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.

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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.

The Demons of Prohibitionism

Mass movements can rise and spread without belief in a God, but never without belief in a devil. – Eric Hoffer

During the satanic ritual abuse panic of the 1980s and 1990s, it wasn’t enough to raise the alarm about isolated sociopaths using pentagrams and occult practices to control others. No, the crusaders warned of massive conspiracies, infiltrating all levels of society and government, exploiting and killing who knows how many innocents. The fact that they had no real evidence to support their claims did not deter them. After all, simplistic messages are much more effective at rallying people to your cause – and raking in the bucks.

Fast forward to the present day, and we see the same tactic being employed by those seeking to “abolish” commercial sex rather than assure greater safety. In their case, the principal “demons” are those who supposedly seduce or coerce women and youth into selling sex – the evil and abusive pimp. In the minds of prohibitionists, virtually all prostitutes are under the thumb of some pimp or other procurer who sends them off to be degraded at the hands of some desperate “john” or face hideous consequences.

But just as the conspiracy theories of the satanic panic eventually unraveled, so we’re beginning to see with the distortions of the prohibitionists. Not only is the stereotypical pimp a rarity, but in many cases where a third party helps with bookings or other aspects of the business, it’s the sex worker who is the boss.

In 2008, the John Jay College of Justice in New York City published a report on minors involved in commercial sex (click here for a copy). The results contradict many of the assumptions around sex work and survival sex, including the involvement of so-called pimps, referred to by the authors as “market facilitators”. According to this study, only ten percent of underage people who sell sex in NYC work with such a facilitator, and only eight percent reported being coerced by one. Indeed, 84 percent of female youth in the study had never even encountered a pimp.

Now, if a vast majority of runaway, throwaway and neglected teens who engage in selling sex do so without a pimp or “facilitator” around, it follows logically that adults who enter sex work are doing so in similar fashion, and in similar numbers. While many use social media and other online platforms to connect with clients, some will hire people to do web design and screen calls. These third parties may be “living on the avails of prostitution” but they hardly fit the stereotype of a controlling pimp.

Of course, it’s all too easy for prohibitionists to argue that anyone taking a percentage of a sex worker’s earning is “exploiting” them, especially at the rates that some insist upon. Setting aside the numbers for a moment, think about what’s going on. Person A is looking for clients, and Person B is offering to use their skills and time to help Person A to do so more effectively and safely. Why shouldn’t Person B receive payment for such services? Literary agents receive commissions for helping authors to get published, art dealers get a cut for selling a painting, and so forth – and we generally consider such arrangements to be acceptable business practices, so long as both parties mutually agree to the terms.

Yes, in some cases, the arrangements between sex workers and such market facilitators could be more fair. But this reality only strengthens the case to decriminalize the commercial sex industry. Let’s stop demonizing those who facilitate the affairs of sex workers and their clients, and provide all of them with greater transparency and accountability.

Mandating Tests for Sex Workers Doesn’t Get a Passing Grade

[Originally posted December 20, 2016]

Often when I engage in conversations with folks about sex work and public policy, I’m asked how I feel about mandatory testing of sex workers for sexually transmitted infections (STIs). And, when I answer that I don’t support such measures, they’re frequently astonished. “I thought you said that you support harm reduction methods! So why not this? Wouldn’t requiring sex workers to be regularly tested reduce the spread of HIV and other STIs?”

No. Testing doesn’t “prevent” anything. It provides information towards that end, and only if it’s done right.

Let’s take the argument for mandatory testing to its logical extreme. Sex workers are a relatively small segment of the total number of sexually active people out there, and according to the best studies out there, contribute very little to STIs overall, and virtually none of HIV transmissions. So if we were to mandate STI testing, then it makes sense to do that for all sexually active adults and adolescents, not just sex workers. Of course, it’s reasonable to assume that a significant number of people would lie about being sexually active, in order to avoid being tested. The answer then would be to test everyone from the age of thirteen up.

This would, of course, be met with a number of objections, from cost to loss of freedom to invasions of privacy. And yet, some would still argue that, since STIs constitute an “occupational hazard” for sex workers, then mandatory testing therefore qualifies as an occupational health and safety measure.

But again, this doesn’t make sense when applied to comparable circumstances. Hospital workers, for example, are exposed to far more diseases, some of them far more dangerous, and far more often. Yet hospitals do not regularly test every employee for every disease they might have been exposed to. Instead, they find it more effective to implement preventative measures, much as full-service sex workers use condoms and other safer sex measures to reduce the risk of contracting HIV or other infections.

There’s also the question of how such measures are best mandated and enforced. More often, they are mandated as a condition of employment rather than by legal regulation; even when laws or government regulations are put in place, it is usually left to employers to maintain and enforce, with government agencies making spot checks or responding to employee complaints. Also, the most effective systems are when lawmakers institute a general mandate to assure health and safety, while leaving specifics to another body which may adapt more quickly to changes in evidence as to the best means of assuring this.

An example of which I’m personally aware is cardiopulmonary resuscitation (CPR). I’ve been trained and recertified many times over the years, and have noticed how the protocols change as new evidence comes in, most significantly the use of an automated external defibrillator (AED). While there are laws determining who may train and certify people, those laws do not specify the protocols for performing CPR; instead, the groups that train and certify pay attention to new scientific data, and update protocols accordingly.

Compare that system to how Nevada mandates STI testing for sex workers in their legal brothels. The Centers for Disease Control and Prevention recommend that people with multiple sexual partners should be screened every three to six months, based on the best available medical studies; more frequent tests do not produce more reliable results. Nevada’s legal requirements, relatively unchanged since 1937, are that women working in brothels are required to have weekly medical exams, and at their own expense. With consistent condom usage, and STI rates reported at zero, where is the sense in having sex workers required to be tested at thirteen times the rate recommended by public health officials?

There is no good reason to impose such a requirement on sex workers when other people in similar circumstances are not similarly required. To impose such a burden is nothing more than discrimination, rooted in stigma and unnecessarily perpetuating it. Sex workers have long known how to minimize these risks, as proven by empirical studies. They need neither bureaucrats nor moralists to require anything further. If anything, the rest of us would benefit from listening to their collective experience.

Keeping Sex Workers Safe: An Alternative to the Swedish Model

[Originally posted March 2, 2016]

Currently, a parliamentary committee in the United Kingdom is conducting hearings on a proposal to implement the “Swedish model” of prostitution law – one where it is legal to sell sexual services, but illegal to buy them. The English Collective of Prostitutes, along with other sex worker rights activists and supporters, have decried this approach actually making things worse for sex workers, especially the most vulnerable who work on the street.

It certainly doesn’t help that other punitive and badly worded laws would be left in place. The law against “pimping” would make anyone paid by a sex worker – web designers, accountants, drivers – a criminal for deriving financial gain from the prostitution of another. And two or more sex workers become criminals for sharing a flat, even for mutual protection, because of how the UK’s law against brothel-keeping is written. Is it any wonder that the ECP and their allies favor the New Zealand model of full decriminalization, which has already produced measurable results in terms of the relationship between sex workers and police?

I don’t expect David Cameron’s government to embrace decriminalization any time soon, especially when it seems the leaders of the “all-party committee” appear to have already made up their minds. Many believe that outlawing clients will somehow protect prostitutes from violence and abuse, just as outlawing brothels and third-party agents was intended to do. Intention is one thing, but hard fact and common sense shows that driving sex work underground only makes it more dangerous by depriving sex workers of the tools they need to protect themselves. The fatal flaw in this proposal is the assumption that every client is abusive, and that every transaction in sex work is exploitative. It’s no surprise that the most fervent supporters of the Swedish model have refused to listen to sex workers themselves, unlike the government of New Zealand, who included sex worker organizations in their consultations.

There is, however, an alternative to outlawing the clients of sex workers, one that could be implemented under the current system of laws, and which would empower sex workers instead of denying their agency. Many escorts and escort agencies screen potential clients, even developing and sharing resources to do so. Imagine if all sex workers had access to a database – created and maintained jointly by police, sex worker organizations, and other relevant agencies – allowing for quicker and more complete background checks of potential clients. Those with a history of abusive or violent behavior could be weeded out, and sex workers would still retain the right to determine whether they wanted to provide their services to the individual in question. Even street prostitutes would be able to access such a database through an app on their cell phones, and different groups and agencies could provide it free of charge.

This is by no means a perfect solution, but I feel it would be a far more effective one than outlawing all clients, regardless of whether they’re respectful regulars or abusive asses. It’s in line with proposals made by many European sex workers in the 80’s and 90’s (yes, I’ve been studying sex work issues for that long) and there are similar precedents in other commercial activities. Most important, it gives power back to the service providers themselves – and that would seem to me a much more feminist approach than paternalistic overreach.