The Case for the Decriminalisation of Sex Work

On the 26th of May, 2016, one of the largest human rights organisations in the world released a 17-page policy draft, calling unequivocally for the decriminalisation of sex work and the protection of sex workers’ rights. This prompted a severe and immediate reaction from a host of celebrities, including Meryl Streep and Kate Right, and various women’s rights groups condemning Amnesty’s proposed policy draft (“‘Fame-seeking’ celebrities at war with Amnesty over legalising prostitution”, 2017). Sex work, as well as the legal status and rights of sex workers has and continues to be a deeply contentious issue, inspiring fierce debate from liberals and conservatives all across the globe.

Sex work is often conflated with sex trafficking. Author and activist Melissa Ditmore (2017) writes that trafficking “involves coercion or trickery or both”, while sex work refers to a profession open to all genders in which a person “offer(s) sexual services in exchange for money” (para 2-4). Sex and human trafficking is an odious and reprehensible problem, but it is a separate one from the issues which non-coerced sex workers face in their work. Another important distinction to make is that between decriminalisation and legalisation. In proposing major legislative change to policy regarding sex work, there are two main schools of thought, namely decriminalisation and legalisation. Activists and experts on the global sex industry generally favour the former, and there are two main reasons for this. Firstly, major organisations involved in the documentation and research of  the global sex industry, such as the WHO, Lancet, and UNAIDS, have all recommended decriminalisation rather than legalisation. Secondly, in some countries where legalisation is practiced, such as Sweden, sex work is legalised while the purchase of or soliciting sex work is criminalised. This is unfair to law-abiding and civil clients who choose to purchase sex, and hurts the earnings of sex workers who operate in such countries.

Globally, the number of sex workers is estimated at 42 million (Lubin, 2017). In the U.S, the number of men who have solicited the services of sex workers is estimated to be around 20%. In countries like Thailand and Cambodia, that estimate rises to 70-80% (ProCon.org., 2011). It is clear from these statistics that sex work, whether sold or solicited, affects a sizeable portion of the global population. However, despite the wide reach and effects of the sex industry, policy and public understanding regarding sex work has largely been stagnant. In most of the world, sex work is still criminalised (“Country Reports on Human Rights Practices 2007”, 2017), and the protection of sex workers’ human rights is still abysmal.

According to the Gap Report by UNAIDS (2014), sex workers are 12 times more likely to contract HIV/AIDS (p. 1-2), and face high levels of work-related violence, both from clients and from law enforcement officials (p. 5-7). Discrimination against sex workers is also a cultural, patriarchal burden placed on sex workers globally, and can lead to violence, stigma, feelings of worthlessness, and the dehumanisation of sex workers. A fact that most people fail to note is that sex workers are human beings as well, and deserve to live a life with dignity, protection of their human rights, and the freedom to work in a safe environment. One of largest and most impactful ways of improving the situation of sex workers all around the world is through policy; UNAIDS classifies criminalisation as the second most pressing reason for why sex workers are being “left behind” (p. 2). This is why organisations such as UNAIDS, The Lancet, the WHO, and Amnesty International have called for the decriminalisation of sex work. Therefore, I propose that Sex Work should be decriminalised because it reduces the spread of HIV/AIDS, reduces violence against sex workers, and economically empowers sex workers.

The first reason why sex work should be decriminalised is possible also the most counterintuitive one in that it reduces the spread of HIV/AIDS. This typically sounds implausible because it seems as though decriminalising sex work would lead to an influx of sex workers who are statistically very much more likely to contract or have contracted HIV/AIDS, thus increasing the spread of HIV/AIDS. This reasoning is both simplistic and reductive, as it assumes that sex workers do not have the interests of their own sexual health or job sustainability in mind. Research has shown instead that sex workers are far more likely to contract HIV/AIDS because they’re criminal legal status forces them underground, thus leaving them outside the view of sexual health outreach services which are available (Pauw & Brener, 2003, p. 465,474); thus greatly impeding successful HIV public intervention practices, no matter the size, strength, or funding of the campaign.

Scamell also points out that Criminalisation harms sex workers by excluding them from providing policy makers with formal input because of their illegal status (as cited in, Mgbako et al., 2011). As it has been shown, sex workers play a pivotal role in the fight against the spread of HIV/AIDS. Because of the criminal legal nature put onto sex workers by criminalisation, sex workers are left out of the process of shaping law, public policy, and healthcare intervention programmes about the sex industry, despite being the very demographic most entrenched in the industry. This leaves policy makers with a massive gap in the information available to them when drafting policy.

A major benefit of the decriminalisation of sex work is that it reduces violence against sex workers. Sex workers are particularly vulnerable to physical and emotional violence because of stigma and their status as criminalised persons. The violence directed at sex workers is exacerbated because of the fact that they are denied the basic human right of access to justice. Because of the criminal nature of sex workers under criminalisation, sex workers are not able to report instances of violence and abuse against them, since they will themselves be arrested for being sex workers. An extension of this point is in the domestic abuse, both physical and emotional, which sex workers are forced to endure. Criminalisation causes sex workers to face the threat of being outed to the authorities by their domestic partners due to their illegal status (Sohal, & James-Hanman, 2013). The threat of being arrested by being outed by a domestic partner often keeps sex workers trapped in a cycle of domestic violence.

Two major sources of violence against sex workers are law-enforcement and clients. These two sources form a vicious cycle of violence as criminalisation leads to police-violence against sex workers which is positively correlated to client-violence against sex workers (Bhattacharjya, Fulu & Murthy, 2015). When law enforcement officials are seen abusing, mistreating, or committing violence against sex workers, clients no longer feel that they risk arrest should they choose to commit acts of violence against sex workers. This thus empowers them to abuse or mistreat sex workers. As mentioned above, when sex workers experience violence from the police or from clients, they are unable to report these crimes to the police because of their criminalised nature, thus perpetuating the cycle of violence against sex workers.

Another benefit of decriminalisation is that it economically empowers sex workers, thus allowing them to demand fair and equitable working conditions, and to gain the economic standing or skills necessary to leave sex work. An example of how decriminalisation empowers sex workers to negotiate better pay, benefits, conditions and duties can be seen when in 2003, New Zealand voted to decriminalise sex work, a move which was accompanied by peripheral policies aimed at protecting the labour and safety rights of sex workers. These laws directly secured sex workers a number of labour rights and work-related benefits. Furthermore, because sex workers were no longer classified as illegal or forced to operate under the radar or under exploitative pimps, sex workers gained bargaining power in the sex industry having been granted access to justice and full legal rights (Childs et al., 2006, p.89).

Decriminalisation of sex work would also make it easier for economic empowerment interventions to reach sex workers. In 2010, the ILO (International Labour Organisation) began offering Community-based Enterprise Development training to sex workers. The programmes were aimed to hone the business skills and entrepreneurial prowess of sex workers in Bangkok (International Labour Organisation, 2010). Decriminalisation would allow programmes like these to equip sex workers with the skills necessary to leave the sex industry and provide sex workers with more employment options, with which they could “widen their choices about how they best want to shape their lives and their futures”.

Despite the benefits of the decriminalisation of sex work, the notion still sees many opponents from both ends of the political spectrum – from sex worker exclusionary radical feminists (SWERFs) to traditional conservatives – who believe sex work should be criminalised because it is bad for sex workers. Some critics cite that criminalisation is necessary because sex work is an “inherently violent, degrading activity that derives from the exploitation and oppression of women” (Maloney, 2006, p. 8). This view posits that sex work is by nature a profession which puts sex workers in danger and causes them accept exploitation, whether this be by pimps or managers, and should thus be disallowed. This argument is often expanded upon by critics who cite that sex workers are more likely to experience rape, sexual assault, and physical violence (Farley, 2004). All of these factors make sex work a dangerous job which should be therefore be removed from a person’s available career choices.

The problem with this contention is that it only demonstrates that more needs to be done to protect sex workers, not that sex work should therefore be criminalised. While it would be impossible to say that sex work is not a risky and dangerous job, there are many other professions which carry with them high levels of risk and danger; these include professions such as military service or mining. It would be absurd to suggest that because professions like military service or mining are innately dangerous they should therefore be criminalised. Just like sex work, individuals who choose to take up these professions do so with the acknowledgement of the risk associated with the profession. Rather than outlaw professions which carry with them an element of risk, it would be far more productive to investigate the ways in which we can draft policy that would protect and empower individuals against the risks inherent in these professions. In a study done by the University of Otago, it was found that since New Zealand decriminalised sex work, sex workers were more able to refuse clients, were treated better by law enforcement, and had better access to health services (Abel, Fitzgerald & Brunton, 2007, pp. 112-129). If the concerns of anti-decriminalisation critics are truly those of the welfare of sex workers, and not those seeking to protect preexisting socio-moral norms, then New Zealand’s success in its implementation of decriminalisation demonstrates that the welfare of sex workers can be best protected via decriminalisation rather than criminalisation.

In sum, sex work should be decriminalised because it reduces the spread of HIV/AIDS, reduces violence against sex workers, and economically empowers sex workers. The spread of HIV/AIDS among key affected populations of sex workers is exacerbated by criminalisation, which isolates sex workers, thus pushing them outside the view of sexual health outreach services which are available, and prevents sex workers from providing policy makers with formal input because of their illegal status. Criminalisation increases violence against sex workers by removing their access to justice, trapping them in cycles of domestic violence, and by removing the threat of retaliation by sex workers to law enforcement and clients who commit acts of violence against them. Decriminalisation economically empowers sex workers by giving them full labour rights which allows them to negotiate better and safer working conditions, as well as by allowing sex workers to access economic empowerment and training programmes. The benefits of decriminalisation are not merely postulated or theoretical; from 2003 till today New Zealand has operated with a fully decriminalised legal approach to sex work, with many other countries considering and debating the motion of decriminalisation. The positive effects of decriminalising and protecting sex workers is beginning to be studied in countries which have instituted sex worker protective policies such as New Zealand, France, Sweden, and Holland. For these reasons, I hope that governments around the world will strongly consider the research in favour of the decriminalisation of sex work, and work to craft law and policy which will protect one of society’s most disenfranchised and abused sectors.

The global sex workers rights movement is cited to have its beginnings in the Red Umbrella March. Staged in 2001 in Vienna, the protest saw 1500 sex workers march down the streets of Vienna demanding better working conditions and access to justice for sex workers. It has been 16 years since the landmark protest, and while change has been slow, there have been some hopeful signs.

 

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References

Abel, G., Fitzgerald, L., & Brunton, C. (2007). The impact of the Prostitution Reform Act on the health and safety practices of sex workers: Report to the Prostitution Law Review Committee. Christchurch, N.Z.: University of Otago, Dept. of Public Health and General Practice.

Bhattacharjya, M., Fulu, E. and Murthy, L. with Seshu, M.S., Cabassi, J. & Vallejo-Mestres, M. (2015). The right(s) evidence – Sex work, violence and HIV in Asia: A multi-country qualitative study. Bangkok: UNFPA, UNDP and APNSW (CASAM).

Country Reports on Human Rights Practices 2007. (2017). State.gov. Retrieved 9 April 2017, from https://www.state.gov/j/drl/rls/hrrpt/2008/index.html

Farley, M. (2004). “Bad for the body, bad for the heart”: Prostitution Harms Women Even if legalized or decriminalized. Violence Against Women, 10(10), 1095-1095. doi 10.1177/1077801204268607

‘Fame-seeking’ celebrities at war with Amnesty over legalizing prostitution. (2017). RT International. Retrieved 7 April 2017, from https://www.rt.com/uk/311078-sex-worker- celebrity-amnesty/

International Labour Organisation. (2010). Reaching out to sex workers and their clients. Retrieved from http://www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@ilo_aids/ documents/genericdocument/wcms_185717.pdf

Lubin, G. (2017). There Are 42 Million Prostitutes In The World, And Here’s Where They Live. Business Insider. Retrieved 8 April 2017, from http://www.businessinsider.com/there- are-42-million-prostitutes-in-the-world-and-heres-where-they-live-2012-1? IR=T&r=US&IR=T

Maloney, J. (2006). The challenge of change: a study of Canada’s criminal prostitution laws: report of the Standing Committee on Justice and Human Rights ; report of the Subcommittee on Solicitation Laws. Ottawa: House of Commons.

Pauw, I., & Brener, L. (2003). ‘You are just whores—you can’t be raped’: barriers to safer sex practices among women street sex workers in Cape Town. Culture, Health & Sexuality, 5(6), 465, 474. http://dx.doi.org10.1080/136910501185198

ProCon.org. (2011, January 6). Percentage of men (by Country) who paid for sex at least once: The Johns Chart. Retrieved from http://prostitution.procon.org/view.resource.php?resourceID=004119

Mgbako, C., Bass, K., Bundra, E., Jamil, M., Keys, J., & Melkus, L. (2011). The Case for Decriminalization of Sex Work in South Africa. Georgetown Journal Of International Law, 44, 1430. Retrieved from https://www.law.georgetown.edu/academics/law-journals/gjil/ recent/upload/zsx00413001423.PDF

Sex work, trafficking: Understanding the difference – Rewire. (2017). Rewire. Retrieved 9 April 2017, retrieved from https://rewire.news/article/2008/05/06/sex-work-trafficking- understanding- difference/

Sohal, A., & James-Hanman, D. (2013). Responding to intimate partner and sexual violence against women. BMJ, 346(jun20 4), 16-17, 36-40. http://dx.doi.org/10.1136/bmj.f3100

UNAIDS,. (2014). Sex Workers (p. 1). Geneva: UNAIDS. Retrieved from http://www.unaids.org/ sites/default/files/media_asset/06_Sexworkers.pdf

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