Penal Code: a code of laws concerning crimes and offenses and their punishment.
Prostitution and Sex Work
The term “prostitution” is used in the penal codes of most states to describe exchanging sex for money. We use the term here on this site as it relates to addressing those laws.
Culturally and socially, this work is more often referred to as “sex work.” Consensual adult sex work is distinct from human trafficking and from coerced sex work.
This guide to terminology from Amnesty International explains the difference:
Sex Worker (prostitute): sex workers are adults (aged 18 and older) of all genders who receive money or goods in exchange for the consensual provision of sexual services, either regularly or occasionally.
What is NOT SEX WORK:
- Coerced sex work
- human and sex trafficking
- sex work where minors under the age of 18 are engaged in commercial sex
Adult consensual sex work is not the same as coerced sex work or human trafficking:
Adult consensual sex work does not fall into the threshold definition of UN Trafficking Protocol guidelines for human trafficking or coerced sex.
Human trafficking: Amnesty International uses the definition of human trafficking (or ‘trafficking in persons’) as set forth in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000). The UN Trafficking Protocol defines trafficking as constituting three elements:
- An “action”: that is, the recruitment, transportation, transfer, harbouring or receipt of persons;
- A “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and
- A “purpose” (of the action/means): specifically, exploitation.
All three elements must be present to constitute “trafficking in persons” under the UN Trafficking Protocol.
The only exception is when the victim is a child, in which case the “means” requirement is no longer an element of the crime.
What is CONSENT?
Consent: voluntary and ongoing agreement made between an adult sex worker (18 years and older) and consenting client (s) to engage in a particular sexual activity.
- Consenting to sex or to sell sex does not mean consenting to violence.
- Consent can be rescinded at any time.
Differences between Criminalization, Decriminalization and Legalization:
“Criminalization” refers to the process of prohibiting consensual adult sex work and attaching punishments in law. Criminalization of consensual adult sex work generally takes three different forms which are applied in a variety of combinations across countries. These can be summarized as:
- Laws which make the sale of sex by consenting adults a criminal offence, including for example laws on solicitation, and under which penalties are imposed upon sex workers themselves.
- Laws which make the organization of adult consensual sex work a criminal offence. These include, but are not limited to, laws against keeping a brothel; promotion of ‘prostitution’; renting premises for the purposes of prostitution; living off the proceeds of sex work; and facilitating sex work through the provision of information or assistance. These laws can result in the imposition of penalties against sex workers themselves for organizing their own sex work and against anyone who assists them;
- Laws which make the buying of sex from consenting adults a criminal offense and under which penalties are imposed on buyers.
This means the removal of all laws and policies that make sex work a criminal offense (such as those prohibiting selling, soliciting, manifesting, buying or facilitating sex work or living off the proceeds).
It also relates to the discriminatory use of other laws, which are not specific to sex work, to harass, intimidate, exploit, arrest or justify the use of force against individuals engaged in sex work.
Laws against vagrancy, public lewdness, public nuisance, homosexuality and cross-dressing, and regulations such as those on public nuisance or quality of life, among others, are all used in a discriminatory way against individuals engaged in sex work.
Decriminalization DOES NOT MEAN:
- Decriminalization of sex work does not mean decriminalization of violence or other rights violations that occur within sex work.
- In a decriminalized system, the same laws that generally apply to other businesses may be applied to sex work. Thus, relevant tax, zoning and employment laws, as well as occupational health and safety standards, apply equally to sex workers and sex work establishments
- Similarly, laws on assault, intimidation, harassment, blackmail, labour exploitation, forced labour and human trafficking, among others, can and should be used to protect the rights of sex workers
It involves not only decriminalization, but development and enforcement of additional specific laws and policies aimed at regulating sex work, distinct from other employment sectors.
Legalization is associated with structuring the industry itself. Legalization involves direct state regulation and control of sex work, in the following ways:
- passage of laws that limit the numbers involved or locations of commercial sex premises
- imposition of the mandatory testing of sex workers for HIV and sexually transmitted infections (STIs).
- police are most commonly used to enforce the legal framework, as opposed to protecting sex workers from violence and other crime.
Amnesty International’s concerns with legalized sex work model:
- Legalization of sex work does not necessarily permit all types of sex work.
- For example, legal sex work may be limited to brothels that are subject to licensing restrictions.
- The regulatory requirements of some legalized systems can mean that many sex workers that operate outside legalized settings, such as on-street locations, are still criminalized and subject to policing and punishment, thus exposing them to human right violations.
This creates a two-tiered system of legal and illegal sex workers.
The regulatory restrictions in some legalized systems can also work to prohibit sex workers from organizing collectively and managing their own sex work, meaning in effect that in order to operate legally they have to work for a licensed operator such as a commercial brothel.
While some sex workers may choose to work in commercial establishments, Amnesty International considers that the freedom to work collectively and/or self-organize is crucial to ensure the safety of all sex workers and the realization of their rights. Some regulations within legalized systems directly violate human rights.
Problems with criminalization model:
Criminalized sex work laws are used to justify the harassment and extortion of sex workers, or people presumed to be sex workers, both by police and others.
Sex workers who are from marginalized groups such as transgender or gender non-conforming people, and/or who work in public spaces such as on the street, are at increased risk of being targeted and punished.
This makes transgender sex workers (especially transgender women) particularly visible to law enforcement officials, increasing their likelihood of arrest where sex work is criminalized or under vague laws that are often used to target them through discriminatory policing.
Sweden vs. New Zealand
The arguments over prostitution have gone on for many years and have been subject to angry debate, and divisiveness, particularly within the women’s community. There are numerous variations of opinion, but two principal sides dominate the discourse. They are the labor rights side and the morality side. In the United States the morality side dominates. The best example of the labor rights side is in New Zealand. Few places in the world lean as far over into moralizing than the US.
The moral position is an amalgam of traditional religious values and radical feminist philosophy. It is most clearly articulated by the Swedes who describe the rational for their system of regulation as follows…. ”The Sex Purchase Act was introduced by feminist policymakers who argued that prostitution is a form of male violence against women; that it is physically and psychologically damaging to sell sex, and that there are no women who sell sex voluntarily.” Furthermore, it was claimed that if one wants to achieve a gender equal society, than prostitution must cease to exist, not only for the above mentioned reasons, but also because all women in society are harmed as long as men think they can “buy women’s bodies”. If the ban would have adverse effects for individual women who sell sex, or if it violates their right to self-determination would not matter. The gender-equal symbolic value of the Sex Purchase Act is more important.
Advocates for a model that arrests buyers of sex and treats sellers not as criminals, but as victims to be rescued, are pushing for the adoption of these ideas in the US and in Hawaii. They dominate the political discourse by appealing to conservatives who are opposed to prostitution on moral grounds and feminists who support the ideas noted in the paragraph above. As such both the political left and right within the US has been rounded into supporting changes in laws that would end the criminalization of persons selling sexual services aka prostitutes or sex workers. Tougher laws are advocated for buyers and managers.
A cottage industry of rescue organizations, most of which are faith based in some manner although seldom self-described as such, has grown up in the US since the beginning of the century. This is after over the top claims of giant numbers of American sex slaves were circulated and the Bush Administration used them to support their agenda to fund faith based non-profits with tax money.
Many advocates and organizations aimed at rescue do not see their approaches as rooted in morality. Yet the other side argues that making criminal law based on some philosophical ideas about the relations between men and women while ignoring the ability of women to consent to sex for money, can only be interpreted that way.
To summarize, the big players on the “arrest the men” moral side are the US Government, the governments of several smaller countries which have followed Sweden, radical feminist academics and philosophers, and most of the rescue industry. Government and church monies have flowed extensively to law enforcement, academics, and non-profits who support these views. In many ways this has distorted the public perception as other opinions have been less heard or threatened with un-funding.
The labor rights arguments puts sex trafficking into the same category as other forms of labor trafficking. It focuses on the issues of abuse that are the harms of trafficking and not on the sex which is the issue of concern by the moralists. This approach is supported by sex workers, harm reductionists, and those who support the concept of individual liberty.
Harm reduction is a way of approaching problems that aims to reduce the harms rather than force people to change their behavior entirely. It is non-judgement. Social service providers work with people where they are. Physically this means going to where the client base can be found rather than requiring them to come to an office. It also means dealing with people where they are in their heads and in their life at present. It works with clients to identify problems from their perspective and find ways to deal with them. The idea of trying to force people out of prostitution because someone has decided that is best for them is not part of harm reduction. Whether the method of coercion involves arresting the sellers of sex directly and sending them to a rescue program (The Arizona model) or simply chasing away their clients by arresting purchasers of sex, or by heavily penalizing any attempts workers have to work safely, the essential issue is always force. Harm reductions do not engage in this. They agree that no one should be forced into prostitution, but unlike the moralists don’t agree it is okay to force people out of it.
Libertarians put the rights of individuals before the desires of communities to promote their various views of utopia as reflected in the Swedish government approach. Although they do not oppose faith based rescue, they do not feel it should be backed by threats of criminal sanction. Many rescue organizations do good work and help a lot of people who are desirous of leaving the sex trades. It should be noted that a person who enters into one of these programs is often subject to reeducation in terms of the way they have perceived their prior lives. This may be of value to individuals, but it is not the approach of harm reduction. Former sex workers who advocate for the Swedish model have almost certainly been through a rescue program wherein that model was put up as the accepted approach.
Sex workers who are organized to fight for their rights, as many are overseas, are very much opposed to the arrest the buyer model of the Swedes. The West Bengal (India) sex worker organization Durbar has over 65,000 worker members. There are sex worker organizations in many places throughout the world that support the complete decriminalization of prostitution that includes buyers and managers. It would remove laws sanctioning the acts of consenting adults. This idea is best represented by New Zealand. It is supported by the largest anti-trafficking organization in the world, The Global Alliance Against Traffic in Women. It is very much opposed by the moralists. They say almost no prostitution is voluntary and much of the impetus to adopt the New Zealand model is actually paid for by pimps and traffickers. They often insist that the sex workers organizing and protesting are actually not real sex workers, or are doing so out of fear from traffickers, or simply have the wrong feminist consciousness.
The Swedish model is often sold to Americans as a way to reduce sex trafficking. Although it is certainly an attack on prostitution it is hard to see how it improves the lives of anyone selling sex. No trafficker is likely to abandon their ways simply because there are drops in revenues due to an anti-buyer campaign. Those that are victimized will be subjected to more abuse and will turn to other crimes to keep their trafficker happy. Despite claims to the contrary most evidence suggests the majority of sex workers are in fact consenting adults. Arguments made against their agency include saying any childhood trauma in their past means they are not consenting or they are only doing it because they are disparate for the money. However, accepting these arguments means accepting an entirely different definition of the word consent than is commonly understood.