What is decriminalisation?

There are three legal frameworks used to regulate prostitution:

  • decriminalisation
  • criminalisation
  • legalisation.

Much media and political debate posits only “legal” or “illegal” as options for the sex trade, but decriminalisation is the legal approach campaigned for by hundreds of sex worker lead organisations globally, several of which are in the UK.

Many anti-sex workers’ rights campaigners use the terms “decriminalisation” and “legalisation” as if they are identical though they describe very different legal approaches. It is impossible to tell if they are doing this from genuine, if implausible, ignorance or an active desire to misinform by someone who may be aware that clarity and accurate information does not assist their cause.

Decriminalisation

Decriminalisation has been implemented in New Zealand and some states of Australia. Some anti-sex workers’ rights campaigners say they are campaigning for ”the right not to be prostituted”, as if decriminalisation would make sex for money compulsory: it does not. Neither is decriminalisation a state-supported encouragement of prostitution in the same way that decriminalisation of male homosexuality in 1967 did not represent a directive from the state that men were required to engage in same sex sexual contact nor does it create a Wild West, “anything goes” approach: decriminalisation is subject to extensive Occupational Health & Safety regulation which offers a model that could be implemented in the UK.

Decriminalisation simply removes the laws that criminalise the exchange of consensual adult sexual services for money or financial gain in order to give people who sell sex the fundamental human rights removed by the law under criminalisation.

In New Zealand, which decriminalised prostitution nationwide in 2003, the law aimed to “safeguard the human rights of sex workers and protect them from exploitation, to promote the welfare and occupational health and safety of sex workers and create an environment which is conducive to public health, and to protect children from exploitation in relation to prostitution”. People who currently or previously worked in the sex industry are protected against discrimination on grounds of their employment. All legislation relating to acts of violence rape, assault, etc as well as about nuisance, noise, waste disposal etc still applies to people in the sex industry. Since decriminalisation there have been cases where sex workers have

  • successfully prosecuted a brothel owner for sexual harassment
  • successfully prosecuted a client for removing a condom during sex
  • successfully prosecuted a police officer for coercing sex
  • received compensation for rape that did not discriminate against the victim because she was a sex worker.

Decriminalisation is advocated by the United Nations General Secretary, UN Women, UNAIDS, UNODC, the ILO, WHO and World Bank as the most effective way to deliver services to those who need support as people in the sex industry have no reason to avoid the authorities and thus is the most effective policy to protect public health.

Decriminalisation enables greater freedom to leave sex work by removing criminal convictions that make it almost impossible to move into other employment.

Decriminalisation recognises that every woman is entitled to fundamental bodily autonomy and her consent is worthy of respect without discrimination.

Decriminalisation means that, for everyone, consent counts.

Criminalisation

Criminalisation describes situations in which any aspect of the exchange of sexual services for money is illegal. Under criminalisation, there are three groups of people who may be criminalised – people who themselves sell sexual services, those who pay for sexual services and/or third parties facilitating the provision of sexual services by others.

In the UK, people in all three groups are criminalised. People who themselves sell sexual services are considered to be persistently soliciting outdoors if they are caught loitering or soliciting more than once every three months. Those who pay for sexual services are entirely criminalised in Northern Ireland, where the consent of people who sell sex is regarded as legally void, while in England, Scotland and Wales they are criminalised if seeking to contact a service provider outdoors or (indoors or out) the person whom they pay or promise to pay is later considered to be “subjected to force”. The definition of “subjected to force” was so widely drawn at the time this legislation passed as to include, e.g., someone who feels emotionally blackmailed.

Indoors it is legal to sell sex but only in complete isolation; sharing premises is criminalised as brothel keeping, assisting someone else to find clients is criminalised as “controlling for gain”, etc.. Criminalisation of third parties is so broad that as to frequently result in successful prosecution of individuals who themselves offer sexual contact and have e.g., sent text messages to confirm a colleague will be present during their shift or jointly rented a flat for a week with another woman who also offers sexual services. Legislation on trafficking is framed in such general terms that anyone who knowingly transports someone to a location where they will be providing (or expected to provide) sexual services (e.g., your friend who gives you a lift to work) is at risk of arrest.

The Universal Declaration of Human Rights states

  • “all … are entitled without any discrimination to equal protection of the law,
  • “everyone has the right to own property alone as well as in association with others”,
  •  “everyone has the right to freedom of peaceful assembly and association”

and

  • “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

Current UK legislation on sex work deprives us of these rights.

In Sweden, it is legal to sell sexual services but not to pay for them or to profit from someone else’s sexual labour (hence the authorities’ ability to render a sex worker homeless by informing their landlord of their occupation as the property owner can be prosecuted as a “pimp” for allowing the tenancy to continue). Although criminalisation of paying sex is not a new legal approach, it is loudly promoted as “the Swedish model” (sometimes also misrepresented as “the Nordic model”; in fact of the five Nordic countries, only Iceland, Norway and Sweden have adopted this policy.) Advocates of “the Swedish model” generally see sex work in exclusively gendered terms, believing prostitution to be “violence against women”, and viewing the eradication or “abolition” of prostitution as both desirable and achievable. The Swedish government, as well as many well resourced organisational and individual campaigners against sex workers’ rights, claim that treating our consent to sex as less worthy of legal respect than that of other women (within their view that people who sell sex are female) has been a “success”, for various definitions of success; the primary aim was often presented as eradication or diminution of the sex industry but this has altered due to the indications that the policy has failed to deliver this promised “solution”.

The ludicrousness of the belief that criminalising paying for sex and profting from sexual labour, but decriminalising the sale of sexual services, will deliver “a world free of prostitution” is perhaps best illustrated by the fact that, if “the Swedish model” is effective in this aim, logically it should follow that all the USA needs to do to eradicate prostitution is to decriminalise individuals who provide sexual services, as all other parties are already criminalised. For more information, including much of the best available substantiated data, on the consequences of criminalising our consent, click here

Legalisation

Legalisation refers to any of the regimes with laws specific to any aspect of consensual adult commercial sex. Countries with legalised prostitution include Germany, the Netherlands, Nevada (excluding Las Vegas), Turkey and Peru; each has different laws and these laws may vary between e.g., counties in Nevada or federal states (Bundesländer) in Germany.

Sex workers’ rights organisations generally campaign against the imposition of legalised  regimes as, whatever structure is chosen, it will result in the creation of a two tier system of those who comply with regulation and those do not, whether by choice (for example, wishing to work independently rather being required to work into a brothel, as in Turkey or Nevada ) or by circumstance (e.g., non-EU sex workers in the Netherlands, who are excluded from working legally ).

Like criminalised regimes, legalisation undermines the rights and freedom of people in the sex industry and, by creating situations in which it is often almost impossible to work legally, deprives us of the protection of the law and increases the dangers which we face.

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