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- Consent can be rescinded at any time.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.