Prostitution Legal Models Part 1

It has been a while, but I'm back. This is the first half of a post I promised for a friend and it is a long one. The plan is to discuss various legal approaches to sex work/prostitution that are practiced in different countries. This first half focuses on models that attempt to eradicate prostitution through prohibition or abolition. In the coming week the second half will look at models of decriminalization and legalization.

That states consistently address the complex social situations that underlie the sex trade through the legal system is particularly problematic, but it is to legal models that governments turn when they attempt to control sex work and address any associated harms. This is significant because the consequences of the laws required by each model and their interpretation and implementation impact on how the trade is plied and the well-being of those who participate in the trade. In the first day of the committee hearings, July 7, 2014, Francoise Boivin (NDP) asked what models were studied in the development of the new Canadian law: “did you examine different models, or rather did you consider only one when you were drafting Bill C-36? Did you consider decriminalizing or legalizing these activities? Did you analyze the Nordic Model? How exactly did you arrive at Bill C-36?” The response from Donald Piragoff, Senior Deputy Minister, Policy Sector at the Department of Justice, was, “we looked at a number of different models. The consultation paper which was distributed in March referred to three different approaches. They were general, but there were a lot of variations between them. These three approaches were considered. Everything was looked at – from total abolition to total criminalization, as in some American states, to the Nordic model, to decriminalization models.”   The three general models he refers to are prohibitionist, abolitionist, and decriminalization. To this we can include a fourth which is a model of legalization. Consequently, the purpose of this post is to outline the models and legal regulatory regimes that are practiced in various countries around the world. 

Prohibition: 

The prohibition model bans and imposes sanctions on prostitution by criminalizing all aspects of the sex trade and the people involved. 

Within Europe it is practiced predominantly in Eastern Europe, Albania, Croatia, Romania, Serbia, Ukraine and the Russian Federation. In states like Russia and the Ukraine while all aspects of prostitution are criminalized it does not mean that sanctions are enforced and when sanctions are enforced it is generally against the frontline sex workers rather than those who manage and control the trade most often organized crime groups. There is an implicit understanding that prostitution is a moral issue and that the prostitutes themselves are fallen women to be sanctioned or rescued. According, to the Wikipedia site on prostitution in Russia, recently efforts were made to eliminate street walking from central Moscow as after the fall of communism the sex trade had grown significantly. However, because the industry is largely controlled by organized crime who bribe police and authorities the results were minimal and it was a general improvement in the economic situation that could be linked to a decrease in street prostitution.  Eastern Europe is also reputed to be a major source for sex trafficked women throughout Europe and to some extent in North America. 

In North America, the United States predominantly practices a model of prohibition with the notable exception of a few counties within the state of Nevada. In the U.S., prostitution falls within the jurisdiction of each state, and, outside of Nevada, states have adopted models of prohibition. The goal is to eliminate prostitution by sanctioning all prostitution activities, not just at the level of frontline sex workers but also those who purchase sex and those who manage the sale of sex. For example, in California, prostitution is illegal. The state Penal Code sets out that the agreement to engage in prostitution along with actively engaging in prostitution are criminal offences. Loitering for the purpose of prostitution is prohibited as is solicitation either in public or private. Further to this provision is made to criminalize pandering and living off the avails of prostitution. This can be said to be a blanket provision for the criminalization of all parties in the arrangement, however, the California State Court (2007) has overturned municipal penalties against those who purchase sex, specifically the seizing of vehicles of drivers who were soliciting sexual services. That “prostitutes make up at least one third of all female inmates in the United States (Barnett and Casavant, 2011/2014, p. 19) indicates that criminalization falls disproportionately on the frontline sex workers. 

While Nevada practices a form of legalization, it has to be noted that it is particularly limited. For all intents and purposes, outside of brothels in specific local counties, prostitution is prohibited. State-wide street prostitution, escort services and massage parlours are illegal. Although, as any visitor to Las Vegas can attest to, advertising of sex-for-sale does not appear to be illegal or controlled, prostitution is illegal in both Vegas and Reno. Prostitution is allowed only in licensed brothels and it is only the less populated counties (with fewer than 700,000 residents) that are allowed to license brothels. Further to this, those counties with brothels vigorously control the establishments through zoning provisions, licensing criteria and fees, regulation of day-to-day business practices, and regulation of individual sex workers. Sex workers must register with the police and be issued a work permit conditional on passing HIV/STI screening and in some counties sex workers have restricted mobility, either required to stay at the brothel site or vacate the county when not working (Barnett and Casavant, p. 20).  

Abolition: 

The goal of abolitionist approaches is the eventual elimination of prostitution through the interdiction of either supply or demand. In other words, if sex cannot be sold or purchased the trade will decline and disappear. Consequently, such approaches criminalize the contractual relationships involved either in the sale or the purchase of sex. The understanding is that prostitution is a social problem and the state must intervene to control the trade in order to protect society and, in some approaches, the prostitutes themselves.

The traditional abolitionist approach is to criminalize the act of public solicitation. Examples of this are Canada, prior to the change in the law on November 6, 2014, and the United Kingdom. In these cases the selling of sexual services is not technically illegal, however, most of the practices involved in making the exchange are illegal. In Canada it was illegal to communicate for the purposes of prostitution in a public place (formally section 213 of the Criminal Code). In the UK, similar offences are outlined in the Street Offences Act (1959). Sanctions are also levied against private prostitution through the criminalization of brothels or “keeping a common bawdy house” in Canada. In the UK this means that it is not illegal for an adult to sell sex out of a private residence (it is illegal in both the UK and Canada for a minor to sell sex or for someone to purchase sex from a minor anywhere), however, if more than one person sells sex on the premises or a number of individuals work together it is considered a brothel (bawdy house) and therefore a criminal enterprise. Any place habitually used for prostitution such as a house, apartment, hotel, or parking lot can be considered a bawdy house. Those who aid the exchange, that is directing or transporting individuals to sex workers or bawdy houses, are also criminalized. There are significant sanctions applied to those who are seen as “living off the avails” of prostitution, this includes pimps and procurers, but can also extend to those who maintain personal (children, spouses, roommates) or employee (bodyguards, accountants, receptionists) relationship with a sex worker. As of this year, Canada has adopted the Nordic model in its law and along with the decriminalization of sex workers has rewritten the law regarding the “living off the avails” to sanction those who receive a tangible benefit from a coercive position rather than the overly broad concept of anyone who receives a benefit. It should also be noted that the UK is seriously considering adopting elements of the Nordic model.

The second abolitionist approach is the Nordic Model, which Barnett and Casavant (2011/2014) refer to as neo-abolitionist. In this variation it is understood that prostitution is inherently violent and coercive because the sale of human bodies is always defined by a power imbalance. Therefore, those who sell sex, “prostitutes” (rather than “sex workers”), need protection along with the general society. As a consequence, rather than further ‘victimizing’ sex workers through criminalization, the focus is on the criminalization of the purchasers and pimps. That the new Canadian law is informed by this model is clear in its short title, “The Protection of Communities and Exploited Persons Act.” The Minister of Justice, Peter MacKay, also made it very clear in his appearance before the Standing Committee on Justice and Human Rights.“… its goal is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the extent possible. … The cornerstone of Bill C-36’s approach is to reduce demand for prostitution by criminalizing the purchase of sexual services. … I stress, Mr. Chair, that the approach is not intended to facilitate or in any way condone the sale of sexual services. Rather, this bill addresses this complex societal policy issue by taking into account all of the safety concerns outlined in the Bedford decision, but also the broader safety and societal concerns posed by prostitution more generally, which include the need to protect those subjected to prostitution from violence and exploitation; the need to protect communities from prostitutions harmful effects, including exposure of children; and the need to protect society from normalization of a gendered and inherently exploitative practice.”

While the Nordic Model was first adopted in Sweden, it is so named because of its adoption in three other Nordic countries, Norway and Iceland. (Finland uses a more traditional abolitionist approach, although purchase of sex is illegal if tied to human trafficking, and Denmark has adopted a decriminalization model.) In 1998/1999, Sweden passed the Act Prohibiting the Purchase of Sexual Services which decriminalized the act of selling sex, while criminalizing the act of purchasing sex. In other words, the onus of culpability was shifted from sex workers to their predominantly male clientele. “Individuals who obtain or attempt to obtain sexual services in exchange for payment face fines or imprisonment for up to one year [originally 6 months it was extended after review in 2010]. … Pimps face up to eight years in prison for circumstances of aggravated procurement” (Barnett and Casavant, 13). The similarity between the new Canadian law and the Swedish Nordic Model can be seen in the goals as enunciated by Minister Mackay, that the criminalizing of buyers focusses on those seen as responsible for maintaining the demand for prostitution and recognizes that this demand is the coercive commodification of human beings. Therefore, if demand is reduced so will the inherent exploitation. As such the social problem of prostitution and a form of gender inequality will be addressed. 

However, the Nordic model as practiced in Sweden goes further than just creating a legal regime for combating what is seen as a form of gendered sexual exploitation as it is combined with a program of social and economic support to allow sex workers to exit the trade. (In the Canadian legislation there was a promise of $20 million in funding to organizations who help sex workers exit the trade, but there are no specific legal guarantees for these funds.) This is because intrinsic to the Swedish model is a commitment to gender equality and combating violence against women. The 1999 Act, “demonstrates the government’s commitment to eradicating gender inequality in all its forms, including prostitution” and prostitution is “defined as a form – a serious form – of male violence against women” (Barnett and Casavant, 13, citing Winberg, 2003). The Nordic Model is seen as fitting with the Sweden’s gender equality program. For example, the actual Act Prohibiting the Purchase of Sexual Services was combined with measures to combat sexual harassment in a larger piece of legislation, the Violence Against Women Act (Kvinnofrid). This is significant as combatting prostitution and sex trafficking is clearly enunciated as part of a formal government program of gender equality as can be seen at the Governments Offices of Sweden website (www.government.se/sb/d/409b/a/171700); a government which clearly describes itself as feminist on its English language web site. 

While the new Canadian law has been significantly based on the Nordic Model where the criminalization of purchasing sex is concerned, there are differences. It is, as Minister MacKay stated, “a uniquely Canadian approach.” As this is the Protection of Communities and Exploited Persons Act, there are provisions to protect the broader public. “In the area of advertising, child prostitution offences, communicating for the purpose of selling sexual services, we have introduced an amendment, or I should say a response that protects the public more broadly, that protects the fact that in school yards, in shopping malls, in playgrounds, in places where children can reasonably be expected to present.…. There is again, I suggest, an obligation on the government to protect vulnerable individuals, in addition to the vulnerable prostitutes” (Peter MacKay, July 7, 2014).

As a number of commentators have observed this reintroduces, or more correctly continues, an avenue for criminalization of sex workers. While the general act of selling sex, solicitation, is no longer illegal, there is an exception: if it takes place where persons under the age of 18 may “reasonably be expected to be present” the act of selling sexual services is illegal. As the summary of in the original legislation put it, e) create an offence that prohibits communication for the purpose of selling sexual services in a public place, or in any place open to public view that is or is next to a place where persons under the age of 18 can reasonably be expected to be.” In his testimony to the committee, the Minister stated that this would ultimately be clarified by the Courts, but “it wouldn’t be in an afterhours bar at 3 a.m., but it would be in a schoolyard. It would be leaving church, or a shopping mall, or a ball field, or a rink. It could be leaving a hotel at certain times of the day” (MacKay, July 7, 2014). As Francoise Boivin, an NDP member of the committee, stated, this clearly continued the criminalization of sex workers, “they’re [sex workers] victims up to a certain point, if they cross the line and do it in a public place, that they define as a school, a church, and so on, a daycare centre, schoolyard, or playground nearby, in their amendment G-4, they are not victims anymore.” Active sex workers appearing before the committee expressed great concern that this provision for criminalization was far broader than the Minister envisioned and could cover working out of apartments where children were in adjacent units and the inclusion of hotels was particularly problematic given that a great deal of business was carried out in hotel rooms at all times of the day. Criminalising sex work in this manner could seriously limit public access for sex workers and allow authorities to force them into more isolated areas off the beaten track which increases the insecurity of individual sex workers. 

Looking at this provision it appears the new law still maintains the concern of the old law regarding combating and reducing the “nuisance” associated with the trade (noise, loitering and traffic congestion) and maintaining public order by sanctioning and limiting where sex workers can ply their trade. That this is still a concern could be seen in a statement made by Rick Hanson, the Calgary Chief of Police: “if it’s a pure legalization and there is no Criminal Code or no offence there, then the issues around enhanced vehicle traffic, johns approaching regular women in the street, trying to use the sidewalks, and needles and condoms, and those types of things are a source of grave community concern. … by having some provisions under the Criminal Code that allows us to take some steps and by making it minimal provisions under the Criminal Code, i.e., summary conviction offences, it allows us to take some actions to remove the social disorder issues associated with that…” (Hanson, July 8, 2014). At face value, the new law puts the responsibility for the social issue of prostitution on the purchasers, however, when it comes to public order and nuisance onus (and sanction) is still put on the sex worker. Boivin, describes the irony succinctly, “these people [sex workers] are victims to a certain point, as long as it doesn’t interfere with protecting communities and it isn’t conducted in certain well-defined areas.” 

The original provision of “where persons under the age of 18 may reasonably be expected to be present” was one of the few amendments passed by the committee (all government proposed amendments). It clarified the broad scope of the concept of “reasonably expected,” to read “open to public view, that is next to a school ground, playground, or daycare.” While this helps clarify locations, the criminalization of sex workers remains, we are left wondering, or more correctly the Courts are left to determine, when sex workers are defined as victims and when they are criminals.

Of further interest are the provisions regarding the “commercialization” and “advertising” in the sex trade. These provisions are intended to combat those who profit from exploitation of sex worker. The primary targets are “pimps,” but included with the concept of “pimping” is the “institutionalization of prostitution through commercial enterprise.” The goal is to shut down commercial enterprises that “capitalize in the demand created by purchasers.” This is intended to replace the offence of “living off the avails” by defining it as a relationship of exploitation where financial and material benefit is gained through an unfair commercial relationship. It also has impact on provisions around running a “common bawdy house” or brothel.  (As an aside, this certainly raises interesting philosophical questions regarding the nature of work relationships and alienated labour, but that can wait for another blog post.) Those who procure and run a brothel or bawdy house are viewed as receiving a material benefit from a relationship of exploitation and therefore are criminals. 

There are legal sanctions to control advertising of sexual services; “(c) to create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet.” The reasoning, according to Minister MacKay, is that advertising enables prostitution and sanctions against 3^rd party advertising , “will hold those who are advertising, not the prostitutes themselves but those who advertise these services either through papers or online, also to criminal account” (MacKay, July 7, 2014). While sex workers are allowed to sell their services and might advertise individually, 3^rd parties that profit from carrying, posting, and designing such advertising will be considered criminally liable. As one witness (Dr. Jane Benedet) states, this would limit the significant profit made by local papers, such as the Georgia Straight in Vancouver, from selling classified ads for sexual services. 

In the committee hearings, these provisions were controversial, particularly the definition of what would be considered exploitation by a third-party and an exploitative material gain. If one person was to open and manage a brothel where a number of sex workers plied their trade paying a portion of their earnings to the individual, this person would be committing a criminal act even if that person was charging a fair rate for room rental, booking services, and security. If a group of sex workers were to come together and create a “cooperative” (a question asked by Craig Scott NDP during the hearings), where the proceeds from their work is evenly divided to pay a fair market wage to security, receptionists, and accountants, it would be a legal arrangement. But, and it is a big ‘but’, this is still an institutionalized commercial enterprise which could be considered an “iffy” enterprise under the law.  As money is still going to individuals who are not sex workers, who is to determine a fair market wage (minimum wage?, national average?, etc.). It harkens back to the traditional abolitionist approach in the UK which allows for individual isolated sex worker to operate privately, but criminalizes groups of sex workers working together. 

Determining cases of exploitation where violence and coercion are used to recruit and maintain sex workers in the trade are clearer cut, such exploitation would also fall under human trafficking laws. According to the police witnesses before the committee the difficulty has always been ascertaining whether the relationship is exploitative. They foresee further difficulties with the new law in that in using the broader definition of “living off the avails” it was easier to separate a “pimp” from the sex worker so the sex worker could be questioned to establish if the relationship was exploitative. With the new law, police will be required to show exploitation before the “pimp” can be isolated from the sex worker. 

All of this, however, is probably quite meaningless, when it is taken into account that the neo-abolitionist approach is based on an understanding that “prostitution is inherently violent and coercive because the sale of human bodies is always defined by a power imbalance.” Prostitution is by definition exploitation. Therefore, any enterprise no matter how equitably run for-or-by sex workers will be a form of exploitation and illegal. 

 

The sanctions against advertising are no less confusing. In Sweden all advertising is deemed illegal. However, it is not as clear cut in the new Canadian law. If a sex worker individually advertises their services on-line this is legal. However, if the sex worker pays someone to do the advertising for them, then the company or person publishing or posting the advertisement is criminally culpable. If a group of sex workers were to set up a shared web-site, criminal culpability would lie with the web-designer, the internet company providing the site, or somewhere where someone is making money from the placing of the advertisement. This raises the question of where could individual sex workers advertise their services? To do so on Craigs-list, in the back page classifieds, puts legal onus on the advertising service provider and encourages them not to take such ads. So where can sex workers advertise? Possibly individually designed and posted web-sites (although the web provider company may be at risk). This precludes group sites and sex worker service sites which also can carry bad-john lists and support information for sex workers. Possibly there will be return to flyers and post-cards left on bulletin boards, in hotels, on the street, etc., although this runs the risk of being too public and where children might be reasonably expected to be. The one area an individual sex worker can advertise their services is bodily on the street; a place which all agreed was the least secure and most dangerous for sex workers, and one of the very things the Court ruling in Bedford was attempting to change.  During the committee hearings some government MPs on the committee stated that as long as sex workers were paying a fair market price (not an exploitative one) for commercial services, including advertising, the relationship would not be deemed exploitative and illegal. This may be the case, but it is not clear in the legislation and the new law; it is something that has been left up to the Courts to decide. 

The concern voiced by sex workers is that the sanctions against institutionalized commercial enterprises and advertising means that significant limits are put on the ability of sex workers to work in organized private indoor settings which are generally much safer and secure (and also less prone to creating public nuisance). This they argue continues to criminalize the work and them as sex workers. Consequently, it appears that the changes promised by the Canadian Nordic Model are actually quite minimal. Beyond criminalizing the purchasers, there is still a great deal of hold over from the traditional abolitionist approach.  

The next half of this discussion will cover approaches that adopt models of decriminalization and legalization, plus Australia. Australia is dealt with separately because it can be argued it is a comparative experiment in approaches within a single country. My plan is to get to this in the coming week.