Protecting Sex Workers: A Case for Decriminalizing Prostitution

In the fight to eliminate prostitution entirely, prostitutes become collateral damage.

No job on earth ignites a fury of heated discussion, impassioned stances, and extreme polarization quite like prostitution. For thousands of years, the so-called “oldest profession” has inspired innumerable debates on morality, sexuality, individual liberty, and the rights of women, pitting traditionalists against progressives, abolitionists against autonomists, and even feminists against other feminists. The International Labor Organization (ILO) estimates there to be 40 million sex workers worldwide, over 99 percent of whom are women (ILO, 2016). While the act of, and moral philosophies behind, prostitution remain widely debated, a worldwide consensus exists regarding the need to combat rampant abuses and dangers resulting from a career in prostitution. Whether one sees all sex workers as victims of abuse and exploitation, or one believes prostitution to be just another expression of female autonomy and personal liberty, advocates and State legislators on every side of the discussion proclaim their philosophies, moral reasonings, and legal models to be in the best interests of the sex workers themselves. While the United States (excluding Nevada) and Saudi Arabia criminalize both the buying and selling of sex, other countries such as Sweden and Canada have adopted what has been more commonly referred to as the Nordic model, lifting legal punishments for the seller but criminalizing the buyer. Countries such as Germany and the Netherlands opt for a legalized approach, and since the implementation of the Prostitution Reform Act in 2003 (PRA), New Zealand remains the only country to decriminalize both the buying as well as the selling of sex. Compelling and thought-provoking arguments exist in favor of each legal model, with objectives ranging from upholding traditional values to championing the rights of women. Still, the question remains, which policy proves most effective for protecting sex workers? A consensus among a large group of human rights organizations and NGOs around the world has emerged favoring full decriminalization of consensual adult sex work. This group includes Amnesty International, Global Alliance Against Traffic in Women, Global Commission on HIV and the Law, Human Rights Watch, UNAIDS, the UN Special Rapporteur on the Right to Health, and World Health Organization (WHO). Although advocates for criminalization, the Nordic model, and full legalization all emphasize a dire necessity to fortify the vulnerable and marginalized sex work community, all of these models punish, and even endanger, the very sex workers they purport to protect. The abolitionist approach of criminalizing sex work manifests in abuse, harsh stigma, and societal victim-blaming from both within and outside the criminal justice system. The Nordic model, often touted as the neo-abolitionist and more progressive approach, still inadvertently penalizes sex workers by continuing to criminalize buyers and therefore illegalizing half of a sex worker’s labor transaction. Full legalization, while a favorable approach to threatening sex workers with criminal punishment, also leaves many prostitutes vulnerable and unprotected when unable to meet strict government standards and criteria for attaining labor licenses. Full decriminalization by no means implies a complete deregulation of sex work; rather, the approach eliminates all laws which intervene with consensual adult prostitution related actives, unless other laws apply. Decriminalization may not be a perfect solution, but it proves the most effective to achieve the highest goal: protecting sex workers.

If one considers protecting the safety and well-being of prostitutes the principal objective of sex work legislation, criminalization proves the least effective model with the most horrendous consequences. Abolitionists in favor of full criminalization often cite the undeniable exploitations and dangers of sex work when advocating to ban prostitution outright, and the disturbing statistics on prostitution make these arguments difficult to dispute. An estimated 70 to 95 percent of sex workers have been assaulted, 60 to 75 percent have been raped, and at some point, 75 percent were homeless (Farley, 2003). Studies have also shown 67 percent of prostitutes suffer from PTSD, at an alarming rate comparable to war veterans (NMN, 2020). Alongside psychological trauma and feelings of self-hate, sex workers also remain at a greatly heightened risk for contracting HIV and other STDs (Paying the Price, 2004). Religious and moral traditionalists, as well as many feminists, reference these damning statistics to justify criminalization. Still, a blaring and perplexing hypocrisy permeates this line of reasoning: why criminalize, demonize, and imprison those you proclaim as victims? Sex workers are criminals in the eyes of the law, thus resulting in their fear of police and authorities. Fear of punishment and imprisonment further endangers sex workers by preventing them from reporting instances of abuse and violence. Reports from Amnesty International show a trend of sex workers being evicted from their homes or deported as a result of engaging with the police, forcing them into solitary silence. Violent buyers wield more power over sex workers in the absence of any substantial fear of police involvement, and for sex workers who muster the courage to report abuses, claims are often dismissed and pushed aside by antiquated notions of how prostitutes cannot be raped or sexually assaulted (Debating Sex Work, 2019). Sex workers are also statistically targeted at higher rates of prosecution than their buyer counterparts and have also been shown to have a more difficult time making bail and retaining strong legal counsel. Data from the United States Bureau of Justice Statistics from 2012 (the most recent year for available data) reports a total of 56,575 arrests for “prostitution and commercialized vice.” From this number, 18,610 were male, and 37,965 were female. Previous data reported from 2010 also shows how out of 62,670 arrests, 19,480 were male and 43,190 were female. Given that almost all sex workers are women and almost all buyers are men, this data shows a clear selective persecution of targeting workers over buyers. Having a criminal conviction on their record creates major barriers for prostitutes seeking to exit the profession and endangers those who stay by making the process of finding safe living conditions more difficult (LSBU, 2012).

Some abolitionists, perhaps disheartened by the harrowing reality of full criminalization and its subsequent effect on sex workers, may find the Nordic model (criminalizing buyers, not sellers) to be a perfect compromise. Unfortunately, in the quest to abolish prostitution outright, active sex workers still inadvertently fall prey to further victimization and harmful societal stigma under the Nordic model. Inarguably, removing the threat of prosecution for selling sex proves a large step in a positive direction, and the Nordic model should be lauded for the high number of counseling programs and rehabilitative organizations helping sex workers leave the profession. Advocates for the model cite promising statistics of sharply declining prostitution rates as a measure for success, particularly in Sweden where the law was enacted in 1999. Reports show that 12.5 percent of men solicited prostitutes before the implementation of the law, whereas in 2014, only 7.7 percent of men purchased sexual services (Murphy, 2014). Implementing the Nordic model in countries such as Canada, Sweden, and Norway undeniably resulted in lowering rates of prostitution, but how well does the “end-demand” solution protect active sex workers? Though prostitutes face no direct threat of legal punishment, one half of their work transaction continues to be criminalized. This results in further stigmatization as well as a hinderance on financial prospects for an already socio-economically compromised group (Debating Sex Work, 2019). As stated by the English Collective of Prostitutes, a ‘demand-based’ approach, “blames clients instead of putting the responsibility onto governments to address these [economic] injustices” (ECOP, 2019). Providing housing and renting property for sex work is illegal under the Nordic model, resulting in more prostitutes being forced to work outdoors and in more dangerous conditions (Adams, 2014). As with full criminalization, the Nordic model also isolates and instills a fear of authorities in sex workers. In Norway, a 2012 study showed only 16 percent of sex workers interviewed asked for help from authorities after a violent incident. The fear of buyers getting caught results in hurried transactions and leaves less opportunity to negotiate condom use and other necessary protections. As one sex worker told Amnesty International, “If a customer is bad, you need to manage it yourself to the end. You only call the police if you think you’re going to die. If you call the police, you risk losing everything” (Amnesty International, 2016). Criminalizing buyers may seem warranted when reading the alarming studies exposing the personality profiles of those who purchase sex. Many reports cite a strong correlation between buying sex and committing rape (Heilman et al., 2014), less ability for empathy (Grijalva et al., 2015, Wheeler et al., 2002), and a pattern of dehumanizing women (Greitemeyer et al., 2012). While punishing buyers appears justified in theory, the statistics tell a different story. One study from GAATW suggests that men who see prostitution as just another sector of work are less likely to be violent (Miren, 2015), and according to a research study by the University of Southern California, the reports of STDs and assault declined at an astonishing rate after Rhode Island decriminalized prostitution for seven years, beginning in 2003. Criminalizing half of a sexual transaction under the Nordic model inevitably leads to less safe conditions for both parties involved and more danger for sex workers before and after the sexual transaction is complete.

That said, the most compelling argument in favor of the Nordic model or full criminalization comes from the commonly cited study performed by the London School of Economics and Political Science (LSE), showing how decriminalizing sex work leads to an increase in trafficking. One hundred and forty seven signatories in the UN General Assembly declared in the 2000 Palermo Protocol, “the trafficking of persons, particularly women and children, for forced and exploitative labour, including for sexual exploitation, is one of the most egregious violations of human rights that the United Nations now confronts” (UNGA, 2000), and these words resonate as much today as twenty years ago. While even the Nordic model’s greatest critics cannot dispute the existence of sex trafficking within the realm of prostitution, many believe the findings of this well cited study (and others like it) to be flawed due to a lack of differentiation between human trafficking and sex trafficking. While the ILO estimates approximately 40 million people currently suffer from some form of trafficking, the estimated 3.8 million victims of sex trafficking comprises a very small portion of this statistic (ILO, 2017). Amnesty International declares, “sex work (which must be between adults and consensual in order to be considered sex work) is distinct from human trafficking. The conflation of human trafficking with sex work can result in broad and over-reaching initiatives that seek to eradicate all commercial sex as a means to end trafficking, such approaches work in practice to violate sex workers’ human rights” (Amnesty International, 2016). The statistics on sex trafficking remain difficult to evaluate due to the underground and secretive nature of the sex business, and as debates surrounding the LSE study escalate, conflicting studies with alternate findings also continue to emerge. Eurostat’s latest report, for example, states the German per-capita rate of trafficking between 2010 and 2012 (when prostitution was legalized) was lower than that of Sweden under the Nordic model. However, even if one assumes a correlation between legalized prostitution and an increase in sex trafficking exists, these results would hardly seem surprising. The very real and justifiable fear of punishment for engaging in sex work undoubtedly prevents victims from coming forward and reporting abuses to proper authorities, and a decrease in legal restrictions can mean an increase in reporting. This pertains even more so to migrants, trafficked victims, and those living in a country illegally. “Traffickers take advantage of the illegality of commercial sex work and migration, and are able to exert an undue amount of power and control…In such cases, it is the laws that prevent legal commercial sex work and immigration that form the major obstacles” (Kempadoo, 1998). Rather than being the root cause of trafficking, as many abolitionists claim, it appears the prohibition of sex work attracts crime and creates more need for sex worker protections, protections that criminalized prostitutes may be too afraid to seek (Murray, 1998). Shining a light into the dark areas of prostitution, as uncomfortable a process as this may be, allows sex workers to build relationships with those authorities responsible for protecting them. The Nordic model may provide an effective means for preventing future prostitution and assisting those who wish to leave the profession, but in the fight to eliminate prostitution entirely, prostitutes become collateral damage.

If so many terrible consequences arise out of criminalization and even partial criminalization, why not opt for a fully legalized approach instead of decriminalizing? While the governmental regulation of prostitution has many benefits including (but not limited to) greater access to protections from the government, stronger relationships with police, and regularly mandated STD checks, legalized prostitution also comes with harmful side effects, some of which deeply impact the most marginalized groups of sex workers. For example, when Holland legalized prostitution in 2000, only 1,000 of the country’s estimated 30,000 prostitutes met the criteria to obtain a legal license, leaving many sex workers fearing punishment for not fulfilling the requirements (Cruz et. all, 2010). Obtaining licenses can also be extremely expensive, preventing low income and vulnerable workers from being able to comply with regulations, and further isolating those suffering from economic hardship by forcing them to work illegally and in more dangerous areas. Even if and when qualifications are met, sex workers are required to register with the government, and the threat of societal humiliation may drive those who fear losing their privacy or anonymity to perform sex work illegally. In Nevada, the only state in the U.S. where prostitution is legalized, brothels have exclusive rights to employ sex workers. Transgendered individuals and men, for whom the demand is significantly lower than female sex workers, are less likely to find employment in brothels, resulting in these minority groups being forced to work illegally (Awaken Reno, 2018). Still, legalization comes with many benefits for sex workers who qualify for employment. According to recent studies, licensed brothels, “offer the safest environment available for women to sell consensual sex acts for money,” (Brents, 2005), and the Netherland Ministry of Justice reported how, “the vast majority of workers in Dutch brothels, clubs, and window units often or always feel safe” (Weitzer, 2007). Research has shown prostitutes have more confidence in the police and are far more likely to ask for help and report abusive behavior when prostitution is legalized (Understanding Sex Industry Rights, 2020). Sadly, these luxuries are only afforded to a small group of the overall sex work population. For the many sex workers who do not qualify or cannot afford to work legally, the same fears of criminal punishment still apply under full legalization. Decriminalization, on the other hand, provides a larger populous of sex workers access to resources and protections under the law.

So how exactly does decriminalization protect sex workers more effectively than the competing legal approaches? Decriminalization alleviates the fear of coming forward and reporting abuses to authorities, thereby opening communication and creating trust between prostitutes and the police. Without the threat of criminal prosecution, sex workers will no longer be subjected to cruel, unfair, and dangerous treatment under the criminal justice system, an institution which time and time again has failed sex workers by prosecuting them at astronomically higher rates than buyers and diminishing their chances for future employment opportunities outside of sex work with criminal records. Decriminalization has also been shown to dramatically reduce the prevalence of STDs and HIV (Hong, 2014), and sex workers possess more power to properly negotiate safer sex without the looming risk of being caught (Krüsi et. all, 2012). This approach also assists in dispelling toxic stereotypes and stigmas surrounding sex work, preventing further societal isolation and allowing for the possibility of prostitutes to seek employment beyond sex work, without fear of discrimination. The prevalence of sex trafficking, rape, and assault within the world of prostitution remains a very real and dangerous crisis, but the statistics showing a correlation between decriminalization and these human rights abuses still remain inconclusive. Allowing sex workers the freedom to come forward without fear of retribution may inevitably result in higher reports of violence, and society must prepare for this reality as well as the exposure of uncomfortable truths. Reports of crime can be a good thing, and good measurement is the first step towards solving a problem. Possessing knowledge of where abuses lie allows for the possibility of remediation, for no horror can be brought to justice when truth lives in the shadows.

The provocative and ongoing arguments surrounding the morality of sex work may not be easily reconciled, but prioritizing the protections of sex workers should remain the highest priority. While the various legal approaches to addressing prostitution may have well-intentioned advocates championing their cause, only a decriminalized approach places the needs and protections of sex workers above all else. The criminalization of prostitution in countries like the United States leads to ironic effects, jailing and abusing the very individuals the system claims to champion. In the effort to eventually abolish prostitution outright, the Nordic model deprives impoverished sex workers of safer work opportunities and further subjects them to societal stigmatization. Full legalization, while certainly preferable to criminalization and the Nordic model, endangers a large amount of sex workers who cannot meet the financial or regulatory requirements needed to obtain a legal license. Decriminalization most effectively ensures that — in the battle to fight the dangers of prostitution — prostitutes themselves do not become collateral damage in the process.

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