The ‘legal prostitution issue’ continues to be an old question addressed in a modern era. Abolitionists and regulationists continue with the debate over what is the best solution for their governments, the society and the women (and men) in that business.1 In almost 50% of the world’s countries, sex work is a legitimate job.2 Nonetheless, the other half of the countries still see sex work as a crime and penalizes it. The main reasons for this division between the countries are the policies the countries make concerning this issue. The ones that are pro legalization see sex work as another ‘job’ that the economy will benefit from.
On the other hand, the strict policies and laws that the ‘against countries’ impose, perceive sex work as a component of the organized crime, and therefore as inherently linked to problems such as trafficking. For example, in 1998 the Swedish legislative body delivered a law that penalizes sex work, or put more clearly, penalizing the purchase coming from sex work, but not sex work itself.3 By acting in that manner, Sweden declared sex work as not desirable economic and labor sector.4 Sweden is one of the first countries that criminalized sex work at the end of the last century, after sex work being legal for number of years. The justification for taking this step was that criminalizing sex work was necessary for the protection of women, moreover, the perception of purchasing sex as a form of violence of men against women.5 However, no evidence can confirm that this model has reduced sex work only that it allocates it out of sight, in the underground.6 Moreover, re-criminalization gives sex workers uncertainty while conducting their work; meaning that sex workers are more exposed to abuses by clients, police or their partners, than if sex work is legal.
Following this further, the Human Rights Standards for Trafficked Persons adopt the same position and argue that the human rights of sex workers can only be realized through the recognition, application and protection of the same rights and freedoms to sex workers that are available to other workers,11 and in that way distinguish them from the victims of trafficking. These Standards12 were based on international human rights documents, which many countries have signed, such as the International Covenant on Civil and Political Rights, despite the fact that they are not part of legally based or bounding document. Furthermore, in another ILO report from 2006, the labor organization suggested that the trafficking industry for the purpose of sexual exploitation in women is worthed a lot more than some other industries are, specifying the number of US $27.8 billion per year.13 The pro-legal prostitution feminists and other supporters of sex workers embraced the two ILO reports and greeted ILO’s support of sex work and sex workers.
In final consideration, the currents laws that criminalize sex work violate sex worker’s right by increasing their vulnerability, mainly from the purchasers of their services. Everyday sex worker are faced with abuses, mistreatment and severe violations of their rights. However, sex workers are entitled to the same human rights as every each one of us have. They have the right to be respected, the right to enjoy personal freedom and freedom from violence, right others to respect their dignity as humans, the right to choose profession freely, moreover, the labor rights that accompany every job. Hence, criminalization of prostitution is an obstruction for the sex workers to exercise these rights. Therefore, the way out can be found in the legalization policies as effective methods in addressing prostitution and sex workers rights.
“Outlaw poverty not prostitution”14: The positive outcomes of legal prostitution
It is true when anti – prostitution feminist Catherine MacKinnon says that, “women in prostitution are denied every imaginable civil right in every imaginable and unimaginable way.”15 However, will not sex workers get the respect they deserve with legalization of this profession? Will they not be able to fulfill their rights if they were allowed legally engage in sex work? On one hand, they will surely not be undermined and underestimated by society as much as they were and are now. Stigma, discrimination and marginalization against this group of people will be reduced, maybe even non-existing. On the other hand, the legal business will allow sex workers and brothel owners to continue freely doing what they are doing anyway illegally, in those countries where sex work is a criminal act. In that light, some of the representatives of sex workers’ rights argued that “prostitution represents sexual liberation for women and that prostitution is the same as any other work, freely chosen by women.”16Moreover, many international women’s movements and organizations involved in the fight for improving sex worker’s rights and their position in society, strongly believe that voluntary adult sex work should be released from the constrains of criminal laws.17
Following this further, liberal feminist stress that patriarchal society conflates sex and gender, assigning to women only those jobs associated with the feminine personality; thus, women are pushed towards jobs like nursing, teaching and childcare.18 The liberal feminist discourses equate the right to be prostituted with concepts of women’s rights to self-determination, economic power and sexual autonomy – a woman’s body, a woman’s right.19 Moreover, in wealthy, liberal societies, sex work is paid very well; therefore, some women choose to do this profession drawn primarily by the high wages, but also by a renegade ideology of sexual liberation.20
When speaking and advocating for decriminalization and legalization of prostitution, it usually means removing the act of prostitution from the criminal codes. Hence, “the private sexual acts between consenting adults are placed outside the realm of criminal laws.”21 This also means that by removing the accent on sex works as criminal doing, the right to privacy and private life is met. In addition, as a reason why sex work is illegal in many countries around the world, as an example we can take the morality factor, because sex work is at large viewed as immoral and degrading. On the other hand, morality is very subjective and the perception of what is right or wrong is constantly shifting depending on different factors.22 Furthermore, “morality provides no sound basis for law, as people governed by laws cannot possibly all share the same moral beliefs.”23 Thus, it is understandable why there is still division between feminists when addressing sex work.
The benefits from legalizing sex work can be directly shown in the field of labor regulation. One of the countries that have legalized prostitution, the Netherlands, where sex workers were given full recognition of labor rights, is bringing this aspect of the sex industry in line with any other form of employment.24 Putting the sex work industry in line with all forms of labor has made sex workers subject to labor laws, bringing positive outcome not just for the sex workers but also for the country and its economy;25 a contribution made mainly from the permanent inflow of taxes coming from this industry. The similar result was shown in Germany, France, Austria, Taiwan, Armenia and other countries that consider prostitution a legally permitted job.
On the other hand, when talking about prostitution, we have the permanent opposite side who leads this debate in light of supporting the criminalization of this area. Radical feminists, such as Andrea Dworkin and Catherine MacKinnon, constantly advocate against prostitution being legal. According to MacKinnon, sex workers engage in sexual relations with men they otherwise would never be with because in their eyes the money are the motivating factor’ and “money acts as a form of force not as a measure of consent.”26 But we all work for money, are not we? Moreover, a respected feminist writer Donna Hughes argues that “if governments permit prostitution to flourish, a certain portion of each generation of young women will be lost.”27 On the contrary, these statements can only be taken in consideration if the women or girls are forcibly put into the prostitution business because that means that their human right of freedom and free choice are violated.
Finally, anti-prostitution representatives present prostitution as extremely oppressive practice incompatible with the universal standards of human rights; a form of modern slavery with indication to evolve and extend in future.28 However, this argument is somewhat contradicted by the actual recommendations in the Human Rights Standards for Trafficked Person’s report29, which are in favor of legalizing prostitution as a remedy for the current situation in the world of trafficking, on the basis that legalizing (voluntary and adult) prostitution is the best way of tackling the modern form of slavery.
In support of legalization of sex work, the statements from many respected scholars, authorities, and even former sex workers could be taken into a consideration. For instance, the Chair of the European Commission’s Expert Group on Trafficking in Human Beings, Ms. Marjan Wijers argues that the criminalization of the sex industry fertilizes the ground for exploitation and abuse.30 Furthermore, there is a possibility for all that to be stopped “if the existence of prostitution is recognized and the legal and social rights of sex workers are guaranteed.”31
Following this further, in support of legalization of sex work are Wendy McElroy,32 Ana Lopes,33 Carol Leigh34 and Melissa Ditmore,35 who say that sex work does not create victims, but the criminalization and the injunction does; therefore only decriminalization or legalization of this industry can provide safety for these women.36 This supports the statements mentioned through the text, that the current laws that are forbidding prostitution harm the sex workers, instead of helping them. The above mentioned key figures go further by saying that sex work is firstly a financial exchange, not only sexual exchange, and in that way, they put sex workers on the same level as workers in other industries, assigning to sex workers human and labor rights enjoyable by all people without discrimination.37 The legalization of this sector will mean a great opportunity for self – employment of women willing to be part of it.
As in everything else, countries also differ on their perception of sex work, which legal status is based on the three familiar legal options: regulation, decriminalization or legalization and criminalization of sex work. The legal policies applied by the German and the Dutch governments, showed that legalizing sex work as a form of employment brings positive outcomes. In this manner, the rights of sex workers were recognized in the first place as human beings, and in the second place as workers, with the acknowledgement of the rights and benefits that belong to them with their job. Following this further, even the countries claim benefits from sex work on the ground of taxation on the income that sex workers are making and from taxation on brothel operating.
Nearly 50% of countries have already made up their mind when it comes to sex work and simply removed this ‘taboo’ act from the forbidden doings placing it on a more available level as a future ‘desired’ area of employment. The rest of the world still has doubts whether is smart to make this step or not. Whatever the position of the governments might be, the world’s oldest profession is no longer ‘out of sight’. Choosing sex work as a form of economic advancement and sexual expression attracts more young women every day for reasons that go from simply economical to gaining more experience in this area and curiosity. In line with the above, equalizing sex work as any other way of employment will improve the working conditions of sex workers, as they will be included as beneficiaries in the state welfare system, meaning they will get health insurance, are eligible for pension after retirement and in case of work disability they will get certain compensation. Hence, the rights of freely choosing an occupation or profession and the right of choosing one’s trade are met.
On the other hand, the expansion of the sex industry needs to be carefully monitored and regulated, meaning put under the control of the States because of the close connection of voluntary prostitution with its coerced form, which takes the shape of trafficking.
As a result, this advocating for the legalization of prostitution, an action frequently done in the Western world, encourages sex workers around the world to stand up for their rights. Doing so, putting prostitution, or in other words sex work, on the list of legal jobs, brings satisfaction and freedom to sex workers to exercise their job properly, normally and decently as any other worker. Further, efforts to initiate change by sex workers’ health and rights groups have been slow, yet they are gradually making significant strides. The movement for sex worker’s rights has become more consolidated and has grown in size, and changes include recognition of adequate medical treatment, the right to have their children attend school and freedom from police violence.
These initial changes made, for example, in the case of Germany and the Netherlands; by improving the rights and conditions of sex workers, are significant because they represent a growth in awareness and recognition by the countries and the international community of the importance for the protection of the basic human rights of sex workers. Moreover, Germany and the Netherlands stand as an example of countries that cared for this group of people, thus acknowledging them as employees in an industry not so different from the rest. Following these conceptual policies further, granting sex workers with permanent state health insurance, pension funds, income in case of disability, and even remuneration in case of unemployment, is evidence that Germany and the Netherlands, as other countries where this profession is legal, are respecting the basic individual rights of every person without discrimination.
However, despite the positive outcomes that legalization of sex work brings, half of the world is still not ready to face this problem by giving sex workers the opportunity to do their job without fear of being arrested, prosecuted or punished for their doings. As stressed, the close connection between trafficking in women for the purpose of sexual exploitation and voluntary prostitution as a means of employment usually causes confusion when it comes to the debate on legalization of this profession, thus perceiving sex workers either as victims or as criminals. By ignoring the existence of sex work will not make this occurrence disappear, nor will it reduce the number of young women who become sex workers. Prostitution remains to be perceived as a problem, thus the ignoring of the rights of sex workers continues, which increases the risk of stigma, abuses and violence.
Ultimately, in order for the regimes on legalization of sex work be fully effective, the governments need to try to come up with more appropriate standards and rules, which will directly relate to the demand of the sellers (the women) in first place, than the buyers (mostly men), and also those who profit from this business. Furthermore, these measures need to meet the needs of both the sex workers and the requirements of the state, in order to get the best possible results. Most importantly, by adopting a legal system on the legalization of sex work, countries can encourage improvements in the status of sex workers, moreover, improvement on the issues of health, safety at work and working benefits for the ones who have by free will decided to be a part of the sex industry. Therefore, this does not mean singling out sex workers, but making them equivalent to all other employees, meaning creating an environment with no differences or discrimination when it comes to freely choosing a profession.
Finally, the practice showed that regulating the status of sex workers can make things better and not only for the ‘practitioners’. Replacing the label from immoral to allowed, will mean progress for the State too. The reality is that sex work is not a very different job than all the others. Organizations38, labor unions,39 whose membership number continues to increase day by day, movements, memorial days40 etc. are just one of the many indications that sex work exists as a field of employment and sex workers are people who choose it voluntarily and are enjoying it. Banning and forbidding one to choose her/his future career is a violation of the human rights of every person whatever she/he chooses to do and regardless of the source of income. It is a matter of time when the rest of the world will follow the example of Germany and the Netherlands who have already resolved this so-called problem by removing sex work from the criminal codes.
** The author is Master in Democracy and Human Rights and this text is part of the Author’s Master Thesis caring the same title, as part of the partial fulfillment of the European Regional Master’s Degree in Democracy and Human Rights in South-East Europe.
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3. In May 1998, Sweden became one of the first countries to prohibit the purchase of sexual services with punishments of fines or imprisonment.
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7. Hereinafter the International Labor Organization will be referred as ILO.
8. Raymond. Legitimating prostitution as sex work: UN Labor Organization (ILO) calls for recognition of the sex industry. http://sisyphe.org/spip.php?article689, (accessed on 25.03.2010).
9. ILO Report on Sex Sector Receives Prestigious Publishing Prize at Frankfurt Book Fair, Press release, 10.10.1998, ILO/98/36.
11. Human Rights Standards for trafficked persons.
http://www.globalrights.org/site/DocServer/IHRLGTraffickin_tsStandards.pdf?docID=204 (accessed 10.04.2010).
12. These Standards are published by the Global Alliance Against Traffic in Women, Foundation Against Trafficking in Women and Global Rights, drawn from international human rights instruments and formally-recognized international legal norms. http://www.globalrights.org/site/DocServer/IHRLGTraffickin_tsStandards.pdf?docID=204 (accessed 10.04.2010).
13. Belsar, Patrick. Forced labor and human trafficking: Estimating the profits. Special action program to combat forced labor. Geneva, International Labor Organization, 2005, 15.
14. This slogan was used in the US by sex workers who demanded the US government to recognize labor rights for the work they are doing.
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18. Tong, Rosemarie. Feminist thought: a more comprehensive introduction. Oxford, Westview press, 1998, 32.
19. Sullivan, Mary Lucille Making sex work: a failed experiment with legalized prostitution. Victoria Spinifex Press Pty Ltd., 2007, 3.
20. Gianoulis, Tina Sex work and prostitution. http://www.glbtq.com/social-sciences/sex_work_female.html, accessed on 23.03.2010.
21. Glatz, Eric. Prostitution Rights. http://www.connexions.org/RedMenace/Docs/RM5-ProstitutionRights.htm (accessed 07.04.2010).
22. Bell, Kelly J. A feminist’s argument on how sex work can benefit women. http://www.studentpulse.com/28/a-feminists-argument-on-how-sex-work-can-benefit-women (accessed 12.04.2010).
24. Cockayne, Andrew Prostitution and sexual exploitation in the European Union. www.ex.ac.uk/politics/pol_data/undergrad/aac (accessed 13.04.2010).
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27. Hughes, Donna M. Legalizing Prostitution Will Not Stop the Harm. http://www.uri.edu/artsci/wms/hughes/mhvlegal.htm (accessed 26.03.2010).
29. Human Rights Standards for trafficked persons.
http://www.globalrights.org/site/DocServer/IHRLGTraffickin_tsStandards.pdf?docID=204 (accessed 10.04.2010).
30. Marjan Wijers Chair of the European Commission’s Expert Group on Trafficking in Human Beings in her article in the book Global Sex Workers 1998. In “Top 10 Pros and Cons: should prostitution be legal?” http://prostitution.procon.org/view.answers.php?questionID=119 (accessed 05.04.2010).
32. Wendy McElroy is research fellow at the Independent Institute “‘Solutions’ to Prostitution”.
33. Ana Lopes, is PhD President of Britain’s General Union (GMB) Sex Workers Branch.
34. Carol Leigh is founder of Bay Area Sex Workers Advocacy Network (BAYSWAN) and former prostitute.
35. Melissa Ditmore is PhD coordinator of the Global Network of Sex Work Projects at Washington Post’s.
36.Top 10 Pros and Cons: should prostitution be legal? http://prostitution.procon.org/view.answers. php?questionID=119 ( accessed 05.04.2010).
38. Organizations about sex work and for sex workers: Call Off Your Old Tired Ethics (COYOTE), Sex Workers’ Rights Advocacy Network (SWAN), Bay Area Sex Worker Advocacy Network (BAYSWAN), International sex work foundation for art, culture and education, International Committee for Prostitute’s rights, The Red thread, Healthy Options Skopje, Scarlet Alliance, Sex Work Anonymous, Spread magazine, Education Means Protection Of Women Engaged in Recreation (EMPOWER), etc.
39. International Union of sex workers and The world’s first Prostitutes Union.
40. 3rd March is the international sex worker’s day and 17th December is the international day against violence of sex workers.