User:Nederlandse Leeuw/Legal models of sex work

Legal models of sex work are common patterns in legislation concerning sex work, particularly prostitution law, by which governments seek to regulate the sex industry. There is a wide variety of legal approaches to regulating sex work. These approaches may be formulated according to the intentions, or the implications, of a policy. Most researchers of prostitution policies discuss whether this or that policy fits with a set of models.

NGOs, academics and government departments typically categorise approaches into 5 models: prohibitionism, abolitionism, neo-abolitionism (Nordic model), legalisation (regulation), and decriminalisation.

Introduction
Aside from the commonly used 5 models, scholars have also used three-fold and four-fold classifications, and terminology may differ between studies. Some may equate the term "criminalisation" with "prohibitionism", while others regard all policies except "decriminalisation" as a certain degree of criminalisation. According to Brents & Hausbeck (2005), the 'four main categories of prostitution policy' according to themselves (2001), Alexander (1997) and Weitzer (1999, 2000) were: legalisation ("state licensing and regulation"), abolitionism ("laws punishing third parties, not the prostitutes themselves"), criminalisation ("prohibiting solicitation and punishing all parties, including prostitutes, pimps, and, potentially, customers"), and decriminalisation ("regulating prostitutes as independent businesses"). Lavallée (2003) maintained a different four-fold classification, proceeding from 'two doctrines': the idea that prostitution is an 'expression of individual freedom' resulting from an individual's free will, leading to 'tolerance of prostitution' (abolitionism) or 'recognition of prostitution' (legalisation), and the idea of 'non-patrimoniality of the human body' which holds that prostitution is the unjust 'consideration of the human body as property' which violates human dignity, leading to prohibitionism (making 'all actors of prostitution illegal', in practice focusing on the prostitutes) or neo-abolitionism (which 'criminalises clients but does not impose any sanctions on prostitutes'). The Sexuality, Poverty and Law programme stated that the sex workers rights' movement has traditionally used a three-fold grouping: criminalisation, legalisation and decriminalisation, while various authors and organisations have used a wide range of terms. Scholars can sometimes not agree on how to characterise a particular country's legislative framework; for example, Germany's policy has been described as 'legalisation', 'regulation' and 'decriminalisation', while the enactment of its 2017 Prostitutes Protection Act introduced various repressive elements that led some scholars to put Germany in the 'criminalisation' category.

Skilbrei & Holmström (2013) argued that scholars should not just point to legislation directed at prostitution when speaking about policy regimes, because there is often a great difference between the letter of the law and what happens in practice, which is influenced by many factors, most importantly the idea policy makers, law enforcement, and society in general have about prostitution, and what the end-goal of a particular policy should be. There is even debate about what a meaningful definition of the word 'policy' is in the field of prostitution. According to Shore and Wright (2011), people most commonly think in terms of a five-stage policy cycle: 'problem identification, formulation of solutions, implementation, evaluation, and revision', even though reality is usually a lot messier. Sometimes, the intentions behind a policy are not clear, let alone how the policy came about in the first place. A lack of clear intentions in a policy frequently leads to unintended consequences, as people disagree on how to implement the policy, and unaccounted factors can affect the outcome of events. As an example, Bernstein (2007), Florin (2012) and Skilbrei & Holmström (2013) argued that when Sweden criminalised the purchase of sex in 1999, it explicitly had two goals: to punish the buyer for the act, and to address the perceived problem with social work interventions. Nevertheless, within several years 'a criminal justice agenda [had] come to stand for the Swedish approach', while 'social work agencies failed to appropriate the redefinition of prostitution and instead accepted taking a back-seat role to policing.'

Building on earlier scholarly critiques of existing models, Östergren (2020) developed a taxonomy of policies based on society's understanding of commercial sex as either negative, namely 'inherently harmful and a "threat to society"' (leading to two approaches that both rely predominantly on criminal law), or as a multifaceted but 'primarily an income bringing activity' (leading to a policy that primarily seeks to apply the relevant labour laws):

Prohibitionism
Barnett et al. (2011) stated: "Prohibitionism seeks to eliminate prostitution by criminalizing all aspects of the prostitution trade. Under this approach, prostitution is seen as a violation of human dignity. Criminal law and effective law enforcement are viewed as critical tools in reducing the number of individuals involved in prostitution." Kulick (2003) stated that the prohibitionist model "criminalizes the actual transaction of selling sex." According to Council of Europe rapporteur Platvoet (2007): 'The prohibitionist view is that prostitution (regarded as an offence), and of course the exploitation of prostitution, should be outlawed. In my view, the prohibitionist approach has a double standard (due to a male-dominated culture), as it prosecutes only the prostitutes, not the clients.' Scoular (2015) noted that those taking a prohibitionist approach believe that the sex trade is a violation of moral (usually religious) beliefs, and seek "to deter parties from engaging in prostitution by punishing one (usually the female sellers) or, increasingly, both parties." It is also known as "criminalisation".

The United States, with the exception of Nevada, have been cited as an example of a prohibitionist approach. Barnett et al. (2011) contrasted prohibitionist California with legalised Nevada. Prostitution in Iran can carry the death penalty. In other jurisdictions, it is a crime punishable with a prison sentence, while in others it is a lesser administrative offense punishable only with a fine.

Criminalization has been linked to higher rates of sexually transmitted infections, partner violence, and police harassment. Fear of legal ramifications can deter sex workers from seeking proper sexual health care services, and discourage them from reporting crimes of which they were the victim. According to research conducted by Human Rights Watch, criminalization makes sex workers more vulnerable to rape, murder, and discrimination due to their marginalized position and ability to be prosecuted by the police even if they come forward as a victim.

Abolitionism
Barnett et al. (2011) stated: "Abolitionism is often described as the middle ground between prohibitionism and legalization. Advocates of this approach maintain that even though prostitutes may choose to enter the trade, it is nevertheless immoral. They believe that governments must take the necessary steps to allow prostitution to take place only as long as it does not infringe on public safety and order. Generally, abolitionists call for the criminalization of public solicitation." Kulick (2003) defined abolitionism as "a legal system that holds that prostitution in itself is not an offence, but the exploitation of the prostitution of others is; thus any third party recruiting, profiting from, or organizing prostitutes is penalized".

Under abolitionism, prostitution itself is legal, but third-party involvement is generally prohibited. Solicitation is also often prohibited. This model recognises that a prostitute may choose to work in the trade, however, the law is designed to stop prostitution impacting on the public. An example country where this system is in place is England. As of 2003, Canada and France were also seen to be following the abolitionist approach, but to have switched to neo-abolitionism in the mid 2010s. In countries like India, though prostitution is legal, it is illegal when committed in a hotel.

Under abolitionism, prostitution itself is not prohibited, but most associated activities are illegal. In an attempt to make it more difficult to engage in prostitution, prostitution is heavily discouraged and seen as a social problem. Prostitution, the exchange of sexual services for money, is legal, but the surrounding activities such as public solicitation, operating a brothel and other forms of pimping are prohibited. This is to some extent the current situation in Great Britain, where prostitution is considered "both a public nuisance and sexual offence", and Italy among others.

According to Östergren (2020), abolitionism should be understood as 'ideological approach' rather than a specific policy. She stated: '"Abolitionism" was originally used for the nineteenth-century movement that sought to abolish the discriminatory regulation of sex workers.' At the time, the word was employed to argue that sex work between two consenting adults was none of the government's business to interfere in. However, by the early 21st century, the term had completely reversed in meaning, namely 'the desire to totally eliminate sex work itself, whether the proponents are faith-based or feminist.'

Neo-abolitionism (Nordic/Swedish model)
Neo-abolitionism, also called the Nordic or Swedish model, is used in Sweden, Norway, France and other countries. Through its 1999 law, Sweden has been considered the first country, and for some years the only one, to have adopted a neo-abolitionist policy. Whilst prostitutes themselves are not to be seen as committing a crime, clients and any third party involvement (such as pimps) are criminalised. Neo-abolitionists claim these models do not punish prostitutes, but instead penalize those who purchase sex from sex workers.
 * Concept

Julie Bindel (2017) summarised the neo-abolitionist poposition as "prostitution is inherently abusive, and a cause and consequence of inequality. There is no way to make it safe, and it should be possible to eradicate it." Neo-abolitionists believe there is no free choice for people entering prostitution, it violates their human rights and that prostitution is the sale and consumption of human bodies.
 * Arguments

The Nordic model is criticized for causing sex workers to do their business in areas with less police, which often makes it more dangerous. Some scholars such as Skilbrei and Holmström (2013) have also criticised the terms 'Swedish model' and 'Nordic model' as misleading, because Denmark (a Nordic country) does not follow it, but has instead decriminalised parts of its sex work sector, while the other countries that do follow it have great differences in their legislation that should not be generalised.

Advocates of the Nordic model include Christian organisations such as Exodus Cry, radical feminist organisations such as the Coalition Against Trafficking in Women (CATW), the Centre to End All Sexual Exploitation (CEASE), SPACE, American psychologist and activist Melissa Farley, and British journalist and radical feminist Julie Bindel.
 * Advocacy


 * Current legal status

Globally, the following countries have implemented some version of the Nordic model:
 * Sweden (1999)
 * Norway (2009; the law also bans having sex with a prostitute abroad)
 * Iceland (2009)
 * Canada (2014)
 * Northern Ireland (2015)
 * France (2016)
 * Ireland (2017)
 * Israel (2018)

In February 2014, the members of the European Parliament voted in a non-binding resolution, (adopted by 343 votes to 139; with 105 abstentions), in favor of the 'Swedish Model' of criminalizing the buying, but not the selling of sex.

Legalisation or regulation
Legalisation is also referred to as "regulationist". In countries that legalise prostitution, it is no longer prohibited, and there is legislation to control and regulate it. The extent and type of legislation varies from country to country and may be regulated by work permits, licensing or tolerance zones. Criminal laws usually regulate prostitution by determining the legal conditions under which prostitutes can operate. Legalisation can mean anything from rigid controls under a state-controlled system to merely defining the operation of a privatised sex industry. Legalisation is often accompanied by strict criminal penalties for anyone who operates outside the legally defined framework. With legalisation there may be rules about where prostitution can take place (for example only in state-licensed brothels), what prostitutes can do, mandatory registry/licensing and frequent mandatory health exams. According to Kulick (2003), the Netherlands and Germany had '[placed] the regulation of prostitutin under labor law, instead of criminal law.'
 * Concept

Those who are in favour of legalisation do not consider the women who practice prostitution as victims, but as independent adult women who had made a choice which should be respected. Mariska Majoor, former prostitute and founder of the Prostitution Information Center in Amsterdam, holds that: "In our [sex workers'] eyes it's a profession, a way of making money; it's important that we are realistic about this ... Prostitution is not bad; it's only bad if done against one's will. Most women make this decision themselves." According to proponents of regulation, prostitution should be considered a legitimate activity, which must be recognized and regulated, in order to protect the workers' rights and to prevent abuse. The prostitutes are treated as sex workers who enjoy benefits similar to other occupations.
 * Arguments

The Netherlands are often cited as the example of the legalisation or regulationist model. The Red Light District in Amsterdam, the Netherlands, is an example of legalisation, where all aspects of sex work are allowed as long as they are registered with the government. Since the registration process is often expensive and time-consuming, requires legal residence, and may involve regular medical exams, the most marginalised sex workers have to remain illegal, and usually charge less, because they cannot comply with the regulations. This is most common among minority groups, immigrants, and low-income workers. Despite legalisation, sex workers in the Netherlands have still faced social exclusion and stigma, which makes it difficult for them to obtain the services of accountants, banks, and health insurance companies. Lavallée (2003) stated: 'The fact that female prostitutes are now required to register and obtain a licence forces them to publicly display an activity which they previously practiced clandestinely, and which they do not necessarily want to make known to the whole world.'
 * Current legal status

Other examples include Germany, parts of South America, parts of Europe, parts of Australia, and in certain counties in the U.S. state of Nevada. A historical example of zone restricted legalization is the institution of 'red-light' districts in Japan in the early 17th century, most famously the Yoshiwara district.

Decriminalisation
Decriminalisation is the removal of criminal penalties for sex work, so that sex workers receive the same protection and recognition as workers in other industries. This includes all the activities necessary for sex workers, such "people working in the pornographic media industry, live theater, massage parlors, bordellos and through print advertising, as well as the street workers", to do their work. Decriminalisation is also the only legal solution that offers no criminalisation of any other party involved in the sex work industry, and apart from regular restrictions (such as the same age limits that apply to other jobs), has no special restrictions on who can legally participate in sex work. The decriminalisation of sex work would not remove any legal penalties condemning human trafficking, such as laws against forcing someone into prostitution through deception/fraud, and kidnapping/abduction. In this view, endorsed by organisations such as Feminists for Free Expression, only paid consensual sexual acts between adults constitute "prostitution", while nonconsensual sex acts or sex acts perpetrated against minors are "criminal sexual acts". Similarly, the International Labor Organization (ILO) stated in 1998: "In the case of adults, we can concede that it may be possible to make a distinction between prostitution as a freely chosen form of work and prostitution through coercion. But among children, all prostitution must by definition be deemed involuntary and the aim is its total elimination." Open Society Foundations stated in 2013: "Sex work is done by consenting adults, where the act of selling or buying sexual services is not a violation of human rights."
 * Concept

A commonly made argument is that criminalisation has failed to eradicate sex work (colloquially known as "the oldest profession in existence"); even though sex work has been criminalised in most places throughout history in order to counter its perceived negative impact, the profession has hardly changed at all over time. Those who work in sex trade are more likely to be exploited, trafficked, and victims of assault when sex work is criminalised.
 * Arguments

Removing criminal prosecution for sex workers is argued to create a safer and healthier work environment, for example by reducing the risk of HIV/AIDS transmission. Proponents of this view often cite instances of government regulation under legalisation that they consider intrusive, demeaning, or violent, but feel that criminalisation adversely affects sex workers. Another reason why most sex workers favour decriminalisation is that it allows them the most negotiating power with their clients. With full protection under the law, they have the ability to determine their wages, method of protection, and call on the government to protect themselves from violent offenders. Decriminalisation is also said to afford sex workers the ability to live with less social exclusion and stigma, prevent isolation and separation from any children they might have, and ease access to health, to housing, and to alternative work.

Furthermore, human rights organisations such Amnesty contend that there is no reliable evidence to suggest that decriminalisation of sex work would encourage human trafficking, as some opponents fear. In fact, decriminalisation can make efforts to prevent and punish human trafficking easier, because sex workers who suspect that other people have been forced into prostitution would no longer risk their own safety and livelihood by contacting the police to investigate suspected cases of trafficking.


 * Advocacy

Decriminalisation is the most supported solution by sex workers themselves, and by sex-positive feminists. Since the mid-1970s, sex workers across the world have organised, demanding the decriminalisation of prostitution, equal protection under the law, improved working conditions, the right to pay taxes, travel and receive social benefits such as pensions. Almost all sex worker organisations around the world favour decriminalisation, and it tends to be their main goal. The very first line of the World Charter for Prostitutes' Rights, written and adopted by the International Committee for Prostitutes' Rights on 15 February 1985 at the first World Whores Congress in Amsterdam, states: "Decriminalize all aspects of adult prostitution resulting from individual decision."

Furthermore, there are several national and international organisations which are not primarily led by sex workers, nor do their activities primarily concern sex work, but nonetheless, they have dedicated a significant portion of their efforts to advocating for sex workers' rights, including decriminalisation. Literature describes such supportive organisations as "allies". The Global Alliance Against Traffic in Women (GAATW), a Bangkok-based anti-trafficking coalition founded in 1994, has distinguished between sex work and trafficking "since its inception". La Strada International (LSI), an Amsterdam-based anti-trafficking organisation founded in 1995, has decriminalisation as a "strategic focus area". The new 2012 guidelines of the World Health Organization (WHO) brought this UN agency, along with UNAIDS and the United Nations Population Fund (UNFPA), in the decriminalisation camp, and the UNDP also joined that year. Global medical journal The Lancet has been a vocal supporter of decriminalisation at least since its 2014 series "HIV and sex workers". Similarly, the New York City-based human rights organisation Human Rights Watch (HRW) has advocated for decriminalisation of voluntary sex work since at least 2014. Since August 2015, the global human rights movement Amnesty International introduced a policy urging all countries around the world to decriminalise sex work. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World), a Geneva-based international coalition of over 1,500 LGBTI organisations, called for the decriminalisation of sex work in 2019. Others supporting decriminalisation include the majority of academics, human rights organisations such as the American Civil Liberties Union (ACLU), UN agency UNDP, LGBT organisations such as Lambda Legal, and anti-trafficking organisations such as the Freedom Network USA.


 * Current legal status

In most countries, sex work, the consensual provision of sexual services for money or goods, is criminalized. New Zealand is a commonly cited example of the decriminalisation model, because it was the first country to decriminalise sex work in 2003, with the passage of the Prostitution Reform Act. Denmark is sometimes said to have decriminalised or partially decriminalised its sex work sector.

Abolitionism or criminalization
Early reformers in American first-wave feminism adopted an abolitionist point of view from their understanding that male lust was the problem that caused "innocent women" to be "lured into a depraved life as prostitutes". Thus, abolitionist proponents believe that prostitution is an exploitative system that is harmful to the women involved. Therefore, these activists believe that to prevent violence against women, the customers, pimps, and panderers should be punished so that the entire institution can be demolished. Because this policy approach is built upon the idea that women are helpless victims, opponents of this view believe that it is paternalistic and not empowering to women.

A 2004 study by Melissa Farley (a well-known supporter of the abolition of prostitution) and colleagues, suggests that violence is an intrinsic part of prostitution in which the chances of experiencing violence increases along with the number of years involved in prostitution. This study also concludes that prostitution tends to be multi-traumatic in all forms. Therefore, these proponents advocate for abolitionism and criminalization as a method of protecting sex workers. Some of Farley's conclusions, which she presented during the trial of Bedford v. Canada at the Ontario Superior Court of Justice in October 2009, were criticised by presiding judge Susan Himel in her September 2010 ruling: "I found the evidence of Dr. Melissa Farley to be problematic. Although Dr. Farley has conducted a great deal of research on prostitution, her advocacy appears to have permeated her opinions. For example, Dr. Farley's unqualified assertion in her affidavit that prostitution is inherently violent appears to contradict her own findings that prostitutes who work from indoor locations generally experience less violence. Furthermore, in her affidavit, she failed to qualify her opinion regarding the causal relationship between post-traumatic stress disorder and prostitution, namely, that it could be caused by events unrelated to prostitution."

Criminalization proponents believe that the way to protect women from interpersonal violence is to punish both sex workers and customers for partaking in the buying and selling of sex.

Prostitution is a significant issue in feminist thought and activism. Many feminists are opposed to prostitution, which they see as a form of exploitation of women and male dominance over women, and as a practice that is the result of the existing patriarchal societal order. These feminists argue that prostitution has a very negative effect, both on the prostitutes themselves and on society as a whole, as it reinforces stereotypical views about women, who are seen as sex objects which can be used and abused by men. Other feminists hold that prostitution can be a valid choice for the women who choose to engage in it; in this view, prostitution must be differentiated from forced prostitution, and feminists should support sex worker activism against abuses by both the sex industry and the legal system.

Support for criminalization
Many proponents of abolitionism or criminalization of prostitution commonly use reasons based on studies done on the effects of prostitution in countries where it is legalized or decriminalized.


 * Prostitution does not enhance women's choice.
 * Prostitution does not promote women's health because the condom-use policy is not strictly enforced.
 * Prostitution does not protect women in prostitution.
 * Prostitution expands the sex industry instead of controlling it.
 * Prostitution increases child prostitution.
 * Prostitution increases clandestine, illegal, and street prostitution because many women do not participate in health checks or registration and do not want to be controlled by businessmen.
 * Prostitution is a gift to pimps, traffickers, and the sex industry.
 * Prostitution makes it socially acceptable for men to buy sex, and women are viewed as sexual commodities that men are encouraged to partake in.
 * Prostitution promotes sex trafficking.

For the proponents of the abolitionist view, prostitution is always a coercive practice, and the prostitute is seen as a victim. They argue that most prostitutes are forced into the practice, either directly, by pimps and traffickers, indirectly through poverty, drug addiction and other personal problems, or, as it has been argued in recent decades by radical feminists such as Andrea Dworkin, Melissa Farley and Catharine MacKinnon, merely by patriarchal social structures and power relations between men and women. William D. Angel finds that "most" prostitutes have been forced into the occupation through poverty, lack of education and employment possibilities. Kathleen Barry argues that, "there should be no distinction between "free" and "coerced", "voluntary" and "involuntary" prostitution, since any form of prostitution is a human rights violation, an affront to womanhood that cannot be considered dignified labour". France's Green Party argues: "The concept of "free choice" of the prostitute is indeed relative, in a society where gender inequality is institutionalized".

Legalization or decriminalization
Legalisation proponents claim that the only way to effectively reduce the risk of violence or STIs in the context of sex work is to acknowledge the persistent demand, and for government to build policies and laws that deal with the issue through regulation of the business. According to Kamala Kempadoo (2003), "laws prohibiting or regulating prostitution and migration, particularly from the South, combine to create highly complex and oppressive situations for women if they become involved in sex work." Proponents of this view also recommend that policies be built that places restrictions on trafficking and exploitation of sex workers.

Support for decriminalization or legalization
Ronald Weitzer, a well-known proponent for the legalization/decriminalization of prostitution, stated that the use of nonscientific evidence about prostitution has contributed to a "moral panic" because opponents commonly use the argument that prostitution is inherently violent and unable to be regulated. However, he also claims that other governments have been able to reject this notion and find ways to regulate it and uses Nevada as an example.

Below are some of the main premises that the pro-legalization and pro-decriminalization of prostitution movement rests upon.
 * Decriminalization or legalization can protect sex workers from violence most effectively, such as through onsite security at venues such as brothels and systems such as panic buttons, as well as the ability for sex workers to report abuse or crimes to the police without the fear of prosecution for committing illegal activity.
 * Prostitution is a career option in which the free market is being taken advantage of and women's claims over their own bodies.
 * Prostitution is a free choice.
 * Prostitution is a transaction where no one is harmed, and the persons involved are consenting adults.
 * Sex trafficking and coercion into the industry can be effectively reduced if sex work is legalized or decriminalized.
 * Sex work could become a legal business, and human rights and worker's rights could be enforced by effective regulation, such as fair pay.
 * Sex work is no more moral or immoral than other jobs.
 * The criminalization of sex workers only exacerbates problems that they are already facing. Therefore, decriminalization or legalization can be a starting point to addressing these issues.
 * The rates of rape could decrease if prostitution were legalized or decriminalized.
 * There will always be people willing to pay for sex and there will always be people willing to offer it. Making consenting sex work a crime will not help these people.
 * The spread of diseases can be hindered through the legalization or decriminalization of prostitution, such as through regular mandated health checks and required condom use.