De-Facto Decrim and How It Would Work

An author friend of mine has a series of books primarily set in a fictional city where the police chief, made painfully aware of the problems created by criminalizing sex work, has come up with the solution of having his department operate as though commercial sex work was already decriminalized, even establishing a “special district” where street-based sex workers are able to operate with relative safety.

In fact, such a policy has been in place in the Canadian cities of Victoria and Vancouver for some time, resulting in significant improvements in sex worker safety in those locations. Here in the United States, Democratic candidate for Queens District Attorney Tiffany Cabán has pledged not to prosecute sex workers or their clients if elected – a similar policy of de-facto decriminalization

Such a pragmatic approach is not without precedent, and is rooted in the discretionary authority given to law enforcement. Usually such “selective enforcement” is done on a case-by-case basis – such as when a police officer gives a driver a warning for a minor violation rather than write a ticket – but there are also cases where an organization determines that strict (or any) enforcement of a particular law does not serve the public interest.

I would argue that a local-level policy of de-facto decrim is just such a case, and should be a goal for advocates of sex worker rights to pursue as an interim step towards actual full decriminalization. Such a policy not only assures greater safety for sex workers and those associated with them, but better serves the public by allowing more resources to be dedicated towards addressing acts of violence and other major crimes, including and especially police corruption and abuse.

This raises two general questions:

1. What exactly would “de-facto decrim” (or DFD) look like?
2. How would it be implemented?

As mentioned before, DFD could be implemented simply as a standing policy of a municipal police department, as in Victoria and Vancouver. Similarly, a local prosecutor’s office could implement a policy of not pursuing prostitution charges when there is no evidence of violence, coercion or fraud. The only issue here is when police and prosecutors are not in sync, so even if a prosecutor refuses to pursue certain charges, police may continue to make arrests. Both of these agencies may also be hesitant to implement any such policy if local government is not supportive. Ideally, then, a synchrony of these organizations would make sense, but it would still be feasible for DFD to begin with one of these groups implementing it in whole or in part, and the rest establishing concurrent policies and practices later on.

Returning to the first question, the simplest start for DFD would be to institute a moratorium on arrests for prostitution-related charges, whether of sex workers or their clients – a position which the Massachusetts Pirate Party is petitioning the Boston Police Department to implement. On a broader scale, this would mean non-enforcement of any laws against the consensual exchange of sexual services for pay, so long as no violence, coercion or fraud has taken place. A more detailed delineation of how this would be put into practice would include:

• No arrests, investigations or sting operations against sex workers, their clients or third-party associates regarding any consensual activities between them.
• Laws against brothel-keeping, which are too often used against sex workers who operate out of a shared space to ensure greater safety, would also not be enforced; in the event of a third party forcing two or more people to provide commercial sex from a given location, charges of false imprisonment and involuntary servitude could and should be employed instead.
• Laws against “pimping” – already so vaguely worded that any individual who receives money from a sex worker could be arrested – would likewise not be enforced against any third-party facilitator, so long as the sex workers involved have no problem with how said facilitators operate. If there were problems of fraud or abuse, then again the police and prosecutors should enforce other laws to provide recourse for the workers involved.
• Sex workers, sex work clients and third-party associates would be assured blanket immunity when reporting crimes to police and prosecutors, whether against themselves or another member of the community.
• Police would work with sex worker organizations to address violence against sex workers, using proven community policing strategies. This would include addressing abuses by police officers, through changes in departmental policies and practices.
• Complaints from residents about sex work activity would be addressed through conflict resolution involving sex worker organizations and social service agencies, with a goal of finding a resolution which best addresses the needs of all parties involved.
• Police may establish a “tolerance zone” for street-based sex work, in consultation with sex worker organizations, with officers specifically trained to address the issues faced by sex workers, based on a community policing model. This would also include police providing information on “bad tricks” to sex workers operating in said area.
• Incall and outcall sex work would likewise be allowed to operate without interference, so long as the activities engaged in are consensual.

Naturally, this is not a complete list, and certainly different localities would address specific needs in their implementation. But the common pattern is that police and other municipal agencies would start from the premise of what sex workers want in order to improve their lives, and resort to arrest only when violence or other abuses have taken place.

Aside from the practical benefits of increasing sex worker safety and well-being – as seen in Victoria and Vancouver – well-executed DFD models would also provide further evidence of the need for actually changing the laws to full decriminalization and the recognition of sex workers’ rights. Thus while it is not a complete solution, it is an applicable step towards developing and implementing more permanent ones in the areas of law, public policy, and community policing practices.

The Big Lie of “Partial Decriminalization”

The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. – George Orwell, “Politics and the English Language”

Two kinds of language are often employed in propaganda: simple yet emotionally loaded, and seemingly sophisticated obfuscations. The former is most frequently used by opponents of sex workers’ rights, especially in appeals to “fight human trafficking”. Yet it is careful use of the latter which has allowed prohibitionists to sell the so-called “Swedish Model” as an alternative.

Specifically, prohibitionists have marketed this scheme as “partial decriminalization” – the supposed decriminalization of those who sell sex, while outlawing those who would buy sex. It’s appealing on two levels. First, it plays upon common stereotypes of the prostitute as victim and “john” or “punter” as lecherous deviant. Second, it appeals to both misgivings about the status quo and uncertainties around full decriminalization. But it also depends upon a suspension of basic logic, and ignorance of both the full legal context and real-life implications, behind this model.

In the first place, whenever an action is made a crime, any other actions necessarily linked to it are also outlawed. This is why a person who knowingly buys stolen merchandise is just as culpable as the one who knowingly sells it. Likewise, it inevitably becomes impossible to separate the sale of sex from its purchase; outlaw one, and the mirror image is complicit in its commission.

Further, the Swedish Model is not limited to just a ban on buying. Sweeping laws against “brothel-keeping” and “living off the avails of prostitution” also remain in place, and are used to penalize sex workers and deprive them of safety. Thus the full legal context of this scheme reveals it to be near-total criminalization, nowhere near the supposed “middle ground” that its proponents would have people believe.

The proponents of this scheme would argue that “prostituted women” would no longer be the targets of police, but instead would be offered social services to help them exit. That’s the theory – but reality is a different matter, with police in Sweden and Norway routinely watching and intimidating sex workers, even bullying their landlords to get them evicted. As for the social services, that only applies if the sex worker repents and embraces the government’s party line; otherwise, they are refused help, even denied condoms to help protect them from HIV and other STIs under the rationale that, because “prostitution is inherently dangerous”, there is no point in helping them reduce any risk of potential harm.

It is a lie to repeatedly refer to the “Swedish Model” as a form of decriminalization, because in fact it still gives police the power and authority to control sex workers. If those who sell sex are to be free of such control – and the abuses that inevitably come with it – the answer is full decriminalization of consensual commercial sex, allowing existing laws against assault and exploitation to protect them. This is what has worked in New Zealand and New South Wales, and what sex workers themselves rightly demand.

Inherently Harmful?

A key component of prohibitionist ideology is the assertion that commercial sex is “inherently harmful”, with variations such as “inherently violent”, “inherently degrading”, and so forth. This is the apparent justification behind rejecting any attempt at harm reduction or reform. In their minds, amelioration is pointless because it’s not just a case of prostitution having “bad things” associated with it, but that prostitution is inherently bad.

Ask the question of what makes selling sex “inherently” bad for the seller, and you hear one of several theories about what sex “really is” or “ought to be”, and how applying that theory to something other than sex isn’t right because “sex is different” because, well, it just is, okay? Yeah, prostitution is “inherently” bad because sex is “inherently” different.

For an action to be inherently bad or harmful, then there must be unavoidable negative consequences in every case regarding said action. Consuming sugar, for example, is not in itself harmful. Indeed, we depend upon glucose to stay alive, and it’s only when the amount consumed becomes so large as to overwhelm the metabolism that harm is created.

On the other hand, being hit with an axe is inherently harmful. Even if the edge is dull, and the force not too great, it’s still sufficient to cause pain and possibly a bruise. Certainly better than losing a body part or bleeding to death, but harmful nevertheless. That doesn’t mean, however, that axes themselves are inherently harmful, and indeed properly using one brings about benefits. Also, even though using an axe in this way causes harm, there are a few contexts where doing so constitutes a lesser harm than not doing so, such as amputating a trapped limb where the alternative is abandoning the person to die.

Prohibitionists will often respond by posing the loaded question: “So, are you saying that prostitution is harmless?” To which I would explain that commercial sex, like any other activity, carries a risk of potential harm, and that any actual harm is dependent upon many factors, some simple (using condoms) and some complex (psychological disposition). For some people, consensual sex work is not only very low risk, it may actually provide benefits. A 1986 doctoral dissertation by Dr. Diana Prince, for example, indicated that 97 percent of escorts surveyed experienced increased self-esteem after entering the profession. For others, sex work is either the best available or least deleterious option available to them. To date, I’ve yet to see a reliable study showing anything more than ten percent of prostitutes being forced, while a number of studies reveal that many people choose to enter commercial sex for a number of reasons.

So the available evidence does not support a hard-and-fast dictum that selling sex is inherently harmful. Instead, we see a complex continuum of diverse experiences. That leads us to the question of which approach best applies to all such contexts; more specifically, who is best qualified to determine whether a person may engage in sex work. Given that our society regards both sexual and commercial interactions as generally best decided by those autonomous individuals so involved, it follows that such a principle extends to the buying and selling of sexual services, with any regulation for health and safety being formulated and implemented primarily by the individuals engaged in said work. In short, the full decriminalization of sex work by consenting adults, which provides the fullest range of options for both preventing and ameliorating any potential harm that may occur.

Of course, the prohibitionists would have none of this, and even some well-meaning moderates and liberals would call for some degree of government regulation and containment (“legalization”). The problem with any form of criminalization and stigmatization is that it deprives those involved in sex work of the tools they need to minimize the risk of potential harm, from negotiating power to legal recourse. And while legalization may ameliorate some conditions, too often it leads to a “back-door criminalization” for many sex workers. This also applies to those who have been coerced into selling sex, as Amnesty International notes:

[C]riminalization of sex work can hinder the fight against trafficking – for example, victims may be reluctant to come forward if they fear the police will take action against them for selling sex. Where sex work is criminalized, sex workers are also excluded from workplace protections which could increase oversight and help identify and prevent trafficking.

If anything, the prohibitionist drive to continue criminalizing commercial sex is what is inherently harmful to sex workers.