Controlling Loose Women: International trends in the regulation of

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Controlling Loose Women1: International trends in the
regulation of the exchange of sexual services
Michael Goodyear*
“The law shapes but does not determine the extent of prostitution”2
Introduction
Political systems have attempted to control and regulate the exchange of sexual activity
for commodities and services since the beginning of recorded history. What they all have
in common is a singular lack of success in doing so,3,4 which leads to the question of
whether this is properly a legal, commercial, social5,6,7 or moral issue, and whether it is
even intrinsically problematic at all. This includes both those few countries that have
completely prohibited it (United States) and even the most draconian measures of all,
those of post-war communist China, which involved incarceration and ‘moral
rehabilitation’.8 Regulatory approaches depend on the jurisdictional level, legal system
(e.g. penal code, common law) and objectives. However a mere examination of statutes,
regulations, ordinances and by-laws will provide a very imprecise picture of actual
practices in any jurisdiction due to very uneven enforcement, temporally and
geographically. As with other ‘vices’ and moral legislation, enforcement is often
approached with blind eyes, variously referred to as containment or tolerance, and invites
corruption.9 Furthermore the actual transaction is often legal, but many of the necessary
conditions and processes required for commercial transaction may be themselves
prohibited, creating a de facto if not de jure prohibition, as expressed by the Supreme
Court of Canada;
“We find ourselves in an anomalous, some would say bizarre, situation where
almost everything related to prostitution has been regulated by the criminal law
except the transaction itself. The appellants' argument then, more precisely stated,
is that in criminalizing so many activities surrounding the act itself, Parliament
has made prostitution de facto illegal if not de jure illegal.”10
An examination of regulatory systems is often confused by imperfect terminology that
means different things in different contexts and locations. Common terms include
abolition, prohibition, criminalisation, decriminalisation, legalisation and regulation.
This paper examines how, given a common evidence base, different jurisdictions have
approached this issue in widely disparate ways. These policies have been shaped by
different social, cultural, legal and political traditions, and by the differing roles played
by a variety of actors in framing issues and remedies.
*
Department of Medicine, Dalhousie University, Halifax, Nova Scotia, Canada B3H2Y9
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Legal Theory11
Other than in a totalitarian society, the State derives its authority to regulate its members
from those members, delegated for the preservation of social order and hence safety of its
citizens.12 States must justify constraining the civil liberties and human rights of their
subjects by demonstration of a sufficient need for such actions.13 These principles are
enshrined in the extensive literature on free will, autonomy and the determinants that
constrain the exercise of moral agency.14,15 The State also has a responsibility to limit
those constraints to maximise the exercise of autonomy.16
These two concepts, of autonomy and welfare, inevitably involve conflict in which the
intervention of the State to enable the latter constrains the former.17 Human Rights are
not all absolute, some are conditional allowing derogation under circumstances
determined to be in the common interest. It is the interpretation of what is considered
appropriate and necessary that forms the basis of the diversity of political policies in this
area. However there are further tests that are commonly applied to the constitutionality of
laws, and further, the State must bear the burden of establishing that any infringement of
rights is justified.18 In resolving this conflict the State must not only demonstrate harm,19
but also a series of conditions. The harm must both be of substantial gravity and of a
nature that engages the State.20 The principle of minimalism,$ or De minimis non curat
praetor (the law does not concern itself with small matters). The proposed intervention or
remedy must also represent the minimal intervention to achieve its stated purpose and be
proportionate to the degree of harm. There must be evidence that there are no alternative
remedies, and a reasonable belief that the proposed remedy will achieve its stated
objectives. Other considerations include the need to demonstrate not only harm, but
wrongful harm, such as using others as a means to an end.21 Criminal Law thus ideally
represents a remedy of ‘last resort’.22
Law and Morality
In matters of morality, and in particular that of sexual morality, the place of criminal law
is particularly problematic.23 This controversy crystallised following the 1957 publication
of the Wolfenden Report24 in the classic debates25,26 between Lord Devlin27 and Professor
Hart.28 Devlin’s position being that moral values are universal, and deviation threatens
social order justifying criminal sanctions. In contrast Hart followed in the tradition of
John Stuart Mill in requiring demonstrable harm to an individual as justification. Latterly
Joel Feinberg29 has argued strongly against the paternalism inherent in the Devlin
position, stating that;
“paternalistic interference is offensive morally because it invades the realm of
personal autonomy where each competent, responsible adult should reign
supreme”.
Other commentators such as Paul Roberts emphasise the role of consent as a bastion
against paternalistic criminalisation.30 Joseph Raz similarly argues that the State cannot
make people moral, while recognising that the promotion of autonomy may require
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coercion to prevent harm under certain circumstances.31 An important consideration in
relation to consent is capacity, for instance in the young and mentally challenged, in
which a more protectionist stance may be justifiable. Wolfenden himself proclaimed that
morality is “not the law’s business”32 although the report itself appeared to make a
distinction between private and public morality. “There must remain a realm of private
morality and immorality which is, in brief and crude terms, not the law’s business”, and
continued with a need to protect the vulnerable from corruption and the citizen “from
what is offensive and injurious” raising the idea that citizens in public places may be
considered not to have consented to the act. This extends the concept of harm to their
reaction to the acts of others which they may witness or become aware of. Feinberg
addressed this in his Offense to Others33 limiting the analysis to “serious offence”,
recognising a need to protect freedom of expression. This thinking formed the basis in the
Wolfenden report for shifting the criminal action from the transaction to the display of
intent, and hence falling under public places legislation, such as the Street Offences Acts.
This can be further extended from acts by persons to materials depicting or inferring such
acts and hence a further group of offences under the rubric of indecency and obscenity.
However shifting the focus from the act, which may not in itself be morally wrong, to the
reaction of others, is potentially problematic in terms of autonomy. Thus interpretation of
the line that may be crossed will vary with time, locality, cultural context and the nature
of the individuals or groups potentially offended. In balancing these factors courts have
variously incorporated both the proximity of the act to the complainant and the intent of
the actor.
The final consideration is whether specific legislation or regulations discriminate against
particular groups within a population, such as gender, race or class. Regulation of sex
work has traditionally discriminated against women, while virtually ignoring male or
trans-sexual sex workers. This chapter is gendered, in that it focuses on women selling
sex to men, merely because of the larger literature addressing this context. The principles
(individual freedom of expression of sexuality versus State imposed morality) remain
true for all sex workers.
Victimless Crime and Public Order Offences
Where acts that have been criminalised are not demonstrably harmful to an individual
‘victim’, but may be construed as potentially disruptive or harmful to a wider society or
public order, they have been classified as ‘victimless crimes’.34 Such a designation is
usually used with the implication that the criminal law is not the best social tool for
dealing with the issues. These are often referred to as ‘consensual crimes’ but others such
as Larry Siegel prefer the term ‘public order offences’, “crime which involves acts that
interfere with the operations of society and the ability of people to function efficiently”.35
Moral offences such as sex work, homosexuality and nudity together with drug use have
been considered in this category and their criminalisation challenged on both minimalist
and utilitarian grounds.
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Shaping Public Policy
While formal moral and legal analyses reinforced with empirical research may generate
cogent arguments against criminalisation of much of human behaviour, it would be
unrealistic to believe that public policy is always based on principles as opposed to
pragmatism.36 “The main determinants of criminalisation continue to be political
opportunism and power, both linked to the prevailing political culture of the country”37
that Donald MacCormick refers to as the “dominant political morality”.38 Despite these
considerations, this framework remains an important one whereby governments may be
made to justify the legitimacy of legislative. In those jurisdictions in which there are
constitutions (e.g United States), Charters of Rights (e.g. Canada) or Human Rights
Conventions (e.g. Europe) such legislation can be challenged. In 1990 two clauses of the
Criminal Code relating to sex work were referred to the Supreme Court of Canada, which
found that prima facie s. 195.1(1)(c) (communicating in public) infringed s. 2(b) of the
Charter of Rights (freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication), while s. 193 (keeping of premises) did
not. However the majority of the court found this infringement justifiable under s. 1 of
the Charter (subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society). Interestingly, the court split 3:2
on gender, the female judges believing that the law prohibiting communication
constituted “a more serious impairment of the individual’s freedom” than warranted.39 In
Europe, the Court of Human Rights held that “Respect for private life must also comprise
to a certain degree the right to establish and develop relationships with other human
beings” in 199240. While in 1999 it ruled that
“The activity of prostitution pursued in a self-employed capacity can be regarded
as a service provided for remuneration and is therefore covered…prostitution is
an economic activity pursued by a self-employed person as referred to in those
provisions, where it is established that it is being carried on by the person
providing the service outside any relationship of subordination concerning the
choice of that activity, working conditions and conditions of remuneration; under
that person’s own responsibility; and in return for remuneration paid to that
person directly and in full.”41
However, no matter what the legal positions, it is important that public policy at the very
least be informed by sound empirical evidence.42 Up to the mid-twentieth century there
was very little empirical evidence available,43 however the growth of knowledge on sex
work during the 20th century has been explosive44 so that policy advisers now have access
to a considerable body of knowledge as exemplified by the contributions in this volume.
Despite this, public policy varies widely, even in similar political and cultural
regions.45,46,47 This means that public policy relies far more on other factors such as
perceived societal norms and cultural values as well as the nature of the various actors
and how well they frame the issues and constructs. It is this gap between evidence and
policy that requires further analysis.
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Regulatory Frameworks
The simplest model is based on the incorporation of sanctions into criminal law or penal
codes (criminalisation) or their removal (decriminalisation). A much used term,
legalisation, has little or no utility, since legal theory assumes that all acts and
behaviours, whether or not they deviate from dominant norms, are legal unless explicitly
prohibited. As commonly used in reference to sex work, legalisation describes
regulations outside of the criminal law. Those aspects of an activity not constrained by
the criminal law generally fall under civil and administrative law. Examples include
commercial, labour, health and zoning laws. A commercial activity that is not specified
as criminal will be likely to be subject to similar regulatory controls as other businesses.
Regulations that are aimed specifically at sex work, and which impose constraints that are
not seen in, or are disproportionate to other commercial enterprises, are resisted as
discriminatory by sex workers, especially those directed at the person rather than the act
or behaviour. The rubric of ‘legalisation’ is often used in reference to this state of affairs.
Other terms, such as abolitionism and prohibitionism are discussed later.
A Brief History of Regulation of Sex Work
Various restrictions on sex work have existed throughout recorded history,48,49 but were
strongly stratified by class, varying from the mistresses and concubines of rulers, through
high society courtesans to slaves, and often institutionalised. In the English language,
amongst various pejorative terms, the appellations ‘common woman’50 (nonmonogamous) and ‘loose women’ (lacking relationship to an authority figure)51 appeared,
both blurring the lines between promiscuity and prostitution (though there is argument as
to whether this is justifiable), and entrenching a double standard. Mediaeval society
simultaneously condemned, recognised and entrenched sex work,52,53 although the
Reformation was less forgiving than the Roman Catholic view of a necessary evil. Many
of these regulations infringed on human rights and addressed the person rather than the
act.
In the United Kingdom,54 and hence its colonies and the Commonwealth, the history of
current legislation can be traced back to the 18th century and the Disorderly Houses Act
1751.55 This punished the keeping of premises (bawdy-houses) in which sexual
exchanges took place and is the forbear of modern legislation criminalising the provision
of premises for sexual services (brothels).
“S8. Any person who shall at any time hereafter appear, act, or behave him or
herself as master or mistress, or as the person having the care, government, or
management of any bawdy-house…shall be deemed and taken to be the keeper
thereof, and shall be liable to be prosecuted and punished as such,
notwithstanding he or she shall not in fact be the real owner or keeper thereof.”
The history of prostitution laws in the 19th century has been well documented,56 in which
increasing efforts were made to regulate sex work, notably the Vagrancy Act 182457
which applied the label ‘common prostitute’ to women.
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“S3. Every common prostitute wandering in the public streets or public highways,
or in any place of public resort, and behaving in a riotous or indecent
manner….shall be deemed an idle and disorderly person…and it shall be lawful
for any justice of the peace to commit such offender… to the house of correction,
there to be kept to hard labour”
The highly controversial Contagious Diseases Acts (1864-9),58,59,60 allowed the
authorities to apprehend, examine, treat and detain women in certain regions where
suspicion of being involved in prostitution was considered a threat to the armed forces.
Although repealed by public pressure,61 particularly from women’s movements, social
purity forces succeeded in passing the protectionist provisions of the Criminal Law
Amendment Act 188562 which succeeded in suppressing brothels, thus forcing the
women out onto the more dangerous streets.
13. Any person who
(1) keeps or manages or acts or assists in the management of a brothel, or
(2) being the tenant, lessee, or occupier [or person in charge] of any
premises, knowingly permits such premises or any part thereof to be used
as a brothel or for the purposes of habitual prostitution, or
(3) being the lessor or landlord of any premises, or the agent of such lessor
or landlord, lets the same or any part thereof with the knowledge that such
premises or some part thereof are or is to be used as a brothel, or is
wilfully a party to the continued use of such premises or any part thereof
as a brothel,
(a) to a fine not exceeding one hundred pounds or to
imprisonment... for a term not exceeding three months; and
(b) on a second or subsequent conviction, to a fine not exceeding
two hundred and fifty pounds or to imprisonment... for a term not
exceeding six months;
In most of continental Europe prostitution was tolerated but highly regulated, with ample
opportunities for police corruption, and it is this ‘legal’ prostitution that is often the
subject of concern amongst sex workers, when there are discussions about ‘legalisation’
of sex work. This degree of regulation was probably at its most marked in the French
reglementation (regimentation) and Bureau des Moeurs (Morals Office) (1838-1907) of
Alexândre Jean-Baptiste Pârent-Duchâtelet63 which saw an unprecedented intrusion of
the state into the private lives of women, with parallels to the working of the Contagious
Diseases Acts in the UK. Although widely copied, and even seen in contemporary
Nevada, the singular failure of reglementation are symbolic of the more general
continuing regulatory failure world wide over many centuries.
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What ever the shortcomings of the reglementation, its replacement, abolitionism (grandly
modelled after the abolition of slavery and intricately entwined in the mythology of the
White Slave Trade), was to prove even more intrusive, as the prevailing philosophy
moved from regulation to eradication, but ultimately has been no more successful.
Latterly the legacy of the White Slave Trade, reframed as Trafficking in Persons has once
again become the dominant discourse. Given that the analology between racial slavery
and sexual exchange is more perceived than real, and that abolitionism is itself
ambiguous if not misleading (abolition of what?), the term is best avoided. In the late 19th
century for instance it stood for abolition of regimentation, while others in the 20th
century refer to the abolition of criminal sanctions and other intrusive laws aimed at sex
work. Rather than the mythological melodrama implied by abolition (villain, damsel and
hero), a closer analogy is that of prohibition of a service or commodity for which there is
a high demand, involving State intervention in a market economy. The failure of
prohibition of alcohol forms a useful model for the likelihood of the success of the
prohibition and abolition of sexual exchange. In this chapter prohibition is used as the
preferred term.
The 20th century brought wars with their temporary sanctions on prostitution modelled on
the Contagious Diseases Acts, such as the Defence of the Realm Act (DORA) in the UK.
War also brought sweeping changes to the old order, demographics and the status of
women. In sex work discourse three strands of policy were apparent, regulation,
abolition, and liberation. The new view of prostitution as a social evil, coloured with
xenophobia, that threatened all women led to widespread brothel closures and an end to
laissez-faire policies of tolerance world wide.
In the UK there was tremendous activity in the form of inquiries and legislation
culminating in the pivotal Wolfenden Committee (1954-7)64 entrusted with making
recommendations on male homosexuality and female prostitution. The gendered result,
decriminalisation of the former, while further restricting the activities of the latter has
resulted in a prolonged discussion on law and sexuality, which has understandably
focussed more on homosexuality, but produced a model of decriminalisation as a
necessary condition for progressive destigmatisation of the former.
While Wolfenden was profoundly influential, discourses in the second part of the 20th
century began to show progressive divergence in different jurisdictions. In Europe the
debates in the Netherlands and Sweden have occupied centre stage,65 described as the
contrast of realism and idealism.66 While in Oceania, Australia and New Zealand have
pursued liberalising law reform in a less well studied manner. Currently debates appear at
their most intense in the United Kingdom where the Government has favoured
prohibition.
“Third Wave” Legislation
Legislative campaigns in the late 20th Century have been referred to as “Third Wave”,67
although this is potentially confusing given a tendency to associate different waves of
feminism with varying approaches to sex work policy, such as the relationship of second
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and third-wave feminism with decriminalisation and sex worker rights movements. In
central Europe, Germany and the Netherlands have been seen as models of tolerance,
although the Netherlands has dominated discussions due to its reputation for Gedogen
(tolerance - officially prohibited, but unofficially permitted)68 in matters of social justice
and mores, and because it has been targeted by prohibitionists who believe that it
provides evidence against liberalisation of laws on sex work, and also because it has been
well documented.
Netherlands
Background
Prostitution in the Netherlands has been both disapproved of and tolerated for most of its
history. Licensed brothels are known to have existed from at least the 13th century, and
described as ‘necessary’ in a 1413 Amsterdam by-law. Although prohibited under the
Alteratie (protestant uprising) of 1578,69,70 attempts at suppression proved to be in vain.
The French introduced their system of regulation to the Netherlands during the 1810-13
occupation.71 The 1811 Code Pénal removed prostitution as a crime,72 with the exception
of the involvement of minors. Although prostitution was considered normative,
hygienists, as elsewhere, supported close control, and this was enacted in the 1851 Local
Government Act permitting regulation. Opposition came from those who felt it was
ineffective, that morality was an individual matter and that this created state-sanctioned
prostitution, such as the protestant Association Against Prostitution (1878).73 Public
opinion gradually shifted from the normative view to that of perversion, and libertarians
stressed the need to shift the onus from sex workers as victims to clients and brothel
keepers as exploiters. In keeping with most of Europe (Denmark in 1901, Germany 1927,
Sweden 1918, and France 1946),74 the Netherlands criminalised third party activities, the
keeping of brothels and living off the avails (pimping) in 1911,75,76 but not prostitution
itself. Brothels in Amsterdam had already been officially closed in 1897. This was
supported by feminists and religious groups, and finally the health professions. Political
action on prostitution gave feminism an identity and it was considered an important part
of the struggle for equality.
The 1911 law was no more successful than any other, but there was little public debate
till the 1950s which saw new concerns about the welfare of those involved in sex work,
and the new morality of the 1960s which promoted individual responsibility over state
intervention.77 What had happened was a slow drift back to unofficial regulation78 under
Gedogen.79 Raamprostitutie (window prostitution) by independent women developed in a
bid to avoid the brothel ban in the 1930s. By the time of law reform in 1999 local
municipalities estimated that there were approximately 6,000 women employed in sex
work,80 almost certainly an underestimate and may have been as high as 25,000.81
Debates
The 1970s saw the proliferation of Amsterdam’s red light district and community
concerns over nuisance continued in the background while the first discussions about
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labour equity for sex workers appeared82 advancing the subjectivist83 view of sex work.
The 1980s saw a swing in public opinion towards repealing the ban on brothels,84 and
municipalities also lobbied for repeal after losing several court cases in attempts to
regulate a theoretically prohibited industry.85
A conference in 1982 sponsored by the women’s policy agency in the Government
(DCE)86 called for repeal of the prohibition.87 By 1985 the DCE had included best
business practices in their prostitution policy,88 funded the first World Whores’ Congress
in Amsterdam (1985) and in 1986 started funding a sex workers’ union, de Rode Draad
(Red Thread),89 which had in turn joined the Federatie Nederlandse Vakbeweging (FNV Federation of Netherlands Trade Unions).90
Parliamentary debate began in 198391 with a proposal to revise penalties for pimping, at
which time it was suggested that repealing the ban on brothels be added to this to allow
municipal regulation. A revised version of the Bill including this feature was then
introduced in the Tweede Kamer (Second Chamber, or lower house) in 1985.92,93 The Bill
distinguished between voluntary and involuntary sex work, and stressed the right to selfdetermination and that the State should not be judgemental in the manner of morals but
merely intervene in cases of exploitation or coercion. This new morality is reflected in
the language, ‘vice’ being now described as ‘sexual acts for payment’94 and was genderneutral. The Government’s position was that they would only act to prevent constraint of
autonomy, including the protection of the vulnerable, including minors. Delegating to
local authorities would enable local needs to dictate conditions.
In the Eerste Kamer (First Chamber, or upper house), the Government was persuaded to
postpone the issue in order to debate it together with the trafficking bill of 1989, 95 (also
gender neutral). A change in government in 1990 shifted the focus, allowing
municipalities to prohibit brothels, and to declare all non-EU prostitution as trafficking,
playing on xenophobic fears. This trafficking Bill was adopted by the lower house in
1992, hotly debated and amended in the upper house, and passed in 1993 after the brothel
bill was withdrawn. The issue continued to be debated, and a new brothel bill was
introduced in 1997,96 with the addition of new protection of minors,97 and control of
foreign women workers. It was passed on October 28 1999, and came into effect on
October 1 2000, to allow local municipalities to draft regulations. By this stage MPs were
aware of the attention the proposal was getting internationally, in contrast to the direction
Sweden was taking. The Government and embassies took the unprecedented step of
issuing fact sheets on prostitution in the Netherlands.98 By the time the Bill was enacted
the primary focus of debate had shifted from the protection of women to one more
orientated to law and order.
Further amendments followed in 2002 as part of a review of decency laws99 and again in
2005 particularly with respect to the protection of minors and trafficking, article 250a
being replaced with 273a.100 Of note is the translation of prostitution offences from the
decency part of the code to that of offences against personal freedom, since it was now
coercion of involuntary prostitution that was the crime, not the act of prostitution itself.
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Frames and Actors
The dominant discourse described prostitution as work with contractual rights. However
already there was a discernible difference in attitude towards Dutch sex workers
compared to ‘foreign’ (non-EU) workers. The church parties still saw sex work as
immoral, urging a prohibitionist protectionist position, tempered in some cases by a
pragmatism which favoured regulation of the ineradicable, but still saw the State as
keeper of the national morality. Others put forward the sex work as violence, the sex
work as work, the public law and order, and the need to regulate excess discourses,
although none of these positions were completely mutually exclusive. The debates were
gendered, in terms of views of male and female sexuality, with the exception of the free
market discourse. Women represented 31% of the Netherlands parliament in 1999.101
The Dutch women’s movement and the DCE pursued a multi-pronged agenda that
included action on trafficking, and hence involuntary prostitution, from 1982 onwards. In
the early 1980s they shifted from the earlier domination-violence perspective to sex as
work, at least partly due to concerns that the former portrays women as victims without
agency. In contrast liberalising regulation was seen as a measure that would improve the
position of sex workers by making sex work more transparent. Thus action to prevent
trafficking and liberalising regulation of voluntary prostitution were seen as parallel and
complementary objectives unlike in Sweden where they were depicted as antagonistic. In
some ways a traditional binary (decent versus fallen women) had been replaced with a
new one (voluntary versus coerced sexual activity), self determination being held to
include the right to both control over one’s body and the right to sell sexual acts.102
In addition to the traditional women’s movements and the DCE, was a coalition, the
Landelijk Platform Prostitutie Overleg (National Platform for Prostitution), including
client and operator representatives. Another important actor was the Association of
Municipalities (VNG).103
The Netherlands has a multiparty system invariably requiring coalitions. In parliament
the Government legislation had the support of all of the secular parties and the voting was
along a secular-religious divide. Symbolically it was an important development in
recognising sex work as legitimate work and distinguishing ‘voluntary’ from ‘forced’
prostitution (which remained in the Penal Code) after a 20 year debate, and which
separated the criminal corollaries such as organised crime, violence and drugs, from the
act itself, which was not considered intrinsically criminal.104 This approach has been
described as a case of postmodern morality.105
Aftermath: Implementation and Evaluation
The Netherlands functions as not only a federation of States, but as a decentralised
unitary state106 in which much administrative law is devolved to municipalities, and the
Brothel Act was no exception. Thus a large number of local governments now assumed
responsibility for regulation of the sex trade. These varied considerably in their
motivation, understanding, resources, and the degree of accumulated social and political
capital in their prior relationships with the sex industry. They were also vulnerable to
litigation from the industry. Implementation had not been a priority in the debates,
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despite the immense task of transforming a marginalised profession and industry into a
mainstream business with all the inherent rights of legal work. In some cases this
coincided with a desire to also implement urban renewal.
The debate and actors now shifted to local authorities, enforcement mechanisms,
concerned residents, sex workers and entrepreneurs who were often powerful and well
organised, and even the courts. The degree of collaboration and consultation varied
enormously independently of the degree of intention. The significance of this is that sex
work is notoriously resistant107 to being regulated, and over regulation tends to create
both legal and illegal sectors, and does little to overcome the stigma that hinders open
collaboration and participation in the main stream economy. Part of the struggle lay in
defining the fiscal and authority structures, with sex workers resisting any formalising of
employer-employee relationship as opposed to a status as independent contractors with
its implications for benefits and taxation.108,109 Other themes have been licensing
procedures, monitoring and enforcement, public safety, working hours and conditions
and health and safety regulations as well as the criminal corollaries, and in particular the
question of migrant workers whose nature has shifted with progressive EU expansion,
and therefore the perception of trafficking. Amongst the challenges was the fact that this
transformation took place in an institutional (administrative), jurisprudential and moral
void, with no precendetial guidance. Decriminalisation does not produce instant
destigmatisation.110 On a more positive side, centuries of evasion and confrontation was
replaced by a need for dialogue, knowledge and understanding, with a resultant increase
in cognitive and social capital. At the same time the newer role that people within the sex
industry played in these dialogues has started to erode stigma, but noticeable has been the
relatively marginal role of sex workers themselves and their organisations.
The net effect has been increased regulation and a reduction of at least the legal side of
the industry, a process which is continuing.111 Street crime has been reduced, and public
order considerations better managed with the introduction of closing hours. As always the
law of unintended consequences was in effect.112 There are claims of a sharp increase in
illegal activity in the streetwalking sector, particularly around non-EU sex workers who
are more vulnerable to exploitation and violence. The debate which began as a campaign
to improve the conditions behind the windows has to a large degree shifted the problem
to the streets in the classic displacement phenomenon of regulation in the sex industry.113
In some ways decriminalisation has returned the scene to the regulation of earlier
centuries, but with an emphasis on operators as opposed to sex workers.
The Netherlands scene, as one of the first countries to deliberately remove prohibitions
on brothels, has attracted enormous attention. Critics, other than those who oppose all
liberalisation, claim that it has been a failure if the real aim was to decriminalise,
normalise and liberalise sex work.114 It should be noted that this was not a comprehensive
policy, but a sectored one, with all the limitations that this entails. Thus it can be depicted
more as a conservative move (law and order) than a liberal one (enhanced autonomy).115
Evaluation
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Apart from a study by the Norwegian Ministry of Justice in 2004, the Netherlands
Ministry of Justice has carried out two major formal evaluations, in 2004116 and 2007117
as well as more focussed studies. The initial evaluation noted the incomplete and uneven
implementation, which did improve subsequently. This in turn resulted in a concentration
of the industry in locations with less restrictions or enforcement, including across
national borders. Paradoxically decriminalisation has been accompanied by stricter
enforcement resulting in a perception of greater restrictions than before the legislative
changes. Also greater visibility of marginalised activities, while facilitating regulation, is
not always welcome in the sector and creates its own problems for the actors. Contrary to
the claim of critics, supply and demand of visible sex work appears to have actually
decreased, although there is clearly a problem in enumerating the invisible portion
(independents, clubs, massage parlours etc.) which may have witnessed changes
secondary to technological innovation (cell phones, internet) as in other countries.
While one of the objectives was to facilitate voluntary sex work and reduce involuntary
or coerced sex work, the latter is hard to define and lies on a continuum both in degree
and in the case of migrant workers the entire trajectory of their translation, making this
difficult to evaluate. Visibility and empowerment are useful tools, but migrant workers
may not be aware of their rights and how to seek help or redress.
Prostitution of minors will likely never be eradicated, and can be hard to detect in the
marginalised, where age can be difficult to establish, however there is no evidence of any
increase.
With regards to improving well-being, there has been little improvement and quite
probably a deterioration, due partly to the complexity of interactions of actors and
agencies with sex workers’ lives, and that normalisation is not easily achieved after
centuries of oppression, and certainly not instantaneously. This finding has fuelled
criticism of liberalisation. Only 60% of sex workers were aware of the law, and of these
less than 40% considered it a good thing.118
Unpacking the criminal corollaries from prostitution has not proved to be easy, given the
historical context. New measures are in place that provide new tools for civic authorities,
of which the Wet Bevordering Integriteitsbeoordelingen door het Openbaar Bestuur
(BIBOB), or Public Administration Probity Screening Act119 has attracted the most
attention and is being used to deny licensing to individuals with evidence of criminal
activities. BIBOB lies behind much of the recent announcements regarding cleaning up
Postal Code 1012 (Red Light District).120
Perhaps no subject has attracted more attention by critics than that of migrant sex workers
(and by implication trafficking in humans). There has been an increase in Eastern
European women, which may partly reflect EU expansion, but a decrease in women
without residence qualifications. Again, distinction needs to be made between the visible
and invisible sectors. However there is no evidence to substantiate claims by the antitrafficking prohibitionist groups of a vast expansion.
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Summary
While much needs to be done to address the needs and welfare of sex workers in the
Netherlands,121 there is nothing in the evaluations to support the claims of those who
have stated that liberalisation of laws regarding sex work per se increase violence against
sex workers and create large social problems. Although there was not a lot of support for
the new laws by individual sex workers, de Rode Draad considers it an improvement
overall.122 They advocate a national policy on and support of municipal regulation,
including a hotline for reporting abuse, encouragement of independents and small sex
worker owned and operated businesses. Unfortunately these developments reflect the
shift in focus from the beginning of the debates from improving the lives of sex workers
to law and order and enforcement. The licensing system itself provides a powerful
incentive to work outside it. Also migrant workers are discriminated against in that sex
work is the only work for which there is a prohibition on work permits, increasing their
vulnerability, a condition that could actually facilitate trafficking.123,124 Development of
better labour standards and mechanisms for labour relations are required for sex work, as
well as active discouragement of discrimination against sex workers. Sex workers need to
be given a much larger role in policy development.
Sweden
Background
Like many European countries Sweden delegated prostitution control to local
municipalities from 1833.125 Sweden attempted to ban prostitution in 1836, but within a
year had backed down and established a state run brothel,126 which was not a success, nor
were private licenced brothels. In 19th century Sweden (from 1847)127 most sex work was
illicit but tolerated, including medical examinations and lock hospitals for venereal
diseases. Brothels were illegal but persisted under police surveillance. Other regulations
controlled areas frequented by sex workers and the clothes that they could wear. This
policy was both gendered and intrusive,128 typifying the ‘necessary evil’129 framing of
prostitution typical of Western European discourse. An abolitionist office was established
in Sweden in 1878,130 and eventually protests, including women’s movements in the
1880s131 led to the commissioning of an inquiry in 1903, reporting in 1910.132 The
resulting proposals were not without vigorous dissent from feminists and liberals133 who
succeeded in removing gendered prostitution clauses from the proposed legislation
dealing with contagious disease.
After 1918 control of prostitution was a national responsibility, under two laws, the Lex
Veneris134 (1918), and the Vagrancy law (1885), dealing with disease and unemployment
respectfully, since money earned through sex work was considered illegitimate.135 These
were now gender neutral in language, but as elsewhere, not in practice,136 and the new
vagrancy provisions were condemned as even more coercive by women.137 This was the
Scandinavian Sonderweg (Special Way)138. Six official commissions considered the
issues between 1923-1964139. In practice women charged under the vagrancy provisions
were apprehended for prostitution in what was still coercive care as social control. The
three commissions of the 1920s (1923, 1926, 1929) depicted prostitution as a dangerous
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predisposition requiring correction, as opposed to mere detention, a moral analogue to the
danger of spreading disease. The 1929 report presaged contemporary legislative
developments by referring to public education and the role of demand. Women were
divided, some calling for abolition of the law pointing out it was gendered in practice,
and others supporting the then popular social hygiene concept of sterilisation of the unfit.
These discussions raised the idea that men who sought out sex workers were a danger to
all women. Health professions shifted ground from arguing about contagion to arguing
morality.
This pathologised theory became the dominant discourse from the 1930s onwards for
dealing with uncontrolled sexuality in a period which was characterised by social
medicalisation.140 This was also an era associated with an attempt to eradicate venereal
disease by mandatory tracing, treatment and consent to behavioural change (Lex
Veneris).141 This formed part of a package of legislation that defined citizenship in terms
of desired normative behaviour, including ‘honest labour’,142 a social welfare state based
on the priority of the State over individual freedoms143 to promote the goals of folkhygien
(public hygiene). Citizenship became a hierarchical attribute depending on adherence to
these norms.144
Throughout these discourses, care was taken to distinguish attitude, which required
correction, from acts, which were punishable. A parallel discourse was the concern about
population and the 1935-8 Population Commission commented on the need to control
demand. It also raised the idea of prostitution as antisocial. The 1939 prostitution
commission proposed criminalising prostitution related activities as part of the fight
against such a social evil, including the actions of clients, although for law and order
reasons rather than moral. However examining the language of this and a contemporary
commission on homosexuality, it is clear that the construction remained heteronormative
and patriarchal. The 1940s saw continued pressure for abolition of the increasingly
obsolete vagrancy law, which was now being enforced in a more restrained manner. The
1960s brought the widespread questioning of sexual mores to Sweden, and for the first
time the notion of prostitution as normative, together with proposals for re-establishing
state brothels.145
Debates in the Riksdag in 1950 saw women state that the primary cause of prostitution
was male demand, echoing discourse outside of government in the 1880s and 1920s. By
1958 women parliamentarians were stating that prostitution was the most important
social problem of all time,146 demanding a further commission (1958-1962). By now
there was yet another reconceptualisation of prostitution, from psychopathology to
sociopathology, and the resulting legislation replaced the vagrancy law with the antisocial
behaviour law in 1964. Regulation of prostitution passed to this Act, but retained the
concept of normative social citizenship based on honest labour. In practice the law was
used less and less, was successfully challenged in court in 1967 and was replaced in 1969
by the Social Services Act of 1980, till the Prohibition of Purchase of Sexual Services
Act147 of 1999 (amended 2005).
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Debates
Sweden has had an active debate on gender equality since the 1960s, and this has resulted
in a number of institutional structures such as the Ministry of Equal Status (1976) and the
Equal Opportunities Ombudsman148 (1980).149 A gendered recommendation on rape by a
state commission on sexual offences in 1976 evoked a remarkable consensus within both
the women’s movement and the parliamentary women’s groups that eventually led to the
demand for further inquiries including yet another prostitution commission. The resulting
inquiry in 1981150 was very controversial (internally and externally), concluding that
prostitution was not a question of gender equality. Interestingly they found that
prostitution was declining and recommended that criminalisation would merely drive it
underground and worsen stigmatisation. Some attempt was made to distinguish between
voluntary and involuntary sex work. Amongst those opposing criminalisation were the
police, judiciary and Ombudsman, gay rights groups and the Swedish Association for Sex
Education (RSFU).151 Most of the women’s political groups except the conservatives, and
the battered women’s shelter supported criminalising the client. The resultant bill (1982)
only dealt with pornography but provided some funding for research on sex work.
However the rhetoric was clear, prostitution was still a social evil, and incompatible with
equality, and should be ‘fought’.
Between 1983 and 1993 (particulary 1984-7 and 1990-2) some 50 bills were presented
dealing with prostitution, many of which included the criminalisation of purchase, and
there was a major lobby within and without the Riksdag152 from women’s movements
and calls for more commissions. A further commission was instigated in 1993 under a
former Ombudsman.153 One bill from women parliamentarians at the time demanded
immediate criminalisation of clients, believing there was sufficient ‘evidence’ and that a
further commission was not required.
1995 saw both the reports of this commission and also one on violence against women
and rape154. The latter met the women’s objectives, the former155 however proposed
criminalising both parties to an exchange in prostitution, including both hetero and
homosexual prostitution. In the ensuing public debate there was talk of a historic reversal
of patriarchy and of the need to avoid further victimising the victims (women).156 There
was virtually no support for the commission’s recommendations in the ensuing
consultation process, most commentators opposing any criminalisation. Bills from
women parliamentarians criminalising clients continued to be presented and the
Government was criticised for inaction.
The resulting Government bill (February 5 1998) packaged both commission reports
together as a Violence Against Women Act (Kvinnofrid)157 including criminalisation of
purchase in the prostitution provisions158 and measures to combat sexual harassment in
the workplace. It was sponsored by both the Prime Minister, Göran Persson and the
Minister of Gender Equality,159 Ulrika Messing. The Justice Committee was not
convinced that criminalisation would reduce prostitution, but still recommended the bill.
While there was virtual unanimity on most aspects of the bill, this was not the case for the
proposals to criminalise purchase. The debate on prostitution was heavily gendered. Men
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argued this was a social not criminal matter and that this intruded on self determination,
while women argued that prostitution was incompatible with a social order embracing
gender equity. All women saw prostitution as patriarchal oppression, and therefore not a
free will choice, although there was less unanimity over what should be done. The
uniqueness of the proposal was emphasised, all of which took place at an ideological
level with no appeal to empiricism, which was explicitly rejected. Eventually it passed on
June 4 1998160 by 181 to 92 in a 349 member chamber, becoming law on January 1 1999
as section 11 of chapter 6 of the Penal Code.161
Frames and Actors
Sweden has a system of proportional representation and a multiparty system, the Social
Democrats162 that have dominated Swedish Politics for most of the last century forming a
minority government during this time with support from the Centre Party.163 Opposition
in parliament was only moderate, the opposition parties believing that the bill would be
passed. The Moderate (conservative) Party164 and Liberals165 opposed the policy, and the
Christian Democrats166 abstained.
While maintaining that this was not about women’s sexuality, the supporters of the bill
claimed that women should control their own bodies, and that this was about men’s
access to women’s bodies. The women’s movement had carried out considerable
lobbying for criminalising purchase, but in the end it was the women’s groups within the
parliamentary parties that were responsible for the success of the legislation, crossing and
even defying their own party lines. However this was not as homogeneous as is
sometimes perceived. Moderate women never joined the movement, and both Moderate
and a number of Liberal women opposing the bill. Most of the parliamentary debate was
undertaken by women, which Ulrika Lorentzi, former editor of the feminist magazine
Bang, referred to as the ‘Sex Wars’.167 Women held 41% of the seats in parliament (the
highest proportion in Europe)168 and therefore had to argue for male support within their
parties in order to get this passed. The women’s movement had prostitution high on its
agenda, criminalisatiuon of purchase had been on that agenda for a hundred years, and
there was little opposition to this. However ensuing public debates revealed that even
Swedish feminists were divided on the approach that had been taken.
For the women, this was a test case of their ability to come together as a caucus and push
through a women’s agenda over the wishes of male colleagues. Messing’s agenda was
expansive: “I believe that in 20 years today’s decision will be described as the big leap
forward to fight violence against women and to reach Kvinnofrid”.169
In addition to the Ministry and Ombudsman, equality issues lay with the parliamentary
Gender Equality Committee (1976), and a unit was created at the Department of Labour.
Legislation was created in 1980. In this case the women’s agencies were seen as not
being supportive of the women’s movement which had become increasingly coalesced
around the demand for criminalising the client, but rather pursuing equality in a more
impartial mode. The Minister, however, essentially championed the proposal both inside
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and outside of the Riksdag, and therefore it may be argued that that women’s political
agencies played an indirect role through the profile of the office and minister.
Arguments as to action varied across a spectrum from no action, criminalising both
partners, to criminalising the client. Opponents expressed concern that criminalisation
would drive prostitution underground, and was symbolic rather than realistic. Other
concerns were expressed about the state of legislation and practice in the rest of the EU,
including a fear of contamination of Sweden, and that this would send a message to
Europe against liberalisation. Other aspects of this included concerns about trafficking.170
The sex as work discourse appeared late in the debate and only outside of parliament.
Notably absent from the debate were sex workers and sex workers’ organisations.
Despite appeals to equality there was scant attention to any other forms of sexual
exchange than women selling sex to men (invariably framed as predatory men purchasing
sex from vulnerable women).
A term that appeared in the debates and has since become popularised is ‘Swedish
Model’171 or "Den Svenska Modellen", a term long used to describe foreigner’s
perception of the Swedish way of doing things, and in particular the paternalist welfare
state that arose in the 1930s.172 Out of context, this has become the most commonly used
term to describe criminalising purchase in subsequent debates around the world.
Aftermath: Implementation and Evaluation
Most of the debate, other than the lobbying from women’s groups, took place in
parliament. It was only after the law was passed that significant debate took place in
public. Sex as work had been discussed during the 1990s but was not part of the
parliamentary debates, but started to be heard more in the public debates that followed.
Petra Östergren, a prominent feminist and speaker on sexuality was a noted opponent, as
were sex work activists such as Lillian Andersson.173 Criticisms were made of women
politicians on the grounds of class and for dividing women (although they had been
careful to frame the debate about men, not women). There was also interest in the fact
that Sweden was quite unique in this regard. Some former sex workers supported the law.
Parliamentary activity continued, with bills to criminalise the selling of sex, and to
promote the Swedish approach and oppose liberalisation of laws on sex work worldwide.
In April 2005 the law was amended to add the clause “That which is stated in the first
section also applies if the payment has been promised or made by someone else” to
include procurement by a third party which was acknowledged as a loophole. Sexual acts
with children were also added (section 9).
Implementation is rarely part of debates on the purpose of proposed law. Following
passage of the law, the Government provided 7 million crowns ($1 million US) to the
National Police Board174 for enforcement.175 Extra police were hired and vehicles in
known areas of street work placed under surveillance. Ninety one reports were filed in
1999, and a reduction in visible prostitution was noted while acknowledging that
estimating the actual activity of prostitution was extremely difficult, and that it was quite
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possible it had merely gone underground. The difficulties of enforcement were
immediately noted by the police who had opposed the law, and the difficulty in getting a
conviction was even harder under Swedish judicial procedure and the rights of citizens.
Few of the reports in 1999 were concluded. Six convictions were obtained, and fines
imposed. Difficulties in even understanding the law were noted, and understandably sex
workers were reluctant to inform or testify against their clients. The Socialstyrelsen
(National Board of Health and Welfare) noted that estimating the extent of sex work was
almost impossible.176 A number of reports suggest that prostitution was at a low level in
Sweden, and was on the decline, but may have experienced a slight increase in the 1990s.
Yvonne Svanström describes two similar cases, in which the outcome is very different for
the man and the woman (a male judge and a woman police cadet), as exemplifying the
fact that the law as a symbolic tool has done little if anything to achieve its intent of
reversing patriarchal hegemony and reversing centuries of controlling women’s sexuality
to controlling that of men.177 She saw this as indicative of Eva Lundgren’s thesis178 of the
divide between regulative systems and constitutive systems, and the relative stability of
the latter.179 Indifference of authorities to sex work outside the patriarchal model
provided further doubts as to whether the symbolism of the law has anything to do with
gender equality.180
Swedish authorities and activists181 went on an offensive to promote the ‘Swedish Model’
and Sweden’s unique solution. The Government hosted conferences on trafficking, sexual
violence and prostitution as a comprehensive entity182 and issued Fact Sheets outlining
official Swedish policy in a variety of languages.183 These made it very clear that
prostitution and trafficking were manifestations of the same male criminal predisposition,
‘male violence against women and children’, who are described as victims. A severe
threat to society as a whole and indeed the world at large is described. Alliances were
formed with prohibitionist antitrafficking groups such as the Coalition Against
Trafficking in Women,184 and representations made at higher levels such as the European
Union, Council of Europe and the United Nations. A characteristic social engineering
approach was taken to advertising and education, including schools programmes.
As expected there was an immediate decrease in the visible spectrum, as seen in other
countries introducing repressive legislation (e.g. Street offences Act 1959, U.K.)
followed fairly rapidly by displacement to the less visible spectrum.
Evaluation
Evaluation of the law creates considerable conceptual burdens, especially given the
expansionist claims of the rationale and objectives, which include not only the
eradication of prostitution but also of violence against women, and a cultural shift in
sexuality values.
In contrast to the Netherlands legislation of the same time, there has been relatively little
evaluation, but rather a triumphalist announcement that the law has the overwhelming
support of the public. This editorial statement in Sydsvenskan in 2007 is fairly typical
“No proper evaluation of the law has yet been undertaken, and it appears unnecessary.
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The law has the support of 80 percent of the Swedish people.”185 This has resulted in
sensationalist headlines in the foreign press, such as “Prostitution Ban Huge Success in
Sweden”186 Nearly all media articles cite this single (unreferenced and undated) public
opinion poll. The most recent data actually show 71% support, but only 20% thought that
the law was working, and more than 50% wanted the sale of sex also criminalised.187
Monitoring and evaluation were delegated to the Socialstyrelsen, which has produced
three reports (2000, 2004, 2007). These acknowledged the difficulties in evaluating the
situation, and provided no hard evidence that the law had in anyway achieved its
objectives. The 2007 report states that street prostitution is on the increase after an initial
decline and that customers and sex workers now use the internet and mobile phone to
communicate. There is no evidence that the law has reduced violence, rather there is
evidence it has increased,188 similarly sexual offences (40% increase over the last ten
years).189,190
A number of other markers indicate that the law is not achieving its objectives despite
statements from the authorities. Judges191 and police have been caught purchasing.192 At
the beginning of 2008 Swedish media started to question the efficacy of the law.193 In
April a judge was asked to conduct an inquiry into the effect of the law and to report in
2010.194The number of police reports is now 1,500 with 86 convictions in 2006. A
Supreme court ruling has prevented the optional jail term being applied, and
parliamentarians are calling for a minimum one year jail term.195 Taxing the proceeds of
sex work (recognised since 1982) is raising questions as to the rationality of a law
prohibiting purchase.196 On July 10 2008 the Government announced a new Action
Plan197 on prostitution including the investment of another 200 million kroner,198 action
at an international level and further educational measures to ‘help them [people] rethink
their attitudes’. Stories about sex work appear almost daily in the media, often with
commentary from Gender Equality officials. The increasing emphasis on the symbolic
nature of the law, ‘sending a message’, by the authorities also sends a message that the
instrumental value is in doubt.
With the notable exception of Yvonne Svanström (Stockholm), most of the research into
the law comes from outside of Sweden.199,200,201,202,203 In 2008 preliminary data appeared
on a study of sex work across the Nordic region by the Nordic Gender Institute.204 As
expected they found it extremely difficult to quantitate, and the amount of information
available was poor, with differing views as to whether this is a social or a legal issue
amongst respondents, although authorities are increasingly formulating what has
historically been social, as legal, driven by concerns about border issues.
The issue of unintended consequences was also raised by critics of the proposed
legislation in Sweden,205 namely that it would drive sex workers underground, increase
the risk of violence, harm the most vulnerable, and be almost impossible to enforce. All
of which appear to have transpired to varying degrees.
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Summary
After decades of study (commissions and consultations) Sweden enacted unique
legislation206 prohibiting the purchase of sex. The rationale was ideological and
essentialist – sex work was violence against women. Empiricism was eschewed, although
the 1993-1995 commission had before it much information of dubious methodological
rigour. Sex workers were excluded from the discourse. After ten years there is little if any
suggestion that it is capable of fulfilling any of its intended objectives, other than
possibly discouraging immigrant women sex workers. On the other hand the predicted
unintended consequences appear to have transpired.
Much effort has gone into speculating how such a unique law could have been enacted in
Sweden and drawing contrasts between Sweden and the Netherlands. It would be easy to
attribute the Swedish legislation to one of many factors, and indeed people have done so.
Factors such as the relative organisation and homogeneity of the women’s movement,
lack of a liberal tradition, and isolationism, undeniably played a part, but most likely
were facilitative rather than causal. Swedish cultural tradition has long favoured a strong
state over individual rights and has been protectionist and paternalist under a long
standing social democratic government. Sweden prides itself on being unique, and so
unique ‘solutions’ are not unexpected. Sweden has a zero tolerance rather than harm
reduction drug policy and much of the rhetoric in the prostitution debates resembled that
of the drug debates. Sex work played a small part in Swedish life and was relatively
poorly organised with no effective voice, given a long history of conceptualising it as not
only an evil of various guises, but one that threatened society as a whole. By defining sex
work as violence and bundling it into the reincarnated Kvinnofrid concept (ironically
derived from a concept in which women had no agency), both the women’s movement
and the Government were provided with political capital, albeit at some risk, if the
expansive claims failed to fulfil their promise.
Where the Netherlands is liberal, tolerant, diverse and inclusive, Sweden tends to social
control, homogeneity and exclusion. If the Netherlands was pragmatic, Sweden was
ideological. Differing concepts of social citizenship and social control created the
backdrop for such disparate regulatory moves. When regulation is placed in the context
of historical cultural and legal tradition, it becomes more understandable. These
considerations lead to the need to be extremely cautious about ‘exporting solutions’ such
as the Svenska Modellen.
New Zealand
Background
New Zealand shared many historical features in common with other colonial possessions,
and in particular British ones, inheriting both statute and case law from the United
Kingdom, for instance the 1824 UK Vagrancy Act, till New Zealand passed its own
laws.207 Prostitution was part of the way of life of the colony from the first contact of
Europeans with the indigenous population and early settler days.208 This was an era when
there was a severe gender imbalance in the population and women were in short
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supply.209 New Zealand progressively codified offences around prostitution in a number
of statutes, prohibiting many of the activities involved in prostitution, but not the act
itself, largely shaped by events in the UK and empire, and eventually Commonwealth.
Two unique features were a relatively large indigenous Māori population, and a history of
a social-progressive tradition.210
In the nineteenth century, prostitution was generally referred to as the 'Social Evil'.211
New Zealand was amongst those dependencies that British authorities pressured into
passing Contagious Diseases Acts, New Zealand's being in force from 1869-1910.212
These were oppressive Acts, based on the mistaken belief, as found in a 1922 inquiry,
that women represented vectors for the spread of venereal diseases and therefore
threatened the armed forces, if not the entire nation. These fears reappeared throughout
the British Empire in both World Wars.213 The Acts emerged from a moral panic, tinged
with racism.214 In the post war period the concern was more with 'promiscuity', although
prostitution was seen as an extreme form of this. The gendered rationale and practice of
venereal disease policy formed a focus for early feminist activism in New Zealand as
elsewhere.215
Statute law dealing with prostitution in New Zealand at the time of law reform included
the Crimes Act 1961, Massage Parlours Act 1978-2003 and Summary Offences Act
1981. These prohibited soliciting, brothel keeping, living on the earnings of prostitution,
while the Massage Parlours Act effectively allowed indoor commercial sex under a
facade. The sale of sex has never been prohibited. These statutes did little to actually stop
prostitution, the industry usually maintaining a thin pretence of being something else. Sex
Workers advertised their services as 'escorts' and brothels advertised themselves as
'massage parlours'. Indoor workers were required to be registered with the police,
however many police forces also informally registered escorts, and the media often
required such registration before accepting advertisements. In 2000 amendments
criminalized both clients and operators where workers were aged under 18.
A social reform government (Labour) came into power in 1984-1990, which tackled a
number of moral issues including decriminalising homosexuality in 1986. Growing
concern over AIDS led to a rethinking of the laws involving prostitution and a decision
was made to help form and fund the New Zealand Prostitute’s Collective (NZPC) in
1987.216,The rationale was health promotion, based on the 1986 Ottawa Charter for
Health Promotion,217 empowering groups to promote their own health through peer
driven processes. The NZPC became increasingly aware that legislative reform was
necessary to achieve their objectives and began to advocate for repeal of sex work
legislation.218
Debates
In 1997 a number of groups came together to hold a Woman's Forum out of which a
working group developed to draft a bill, including the NZPC, academics, women's groups
(New Zealand Federation of Business and Professional Women, National Council of
Women, YWCA), and the AIDS Foundation. Other individuals included legal volunteers
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and MPs, in particular the Associate Minister of Health who successively championed
decriminalization in parliament. Labour returned to power (1999-2008) and Tim Barnett
assumed responsibility for introducing the proposed legislation as a Private Member's
Bill, based on the harm reduction model of New South Wales (1996).
The bill was introduced on 21 September 2000 and placed in the ballot box, being drawn
and debated on November 8219 passing first reading 87:21. Party support came from the
Greens, but was opposed by New Zealand First, who proposed the Swedish approach of
criminalising the purchase of sex. It then proceeded to select committee (Justice and
Electoral), which amended and reported the Bill on 29 November 2002, recommending it
be passed. Dissenting minority opinions were recorded by the National, New Zealand
First, ACT New Zealand and United Future members. This was a Private Member's Bill,
and theoretically members were allowed a conscience vote. However the three members
of the 1999-2002 coalition (Labor, Greens, Alliance) all had decriminalisation in their
manifestos. Later, the Prime Minister, Helen Clark, lent her support to the bill.
The Prostitution Reform Act (PRA)220 passed third reading on 25 June 2003 narrowly. Of
120 MPs, 60 voted for it, 59 against, and one politician, the only Muslim MP, abstained.
The result was a surprise as most commentators had expected the bill to narrowly fail.
The support of Georgina Beyer, a former transsexual sex worker and MP, was believed to
have persuaded several MP's, to change their votes at the last minute.
Frames and Actors
One of the unique features of the New Zealand debates is the role of health, not only in
the 19th century, but also the 20th. The Contagious Diseases Acts were constructed around
the image of fallen women, especially non-European women, as the source of contagion
that needed to be contained. The role of health in the debates that led to parliamentary
reform followed a very different trajectory. The Health Department driven by concerns
about AIDS in the 1980s embraced the principles of health promotion, including the role
of peer driven processes. By funding sex workers and recruiting them as partners a form
of legitimacy was provided which became increasingly incongruent with the extant
prohibitive legislation. The NZPC exploited a New Zealand tradition of intersectoral
collaboration, working with other agencies as equal partners. Their philosophical
approach was Foucauldian,221 using resistance to forge a reverse discourse whereby the
image of sex worker as vector was to be transformed into sex worker as health educator,
health worker, and agent for the prevention of sexually transmitted diseases in the general
population. Their own research demonstrated that the high risk actor was not the sex
worker but the heterosexual male. The New Zealand Public Health Association and Law
Society were powerful allies, as were women’s groups. Opposition was framed as state
sanction of immorality, although the Government was careful to frame its eventual
support as being independent of any moral position other than that of improving the lives
and welfare of sex workers. Other opposition was couched in familiar moral panic
vocabulary of sanctioning sexual violence and slavery, the expansion of the trade,
trafficking and sexual exploitation of minors. During the parliamentary debates and
committees, support came from women's rights, human rights and public health groups.
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Opposition came from some feminists, although the police were neutral. Christian groups
were divided,222 and fundamentalist religious groups were opposed.
Aftermath: Implementation and Evaluation
The Act replaced the previous legislation, largely removing voluntary adult prostitution
from the criminal law and replacing it with civil law at both national and local level. A
distinction was made between voluntary and involuntary prostitution. It remains a crime
to coerce 'someone to provide sexual services'. Sex work is also prohibited for those with
temporary visas, and immigration for and investment in sex work is prohibited. Contracts
between provider and client were recognised, and providers have the right to refuse
services. Contested contracts can be referred to the Disputes Tribunal. Advertising is
banned with the exception of print media which is restricted. The Summary Offences Act
remains in force in relation to offensive soliciting. The Clean Slate Act 2004 also allows
sex workers to apply for previous convictions to be removed from the record. Sex work is
recognised (but not promoted) as legitimate work by Work and Income New Zealand.
Sex work can now operate under employment and health and safety standards similar to
other work. Employment disputes can be referred to the Labour Inspectorate and
Mediation Service. Occupational health and safety standards were developed in
consultation with NZPC. There is an obligation on employers and employees to practise
and promote safe sexual practices. The Ministry of Health has the responsibility for
enforcement. Registration of indoor sex workers with the police was replaced by
certification at an administrative law level of brothels employing three or more workers.
Prior records have been destroyed. Refusal of a certificate is permitted for prior criminal
offences not related to prostitution. Police activities changed from registration and
prosecution to protection. The Police Manual of Best Practice was amended to include
prostitution.
Local government was empowered to develop by-laws for zoning and advertising, but not
prohibit sex work. In summary the Act decriminalised soliciting, living off the earnings
of prostitution and brothel-keeping. After the passage of the Prostitution Reform Act, the
Maxim Institute and other conservative Christian organisations tried to gain an
appropriate number of signatures for a citizens initiated referendum under the Citizens
Initiated Referendum Act 1993. The initiative was sponsored by two United Future MPs,
who had been outspoken critics. Although it was allowed an extension, anti-bill groups
fell well short of gaining the number of authenticated signatures required.223
The sponsoring MPs left United Future, forming The Kiwi Party, making repeal of the
PRA part of its platform in the 2008 election. Neither were re-elected, and the party
failed to win any seats. United Future and New Zealand First which also opposed the bill,
lost most of their seats.
Local Government New Zealand provided model by-laws and procedures. A private bill
to restrict prostitution, the Prostitution Law Reform (Manukau City Council) Amendment
Bill 2005 led to hearings before a select committee, but failed to pass its second
v2.0 September 9 2009
23
parliamentary reading. In addition, court challenges have usually failed to uphold
restrictive municipal by-laws that try to obstruct the purposes of the PRA, namely
decriminalisation, health and occupational safety for sex workers. By 2006, 17 of 74 local
governments had drafted or implemented by-laws. Zoning by-laws have however
thwarted attempts to move street work to 'safe houses' as better practice.
Evaluation
The Prostitution Law Review Committee (PLRC)224 was established to provide research
on the effect of the law and provide reports, in collaboration with academic researchers.
Sex workers are represented on the committee. The inclusion of evaluation within the Act
helped to counter criticism225 based on ideology. In 2005 the PLRC published a survey of
the nature and extent of the industry.226 Independent review by New Zealand academics
working with sex workers was also provided for. These included developing a framework
for evaluation,227 a systematic literature review,228 stakeholder interviews,229 and reviews
of international legislation,230 exiting practices,231 and the role of local in relation to
central government.232
Other research was carried out on the health and safety practices of sex workers.233 An
initial report in September 2006 indicated that the number of prostitutes plying their trade
on the streets, since the changes of the Prostitution Reform Act 2003, had remained the
same or was reduced in some cases, contrary to allegations.234 The extent of sex work
was compared to 1999, the only notable change being a trend from managed sex work to
the private sector. An examination of entry and exit factors showed little incentive to
leave, and as expected, financial return and independence were attractive features.
Workers seemed more empowered, but there was still violence on the streets. Some
deficiencies in safe practices, especially for oral sex, were identified. Perceived stigma
remained a problem. Inconsistencies were noted between local and central government
intent, the former being more restrictive, causing problems for some workers. The overall
impression was positive.
The PLRC presented its final report in May 2008235 It found no evidence for the claims of
critics at the time of introduction. There was no expansion of the industry, and on the
whole the PRA had achieved its purpose. However employment conditions still left a
good deal to be desired. Stigma remains a major problem, and the traditional distrust of
authorities also remains. They suggested a further review in 2018.236While the
Government welcomed the report,237 critics were unimpressed,238 and suggested the
committee was biased.
Summary
New Zealand provides a number of unique features, including its social-progressive
tradition, often described as a social laboratory, proportional representation that allows
greater diversity amongst legislatures, and a tolerant political culture. Nevertheless
decriminalisation passed by the narrowest of margins on a conscience vote, and many
people felt the politicians had exceeded the public’s level of comfort. However a
subsequent attempt to reverse the change failed, politicians and parties most opposed to
v2.0 September 9 2009
24
the Act did not thrive, and despite a recent change of government there is no motivation
to reverse the policy.
Funding and legitimising sex workers, who were able to leverage useful alliances paid off
in partially reversing some of the stigmatisation. That the stigma remains, after a short
follow up, should be no surprise and is partly contributed to by the media. New Zealand
also demonstrates the importance of building in evaluation to counter false claims. The
Bill’s opponents largely fought on moral grounds, its supporters on rights, health and
harm reduction, as well as pragmatism. New Zealand then became in turn a model for
partial decriminalisation in Western Australia in 2008.
Analysis
The roots of control of sexual exchange are long standing, diverse and complex, deriving
from ideas such as morality (particularly the divide between private and public) public
order and social control. In any such analysis great care needs to be taken to factor in the
highly segmented nature of sexual exchange. In the Middle Ages catholicism saw it akin
to promiscuity, fornication and adultery as threatening a monogamous ideal but tolerated
it as a necessary evil, in that paradoxically it also protected the sanctity of marriage. Later
the reformed churches were much less tolerant. There were also concerns related to the
public disorder associated with some of the corollaries, hence legislation such as
Disorderly Houses Acts. By the 19th century improved understanding of infectious
diseases tied it to fears regarding venereal disease, and regulatory systems included
medical examinations and lock hospitals. During the 19th century more complex social
arguments appeared on both sides of the debate with a growing liberal tradition such as
that of the Utilitarians, and the increasing role of women’s movements, but the end result
was a universal suppression of brothels which had been a part of urban life in the western
world for thousands of years.
Only in the later part of the 20th century did empiricism start to meaningfully contribute
to policy deliberations. And in the late part of the century and early 21st century migration
issues and campaigns around trafficking started to play an increasing role in shaping both
discourse and policy.
What all these deliberative endeavours have in common is the consistent demonstration
of the inability of governmental agencies to regulate and control behaviour239 that exists
on the margins of mainstream social life, no matter how well intentioned. In particular
those regulatory approaches that are not embedded in a comprehensive approach to all
aspects of sex work and its predeterminants seem predisposed to the effects of the law of
unintended consequences. This raises the initial question asked here as to whether law is
really the appropriate tool for shaping behaviour that has its roots in social causes.240
Decriminalisation is not in itself a sufficient condition for destigmatisation, although a
necessary one. Over reliance on the police for monitoring and enforcement defeats the
normalisation intent of such legislation. Just as Sweden accompanied its criminalisation
v2.0 September 9 2009
25
of purchase by educational campaigns to denormalise, any attempt to use educational
activities to normalise and destigmatise sex work will require far more than legislative
options, as for instance seen recently in the State of Queensland in Australia.241,242
Equally important will be attention to a wide swath of laws and regulations around health
and safety, employment standards and taxation.243,244 Often overlooked is the obvious
fact that control of abuses within a labour or employment sector may be better achieved
by empowerment of the individuals and encouraging self regulation, than a coercive and
punitive model.
On the other hand an examination of the outcomes of those jurisdictions that have
liberalised control fails to verify the claims of those who outlined the potential
consequences.245
I would like to thank the following for their assistance in the preparation of this paper:
Marjan Wijers and Petra Timmermans (Netherlands), Pye Jacobson, Petra Östergren
(Sweden), Greggor Mattson (USA), and the numerous members of the United Kingdom
Network of Sex Projects.
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Many of the arguments presented in the 1880s sound remarkably modern, as cited in, Yvonne
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Policy development in Sweden is built around state commissions and subsequent consultations, known
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Those deemed without legal means of support were termed försvarslös
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