Photo by Horacio Villalobos/Getty


Prostitution is not sex work

Decriminalising the sex trade is touted as a means to empower women and rebrand a necessary service. This is utterly wrong

by Kat Banyard + BIO

Photo by Horacio Villalobos/Getty

How should governments respond to the prostitution trade? It’s a question laced with deep-rooted contests – over power, money and the pursuit of equality. But as organisations and advocates increasingly line up behind opposing answers, it’s a question that is becoming difficult to ignore. The fault lines are clear: recognise prostitution as work or as abuse; either see it as compatible with feminism or irredeemably sexist. Accept it, or work to end it.

One policy prescription currently gathering weight as the ‘progressive’ response to the sex trade is full decriminalisation. Championed by institutions such as UNAIDS, Amnesty International, and the billionaire financier George Soros’s Open Society Foundations, full decriminalisation involves removing all laws that specifically restrict prostitution or third-party profiteering from it. The main push for this laissez-faire approach has come from the Global Network of Sex Work Projects (NSWP) – a group whose support was cited in Amnesty’s draft prostitution policy, and whose vice president Alejandra Gil was sentenced last year to 15 years in prison for sex trafficking. The NSWP’s rationale is that being paid to have sex is regular service work, and that the best way of promoting the safety of those involved is to leave the prostitution trade entirely to its own devices.

In discussions about prostitution laws, a distinction is often made between ‘full decriminalisation’ and ‘legalisation’, with the latter defined (by the NSWP) as ‘the introduction of laws that aim to impose state regulation and control sex work’. This is something that the NSWP vehemently rejects, opposing ‘all forms of criminalisation and other legal oppression of sex work’ as well as limits on ‘how, when and where sex work happens’. New Zealand is commonly the go-to case study of a fully decriminalised prostitution regime, repeatedly invoked as an exemplar by the Open Society Foundations in their report ‘Ten Reasons to Decriminalize Sex Work’ (2012). It’s worth noting, however, that New Zealand doesn’t actually meet the criteria of a fully decriminalised regime. There, local authorities can impose limits on prostitution advertising as well as where brothels are located, while women who sell sex are breaking the law if they fail to adopt safer sex practices.

The crucial point here is that regardless of which label is applied, legalised and so-called decriminalised prostitution regimes share some basic properties – properties that beg the question: do all those calling for full decriminalisation of the sex trade in the name of human rights seriously realise what they are asking for? Do they realise, for instance, that brothels become legitimate businesses?

In New Zealand, which adopted its so-called decriminalised prostitution regime in 2003, brothels with four or fewer people selling sex from them don’t even have to apply for a licence before opening. Brothel-keepers operating larger outfits have to get a certificate, although, consistent with the hands-off ethos advocated by champions of full decriminalisation, there is no ongoing inspection system. A government-commissioned review of the country’s prostitution laws in 2008 even quoted one brothel-owner complaining that licences ‘are too easy to get. I’ve lost confidence in the system. I used to be a car dealer and to get a licence was really hard. For this, there is no training, no interview, no asking what you know. What’s the point?’

Ostensibly, the point of New Zealand’s 2003 Prostitution Reform Act (PRA) was to ‘promote the welfare, occupational health and safety of sex workers’. Its advocates managed to persuade parliament that this would somehow be best achieved by making brothel-keeping legal, applying minimal certification requirements to brothels, and conducting minimal monitoring. What the law’s official review uncovered in 2008 only highlights what a thoroughly ludicrous proposition this was. A survey of those paid for sex in managed brothels found that, in the previous 12 months alone, 38 per cent ‘felt they had to accept a client when they didn’t want to’. Also in the past year, 5 per cent of those who solicited on the street and 3 per cent of those in managed brothels had been raped by a sex buyer. The conclusion drawn by the evaluators was: ‘Generally, brothels which had treated their workers fairly prior to the enactment of the PRA continued to do so, and those which had unfair management practices continued with them.’

When the Netherlands legalised prostitution, there were attempts to monitor adherence to brothel-licensing rules. Yet a recent assessment by researchers at VU University Amsterdam concluded that ‘the screening of brothel owners and the monitoring of the compliance of licensing conditions do not create levels of transparency that enable sex trafficking to be exposed’. Quite the contrary, in fact: ‘The regulation has hidden the legalised sector from the view of the criminal justice system’. And: ‘… human trafficking still thrives behind the legal façade of a legalised prostitution sector. Brothels can even function as legalised outlets for victims of sex trafficking.’ Indeed, an analysis of a cross-section of up to 150 countries revealed that reported trafficking inflows were larger in countries where prostitution is legal, while researchers restricting their analyses to European countries concluded: ‘Slacker prostitution laws make it more profitable to traffic persons to a country.’

In 2012, a pair of millionaire brothel-owners in New Zealand sought to take their legal enterprise to a whole new level of visibility – and profitability – after getting permission from the authorities to open up a multi-storey ‘super-brothel’. While they eventually decided to shelve their plans (a dispute with a competitor over a liquor licence reportedly put them off), brothel-owners in Germany have not been similarly discouraged. Since the prostitution trade was legalised in 2002, a chain of so-called ‘mega-brothels’ have opened their doors. Paradise in Stuttgart is one. It cost more than €6 million to build, and houses 31 private rooms. During the opening weekend of Pussy Club, another brothel near Stuttgart, a flat-rate promo offered paying customers ‘sex with all women as long as you want, as often as you want and the way you want’. Der Spiegel reported that, after visiting the brothel, ‘customers wrote in internet chatrooms about the supposedly unsatisfactory service, complaining that the women were no longer as fit for use after a few hours’.

The NSWP doesn’t like the word ‘pimp’. It prefers to call people who take on this role ‘managers’, ‘third parties’ or simply – ‘sex workers’. ‘Acceptance of sex work as work’ is held up by the group as one of its core values. In positioning prostitution as an innocuous consumer transaction, taking on a management role is deemed to be as legitimate as in any other trade.

The Dutch and German governments weren’t actually buying the argument that pimps were mere ‘managers’ when they lifted total prohibitions against the practice in 2000 and 2002 respectively. According to a review by the German federal government, it was actually a desire to ‘reduce [women’s] dependency on, for example, pimps’ that lay behind the move. The rationale was that by legalising and regulating the prostitution trade, thereby enabling brothels to issue employment contracts, pimps would basically become redundant, thus negating the need for a flat-out ban. They didn’t. An official evaluation of the law’s impact in 2007 found ‘no firm evidence that more light has been shed into the shady world of prostitution, which many had hoped would occur after the provisions on the promotion of prostitution were relaxed’ and ‘no viable indications that the Prostitution Act has reduced crime’.

The much-vaunted brothel employment contracts, supposed to shower women with rights and protections, didn’t materialise either. The review revealed just 1 per cent of women in prostitution had an employment contract, and only 6 per cent actually wanted one. Among the reasons women gave for not wanting a contract were concerns that it would grant brothel-keepers power over them and compromise their anonymity.

Despite efforts to rebrand it as a form of ‘management’, pimping constitutes commercial sexual exploitation

Much like in Germany, the Netherlands’ decision to drop its ban on pimping was billed as an attempt to ‘reorganise the prostitution sector and purge it of criminal peripheral phenomena’. Seven years on, a government evaluation concluded that pimping was ‘still a very common phenomenon’ and ‘does not seem to have decreased’. Indeed, the ‘great majority’ of women operating from Amsterdam’s famed window brothels were found to be working with a pimp or so-called ‘boyfriend’.

Despite efforts by groups such as the NSWP to rebrand it as a form of ‘management’, pimping constitutes commercial sexual exploitation – a form of abuse characterised by coercive control. Attempting to discourage pimping by removing prohibitions against it, while also handing out licences to brothels, is – as one Amsterdam alderman dubbed his country’s decision to legalise prostitution – ‘reprehensibly naive’.

One of the big myths about fully decriminalised and legalised prostitution regimes, wherein the sex trade is treated as a legitimate part of the economy, is that women who sell sex can no longer be criminalised as a result of their involvement. Yet once the law recognises people who are paid for sex as workers, rather than as victims of sexual exploitation, it brings them into a legal framework with do’s and don’ts – responsibilities as well as rights.

What does this mean in practice? In New Zealand, it means that women in prostitution are breaking the law if they fail to adopt ‘safer sex practices’, the maximum penalty being a fine of up to NZ$2,000. Crucially, it also means that, unless a woman is issued an employment contract by a brothel, she is categorised as an independent contractor and shoulders significant responsibilities under health and safety law. As the committee set up in 2008 to evaluate New Zealand’s prostitution regime points out, failure to fulfil these responsibilities can have what they term ‘serious financial consequences’ for her. As a contractor, rather than an employee, she takes on additional duties under tax rules, while being denied basic entitlements such as sick pay or the right to pursue a personal grievance action through the courts.

With fines to pay as well as their expenses as ‘independent contractors’, women couldn’t afford to be away from the brothels for long

This isn’t a hypothetical scenario. When the New Zealand committee assessed the impact of the Prostitution Reform Act, they found that women in brothels were classified as contractors rather than employees as standard practice. It’s a similar picture in Germany, where a review found ‘hardly any’ women in the legal prostitution trade were registered with a social insurance agency. Some providers weren’t even willing to offer women insurance ‘on account of the negative risk assessment associated with working as a prostitute’.

In 2014, I visited La Strada café, a support service for women involved in Germany’s prostitution trade, situated in the heart of Stuttgart’s red light district. The café acts as a refuge from the brothels, enabling women who drop in to access everything from a meal to help in leaving the sex trade. The night I visited, however, women were not hanging around for long. ‘They have all come today, just for a short period, just to eat something, and then went away immediately; they haven’t got time to be here today,’ Sabine Constabel, La Strada’s founder, told me. The reason? ‘The women have all received a fine because they’ve been soliciting on the street.’

As in New Zealand, local restrictions can be imposed on the prostitution trade, which here in Stuttgart means women soliciting on the street can be fined up to €3,000 and even imprisoned. So now, with a fine to pay as well as their expenses as ‘independent contractors’, Constabel explained that the women simply couldn’t afford to be away from the brothels for long: ‘They have to at least earn the rent for the room.’

Fully decriminalised and legalised prostitution regimes are not designed to end – or even discourage – the practice of men paying to sexually access women’s bodies. When Germany legalised brothels and pimping, prostitution itself was taken as ‘a given’, the federal government’s review explained. Similarly, New Zealand’s Prostitution Law Review Committee described their so-called fully decriminalised regime as reflecting a ‘pragmatic sentiment’ that recognises that ‘even if viewed by some as undesirable, the practice of prostitution is likely to remain given ongoing levels of demand by men seeking to purchase sex’. But this fatalism is unwarranted. Demand is not inevitable.

Research among men who pay for sex conducted in 2009 by the Child and Woman Abuse Studies Unit at London Metropolitan University concluded that ‘legality contributes to normalisation, which in turn increases the likelihood of paying for sex’. Indeed, an analysis of prostitution laws in nine countries found unregulated and legalised regimes have significantly larger sex trades.

Men who pay for sex are not helplessly reacting to uncontainable sexual urges. Nor does the prostitution trade represent ‘a place of last resort’ for them. A study of 6,000 UK men by University College London in 2014 revealed that those most likely to have paid for sex were young professionals with high numbers of sexual partners.

And, as I discovered when interviewing sex buyers for my book Pimp State (2016), what unites them is their sense of entitlement – an entitlement to paid sexual access to women’s bodies, enabled by objectification and driven by sexism. One of my interviewees, Crystal, who first got involved in prostitution when an abusive boyfriend started pimping her, told me it basically came down to this: ‘They know they can get away with it, that they can remain in the shadows and if anyone is judged it will be the woman.’

Legalising or fully decriminalising the sex trade provides an enabling environment for commercial sexual exploitation

There is a legal framework, however, that is designed to shine a spotlight on sex buyers – and hold them to account. The Nordic model or sex-buyer law aims to curb demand, recognising that paying for sex is sexual exploitation, not legitimate consumer activity. The model has three elements: it criminalises paying for sex, it de-criminalises selling sex, and it provides support and exiting services for people exploited through prostitution. In targeting demand and offering support to those they exploit, it rejects the fatalism that characterises calls for full decriminalisation, and acknowledges that states have a duty to end commercial sexual exploitation rather than regulate it.

First adopted by Sweden in 1999, three of the four countries with the top ratings for gender equality worldwide now operate this kind of law – with France the most recent nation to add it to their statute books. The Republic of Ireland is strongly considering following suit. And with good reason: there is substantial evidence that the sex-buyer law or Nordic model has played a crucial role in successful efforts to tackle demand, transform public attitudes and deter traffickers.

Diane Martin, who was exploited through prostitution in her late teens, wants to see it adopted everywhere. Martin was involved in what she refers to as ‘the supposed “high end” of prostitution’, but gives short shrift to the idea that this somehow made it ‘safe’. As she says: ‘Being in a penthouse suite doesn’t soften the blow of rape, or of having someone leave bite marks all over your face.’

Since getting out of prostitution, Martin has spent nearly two decades working to support other women to leave the trade, and she’s clear as to why decriminalising those who sell sex, but criminalising those who pay for it, is so critical: ‘We should be creating the most hostile environment on both a social and legal level for those who sell, control, exploit, pay for and benefit financially from the sale of the bodies of women … it is the demand that fuels the exploitation’.

There is extensive evidence to show that, far from creating the ‘hostile environment’ that Martin advocates, legalising or fully decriminalising the sex trade provides an enabling environment for commercial sexual exploitation. When people call for full decriminalisation of prostitution, they are asking for a legal framework shown to spectacularly fail on its own terms of preventing harms attendant to prostitution, such as pimping and trafficking. They are asking for an approach that does not even attempt to tackle the inherent harm of prostitution – because the phenomenon of men paying for sex is deemed legitimate consumer behaviour, or simply taken as a given. They are asking states to hold up their hands in surrender, and just accept commercial sexual exploitation as an inevitable feature of society.

We can do better than that.