Prostitution Contents

5Other legislative models

Legalisation

81.Some countries, rather than either totally prohibiting or fully decriminalising prostitution, take the approach of establishing laws to control where, when and how prostitution is legally permissible.

Netherlands

82.Prostitution in the Netherlands was legalised in 2000, when the general ban on brothels and the ban on pimping were lifted, and more severe penalisation of undesirable forms of prostitution and the sexual abuse of minors was introduced. The sex industry is regulated under administrative and labour law, brothels are subject to a licensing scheme and adult consensual sex work is decriminalized. The administrative responsibility is devolved primarily to local government, and municipalities therefore play the most important role in determining local policy for prostitution. The six aims of the legislation were: the control and regulation of voluntary prostitution through a municipal licence policy; more robust tackling of exploitation of coerced prostitutes; protection of minors from sexual abuse; protection of prostitutes; clarifying the distinction between prostitution and criminal activities; and reducing the scale of prostitution by illegal foreign nationals.

83.In a 2007 evaluation of the impact of the legislation, the Dutch Ministry of Justice found that 95% of prostitutes remained ‘self-employed’, despite “a high degree of control” by brothels, which meant they did not have access to the social security system. Figures suggested that there had been no decline in the number of prostitutes controlled by pimps. The evaluation found that the emotional well-being of prostitutes had declined between 2001 and 2006 leading to an increased use of sedatives. Municipal inspection regimes were patchy, three-quarters of inspections were announced and the penalty for most brothels for breaching their licence conditions was a formal warning. 100 The Dutch government considered a raft of additional measures in 2012, including raising the minimum age from 18 to 21; mandatory registration of prostitutes in a national register; and punishing clients using illegal prostitution with a fine. Following criticism that the proposals did not go far enough the Senate failed to pass the new legislation.

84.Academic research published in 2014 by Jane Pitcher and Marjan Wijers, outlined the legislative and policy framework of the Netherlands, compared it to legislation and policy in England and Wales, and considered the impact of the different regimes on off-street sex workers. The authors argued that, although decriminalization of sex work is a precondition to secure the labour and human rights of sex workers, the involvement of sex workers in policy development and facilitation of different modes of working are necessary to improve their working conditions and autonomy.101

Germany

85.Prostitution in Germany is legal, and subject to regulation. In October 2001 the German Bundestag passed the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), and the Act entered into force on 1 January 2002. The legislation legalised the relationship between prostitute and client meaning prostitutes could sue for payment. It also allowed for employment contracts between prostitutes and brothel owners, although the usual right of an employer to give instructions was restricted to protect the right of sexual self-determination, allowing prostitutes to access the social security system. The aim of the Act was to improve the legal and social situation of prostitutes, by restricting criminal liability to cases involving exploitation; enabling prostitutes to have proper employment contracts and thereby to reduce their dependency on pimps; and to improve the health and hygiene conditions for prostitutes at work. According to the Government’s 2007 review of the impact of the legislation, the Prostitution Act was adopted following “a difficult political process” which “was very much influenced by different basic ethical attitudes”, but ultimately took a view of prostitution as:

[ … ] an autonomous decision that is to be respected by the law but which is typically associated with considerable dangers and risks. These include, for example, the psychological and physical impacts on those working in prostitution. These risks and dangers are not associated with all forms of prostitution to the same extent, but are primarily determined by the conditions under which the prostitutes are working.

86.The Government’s review concluded that the Prostitution Act had only to a limited degree achieved the goals intended by the legislator; that there had been little measurable improvement in working conditions of prostitutes and little improvement in the ability of prostitutes to exit the sex industry. However, it also concluded that some of the concerns had not proved to be justified, and that the Act had not made it more difficult to prosecute trafficking in human beings, forced prostitution and other prostitution-related violence. It concluded that “a more broad-based approach to regulating prostitution is required” focused on combating of trafficking, forced prostitution and prostitution involving minors, and that it should aim to protect prostitutes as much as possible from violence and exploitation “not least by making the clients of those forced into prostitution liable to punishment”.102

Decriminalisation

New Zealand

87.New Zealand decriminalised prostitution through the implementation of its Prostitution Reform Act (PRA) in June 2003. The purpose of the legislation was:

To decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use); create a framework to safeguard the human rights of sex workers and protect them from exploitation; promote the welfare and occupational health and safety of sex workers; contribute to public health; and prohibit the use of prostitution of persons under 18 years of age. The PRA also established a certification regime for brothel operators.103

88.The PRA was evaluated on behalf of the Government by a Law Review Committee in 2008. Its main conclusions included:

89.Tim Barnett, who as a New Zealand MP sponsored the Prostitution Reform Bill during its passage through Parliament, said that decriminalisation had led to a “massive improvement in police-sex worker cooperation” which had enabled murders of sex workers to be solved; corrupt police and law breaking brothel owners to be exposed and convicted; and traffickers of sex workers to be exposed.104 The New Zealand Prostitutes Collective said that the New Zealand model protected the rights, health and welfare of sex workers, protected them from exploitation, and allowed them to report violence without fear of action by the police against them or their clients.105

Denmark

90.Prostitution in Denmark was decriminalised in 1999, but certain related activities remain illegal. Both buying and selling sexual services are legal, but activities such as operating brothels and pimping are illegal, as is prostitution by non-residents. Sex workers are not entitled to the protection of employment laws or unemployment benefits, but they are still required to register for and pay tax, although they are do not have to declare prostitution as being their occupation. Part of the rationale behind decriminalisation was that making it legal to sell sex would also make it easier to police.

91.During our visit to Copenhagen in April, we heard a range of views on the impact of decriminalisation and on the measures necessary to address the ongoing problems associated with sex work. Officials from the Ministry for Social and Interior Affairs emphasised that prostitution in Denmark is considered to be a social problem, not a criminal matter. Accurate information was very difficult to collect, but they believed that there were probably around 2,900 prostitutes in Denmark. There were no data available on whether decriminalisation had had an impact on the number of prostitutes, but demand appeared to be stable: surveys indicated that about 15% of the male population had bought sex at some time in their life. There was a great deal of competition between prostitutes and prices for sex had not increased in recent years. There was a significant proportion of street sex workers who had come from abroad and it was suspected that at least some of them would have been trafficked. Prostitution seemed to be moving off the street, either to massage parlours or internet-based. Decriminalisation had not ended the social stigma attached to prostitution and prostitutes still tend to hide what they do: it was described as “decriminalised but not legitimate”. Political views on the treatment of prostitution remain very polarised.

92.We visited the Livarehab centre which provides support for prostitutes, including for a range of psychological, drug addiction and other problems. We were told that there is a higher incidence of drug and addiction problems among prostitutes than the rest of the population and many have been subject to child abuse. Most of the women who visited the centre had experienced lack of opportunities, poor family life and difficult upbringing. Most of the centre’s “participants” were Danish, but they also included women from many other countries, transgender people from various countries and Swedish male prostitutes. A number of the women came from Greenland, a Danish dependency, where people suffer many social problems. Most prostitutes want to exit prostitution but feel they cannot, often for financial reasons. Livarehab also helps participants to learn other ways of earning money, such as jewellery-making and textiles. There was a range of views even amongst the centre’s staff about decriminalisation and whether a sex buyer law would be better and we were told that many people disagree with the existing law but differ about what changes should be made.

Potential benefits of full decriminalisation

Better sex worker cooperation with the authorities

93.Some witnesses suggested that decriminalisation was a necessary step to enable sex workers to engage with the authorities and to access support. One25, an organisation in Bristol supporting street sex-working women stated that if the law did not criminalise women for selling sex, then they would be more willing to turn to the police for help and support. It argued that while decriminalisation was not a perfect legal solution, it provided women involved in street sex work with “better protection against violence, increased chances of seeking justice against those who exploit or abuse them and increased support in establishing routes out of street sex work”. 106

Working together for safety

94.A number of witnesses said that the current legislation in England and Wales meant that women could not protect themselves by working together, without fear of arrest. The English Collective of Prostitutes stated that brothel-keeping provisions increased sex workers vulnerability to violence by forcing sex workers to work in isolation, which undermined their efforts to stay safe and deterred them from reporting attacks for fear of arrest.107 Sex Worker Open University said that brothel-keeping provisions should be among those which are repealed, “because sex workers who choose to work together for safety or to share expenses are routinely prosecuted or threatened with prosecution under these provision”.108 Professor Philip Hubbard said that decriminalisation, as implemented for example in New Zealand, had allowed workers to operate legitimately alone or in collectives and encouraged them to report instances of rape or violence.109

Health

95.A number of health organisations, including the World Health Organisation, the Global Commission on HIV and the Law and the Royal College of Nurses, support the decriminalisation of sex work on the grounds that it facilitates the provision of health services.110 The National Aids Trust stated that criminalising sex work undermined HIV prevention and treatment for a high-risk population, reduced the ability of sex workers to negotiate condom use with clients, and increased the risk of HIV transmission. It referenced research which indicates that decriminalisation of sex work could have the greatest effect on the course of HIV epidemics, averting 33–46% of HIV infections worldwide in the next decade.111

96.Scarlet Alliance, an Australian sex workers association, commented that in New South Wales, Australia, a decriminalisation model similar to that of New Zealand had delivered “exceptional public health outcomes, minimal opportunities for police corruption, increased transparency, improved safety for sex workers, and far higher levels of compliance than any other model of regulation”. It pointed to a range of research publications on the outcomes of decriminalisation in New South Wales. 112

Arguments against full decriminalisation

Expansion of sex industry

97.Critics of decriminalisation argue that it leads to an increase in the size of the sex industry and increases sexual exploitation. For example, the Nordic Model Information Network states that countries where prostitution is legalised show expansion of the prostitution market.113 For reasons discussed earlier in this Report, estimates of the size of a sex industry are very difficult to make, and so there is little definitive evidence to either support or rebut this view. However, the New Zealand Prostitutes Collective states that the number of sex workers in New Zealand has remained relatively stable since decriminalisation. The Sussex Centre for Gender Studies echoed this view.114

Continued exploitation of sex workers

98.The Nordic Model Australia Coalition is an organisation for survivors of commercial sexual exploitation in Australia, which supports the sex buyer model of legislation. It stated that issues have arisen as a result of decriminalisation in Australian states, particularly New South Wales, which has “entrenched exploitation of persons in the sex industry, perpetuated stigmatisation and prevented real justice, support and compensation for those who wish to exit the sex trade”. It also said that, since decriminalisation of the sex industry in New Zealand, at least four women involved in prostitution are known to have been murdered by sex buyers, whereas the only similar fatality in Sweden was a domestic violence incident.115

Increased trafficking

99.The Nordic Model Australia Coalition cited a research study carried out by the London School of Economics and the German Institute for Economic Research, in which “the researchers used a global sample of 116 countries and found that countries where prostitution was legal tend to experience a higher reported inflow of human trafficking than countries in which prostitution was prohibited”.116 However, it should be noted that the author of this paper also indicated a number of qualifications to the research findings. He pointed to “the clandestine nature of both the prostitution and trafficking markets” which make it difficult, and “perhaps impossible”, to find hard evidence to establish a direct relationship between legalisation and trafficking. The researchers noted that the finding about higher reported inflows was therefore “best regarded as being based on the most reliable existing data” but which needed to be “subjected to future scrutiny”. It was made clear that more research was “definitely warranted” and that coming to firmer conclusions would require “the collection of more reliable data”. It was also argued that although “the likely negative consequences of legalized prostitution on a country’s inflows of human trafficking might be seen to support those who argue in favour of banning prostitution” in order to reduce trafficking, this overlooked “the potential benefits that the legalization of prostitution might have on those employed in the industry”:

Working conditions could be substantially improved for prostitutes—at least those legally employed—if prostitution is legalized. Prohibiting prostitution also raises tricky “freedom of choice” issues concerning both the potential suppliers and clients of prostitution services. 117

100.We received evidence that the model of decriminalisation implemented in New Zealand has worked successfully. Research suggests that it has resulted in a number of benefits, including a clear policy message, better conditions for sex workers, improved cooperation between sex workers and the police, and no detectable increase in the size of the sex industry or exploitation of sex workers.

101.In our continuing inquiry, we will evaluate the extent to which elements of the New Zealand model might be implemented in England and Wales, the benefits which might derive from this, and the risks of negative consequences, such as an increase in associated crime or public nuisance, and our conclusions will be set out in our final report.

Our overall assessment of other legislative models

102.All of the different approaches which we have examined have some advantages but none appears to offer a complete solution and none would be directly transferable to England and Wales in its entirety because the context in which it would be applied will always be different, particularly in terms of employment law and the social welfare support available, as well as the wider criminal justice system and policing. However, there may well be elements from the different models which could usefully be applied in England and Wales. At this stage, we are not recommending the adoption of any one of the three broad models of a sex buyer law, decriminalisation or legalisation, because the evidence base for any of these changes is not yet established. We will set out our views on this in our final report. In the meantime, we have made clear our strong view that the first step of changing the existing legislation on soliciting, and on brothel-keeping as it relates to sex workers sharing premises, should be taken by the Government as a matter of urgency.


101 Criminology and Criminal Justice, 2014 14, The impact of different regulatory models on the labour conditions, safety and welfare of indoor-based sex workers, Pitcher and Wijers

104 Tim Barnett (PRO0127); see also New Zealand Parliament Hansard, 25 June 2003

105 New Zealand Prostitutes’ Collective (PRO0223)

106 One25 (PRO0056)

107 English Collective of Prostitutes (PRO0172)

108 Sex Worker Open University (PRO0147)

109 Professor Philip Hubbard (PRO0019)

110 London Young Labour (PRO0098)

111 National Aids Trust (PRO0153)

112 Scarlet Alliance (PRO0122)

113 Nordic Model Information Network (PRO0143)

114 New Zealand Prostitutes’ Collective (PRO0223); and Sussex Centre for Gender Studies (PRO0125)

115 Nordic Model Information Network (PRO0143)

116 Nordic Model Australia Coalition (PRO0198)

117 World Development, Vol 41, 2013, Does prostitution increase human trafficking?




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16 June 2016