Prostitution law

Many people who support legal prostitution argue that prostitution is a consensual sex act between adults and a victimless crime, thus the government should not prohibit this practice.

Many anti-prostitution advocates hold that prostitutes themselves are often victims, arguing that prostitution is a practice which can lead to serious psychological and often physical long-term effects for the prostitutes.[12][13][14]

In 1999, Sweden became the first country to make it illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute). A similar law was passed in Norway and in Iceland (in 2009). Canada (2014),[15] France (2016)[16] the Republic of Ireland (2017)[17] and Israel (2018; effective 2020)[18][19] have also adopted a similar model to that of the Nordic countries (Denmark and Finland excluded).

The United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others[20] favors criminalizing the activities of those seen as exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws), while leaving sex workers free from regulation. The Convention states that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person".[21]

Sigma Huda, a UN special reporter on trafficking in persons said: "For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experience with prostitution does not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include disparities based on gender, race, ethnicity and poverty. Put simply the road to prostitution and life within “the life” is rarely marked by empowerment or adequate options."[22][23]

However, sex worker activists and organizations distinguish between human trafficking and legitimate sex work, and assert the importance of recognizing that trafficking is not synonymous with sex work. The Sex Workers Alliance Ireland organization explains: "victims of human trafficking may be forced to work in industries such as agriculture, domestic service as well as the sex industry. It is critical to distinguish human trafficking, which is a violation of human rights, from voluntary migration." The Open Society Foundations organization states: "sex work is done by consenting adults, where the act of selling or buying sexual services is not a violation of human rights. In fact, sex workers are natural allies in the fight against trafficking. The UNAIDS Guidance Note on HIV and Sex Work recognizes that sex worker organizations are best positioned to refer people who are victims of trafficking to appropriate services."[2][3]

According to a 2007 report by the UNODC (United Nations Office on Drugs and Crime), the most common destinations for victims of human trafficking are Thailand, Japan, Israel, Belgium, the Netherlands, Germany, Italy, Turkey, and the US.[24] The major sources of trafficked persons include Thailand, China, Nigeria, Albania, Bulgaria, Belarus, Moldova, and Ukraine.[24]

Researchers at Göteborg University released a report in 2010 that argued that prostitution laws affect trafficking flows.[25]

NGOs, academics and government departments[26] often categorise the approach to prostitution laws and approach into 5 models:

All aspects of prostitution are criminalised. Often the sex trade is seen as a violation of human dignity, moral or religious beliefs;[26] e.g. Russia[27] (also known as "criminalization").[28]

Neo-abolitionists believe there is no free choice for people entering prostitution, it violates their human rights and prostitution is the sale and consumption of human bodies. Whilst prostitutes themselves commit no crime, clients and any third party involvement is criminalised;[26] e.g. Sweden[26] (also called the "Swedish model" or "Nordic model").[29][30]

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.[26]

Whilst prostitution is not prohibited, there is legislation to control and regulate it.[26] The extent and type of control varies from country to country and may be regulated by work permits, licensing or tolerance zones;[26] e.g. The Netherlands[26] (also called "regulationist").[27] 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 of Edo.

The decriminalization of sex work is the removal of criminal penalties for sex work.[28] In most countries, sex work, the consensual provision of sexual services for money or goods,[31] is criminalized. Removing criminal prosecution for sex workers creates a safer and healthier environment[32] and allows them to live with less social exclusion and stigma; e.g. New Zealand.[26]

Although prostitution is mainly performed by female prostitutes there are also male, transgender and transvestite prostitutes performing straight and/or gay sex work. In Vienna, in April 2007, there were 1,352 female and 21 male prostitutes officially registered.[33] The number of prostitutes who are not registered (and therefore work illegally) is not known. A recent study by TAMPEP, on the prostitute population from Germany, estimated that 93% of prostitutes were female, 3% transgender and 4% male.[34]

Arrest statistics show that in those states where buying and selling sex are equally illegal, the tendency is to arrest the service provider and not the customer, even though there are significantly more customers than sellers. Thus, it is a fact that more women than men are arrested, and the true extent of the crime is underreported. James (1982) reports that, in the United States, the arrest ratio of women to men was 3:2, but notes that many of the men arrested were the prostitutes rather than the clients.

"By 1975, Thailand, with the help of World Bank economists, had instituted a National Plan of Tourist Development, which specifically underwrote the sex industry... Without directly subsidising prostitution, the Act [the Entertainment Places Act] referred repeatedly to the personal services' sector. According to Thai feminist Sukyana Hantrakul, the law 'was enacted to pave the way for whorehouses to be legalised in the guise of massage parlours, bars, nightclubs, tea houses, etc."[35] With particular reference to children, the United Nations Convention on the Rights of the Child creates specific obligations. Article 34 stipulates that:

State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall, in particular, take all appropriate national, bilateral, and multilateral measures to prevent:

The inducement or coercion of a child to engage in any unlawful sexual activity.

The exploitative use of children in prostitution or other unlawful sexual practices.

The exploitative use of children in pornographic performances and materials.

As of 2000, twenty-four countries had enacted legislation criminalising child sex tourism, e.g. in Australia, the Crimes (Child Sex Tourism) Amendment Act 1994 covers a wide range of sexual activities with children under the age of 16 committed overseas. Laws with extraterritorial application are intended to fill the gap when countries are unwilling or unable to take action against known offenders. The rationale is that child-sex offenders should not escape justice simply because they are in a position to return to their home country. There is little research into whether the child sex tourism legislation has any real deterrent effect on adults determined to have sex with children overseas. It may be that these people are simply more careful in their activities as a result of the laws. There are three obvious problems:

• the low level of reporting of sexual offences by child victims or their parents;
• the poverty which motivates the decision to survive economically through the provision of sexual services; and
• the criminal justice systems which, in the Third World country may lack transparency, and in the First World country may involve hostile and intrusive cross-examination of child witnesses with no adult witnesses to corroborate their evidence.

"A study of San Francisco prostitutes [where prostitution is illegal] found that 82% had been assaulted and 68% had been raped while working as prostitutes. Another study of prostitutes in Colorado Springs found they were 18 times more likely to be murdered than non-prostitutes their age and race." A paper by Barbara Brents and Kathryn Hausbeck of the University of Nevada concluded that "brothels offer the safest environment available for women to sell consensual sex acts for money."[49] Prostitutes who experience violence can be more reluctant to call the police if they are involved in an illegal business and Brents and Hausbeck observed that brothel owners had a policy to call the police if there were signs of trouble in order to protect the prostitutes safety.[49] In systems where prostitution is not legal and regulated pimps also often use prostitutes "who are often under aged and forced to work or face severe consequences, therefore mitigating consent."[50] Legalization and regulation can then enforce minimum age laws and employment rights for prostitutes to protect against such harms. Advocates of this method argue that if legal and regulated time and money could also be saved by the police force, public defenders, and the judicial system in not prosecuting prostitutes and their clients, which could then be better spent targeting pimps and providing health care for prostitutes.[50]

When tippelzones or areas where street prostitutes could work legally opened in areas of major cities in the Netherlands researchers found a 30 to 40% drop in reports of rape and sexual abuse in the first two years after this began. In Dutch cities that licensed the sex workers that are legally able to work in these zones rapes and sexual abuse fell by up to 40%.[48]

A few jurisdictions require that prostitutes undergo regular health checks for sexually transmitted diseases.

In Nevada, state law requires that registered brothel prostitutes be checked weekly for several sexually transmitted diseases and monthly for HIV; furthermore, condoms are mandatory for all oral sex and sexual intercourse. Brothel owners may be held liable if customers become infected with HIV after a prostitute has tested positive for the virus.[51] Prostitution outside the licensed brothels is illegal throughout the state; all forms of prostitution are illegal in Las Vegas (and Clark County, which contains its metropolitan area), in Reno (and Washoe County), in Carson City, and in a few other parts of the state (currently 8 out of Nevada's 16 counties have active brothels, see Prostitution in Nevada).

The United Nations Development Programme published a report[52] in 2012 on illegal sex work in Asia and the Pacific. The report stated - "Criminalization increases vulnerability to HIV by fueling stigma and discrimination, limiting access to HIV and sexual health services, condoms and harm reduction services, and adversely affecting the self-esteem of sex workers and their ability to make informed choices about their health."[49]

The regulation of prostitution is problematic because some standard labor regulations cannot be applied to prostitution. The typical relation between employer and employee where the employer is in a position of authority over the employee is, in the case of prostitution, viewed by many as contrary to the physical integrity of the prostitute. It is forbidden to order a person to have sex on a given moment at a given place. Many sex operators also do not want to pay social security contributions, which comes with paid labor. Therefore, many prostitutes, in countries where prostitution is regulated, are officially listed as independent contractors. Sex operators typically operate as facilitators only and do not interfere with the prostitutes.

The existence of regulated prostitution generally implies that prostitution is illegal outside of the regulated context.

Demands to legalise prostitution as a means to contain exploitation in the sex industry is now gaining support from organisations such as the UN and the Supreme Court of India.[53]