take into account the concept that sex workers have agency over their own work as a form of labor and want to improve their rights as workers, rather than have them eradicated. Such laws send a strong message that all women are victims, angering those in the industry who willingly chose the occupation.
In Finland, feminist policy makers pushed for similar bans to the Swedish model, but ultimately rejected its implementation on the basis it was too restrictive. Instead sex workers were able to successfully argue that individuals can make decisions regarding their own bodies and rights without state interference. This resulted in a partial ban on sex work under Finnish law where sex work is legal per se, but selling or purchasing sex in a public place is illegal. In addition, buying sex from a person who is trafficked or pimped is prohibited.
Finland’s partial ban seems to strike a better balance between the agent-versus-victim dichotomy and has since been adopted in France, England and Wales. Yet, increasing pressure from other Nordic countries has seen Finnish Justice Minister Anna-Maja Henriksson recently vow to tighten the current regime, despite the fact that recent efforts to extend the ban were defeated and opposed by sex worker groups.
Iceland and Norway have both adopted the Swedish model, but the Norwegians have taken it one step further by granting police even wider powers to stamp out sex work by prohibiting Norwegian citizens from purchasing sexual services abroad. Ireland is considering adopting the Swedish model.
The Netherlands has been heralded as a successful legalization of sex work because of its harm reduction techniques and economic rights promotions that have emerged in the country after recognizing sex work as a registered occupation. The Dutch sex industry is regulated by labor and employment law, which has implemented zoning laws, mandatory health checks for sex workers, registration and licensing requirements and brothel occupational health and safety inspections.
The brothel ban lift in 1999 allowed cities to impose standards on the off-street trade, removing the need for safe parks where street-based prostitution was previously tolerated. Increased access to health and police resources aimed at protecting sex workers doubled the number of prostitutes registering for tax purposes.
Today, Showden explains the municipalities are responsible for issuing licenses and conducting brothel inspections to ensure quality standard working conditions for sex workers are met, such as running hot and cold water, fire escapes, condom provision and the protection of sex workers' physical and mental integrity, prohibiting under-age workers and those without a valid residence permit.
The system isn’t without its glitches. Some sex workers cannot achieve the same social rights as others, such as migrants or non-citizens who are not able to legally work and have been forced underground. Those from outside the European Union also cannot obtain work permits, fueling a misperception that Dutch girls are liberated, modern sex workers while women from elsewhere are victims of trafficking. Such a system illustrates that legalization alone isn’t always capable of covering the scope of the rights of all in the industry.
New Zealand has acknowledged sex worker rights through decriminalization, rather than legalization, by removing all sex work-specific laws from the criminal law in a bid to meet harm minimization and economic and civil rights. Sex work is no longer a crime in New Zealand, thanks to the Prostitution Reform Act in 2003 which decriminalized sex work in the country after extensive research was conducted with male and female sex workers including input from the New Zealand Prostitutes Collective, a group supporting the rights of sex workers.
The law wanted to construct an image of sex workers as professionals practicing safe sex “rather than disease vectors” arguing criminalization of sex work puts public health at risk because it enables violations of sex workers' rights, mistreatment and exploitation which can extend to massage parlors. Further research revealed sex workers had high levels of sexually transmitted disease awareness but similiar to American sex workers were discouraged from using condoms due to pressure from clients, pimps and police harassment.
Decriminalization was thus recognized by the New Zealand Crime and Justice Centre Research Center as a way of “avoiding the two-tier reality of legal and illegal operations” causing the latter to operate underground. Under employment and public health law, sex work is legal for citizens over 18 years of age, owners of brothels must have an Operator’s Certificate and there are no laws against living off the “avails of prostitution” i.e. pimping. The "citizen rule" was implemented to alleviate government concerns that unfettered access would result in an increase in human trafficking. The system has been considered a success in minimizing harm to sex workers.
Australia is often cited as a success story for its efforts to legalize sex work and has attempted to acknowledge sex worker rights through a system of mixed regulatory schemes. From complete decriminalization in some states to licensing and regulation of legal brothels in others, Australia is constantly reviewing its prostitution laws with sex workers considered to be service providers who can even file “unfair dismissal” employment claims and have the right to receive pay, AlterNet reported.
In two states, prostitution is not illegal but most related activities are, such as living on the earnings of another’s prostitution, soliciting, and keeping a brothel. In five states brothels or escort agencies are legalized and regulated but public soliciting like street-based work is prohibited. In New South Wales, brothels are decriminalized but street-based work is not. In certain states where brothels are more heavily regulated, the courts have upheld basic legal protections for sex workers: landlords are not allowed to refuse to rent to them and banks are not allowed to refuse credit due to the nature of their work.
Regulated brothels have to respect workers' health and safety, providing safe-sex equipment such as condoms, and workers are heavily regulated and must be tested regularly for diseases. Pimping is also legal and non-sex workers are allowed to manage licensed brothels and benefit economically from prostitution.
Collective sex worker organizations are also very vocal, such as the Scarlett Alliance Australian Sex Workers Association representing sex worker rights across the country. The system isn’t without fault: obtaining brothel permits can be tough with the consolidation and corporatization of brothels making it hard to set up shop legally due to limiting zoning and building brothel permits which increases competition.
What’s more, opportunities for work can be tough, particularly when the size of brothels are limited by permits such as in Queensland, where no more than eight sex workers can work at any one time, thus restricting the ability for some people to obtain work legally. Nevertheless, the laws are definitely some of the most progressive in terms of recognizing sex worker rights.
Last year, Canada had a major victory with the Supreme Court striking down all anti-prostitution laws in a landmark decision finding the laws violated the Canada Constitution by infringing on the guarantee to life and liberty by depriving sex workers of their security of person.
The court held that the laws against keeping a brothel, living on the avails of prostitution, and street soliciting imposed “dangerous conditions on prostitution" and "prevent people engaged in a risky, but legal activity from taking steps to protect themselves from the risks." Parliament now has one year to redraft new legislation with the hope of reshaping government policy on the subject, although in recent weeks it appears to have ruled out legalization or decriminalizing sex work altogether.
Instead, Canada is considering its own version of the Swedish model with Justice Minister Peter Mackay declaring this month that the bill is looking to find the “right balance,” most likely targeting pimps and johns while leaving sex workers free of prosecution, National Post reported.
Sex work is legal in Brazil and in fact across the entire continent of South America except for three countries, while pimping and running a business involving sex workers remains illegal, thus actually encouraging the agency of sex workers in this part of the world. In reality, such illegal ventures are frequently overlooked by law enforcement.
The problem with Brazil’s sex industry is that sex work is completely unregulated, so there are no mandatory health checks and under-age prostitution us very common. What’s more, sex workers are marginalized and are susceptible to police corruption and violence, which prevents them from reporting crimes. UN AIDS believes prostitution laws in Brazil contribute to the stigma around such work, which places them at greater risk of HIV infection.
Yet, sex workers in Brazil stand strong and argue their profession is unlike any other. They shrug off labels such as "victim," which they say just disempowers them. Last year, sex workers launched a campaign, “Without Shame to Use Condoms” which was initially approved by the Ministry of Health blaring the words, “I’m happy being a prostitute” before evangelical groups demobilized the campaign and it was canceled. The move was seen as major slap in the face for the Brazilian sex industry, which is bowing to increasing pressure to “sanitize the country’s image” in the leadup to the World Cup.
While policy programs claim to protect victims of sex trafficking, according to Gregor Gall's Negotiating Sex Work, Brazil’s sex law criminalizes victims, undermines labor protections with anti-trafficking organizations constructing women not as sex workers but as “dangerous subjects in need of state surveillance.”
In Germany, unlike most other Western European countries, sex work, brothels and pimping are all legal. Germany’s sex work industry is largely unregulated and is considered to have some of the most liberalized laws in the world. Legalizing prostitution was a move intended to offer sex workers greater protection from violence and exploitation with brothels now registered businesses that can require liquor and food licensing. Sex workers also pay income taxes and charge a value added tax (VAT) for their services with legal contracts between sex worker clients able to be established. The government withholds a portion of their earnings to pay pension and health insurance and to guarantee a 40-hour workweek.
Since the change in the laws, the number of working sex workers has just about doubled, now estimated at 400,000 in Germany—many of them many foreigners from Eastern Europe—1.2 million customers are said to use their services daily. While advocates say German’s sex work industry is booming and has been beneficial in terms of taxation, such loose laws have led to fears of an increase in human trafficking and exploitation in worker contracts because of the holes in the legislation. Despite access to healthcare benefits and other rights, many sex workers often have to share their income with brothel owners and other parties so are reluctant to pay taxes.
Still, sex workers in Germany believe normalizing sex work is a better way to address the issue than the abolitionist approach adopted by the Scandinavians and other western European countries like France, Spain, Austria and Portugal where sex work is legal while pimping and brothels are not.
No Perfect Model
Decriminalization and legalization in countries like the Netherlands, New Zealand and Australia show that it is possible for a nation to acknowledge sex worker agency through governmental policy amid a broader political agenda preoccupied with ending human trafficking. Of course, no system is faultless. While sex worker rights for citizens has undoubtedly improved in countries that have legalized or decriminalized sex work, those without citizenship or who wish to work on the streets face even harsher criminal penalties and are subject to tougher work conditions and greater competition.
Unionization, which has often been seen as a way to promote labor rights for sex workers is fraught with difficulties in terms of responding to the specific needs of sex workers. As Gall explains in Negotiating Sex Work, the sex industry still by and large exists on the “margins of legality” and thus those within it do not have the same occupational control over their work as those who work in other structured labor markets like the food industry. While we continue to fight for the civil, political and human rights of sex workers in governmental policy across the globe, it is important that the economic interests of sex workers are not left out of the process.
To find out the legal status of sex work by country, check out the Chart.