Regulatory Approaches to Prostitution

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Regulatory Approaches to Prostitution: Comparing Sweden, Denmark, and
Nevada, USA
Erin Corrigan, MPH
Portland State University
erin.corrigan@mac.com
Martin Donohoe, MD, FACP*
Adjunct Associate Professor, School of Community Health
Portland State University
Chief Science Advisor, Campaign for Safe Foods and
Member, Board of Advisors
Oregon Physicians for Social Responsibility
Senior Physician, Internal Medicine, Kaiser Sunnyside Medical Center
http://www.publichealthandsocialjustice.org
http://www.phsj.org
martindonohoe@phsj.org
* = corresponding author
1
Regulatory Approaches to Prostitution: Comparing Sweden, Denmark, and
Nevada, USA
Abstract
Some prominent feminists believe that prostitution is a nonconsensual
form of human rights violation and should be criminalized; prostitute advocacy
groups favor decriminalization; and some public health professionals and
feminists advocate legalization.
Sweden, the Netherlands, and the U.S. state of Nevada have approached
the issue of prostitution in three different ways. Focusing on women’s health,
human rights, and social justice, this paper will examine these governments’
responses to prostitution, including the effects of different legal and regulatory
approaches on sex workers.
2
Introduction
The long history of prostitution is evident in its clichéd description
as the oldest profession in the world. However, many question whether it is a
profession or in fact a pervasive form of sexist exploitation. Prominent feminist
researchers believe that in all cases prostitution is a nonconsensual form of human
rights violation and should be criminalized and, ideally, abolished. They argue
that by legalizing or otherwise regulating prostitution, the state becomes the pimp
profiting off the suffering and sexual exploitation of women. Such feminists urge
the abolition of all aspects of the sex industry, from strip clubs and peep shows to
prostitution.
On another side of the debate are prostitute advocacy groups such as
COYOTE (Call Off Your Old Tired Ethics) that push for decriminalization, under
which sex workers, customers, and others involved in the sex industry are not
prosecuted or regulated at all and prostitutes can unionize to improve pay and
working conditions. They see sex work as a legitimate, even liberating way for
women to choose to make a living.
A third viewpoint advocates legalization, including state licensing and
regulation. This perspective claims advocates among public health and feminist
researchers, because it offers prostitutes more legal protection, including
protection from unscrupulous brothel owners and dishonest police officers, than
they would have under the other models. Legalization also creates an environment
in which the spread of disease is limited by regular monitoring.
3
Sweden, the Netherlands, and the U.S. state of Nevada have approached
the issue of prostitution in three different ways. Academic and governmental
research provides significant data regarding these three approaches. Focusing on
women’s health and social justice, this paper will examine these governments’
responses to prostitution, including the effects of different legal and regulatory
approaches on sex workers.
The Demographics of Prostitution
Many believe that it is possible for adult women to freely choose to enter
into prostitution, though this idea has been challenged by antiprostitution activists.
Proposed myriad reasons sex workers are unable to choose prostitution willingly
include drug addiction (Sterk, 2000), poverty (Farley, Baral, Kiremire, & Sezgin,
1998; Farley & Kelly, 2000), and fear of violence from a pimp (Silbert & Pines,
1981). Some equate adult prostitution with human trafficking and child
prostitution and see prostitution as sexual abuse (Raymond, 2004). While sex
trafficking and child prostitution are unquestionably illegal, exploitative, and
socially unjust, others question whether, under certain conditions, prostitution
may be consensual (Brents & Hausbeck, 2005; Weitzer, 2005a; 2005b; 2007).
The Supply: Epidemiology & Economics
The fact that prostitution is illegal in most countries and in almost all of
the U.S. states makes accurate collection of demographic data difficult. When
data are available they tend to concern street prostitutes rather than indoor
prostitutes (Ambesjö, Eriksson, & Lidholm, 2004). In 1999, the average number
of prostitutes in the Netherlands was 1 to 2 per 1000 population (Netherlands
4
Ministry of Foreign Affairs, 2004), though in Sweden the figure was much lower,
with 2500 prostitutes in a total population of 8.5 million, or 0.3 per 1000
(Kilvington, Day, & Ward, 2001). The Swedish National Criminal Investigation
Department estimates approximately 1,000 persons each year are involved in
commercial sex in Stockholm and its surroundings (United Nations General
Assembly Special Session on HIV/AIDS, 2008). The age range of street
prostitutes in Sweden is wide and depends on the city; average age in Stockholm
is somewhere between 30 and 45 years (Ambesjö, Eriksson, & Lidholm, 2004).
The majority of U.S. data derives from city-level case studies of street
prostitutes and may not be representative of the nature and/or scope of prostitution
nationwide. One survey of 59 New York City street prostitutes found that the
average age was 26 and that one-third were African-American (Coston & Ross,
2004), while a much-cited study of 200 San Francisco street prostitutes found that
70% were under age 21 and 69% were white (Silbert & Pines, 1981). Coston and
Ross reported that the average time New York City street prostitutes had worked
was 31 months (2004). In Nevada, an estimated 300 licensed prostitutes work in
25–30 legal brothels (Warnick, 2008).
Nearly all research shows that economics lies at the heart of women’s
decisions to enter into prostitution; some see this as a signal that prostitution
always arises from inequity and exploitation (Farley et al, 1998; Farley & Kelly,
2000), for if they had other options, surely women would choose a different line
of work. However, it is possible that women choose prostitution because it offers
more money for fewer hours than other forms of work (Warnick, 2008). This kind
5
of rational choice perspective, borrowed from economics theory, states that
individuals always make choices in their own best interests.
In the Netherlands in 2006, prostitutes earned an average of 1100 euro per
week. Earnings ranged from 528 euro /week for massage parlor prostitutes to
1460 euro /week for window prostitutes (Dekker, Tap, & Homburg, 2006). The
2006 adult minimum wage was 218 euros /week, so even the lowest paid Dutch
prostitutes were making well above minimum wage. As independent contractors
in legal brothels, Nevada’s prostitutes set the prices for their work, so income
varies. Take-home earnings have been estimated at $300 to $1500 per day
(Albert, 2001). In Sweden, earnings vary by location, ethnicity, and social
position of the prostitute and include rates of $250-$370 per hour, $150 for
intercourse, and $85 for sexual massage (Eriksson & Gavanas, 2008).
The Demand: Epidemiology & Economics
Recent literature on customers of prostitutes is as polemic as that on sex
workers, generally falling into what Monto and McRee (2005) term the
“everyman perspective, [which] implies that the customers of prostitutes are no
different from men in general…. [and] the peculiar man perspective, [which]
implies that customers of prostitutes are characterized by social or personal
deficiencies” (italics in original). Monto and McRee feel that the truth lies
somewhere between these extremes. The men in their studies who patronized
street prostitutes shared certain similarities (e.g., more likely to be unmarried or
unhappily married, more sexually liberal) to a small extent, but they were not
inherently more likely to be deviant or “psychologically inadequate” than men
6
who did not visit prostitutes. However, given that a small percentage of men
report ever having visited a prostitute (between 13% and 16% in the countries
described in this paper; Leridon, van Zessen, & Hubert, 1998; Lewin et al, 1998;
Michael et al, 1994), patronizing prostitutes is in itself unusual behavior that sets
such men apart.
Surveys of American men who have ever frequented prostitutes reveal
motives that include the need for intimacy and an inability to meet their sexual
needs outside of prostitution, perhaps due to their unmarried or unhappily married
status (Monto & McRee, 2005). Daalder reported that in the Netherlands “almost
nothing is known about the motives of clients” (2007, p. 34), and cited an online
study by SOAIDS, a national institute for the control of sexually transmitted
infections (STIs) and Acquired Immunodeficiency Syndrome (AIDS) in the
Netherlands, which identified three types of clients: one that just wants sex,
another that has a “troublesome attitude” toward prostitutes, and a third that seeks
intimacy. Note that a troublesome attitude was not explicitly defined, but included
an aversion to condoms and an unwillingness to pay for prostitutes’ services;
violence was not mentioned.
The incidence of violence of all types experienced by prostitutes varies
widely from one study to another, and data may be subject to selection bias
(Weitzer, 2005a). For example, in a survey of 854 male and female prostitutes in
nine countries, 71% reported ever experiencing physical assault (Farley et al,
2003). On the other hand, in a survey of 40 female brothel prostitutes in Nevada,
only one reported ever experiencing violence during brothel work, even though
7
most felt that safety (particularly the risk of STI) was a constant concern (Brents
& Hausbeck, 2005). Violence is more common among streetwalking prostitutes
(Silbert & Pines, 1981; Raphael & Shapiro, 2004). A minority of men are the
perpetrators of violence; the majority of clients are nonviolent (Monto & McRee,
2005). Anti-prostitution activists strongly disagree with this position, maintaining
that all prostitution is a form of violence against women and that regardless of the
venue or their legal status, prostitutes experience significantly higher rates of
violence and abuse than do women in general. Such activists’ definition of
violence includes verbal abuse and some aspects of sex work, such as spanking,
which may in fact be consensual and an agreed-on part of the job (Raphael &
Shapiro, 2004; Raymond, 2004). Furthermore, there is a high prevalence of selfharming behaviors and suicide among prostitutes in the U.S. and abroad (Greene
et. al., 1999; Hong et. al., 2007; Shahmanesh et. al., 2008).
Regulatory Approaches to Prostitution
Prostitution has been treated in a variety of ways by different societies:
abolition seeks to eliminate prostitution but prosecutes only third parties, such as
pimps and clients; decriminalization treats prostitutes as independent contractors,
not regulated by the state nor punished by authorities; legalization puts
prostitution under state control and regulation; and criminalization, the dominant
approach found in most of the U.S., attempts to eradicate prostitution and subjects
all parties involved to penalties.
The goals of all these approaches are twofold: to protect the women
themselves from violence and to protect society at large from “socially corrosive
8
behavior” (Brents & Hausbeck, 2005, p. 273). Preventing the spread of STIs and
improving public health are related goals, whether they are achieved by
eliminating prostitution or by mandating safer sex practices and condom use.
Human Immunodeficiency Virus (HIV) infection can be spread through contact
with sex workers, who are often denied health services and support because of the
illegal, often invisible nature of their work (Joint United Nations Program on
HIV/AIDS; UNAIDS, n.d.) or are unable to access care because they lack health
insurance. Where prostitution is illegal, prostitutes’ reluctance to access medical
care creates a dangerous position for themselves and a potential threat to public
health (McKay, Campbell, & Gorter, 2006; UNAIDS, n. d.), which can be
alleviated by legalization (Steen, 2001). Nevertheless, some researchers believe
that prostitution will always be abusive to women and anything short of abolition
is detrimental to their health and well-being (Farley, 2004; Raymond, 2004).
Sweden
In 1998 the Riksdag, or Swedish parliament, passed a modified
abolitionist law that made it illegal to purchase sex in Sweden beginning January
1, 1999. Prior to that, it was illegal to buy or sell sex. Under the new law,
prostitutes may solicit clients for profit, but brothels, profiting from others’ sex
work, and advertising prostitution remain banned (Penal Code Chapter 6, Section
11). The law is intended to put the burden of (and blame for) prostitution on the
customers, rather than on the prostitutes themselves, and grew out of the work of
the government’s Commission on Violence Against Women. The law presumes
that men are generally the clients and women the sex workers, and it is intended
9
to reduce violence against women and male demand for commercial sex. The
penalty for purchasing sex is a fine of about US$1000-2000 or up to six months in
prison (Galiana & Subhan, 2000). However, the law does not increase
punishments for trafficking or child prostitution, which are often linked in
feminist critiques of prostitution.
There was a reduction of street prostitution in the year after the law was
passed. However, a 2003 report by the National Board of Health and Welfare
concluded that “it is impossible to establish a causal link between the perceived
reduction and the new law” (Ambesjö, Eriksson, & Lidholm, 2004, p. 26).
Another study found that between 2003 and 2007, prostitution did not appreciably
decline in Sweden and street prostitution levels remain at about 2/3 of those seen
before the law's passage (Eriksson & Gavanas, 2008). The same study found that
prostitutes, police, social workers, and other key informants believed the law has
had positive impacts, whereas others felt the opposite (Eriksson & Gavanas,
2008). In a 2008 review of the law’s effects, The Local, an English-language
Swedish newspaper, reported that the law had led to about 50 convictions per year
(Staff, The Local, 2008).
Some, including UNAIDS and the group Sex-workers and Allies Network
in Sweden (SANS), claim that the law has simply changed the face of
prostitution, pushing it more underground, including onto the internet, where
prostitutes advertise services and clients arrange meetings (Eriksson & Gavanas,
2008; Lund, 2007). However, the increase in internet prostitution (which has also
been seen in other countries) may simply reflect the availability of new
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technology. It is also possible that the readily available and anonymous use of the
internet and mobile phones to facilitate prostitution has made it less difficult for
women to enter into it and for others to buy their services (Eriksson & Gavanas,
2008). Regardless, when prostitution becomes less visible but no less present, it
becomes more difficult for public health and social workers to reach prostitutes
and to provide them with health care, protection against violence, and alternate
employment opportunities.
The Netherlands
The Netherlands lifted its ban on brothels in 2000; prior to that,
consensual prostitution was legal but brothels were not. The removal of the ban,
which transferred prostitution from criminal law jurisdiction over to labor law,
was intended to “regulate voluntary prostitution, combat involuntary prostitution,
and deal with abuses." One of its main purposes was to address "the social
position of prostitutes” (Dekker, Tap, & Homburg, 2006, p. I). Abuses of
prostitution include trafficking and child prostitution. The social position of
prostitutes encompasses quality of life, health, safety, and the nature of the work.
The new law grants sex workers in the Netherlands the same rights and
responsibilities as other workers, including protection from exploitation and
discrimination. It also includes the duty to pay taxes. However, in a report to the
UN General Assembly in January 2007, Dutch representatives took pains to point
out that this law did not mean that prostitution was considered a “normal”
occupation, and that the government offers job training and counseling programs
11
to assist sex workers who wish to leave the industry (United Nations Committee
on Elimination of Discrimination Against Women, 2007).
Official governmental reports on prostitution since the brothel ban was
lifted indicate what an unusual situation prevails in the Netherlands: among other
things, the reports discuss job appreciation, self-employed status vs. an employeeemployer relationship between brothel owners and prostitutes, welfare
entitlements, and satisfaction with level of interaction with officials (tax
authorities were at the bottom of the list). The government's attitude indicates its
desire to reduce the stigma associated with prostitution, while eliminating other
more tangible threats toward women’s health associated with prostitution, such as
violence and disease.
The Dutch government undertook several studies in 2006 to assess the
effectiveness of the law and published them in the report, “Prostitution in the
Netherlands since the lifting of the brothel ban” (Daalder, 2007). The government
found that the supply of, and demand for, prostitution seem to have declined,
though this is likely due to myriad factors, including a slow economy and the rise
of the internet, which allows customers and prostitutes to make simple,
anonymous arrangements to meet for the purpose of non-licensed prostitution.
Trafficking was made more difficult in light of tighter regulation, and there were
fewer foreign-born (unlicensed) prostitutes. The stricter punishments for
prostituting minors seem to have had the intended effect, because researchers
found “hardly any prostitution by minors in the licensed sector, and … no
indications of a great presence of minors within the non-licensed part of the sector
12
either” (Daalder, 2007, p.86). The report found few instances of abuse in
prostitutes’ working conditions.
On the other hand, the report clearly indicates that the law has not been
successful at elevating the social position of sex workers. “The well-being of
prostitutes is lower in all measured aspects than it was in 2001, and [their] use of
sedatives has increased” (Daalder, 2007, p.87). Some forms of sex work, such as
escort services (which are not bound to a specific location), may have moved to
other municipalities or even outside of the Netherlands in order to continue to
illegally exploit workers. The overall number of prostitutes with pimps, which the
report states are those most likely to have been coerced into the work, has not
declined (Daalder. 2007). Sex workers who are not licensed are forced to work
surreptitiously and present a challenge to public health workers who would
attempt to provide them with medical care and other services. The report also
indicates that only 6% of municipalities reported that government-supported exit
programs were in place, a percentage far below the government’s aim (and
claims). In 2008, the city council of Amsterdam, known for its red light district,
began buying up brothels and converting them to small businesses, citing
concerns that traditional madams had been replaced by violent pimps (Simons,
2008). This move, unless coupled with vigorous law enforcement, may simply
force violent prostitution underground.
Of the 354 licensed prostitutes interviewed for the 2006 report, 60% were
aware of the change in the law and of those, just over half approved of it (Dekker,
Tap, & Homburg, 2006). Those who disapproved of it were unhappy with the fact
13
that their work was more closely regulated and that tax laws were more strictly
enforced, which cut into their earnings (in fact, tax payments were always
required, but the code was not enforceable prior to legalization and the attendant
increase in regulation). They feared the loss of anonymity, which is prized
because of the social stigma attached to their work and because it allows for tax
evasion. As noted above, they did not report a greater sense of well-being.
Nevertheless, prostitutes believed the law brought significant positive change,
including enforcement of rules on health and safety, an improvement in the
profession’s image, and increased independence over choosing what services to
provide to clients.
Nevada, USA
While many Americans believe that prostitution is legal in Nevada, the
majority of sex work is illegal there and licensed brothels exist in only 11
counties, four of which prohibit prostitution in unincorporated areas. Prostitution
became legalized and regulated in certain counties beginning in 1971. These
counties are rural and not densely populated, as state law prohibits brothels in
counties of more than 400,000 people. In 2007 there were 25–30 legal brothels, or
“ranches,” in rural Nevada, where approximately 300 prostitutes worked
(Warnick, 2008). Prostitutes are independent contractors and can leave their jobs
or change brothels at will. Pandering, which includes enticing, procuring, forcing,
or coercing a person to become a prostitute, is a felony in Nevada (per NRS
201.295 to 201.440). State law prohibits living off the wages of a prostitute or
even driving a prostitute to a brothel (which could be seen as delivering her into
14
prostitution). Zoning is regulated, so that brothels are not near churches, schools,
or main streets.
Nevada prostitutes work in shifts and often their time away from the ranch
is strictly regulated. In some cases they are required to stay on the premises for
their entire shift, which can last for several days to three weeks, depending on the
brothel and the particular prostitute. Brothel owners claim that the purpose of
these restrictions is to protect workers’ health and safety, and in one study the
prostitutes themselves endorsed this position and did not complain about their
limited freedom while on the job (Brents & Hausbeck, 2005). An earlier study
contradicts this characterization of prostitutes’ acceptance, however, portraying
them as prisoners (Farley, et al, 2003). Rules are set by the individual brothels,
though in the past counties and municipalities had more restrictive laws on the
books.
It seems, however, that a process of loosening of these restrictions is
taking place (Brents & Hausbeck, 2005). Prostitutes in high demand are able to
negotiate more favorable work environments, including the ability to come and go
at will, and managers at some brothels that allow free movement say they do so
because it allows them to attract better employees (Brents & Hausbeck, 2005).
Prostitutes are required to use a condom for oral, anal, and vaginal
intercourse and must be tested weekly for STIs, monthly for HIV, and at some
brothels annually for Hepatitis A, B, and C. Prostitutes pay for all testing
themselves. Customers are not required to prove that they are STI-free. If a
customer becomes infected with HIV because of his patronage, the brothel owner
15
is fined, but there has never been a case of a customer or prostitute becoming
HIV+ since mandatory testing was initiated in the mid-1980s.
According to state regulations, both the prostitutes and the ranches must
be licensed. Prostitutes must pay annually for work cards, which cost under $100,
about the same as those required for casino employees. Fees for operating a
brothel vary widely based on individual county codes. In Lander County, where
there are only two brothels, it’s just $200 per year; in Storey County, it's
$75,000/year. The reasons for the higher fees in Storey County include its
proximity to Reno (a major population center in Nevada) and the California
border and the desire on the part of county officials to limit the number of
applicants and to ensure that applicants have a viable business plan with adequate
financial backing to run a brothel (Personal communication with the Storey
County Commissioners’ Office, April 10, 2009).
Brothels also provide counties with revenue from liquor taxes and licenses
and from room taxes, at rates equal to that of standard hotels. Individual brothels
set the fees the women must pay, including a daily room charge and a weekly
cleaning fee. Payment for a prostitute’s services are negotiated between her and
the client and are based on time spent, usually not the specific sex act. The brothel
takes a percentage of this fee, generally 50%.
Why would a worker voluntarily give up half her wages and pay room and
board to her employer on top of that? Women say that they feel safer in brothels
than they do on the street, and that a safe, legal environment is an important
customer draw (Brents & Hausbeck, 2001). Brothels use room monitoring and
16
alert buttons to help ensure that customers adhere to house rules, do not become
violent, and pay the agreed-upon fee. Monitoring also ensures that the house is
aware of the fee negotiated, so it gets its share. Good relations between the
brothels and the local police help to create an environment that protects the
prostitutes (and the brothel’s) income. The fact that there have been no cases of
HIV infection and a positive gonorrhea rate of less than 1% indicate that the
prostitutes are able to insist on safe sex practices in the brothels, which is not
always the case in unregulated sex work. However, because brothels are still
illegal in the most populous areas of the state, including Las Vegas and Reno
(cities where demand is centered), unlicensed prostitutes far outnumber licensed
ones in Nevada. Unlicensed prostitutes remain vulnerable to the same kinds of
health threats and injustices that feminists and prostitution advocates alike seek to
eliminate.
Discussion
This paper has evaluated three different approaches to prostitution. At
present, it is unclear whether legalization provides some protection for women
who will be drawn to the work regardless of its legal status. Evidence from
Nevada suggests that it is possible to legislate for the safety and well-being of
workers. However, findings from the Netherlands suggest that the social position
of sex workers after legalization was worse. Legalization and stricter regulation
seem to improve the chances of decreasing sex trafficking (Weitzer, 2005b).
Furthermore, streetwalking prostitutes are likely more vulnerable than those in the
Netherlands and in legalized brothels in Nevada, since streetwalkers face
17
potentially violent customers and the threat of arrest or abuse by corrupt law
enforcement personnel. Even so, legislation may increase illegal prostitution,
because some women may not want to lose their anonymity, may not want to
undergo health checks, or may wish to avoid taxes. Further impartial studies are
needed to evaluate the impact of various policies on prostitution. Such research is
especially vital in Southeast Asia, Africa, and the Middle East, where women are
more likely to suffer widespread economic, political, and legal marginalization
(Donohoe, 2002; Donohoe, 2003).
A key problem with legalizing prostitution is that the work will be more
attractive to women who are poor and un-/under-educated. At face value, it is
unjust to say that prostitution is a positive alternative for women with few
economic options. However, it is also unjust that such women are relegated to
dangerous, poorly-compensated jobs as domestics and factory workers. Research
shows that women working in prostitution make more money than the average
laborer. However, stigmatization and the potential for violence make this work
less desirable, along with, of course, the fact that women’s sexuality, usually
reserved for intimate relationships, is commodified.
All women should be provided education and equal opportunity for
employment that pays a living wage. Prostitutes who want them should be offered
exit strategies and re-entry services, such as those proposed by Swedish law.
While at this time, since society views sex work as unavoidable for many, at least
employment safety legislation and health services can be maximized to create
better working conditions for the women who do choose prostitution.
18
At the international level, Part 1, Article 6 of the Convention on the
Elimination of Discrimination Against Women states that "parties shall take all
appropriate measures, including legislation, to suppress all forms of traffic in
women and exploitation of prostitution of women (United Nations Convention on
the Elimination of Discrimination Against Women, 1979). This treaty, adopted by
the United Nations' General Assembly in 1979, is considered an international bill
of rights for women. It defines what constitutes discrimination against women and
sets up an agenda for national action to end such discrimination. While the U.S.
signed the treaty in 1980, it has not yet ratified it, and should do so.
As citizens, non-governmental organizations, and governments work to
improve the status of women worldwide, perhaps prostitution will no longer be
viewed as a necessary or viable option for economic survival, and only practiced
by those who see it as a means of free self-expression.
19
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