Unless linked otherwise, all data can be found in our paper, which can be read for free HERE
Last week we published our new law reform policy paper, In Defence of Abolition: A Human Rights Law Critique of the Global Sex Trade. It comes in the wake of a recent European Court of Human Rights case that has been brought against France for their implementation of a “Nordic Model” style approach to prostitution in the country. The case argues that the French law is a violation of Article 2 (Right to Life), Article 3 (Freedom from Inhuman and Degrading Treatment and Torture), and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights.
In our law reform paper, we argue the opposite: that by not implementing a “Nordic Model” style legislative framework, the UK is in breach of its positive obligation to prevent Inhuman and Degrading Treatment (IDT) and torture under Article 3 of the ECHR.
For those who may be unfamiliar with the European Convention on Human Rights (ECHR), it is an international treaty that imposes binding legal obligations on signatory States. Article 1 obliges each State to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. Certain rights are qualified, meaning the State can interfere with them in certain circumstances. Others, such as Article 3, are absolute, meaning they cannot be interfered with and are entirely non-derogable (i.e. its infringement is never justifiable). There are no circumstances in which a State can permit torture or IDT, or facilitate it.
But the obligation under Article 3 (Freedom from IDT and Torture) goes further. Article 3 imposes positive and negative obligations on States, with the latter best defined as an obligation not to interfere with a Convention right. Applying this to Article 3, this simply means the State must refrain from committing torture or IDT. A positive obligation differs in the sense that the State must actively take steps to protect the Convention right(s) in question. In short, the State undertakes action (as opposed to the negative obligation of inaction) to protect a right.
But how does this apply to prostitution? There are particular types of behaviour that might constitute IDT (and possibly even torture) – those being, physical abuse/violence, and rape/sexual assault. Within our paper, this behaviour is conceptualised as a “violation of sexual autonomy” if it occurs within prostitution. This builds on the landmark European Court of Human Rights case of M.C. v Bulgaria, where it was held that the State is indeed under a positive obligation under Article 3 (and Article 8) to have a legislative framework that deters and punishes violations of sexual autonomy.
By comparing and analysing decades of research spanning numerous different regions, our paper argues that prostitution as a system is overwhelmingly comprised of this type of behaviour by those who purchase sexual access, meted out onto individuals (overwhelmingly women) within prostitution. Therefore, the UK – as a signatory State to the ECHR – is under the positive obligation to take active steps to combat physical abuse, violence, rape and sexual assault within prostitution.
We compare the three most prominent legal approaches to prostitution, namely: legalisation (Germany), decriminalisation (New Zealand), and the Nordic Model (Sweden), and the effect of these approaches on protecting sexual autonomy and the safety of those within prostitution. Both decriminalisation and legalisation act in similar ways – by removing the majority of legal sanctions from both those within prostitution AND those who purchase sexual access. The Nordic Model differs in the latter regard, by criminalising those who purchase sexual access, whilst decriminalising those within prostitution.
The results are stark. The data from Germany demonstrates that the legalised prostitution “market” has exploded in size, and this is predominantly comprised of individuals who have either a) been trafficked into the system of prostitution; and/or b) subsequently experience treatment such as rape, physical violence, and abuse that would otherwise constitute a violation of sexual autonomy. Similarly, the data from New Zealand highlights a similar – although not precisely the same – effect on the prostitution market. The normalisation of prostitution in both regions has made it much easier for criminality, abuse, and exploitation to thrive, on both a financial level for profiteers, but also on a normative level for those who wish to enact physical violence on those within prostitution. In other words, prostitution is a vicious cycle which encourages men to degrade and violate the women within it because they are allowed to purchase sexual access.
The data from Sweden, however, demonstrates that not only did the prostitution market decrease in size upon the introduction of the Nordic Model, but that typically attitudes also began to shift in terms of how men viewed those within prostitution: not as objects to be bought, but as individuals who lacked any other options. In short, it provided the best way to tackle violations of sexual autonomy which, as mentioned, fall under the State’s positive Article 3 ECHR obligation.
The Nordic Model is by no means a silver bullet, however. The Swedish approach was not without flaws; for example it led to a more punitive attitude towards immigrants and individuals who may have been subjected to trafficking. It is vital this is addressed.
What’s more, no approach can make prostitution comprehensively “safe”. It is our position – and indeed this is reflected in the data – that prostitution is fundamentally unsafe and almost incomprehensibly violent. However, we maintain the position that the Swedish approach – of criminalising those who purchase sexual access whilst decriminalising those within prostitution – is the most effective way of combating the grave human rights abuse that is the system of prostitution.
The UK has declared its intention to be a world leader in the fight against sexual exploiters and human traffickers – and the Modern Slavery Act 2015 goes some way in putting this bold claim into practice – but we must go further. It is time we recognise the harm and danger that is inherent within prostitution, and that as a system of exploitation it must be consigned to history. The human rights of millions of women, children, and men depend on it.