People over profit: why decriminalising prostitution doesn't work - CEASE / Centre to End All Sexual Exploitation

People over profit: why not decrim?

The arguments in favour of legalising (or decriminalising) prostitution seem compelling: surely this is a way of respecting a vulnerable women’s choice to earn a living in the sex trade, whilst using the full force of the law to ensure she’s as safe and well-supported as possible. Legalising and legitimising ‘sex work’, after all, would mean that ‘sex workers’ would be able to enjoy full occupational rights and protections, including legal access to social and health care. And in legitimising prostitution as a form of labour, people in the sex trade would also experience less stigma.

Combine this with the fact that numerous well-respected NGOs – including Amnesty International and Human Rights Watch support “decrim” as the best way to keep sex workers safe… and who are we to argue?

But there are many other governments, NGOs, organisations and sex trade survivors who would fiercely disagree. The debate over the best way to regulate prostitution rages all around the world. This is a vital thing to get right, because there’s a lot at stake. There are many thousands of vulnerable individuals for whom selling sex is an absolute last resort – and there are many thousands of vulnerable individuals for whom selling sex is an absolute last resort- not least because the sex trade is incredibly dangerous, bound up with exploitation, trafficking, violence and abuse.

One thing everyone agrees on: those who sell sex need to be protected by the law, not penalised by it. Making the sex trade safe is far from easy, but those who support decrim or legalisation generally see these things as the only real way of achieving safety for those involved. They assume that prostitution is inevitable.

Historically speaking, however, toe so-called ‘oldest profession’ has only tended to occur within civilisations and was largely absent from what we’d have once called ‘primitive’ societies and indiginous cultures. What’s more, the argument that prostitution is inevitable because of its ubiquity could equally be said of slavery; just because something has been a marked feature of human civilisation for millennia doesn’t mean we therefore have to regard it as immutable or acceptable.

Why not?

The question we have to ask ourselves is: are we OK with letting the most vulnerable people in our population sell their bodies for sex?

The answer to that question will be influenced by our understanding of what selling sex involves. If we understand it to be a business transaction like any other, as something that (though doubtless not ideal) is nonetheless a convenient way of making a living for those with limited life options, we might say the answer is yes.

However, if we understand prostitution as being inherently harmful – not just as something associated with prejudice, violence, exploitation and abuse, but also as something which causes profound invisible mental and emotional harm – we would say no.

There is, in fact, no way to ‘clean up’ the sex trade, since its harm lies in the fact that one person is reduced to a sexual object for the sexual gratification of another – and “[o]nce a person is turned into an object, exploitation and abuse [come to] seem almost reasonable.” ¹ The normal rules that govern our social interactions with others, including empathy and respect of sexual autonomy and personal boundaries, simply do not apply. Buying sex is an act of power and – as with slavery – the system of prostitution is predicated on, and perpetuated by, multiple layers of inequality.

“No one can meaningfully consent to sex when their human value has been reduced to their body’s capacity to sexually gratify someone else. Humans aren’t objects or tools, they are sentient beings with feelings and complex emotional needs. Treating sex like a transaction is inherently dehumanizing.”
Elizabeth Hungerford, US attorney ²

Decrim / legalisation in the real world

Ideological debate around the best way to govern prostitution is important. But of course it’s also important to assess how things play out in the real world, since policies can often look very different in theory than in practice. Numerous countries have already implemented policies of decrim / legalisation and, by taking these as case studies, we can better understand their (often unforeseen) consequences and implications:

The expansion of the sex trade

Legalisation results in sex trade expansion. This is due to a corresponding increase in demand from both growth in sex tourism and the normalisation of transactional sex locally. The number of prostitutes in Germany, for example, is thought to have doubled to 400,000 over the last 20 years.

The consequences of this include:

More opportunities for pimps: Prostitution is lucrative, but it’s rarely the prostituted who get rich. Having to cover various overheads, they usually end up taking only a meagre wage home with them. ³ Instead, pimps (who become ‘managers’ and ‘business entrepreneurs’ under a legalised regime) readily exploit the new labour market, often making a lot of money in the process.

Higher tax revenues / more money in the economy: Of course, as this money flows into the wider economy, prostitution can become an integral part of a country’s tourism. For example, in Germany, recent estimates indicate that the above-mentioned 400,000 women service 1.2 million men every day, generating €14.5 billion annually.

A ‘buyer’s market’: A bigger sex trade means more competition, driving up choice and driving down prices for punters. The market in places like Germany is dominated by ‘mega-brothels’ offering sex on an almost industrial scale. With so much choice, sex buyers get to set the price and demand special deals. If women don’t want to give men what they want, the men can simply go elsewhere.

More illegal / clandestine prostitution: It may seem counterintuitive, but legitimising the sex trade leads to a significant growth of illegal / clandestine prostitution. This is due to the ‘scale effect’, where the expansion of the sex trade outstrips the supply.

For example, over a period of 12 months from 1998-1999, unlicensed brothels in Victoria, Australia, tripled in number – and to this day still operate with impunity. And after legalization in the Netherlands, organised crime spiraled out of control. As legal academic Catharine McKinnon observes: “As the illegal market explodes, the governmental apparatus to address it erodes because the industry is decriminalized, no one sees any harm in it, and the illegal market intersects and overlaps the legal market.” ⁴

More trafficking: On average, countries with legalized prostitution report a greater incidence of human trafficking inflows. This has been documented in the Netherlands, Germany, Victoria in Australia, and elsewhere. ⁵ In fact, it’s a phenomenon that’s been verified by extensive research conducted in 150 countries across the globe. ⁶ As a business decision, it makes sense to sex traffic women and children where business is legal, since the risks to sellers are minimal and the potential profits are vast.

“We legalised prostitution in 2000. The idea was it was giving women their freedom and to get rid of the criminality. But we took it away from being linked to freedom and we linked it to human trafficking. The red light district is a dark place. It’s chilling, it’s humiliating… it’s just commercialised rape.” ⁷
Gert-Jan Segers, Dutch MP

More child prositution: The decriminalisation of prostitution also does little to tackle, reduce or outright end things such as trafficking and violence, and vulnerable demographics such as children are at particular risk. Legalising prostitution creates a buyer’s market – and men like to buy sex from young-looking women.

Instances of child prostitution tend to be higher where the sex trade is legal. For example, Victoria in Australia has the highest reported incidence of child prostitution compared with other states; the rate has increased dramatically, and there is increased evidence of organised commercial exploitation of children. In the Netherlands, at least 1,320 underage Dutch girls between the ages of 12 and 17 fall victim to sexual exploitation each year. ⁸

Prostitution tends to become more acceptable and normalised under legalisation, and thus it becomes ‘a more visible and viable option’ for vulnerable children. As sex trade survivor Rhiannon, herself from Victoria, explains, “…the women who went to work there were invariably the ‘troubled’ girls, the ones labelled ‘sluts’ at school, the ones with known histories of childhood sexual abuse or teenage rape, and the ones from dysfunctional families.” ⁹

Good intentions

Legalised / decriminalised regimes are clear about their commitment to improving ‘sex worker rights’. However, for various reasons, these systems often fail to achieve their objectives:

No improvement in working conditions

“One brothel owner told me it can be hard to make money, and for every woman unwilling to perform something risky (such as not insisting on the man using a condom), there’s another willing to try it…” ¹⁰
Michael Beretin, marketing manager for the Paradise brothel chain in Germany

Inevitably, market forces will impact how brothels function and what those selling sex end up having to do. Writer and campaigner Julie Bindel describes how, since the change in the law that decriminalised prostitution in New Zealand, ”brothel owners set prices for services, and customers demand kissing and unsafe practices…” Responsibility for regulating these practices falls on health officials, but a Freedom of Information Act inquiry revealed that, “aside from 12 that were conducted in 2003 in the first few weeks of the new legislation, only 11 inspections occurred across the whole of New Zealand until January 2015.” ¹¹

Where prostitution is legalised, law enforcement has less power and incentive to inspect and regulate brothels. What’s more, corruption or inefficiency can mean that even the inspections that do take place fail to detect exploitation. As a 2008 the Dutch National Police Service report notes: “In part, the legislation relies on the goodwill of brothel owners and buyers, often exploiters themselves, to prioritize reporting abuse over profit margins and personal sexual satisfaction… Prostitution buyers and brothel operators may choose to not report the abuse that they witness.” ¹²

In a review of its Prostitution Act, the German government concluded that it had “only to a limited degree achieved the goals intended by the legislator; that there had been little measurable improvement in working conditions of prostitutes and little improvement in the ability of prostitutes to exit the sex [trade].” ¹³

No increase in rights

The vast majority of people who work in the legal sex trade refuse to register with the government. In a 2007 evaluation of the impact of the legislation, the Dutch Ministry of Justice found that 95% of prostituted individuals remained “self-employed”, which meant they did not have access to the social security system.

In light of the fact that only one percent of ‘sex workers’ in Germany had signed a legal work contract and had worker rights, the government introduced new legislation to force the issue. This has led to “widespread panic”, with some women complaining that they “… feel ‘forcibly outed’ as prostitutes and that, rather than enjoying greater protection, they are more likely to be stigmatized, criminalized and forced further underground.” ¹⁴

No decrease in stigma

The normalisation of sex work does not seem to correspond to any reduction in stigma since it does nothing to change the abusive and misogynist attitudes of the sex buyers. Speaking about working in a legal brothel in Australia, sex trade survivor Jacqueline Gwynn says: “The women are still ostracised and marginalised, and most of them live a double life where they keep their life within the sex trade secret – to the extent that many cut themselves off from family and friends outside of the industry… The stigma exists because prostitution is degrading and no regulation can change that.” ¹⁵

No decrease in violence

“Since 2002, when prostitution was fully legalized in Germany, at least 56 prostitutes were murdered by clients or by persons from the milieu, and there have been at least 31 attempted murders. The countless other acts of violence (as well as murders / attempted murders in the private sector, out of jealousy etc.) have not even been taken into consideration.”¹⁶

Prostitution establishments do little to protect the women, whether or not they are legal. A 2018 study of prostituted women working legally in the Netherlands found:

93% reported being victims of social-emotional violence like bullying, privacy violations or stalking.
78% experienced sexual violence.
60% fell victim to physical violence, ranging from hair-pulling to aggravated assault.
58% said they faced financial-economic violence, ranging from customers stealing from them or refusing to pay, to being refused at banks or insurance companies because of their line of work. Only 20% reported these incidents to the police.

No increase in choice

Where prostitution is considered a legitimate career option, it makes less sense to invest in exiting strategies; after all, no such provision is made for other occupations.

The legal status of prostitution also makes it difficult for women to recognise the harms done to them through prostitution, as sex trade survivor Tanja Rahm describes: “…how are prostitutes ever able to open their eyes to the violent structure of prostitution when there is no social or political support for recognising prostitution as being violent and harmful?”

“Some of them want to use you
Some of them want to get used by you
Some of them want to abuse you
Some of them want to be abused.”
The Eurythmics, Sweet Dreams

There will always be a group suffering from economic hardship, limited life options or scars from previous abuse who are vulnerable to sexual exploitation – and there will always be a ready group of men willing to take full advantage. As a society, we have to ask: are we willing to facilitate and legitimise the unequal interaction between these two groups?