Determining Your Position – A breakdown of legal structures surrounding prostitution

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With just a few days left for Canadians to comment on our prostitution laws, if you are a procrastinator like me, it may be time to sit down and really think about what you want to see happen with regards to our legislation. 

But first, there are several ways you can comment:

You can send a letter to your MP, you can sign one of many petitions floating around the internet, or you can answer 6 questions to offer your input to the government, and you need to do this before March 17. (Oops sorry, I am posting this with little time left to comment!)

Yesterday’s post was meant to help you establish your own position by looking at the more ‘black and white’ perspectives on prostitution. Today is a breakdown of the different legal options up for conversation in Canada.

Examples of different legal structures to address prostitution/sex work:

1) Total criminalisation:  All aspects of prostitution/sex work are illegal.

2) Partial criminalisation: Some parts of prostitution/sex work are a criminal, such as the buying of sex or alternatively the selling of sex.

3) Decriminalisation: Sex workers and businesses related to sex work are under the same laws as all other employees and business. Sex work is a legal business that cannot be prohibited and is usually governed by local government and zoning v.s. law enforcement.

4) Regulation/Legalisation: Sex work is legal but regulated, to operate outside of the legal system is to commit a crime.

Criminalisation: If you want to see an example of total criminalisation, most of the United States and many countries in the Middle East have this legal structure in place. It has not proven to be effective in combating trafficking in persons or preventing prostitution, underage prostitution, or recognising the rights of sex workers etc. From what I can see, this is not on the table as an option for Canada, so that is all I will say about that system.

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Partial Criminalisation:  I am going to focus on partial criminalisation whereby the buyer is criminalised. This is also known as the Nordic Model or as the Swedish Model.
This is currently one of the most highly discussed models around the world. European Parliament recently passed a non-binding resolution that calls on member states to focus on punishing the client and not the person in prostitution. They recognised prostitution as a violation of human rights and dignity, whether or not prostitution is forced or voluntary. Ireland and France have been discussing adopting this model, and for Canadians this route has been a focus for many trafficking abolitionists and organisations.

My greatest concern is that this model has often been presented as a one-system-fits-all-solution, glossing over nuances and concerns, and being held up as the end to prostitution, gender-based injustices, and human trafficking. Hallelujah, Amen!

But I really don’t think things are ever that simple!

First of all, there is no ‘Nordic’ Model. Sweden was the first to criminalise buyers of sex with the goal of decreasing demand in order to end prostitution and sex trafficking. Norway and Iceland followed by also criminalising the buyer. Denmark went with decriminalisation, and in Finland selling sex is legal but it is illegal for example, to sell sex in a public space, or to buy sex from an organised form of prostitution. Sweden focuses on exit strategies and zero-tolerance for prostitution, whereas Norway, Denmark, and Finland focus on harm reduction (providing health care, condoms, etc). In Iceland strip clubs are illegal.

As you can see, Nordic countries have some similar and some very diverse approaches to addressing prostitution and the sex industry.

Something many people are not aware of, is that while individuals in prostitution are decriminalised, foreign prostitutes in Sweden are prohibited. This could be a way to prevent cross-border trafficking, or it could be seen as discrimination against foreigners in the sex industry, who yes, very often can be victims of exploitation, or individuals in search of a better life with no alternative job options.

Finally, I think it is important to note that sex trafficking still occurs in Sweden and other Nordic countries, so simply implementing the system of partial criminalisation will not bring an end to prostitution or trafficking in persons.

Friends of mine who work near the black sea have commented on the increase of Scandinavian sex tourists who travel to other countries to buy sex, creating a higher demand for sexual services in those locations. So while focussing on the demand may decrease buyers in some countries, it can lead to increase of sex tourists in other, less economically stable countries. There is concerns that sex trafficking is difficult to track down and address in the partial system, and that sex workers are more vulnerable to violence by being forced to operate ‘underground’.

Criminalising the buyer is a system supported by many who call themselves sex work survivors, sex trafficking survivors, and the abolitionist movement.

Decriminalisation: Whereby citizens over the age of 18 are legally allowed to partake in prostitution, brothels are allowed to operate under health and employment laws, and living off the avails of prostitution is legal, this includes the partner or boyfriend of the individual in prostitution.

Most countries do not go the route of total decriminalisation, although as it stands, if Canada does not create another alternative, this will be our system. Prior to the Bedford decision in December 2013 prostitution in Canada was not illegal, but brothel ownership and pimping (living off the avails), and communicating in public with clients, were. The Bedford decision ruled these laws unconstitutional and those laws have been struck down pending a new legislation.

Besides Canada, New Zealand is one of few examples of a decriminalised system. Above I mentioned that prostitution and brothel keeping in Denmark is decriminalised, but they do have a legal framework regarding ‘living off of the avails’ or otherwise known as pimping. Denmark has an estimated 4,000-6,000 women in prostitution of which half are thought to be foreigners.

Iceland had a stint from 2007-2009 where the buying and selling of sexual services was decriminalised. In 2009 the country past a law banning the purchase of sex. Opinion polls show that up to 70% of the population support banning the purchase of sex.

New Zealand is a difficult country to compare any other system to because it is an island with a population of approximately 4.4 million people. Cases of reported human trafficking in New Zealand are very low, the majority of it being in country (or domestic) trafficking. I have read scathing reports regarding New Zealand’s prostitution laws specifically related to an increase in underage prostitution, and I have read glowing reports, specifically related to the rights of sex workers being upheld and low rates of sex trafficking.

Australia may be a better example to compare Canada to since their population is closer to ours, but their prostitution laws differentiate depending on State. New South Whales has the most liberal prostitution laws and was the model for New Zealand. Brothels are legal in NSW but it has been reported that 1 in 4 brothels in Sydney are operating illegally. Many other parts of Australia fall under the regulated system. Australia is considered a destination country for trafficking, and it has been suggested that sex trafficking is fuelled by a lack of enough Australian women willing to work in prostitution and meet the demand for sexual services.

Laws regarding pimping, or living off the avails of prostitution are some of the most highly contested when it comes to decriminalisation. Pimping is one of the main forms of force and coercion in situations of sexual exploitation, but living off the avails of prostitution could, as many sex workers point out, refer to the partner of the sex worker.

Decriminalisation is often the model that sex workers rights groups and sex workers themselves request.

Regulation/Legalisation: Sex workers are allowed to operate under strict regulations. The Netherlands and Germany are two examples, where prostitution is legally allowed in correctly zoned brothels and areas. 

The Netherlands has been on the forefront of creating a legal framework under which sex workers are allowed to operate. Originally prostitution was tolerated, but laws changed to legalisation in 2000 in order to better address criminal activity, exploitation and underage prostitution and give the chance for sex workers to operate in legal and licensed businesses. This move was supported by the vast majority of the Dutch population.

In the 14 years since the brothel ban was lifted in The Netherlands, prostitution laws have been adjusted multiple times to reflect issues of criminal activity, in particular exploitation and trafficking of foreign women and the pimping of both Dutch and foreign women. Sex workers must be registered at the chamber of commerce and pay taxes to the Dutch government.

It is estimated that 25,000-30,000 work in prostitution in the Netherlands. 70% of this group is made of Eastern European and South American women. While window prostitution is by far the most famous form of prostitution in the Netherlands, is does not represent the vast majority of sex workers. Those who are recognised as victims of human trafficking are mainly found in illegal forms of prostitution operating outside of the legal framework.

The city of Amsterdam has become active in shutting down and buying up former brothels, and in 2013 passed a law that women must be 21 years of age to enter prostitution. This move was born out of a recognition that exploitation was not prevented through legislation.

In Germany it is estimated that 400,000 women work in prostitution and that an estimated 63% are foreigners. 

The proximity of both Germany and the Netherlands to East Europe has made prostitution an attractive choice for individuals from countries where unemployment for women is exceptionally high. Unfortunately many of those same women often find themselves in circumstances different from what they are promised and in general are highly vulnerable to exploitation.

The Netherlands and Germany have both come under criticism internationally for their systems of legislation; seen as too strict by those fighting for decriminalisation who claim exploitation happens when the government attempts to regulate the system and pushes sex workers underground, and see as too liberal and a form of systematic injustice by those who feel that prostitution is a violation of a human right and would have the focus moved to criminalising the demand.

Legalisation is often popular among those who feel that prostitution will not end so the best way to deal with it is to create a legal system that can be policed and taxed, allowing people to make the choice to do the work if they so desire.

Once again it is nearly impossible to cover all the nuances and opinions represented in the conversation around a legal structure to address prostitution.

It goes back to how you and how your culture views a violation of a human right, and whether the country takes the initiative to work towards ending prostitution, or if they accept prostitution as an ongoing reality in society.

Hopefully from reading this and yesterday’s piece you will at least be able to make a more informed commentary on our law reform.

I did not shine a positive light on any one system, because the most important thing to remember is that no law will be the answer. Whatever law we have, we must work within or work to adjust it, but we cannot rely on it to be the solution to exploitation and injustice.

Important things to consider:

– Sex workers/individuals in prostitution are first, foremost, and always, people. Entitled to human rights and protection, not violation and exploitation.

– Those who are most at risk to violence are not those who make the most money, but those who engage in survival sex, who are struggling with substance abuse, mental illness, trauma, or those who do not have a home or a community to protect them. Our often marginalised aboriginal women and migrant populations are also vulnerable to violence. Whatever our laws end up being, these are the groups who will need your support. These are the individuals we should be the most drawn to uphold, whether or not we agree with their circumstances.

– Any system, apart from totally ignoring the issue, will demand resources and investment in order to be implemented. Remember that the next time you are paying into social welfare programs. If you support real change, it will come with a real cost.

– Education is one of the most valuable tools to combat violence and injustice. Investing in our marginalised populations and educating our daughters and our sons on the equality and value of every human will go a long way in addressing the root causes of exploitation.

I hope this helps you better understand the complexities.

Citations are available if you would like to request where I got my information.

Comments
6 Responses to “Determining Your Position – A breakdown of legal structures surrounding prostitution”
  1. Good explanation! I think when voting people really need to read this first in order to make a good decision.

  2. MS says:

    Hi, read your stuff. Makes sense. I’m in Canada and I support the Protecting Communities and Exploited Persons Act because it empowers women and girls to report abusive pimps and johns. It increases their safety by expressively permitting the hire of body guards.

    I have checked out the legal Adult Film industry in California and I think it is exploitive because they won’t comply with the California Occupational Safety and Health Administration’s requirements for using safety devices. They tried to sue LA County over a condom law.

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  1. […] Tomorrow I will write a breakdown of the main models up for discussion – decriminalisation, legalisation, or the Nordic Model. Which you can now read here: Determining Your Position – A breakdown of legal structures surrounding prostitution […]

  2. […] – Read about the different Legal Systems […]



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