Sex Work: the proposed legal models

Mar 06, 2020

Written By Anna Vall Navés

Many legal frameworks for prostitution have been passionately debated in recent years. But how do the proposed models differ from the current legal status of prostitution in the UK? What are their possible ramifications? And finally—why is it so difficult to reach a consensus?

Prostitution is often described as the world’s oldest profession—yet many won’t even recognise it as a profession, arguing instead that it’s a form of female exploitation or that it normalises violence against women. Ideological debates like these make it difficult to legislate sex work.

Sex work is at a crossroads where multiple social issues intersect, from poverty and social inequality to the rights of women and minority groups. In such a complex field, legislation that can seem reasonable and straightforward in theory can have unexpected consequences in practice on, for instance, the safety of sex workers. With this in mind, it is crucial to make clear distinctions between different legal frameworks and to examine closely their possible repercussions.

What do the terms “criminalisation”, “legalisation” and “decriminalisation” mean?

“Criminalisation” refers specifically to legislation that makes selling sex illegal, but it can also be applied to legal frameworks where activities closely related to sex work—such as brothel-keeping or kerb-crawling—are made illegal, or to those where only specific individuals are criminalised (for instance, clients). In Canada, for example, prostitution is technically legal, but buying or advertising it is not. This is sometimes described as “partial criminalisation”.

Under legalisation, prostitution is legal only under particular state-specified conditions and regulations; the sex-work industry is therefore controlled exstensively by the government. Sex-work-specific regulations are put in place, which may include measures such as the registration and licencing of sex workers. An example of a country where prostitution is legalised is the Netherlands, where prostitution is regulated and subject to income tax.

On the other hand, decriminalisation involves stripping away all prostitution-specific legislation, either to forbid or to regulate it (although the sex-work industry and everyone involved in it must still abide by the laws of the land). The idea behind decriminalisation is to allow sex workers to manage their own industry and design their own regulations.

Legalisation and decriminalisation are often confused with one another, merged into one, or otherwise misunderstood. But the distinction between these two terms is critical.

What is the legal status of prostitution in the UK?

Prostitution in the UK—with the exception of Northern Ireland, where buying sex is illegal—exists in a legal grey area. While the selling of sex is technically legal, plenty of related activities are not, meaning a system of partial criminalisation is in place. Some of the banned activities include brothel-keeping, pimping, kerb-crawling, pandering and soliciting or buying sex in a public place.

It is legislation surrounding these banned activities that has attracted the most criticism—in particular, the criminalisation of brothel-keeping. Under UK law, a brothel is defined as a property where more than one person sells sex. This means that prostitutes are technically committing a crime if they decide to work together indoors—something which many sex workers choose in order to look after their own safety. A law intended to protect sex workers from being exploited might in fact be endangering them.

Many have also criticised the extent to which the police are locally given power over sex-work policy. According to the Crown Prosecution Service (CPS), summary-only offences (which include solicitation and advertising) do not have to be proven in court, and arresting or reporting is at the officer’s discretion. While charging practice is to prioritise and eliminate sexual exploitation and trafficking, many are sceptical of the power the police is granted when it comes to creating and implementing policy given the leverage that this can potentially give them over sex workers.

Other criticisms have also emerged in relation to the Proceeds of Crime Act (2002), which gives courts the power to confiscate any assets they suspect have been acquired through criminal activity. If a sex worker has engaged in criminalised aspects of sex work, such as brothel keeping or soliciting, they could be wary of reporting incidents to the police for fear of having their earnings confiscated.

Legal frameworks for prostitution

Among those who have denounced the current UK prostitution laws are feminist organisations, politicians and sex workers themselves. With news stories about prostitution—such as New York’s bid to decriminalise sex work—making headlines on an almost-weekly basis, a number of legal frameworks have been relentlessly scrutinised and debated in recent years.

The Nordic model

Also known as the Swedish model or the sex-buyer law, the Nordic model aims to end the demand for, and therefore eliminate, prostitution. As its name suggests, this system has been adopted by many Nordic countries including Sweden, Norway and Iceland, alongside others such as France, Ireland and Northern Ireland. Under the Nordic model, selling sex is not illegal, but buying sex—alongside many activities related to prostitution—is a criminal offence.

“Nothing can make prostitution safe or bring it up to anywhere near [...] the United Nations’ definition of ‘decent work’,” says Anna Fisher of NordicModelNow!, a UK-based women’s organisation campaigning for the abolition of prostitution. Fisher argues that legislation should therefore be focused on “reducing the amount of prostitution that happens, providing support and genuine routes out to those caught up in it, and focusing criminal sanctions on prostitution users and anyone who profits from another person’s prostitution”. Fisher emphasised that these are all provisions that the Nordic model includes.

Proponents of this model also argue that, due to its gendered nature, prostitution should be viewed as part of a larger system of of inequality between women and men. Fisher claims that prostitution is “a social issue that has a widespread impact on all women”, as it normalises sexual exploitation and violence against women.

Critics of this model, however, condemn its failure to account for the effects that it can have on the safety of sex workers. Raven Bowen of National Ugly Mugs (NUM), a charity that aims to end violence against sex workers, claims that it’s unreasonable to criminalise one side of the equation (in this case, clients) and expect it not to affect sex workers. “In lived reality,” Bowen argues, “sex workers are very much criminalised” when Nordic-style regulations are implemented, and she points to Ireland as “a shining example” of how this happens.

In June 2019, two migrant prostitutes in Ireland (which has Nordic-style legislation in place) were jailed for nine months and charged with keeping a brothel. This case has been decried as “completely unjust” and as evidence that the Nordic model does, in fact, criminalise sex workers instead of protecting them.

The disagreements between these two sides—one of which looks to end a kind of work that it views as exploitative and unsafe, and the other that looks towards making it safe as the main priority—are difficult to reconcile.

Legalisation

Another framework that has garnered attention, particularly after it was adopted in the Netherlands, is the legalisation of sex work. Other countries that have adopted this approach include Austria and Germany.

Since prostitution was legalised in 2000, prostitutes in the Netherlands have been classed as independent workers. They must register, get a permit and pay income tax in order to be able to work legally. The legalisation and regulation of sex work aimed to eliminate exploitation and criminal activity and improve the conditions of sex workers, and for many, legalisation has brought benefits—such as greater access to the welfare state and better negotiating rights with bosses.

However, while many sex workers have benefitted from the government’s provisions, it’s not always the case. The English Collective of Prostitutes (ECP), which campaigns for decriminalisation, argues that “legalisation benefits the bosses not the workers” because it “creates a two-tier system where the women with the least money and power remain illegal and at risk”. The most vulnerable workers, including migrants and sex workers who use drugs, often stay outside of the protection of the law and work in clandestine and unsafe conditions. They’re generally driven underground and often forced to work under people with more power who can exploit their illegal status.

Other arguments have also been made that under legalisation, sex workers face employment barriers that other workers do not, that their access to labour benefits is sometimes limited, and that many workers may not wish to register because doing so threatens their anonymity.

Full decriminalisation

Decriminalisation has attracted the support of many sex worker organisations, Amnesty International, the World Health Organisation, and—more recently—the Royal College of Nursing. The full decriminalisation of sex work has also gained traction in the state of New York this year. However, the only nation to have ever decriminalised sex work is New Zealand—with the controversial exception of migrant workers.

Full decriminalisation entails removing all prostitution-related laws, both those that make prostitution illegal and those regarding prostition-related activities. Decriminalisation aims to allow sex workers to take control of their industry and eliminate any form of exploitation that may exist within it.

Bowen states that no one sees decriminalisation alone as “a sort of magic bullet”: “Decriminalisation is an opportunity to eliminate the legislation that exists currently, and using labour law and insights from occupational health and safety guidelines, sex industry workers would then create policy to regulate their industry,” she says. “That way they can design out exploitation and make sure they have collective bargaining rights.”

Bowen emphasised the importance of prioritising sex workers’ safety, arguing that the intersection between criminalisation and safety must be recognised. The ECP also sees decriminalisation as “the best way to ensure the rights and safety of those working in the industry”, pointing to New Zealand as an example. According to official government reports, since sex work was decriminalised in New Zealand, 70% of sex workers said they were more likely to report violence to the police and there has been no evidence of trafficking.

Critics of full decriminalisation sometimes claim that, because it makes prostitution completely legal, it encourages a trade that normalises sexual violence against women and girls. However, neither the ECP nor the NUM claim that decriminalisation is the perfect solution, and instead propose that we look at the broader context of sex work.

Pointing out that austerity measures often disproportionately affect women, the ECP argued that it is often the economic climate that drives individuals into sex work. In this context, it says, “criminalising sex work […] cannot be understood as anything other than the criminalisation of poverty”.

Bowen makes a similar point, stating that while decriminalisation does go a long way in protecting some of the most marginalised sex workers, it does not solve larger issues “like poverty, social inequality or social stigma”.

The future of prostitution laws in the UK

Prostitution is a profession where many different issues—class, gender, race, sexuality and the very concept of work itself—clash. Each of these models prioritises different causes, whether it be women’s rights or the physical safety of sex workers, and trying to satisfy them all appears to be an impossible task. With this in mind, it is highly unlikely that in coming years a consensus will be arrived at regarding the status of sex work in the UK, and the debate is likely to continue.

Proponents of the Nordic model, legalisation and decriminalisation all have one thing in common: none of these frameworks intends to criminalise sex workers, whatever the actual ramifications of these models might be. However, regardless of the common ground these frameworks share, it is particularly difficult to reach a consensus on this issue.

While changes to prostitution laws similiar to those proposed in New York do not seem likely to be implemented in the UK in the near future, many hope for smaller revisions of the current law. Greater access to healthcare and counselling for sex workers are among the kinds of changes that proponents of many different legal frameworks have suggested. Bowen expressed her hope that “at the very least, some particular legislation (like changes to brothel-keeping laws) will be implemented, because we’ll choose to prioritise the health and safety of sex workers”. Her ultimate goal, however, “is that one day safety charities like NUM will have no reason to exist”.

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