By Pavani Hapuarachchi
Prostitution, the oldest profession in the world, has been a taboo subject since its origin. It has been defined as “the act or practice of engaging in sexual activity for money or its equivalent; commercialized sex”. Although by definition prostitution can be regarded as a consented form of a sexual act, the Rome Statute of the International Criminal Court, identifies another kind of prostitution, which is “enforced prostitution”. Enforced prostitution is carried out under compulsion by a third party. These third parties could either be direct entities like pimps and traffickers, or indirect factors such as poverty, drug addiction and other personal problems. “Fondation Scelles”, an international observatory based in France, which specializes in monitoring and analyzing prostitution-related phenomena, in its 4th Global Report released in 2016 under the title, “Prostitution: Exploitation, Persecution, Repression”, stated that prostitution accumulates an estimated sum of $325 billion US dollars annually, while around thirty million people are involved in the industry worldwide. Moreover, to date the industry remains women centric. In other words as simply described by Professor and Eleanor M. and Oscar M. Carlson Endowed Chair of the Women’s Studies Program at the University of Rhode Island, Donna M. Hughes, “men create the demand and women are the supply”. For this reason, a prominent dialogue on legalisation and criminalisation of prostitution has emerged due to the plausible violation of human rights of sex workers and which approach out of the legalisation and the criminalisation of prostitution would overall benefit the society.
One of the most prominent distinctions between legalisation and criminalisation of prostitution is the aspect of crime attached to this profession. With legalisation, where the industry is controlled and governed under a defined set of guidelines formulated by the government, prostitution would cease to exist as a criminal offence. In fact Dr. Elaine Mossman, who is a veteran research consultant from Wellington, New Zealand, in a research article issued in 2007, titled “International Approaches to Decriminalising or Legalising Prostitution”, stated that legalisation of prostitution is assessed by certain jurisdictions as a viable solution in restricting the rate of crimes associated with prostitution. The prostitution industry has been legalised under certain specifications in several countries including the Netherlands, Switzerland, Austria, Greece, Sweden, state of Nevada in the US and certain Australian states such as Victoria and Queensland. Those specifications vary depending on the legal framework of the respective state, while legalisation generally includes conditions such as licensing, registration, and mandatory health checks.
Specifically focusing on the case of the Netherlands, the government introduced the concept of “tipplezones”; meaning defined areas where street prostitution was legal. Following a study conducted in 2017 by Paul Bisschop, Stephen Kastoryano, and Bas van der Klaauw on “Street Prostitution Zones and Crime”, for the American Economic Journal, it was found that the rate of sexual abuse and rape declined by 30% to 40% in the Netherlands, within the first two years of establishment of tipplezones, and that in the long run, crimes of sexual abuse saw long-term reductions while drug related crimes saw a 25% decline. Therefore based on the case of the Netherlands, it is evident that the legalisation of prostitution results in decreasing the rate of crime attached to the sex industry.
Criminalisation of prostitution on the other hand is the act of assessing prostitution as illegal under the criminal code, thereby branding it as a criminal offence. Thus, depending on under what clauses a certain jurisdiction deems to regard prostitution as a criminal offence, the approach of criminalisation is subdivided into two; “prohibitionist” and “abolitionist”. Prohibitionist is the approach where all kinds of prostitution are judged as offensive, hence the entire industry becomes illegal, and “abolitionist” is the approach where except for the sale of sex all other acts related to the industry are considered illegal, thereby, only penalizing the buyers of sex, traffickers and brothel owners. As stated by Dr. Elaine Mossman “an abolitionist approach often focuses on eliminating or reducing the negative impacts of prostitution”. This could best be explained by the approach followed by Sweden. The Swedish government was the first to criminalise buyers of sex instead of prostitutes. The aim behind the Swedish government to follow this approach was in order to limit or eradicate prostitution by restricting the demand for paid sex. Based on reports published by the Swedish National Rapporteur for Trafficking in Women at the National Criminal Investigation Department for 2003 and 2004, the passing of this legislature showed “clear indications that the law has had direct and positive effects in limiting the trafficking in women for prostitution to Sweden”. In that case the abolitionist perspective to criminalisation of prostitution can be considered as a possible proposition towards the eradication of this industry.
In essence, both legalisation and criminalisation aim to curtail the crime rate; the former, by removing the sense of criminal offence attached to the industry and the latter, by branding the act as a crime itself.
The next most significant difference between the legalisation and the criminalisation of prostitution would be health safety. Both buyers of sex and prostitutes are prone to contracting sexually transmitted diseases (STDs) if proper precautions are not adhered to. Although this may be true and applicable for both approaches of legalisation and criminalisation of prostitution, through legalisation the risk could be reduced to a greater extent. This is due to the fact that, in a situation where prostitution has been legalised, sex workers would be obliged to fulfill certain health requirements. In a legal market of prostitution, all sex workers would have to undergo a certain medical checkup before they could obtain their license to operate as a sex worker while, buyers of sex would also have to subject themselves to frequent medical checkups. This could safeguard not only sex workers’ individual health safety, but it could also prevent the spread of HIV/ AIDS, and other STDs like syphilis, herpes (HSV2), chlamydia, gonorrhea and hepatitis B.
On the contrary, with the approach of criminalisation, the absence of an entity to regulate the industry would mean the health status of sex workers will remain unchecked. Giovanni Immordino, a Professor of Political Economy at the University of Naples Federico II in Italy, following a study conducted in 2015 on “Regulating Prostitution: An Health Risk Approach”, found that “in the illegal market there is an increase in both the supply and the demand from the infected who are barred from the legal market. The health risk is therefore higher, which fosters the quantity decrease”. This is to say that although prostitutes who are concerned about their personal health could subject themselves to a medical checkup periodically, the fact that the industry consists of many others who might not do so would eventually leave everyone vulnerable to sexually transmitted infections.
Therefore, it could be established that the legalisation of prostitution would consist of lower health risks unlike criminalisation. The same procedure followed by organizations and companies where it is mandatory for employees to undergo a comprehensive medical checkup regularly or prior to confirming their appointment could be applied to a legalised industry of prostitution. Be that as it may, the implementation of such a system would be expensive and, as a result, certain underdeveloped states might not have the required financial capability to implement this approach.
In addition to the above mentioned factors of health and criminal offence, the similarities between the legalisation and criminalisation are rather prominent. First, the attribute of human rights; neither the legalisation nor the criminalisation of prostitution would completely ensure the protection of human rights of sex workers. Under Article 7 of the United Nations Rome Statute of the International Criminal Court, enforced prostitution has been classified as a crime against humanity. Although legalisation would mean that prostitution would be considered as an accepted profession which will result in providing job security to those involved, this has not been the case in most scenarios. A British radical feminist and co-founder of the law-reform group “Justice for Women”, Julie Bindel taking into consideration the case of New Zealand where its government recently decided to include prostitution in its list of skills for migrants, criticized the move stating that brutally assaulting women inside brothels has now become habitual. To simply put, even with legalisation, human rights are violated on a large scale. In an article published by Julie Bindel this year under the title, “Prostitution is not a job. The inside of a woman’s body is not a workplace”, states that “‘The men feel even more entitled when the law tells them it is OK to buy us,’ says Sabrinna Valisce, who was prostituted in New Zealand brothels”. Furthermore, we must not forget that with legalisation, the employment status of other actors involved in the sex industry like pimps will also elevate. In other words as stated by Julie Bindel, “When prostituted women become ‘employees’ and part of the ‘labour market’, pimps become ‘managers’ and ‘business entrepreneurs’”. With regard to both legalisation and criminalisation, pimps are accused of assaulting and forcing women into prostitution, which results in enforced prostitution and this is a violation of Article 7 of the United Nations Rome Statute of the International Criminal Court. In most cases, as stated by Prof. Hughes, regardless of how women enter the sex industry, leaving it has become nearly impossible, as pimps and brothel owners often use violence and threats to control sex workers, while treating them like slaves. Now, this is an absolute violation of human rights.
Correspondingly, in a criminalised system, where there is no regulating authority, there is evidence to suggest that human rights could possibly be disregarded. As long as the perpetrators continue to enjoy the pleasures of prostitution discreetly under the radar of legal entities, sex workers will continue to suffer at the hands of buyers and pimps.
Another feature that would play a similar role between the legalisation and criminalisation of prostitution would be the impact on social norms and the objectification of women. Regardless of whether the sex industry is legalised or criminalised the social stigma attached to prostitution will not change. This is evident in countries like Sri Lanka, where cultural and religious values play a major role in our day to day lives. Based on facts presented by Dr. Mossman, prostitutes within completely legalised systems are surprisingly compelled to endure the highest level of stigma. The social stigma attached to prostitution is so powerful to the extent that society would continue to discriminate and objectify sex workers even after they leave the industry. “Women in prostitution are further burdened with a stigmatized identity that is impossible to escape, unless their pasts are kept a secret”, says Prof. Hughes. For example, in Sri Lanka, where prostitution continues to remain criminalised, certain sex workers who are involved in prostitution are of the mindset that even if they did leave the industry, the society including their families and relatives will not acknowledge them. Hence, they continue to remain in the industry as the stigmatization is so strong to the point, that the possibility of finding an alternate career path is highly unlikely. In both cases, the degree of social stigma and objectification of women are identical.
While the debate on the legalization and criminalization of prostitution continues among legislative authorities and activists, one must not forget that sex workers are also human beings and their honest opinion about the matter should be taken into consideration. The manner in which prostitution is deemed as a criminal offence should be unbiased. Women who are objectified and treated as sex slaves for the pleasure of another should not be punished for the buyers’ sins nor should they be stigmatized. In the light of contrasting attributes between legalisation and criminalisation of prostitution there are equally important factors that are similarly discussed; such as human rights, social stigma and objectification of women. All things considered, it is yet too early to determine which approach most benefits the society, inclusive of sex workers. However, regardless of which approach is followed, at the end of the day human rights of all sex workers must be ensured at all times and a viable solution to the severe stigmatization of prostitution must be provided.
