‘Only rights can stop the wrongs’ was the slogan of the Millenium Milan Mela in Calcutta, where 25.000 sex workers from India and other South Asian countries. They were not asking to be saved from prostitution, nor for the criminalization of brothel-keepers. They were asking to be recognised as women, mothers, civilians, but most of all as workers. They were protesting against stigmatisation, bad working conditions, exploitation and abuse. They were demanding their human rights, civil rights and labour rights. The struggle of these women is the fight against trafficking.
GroenLinks
position on prostitution, april 2005
Women and men working in the sex industry are often
subjected to abuse, violence and exploitation. Not only in India or other third
world countries, but also in Western Europe. Bad working conditions,
stigmatisation, discrimination and marginalisation are not only the fate of
migrants, but of the majority of sex workers all over the world. GroenLinks
believes that the poor position of sex workers all over the world is caused by
the exclusion of sex workers from civil and human rights, often as a result of
the illegal status of the sex industry.
Some see sex work as a form of sexual
slavery that has to be abolished. But, unlike the original movement for the
abolition of slavery in the 19th century, in this case it is not the
treatment of people as property they want to eliminate, but the work itself. In
the eyes of those who advocate the abolition of prostitution, it is the very
nature of the work itself that makes it a form of slavery rather than the
conditions of work. Consequently, each distinction between force and choice is
rejected: prostitution is by definition forced, no matter the view of sex
workers themselves. This presents a real dilemma. It is difficult to propagate
respect for prostitutes, while at the same time their work is viewed as
inherently degrading. It is equally difficult to see how the interests of sex
workers can be served by denying them agency and excluding them from the
political debate.
Different
approaches
The dominant legal approaches to
prostitution are based on moral and ideological presumptions, which have a
severe impact on the working and living conditions of men and women in the sex
industry. All legal regimes, with the exception of the labour approach, have as
a common starting point the moral condemnation of prostitution and are designed
to suppress or control the sex industry. Prostitution is seen as either a
social evil that should be eliminated or as an inevitable or even necessary
evil that has to be accepted and controlled. The first position is supported by
arguments holding that prostitution is incompatible with human dignity, or - a
more contemporary ‘feminist’ argument - that prostitution as such constitutes a
violation of women’s human rights akin to slavery. The second position is
motivated with arguments referring to the interests of the state, such as the
maintenance of public health and public order, or to ‘natural’ male needs.
Four major legislative models can be
discerned: the prohibitionist model, the abolitionist model, the regulation
model and the labour approach.
The prohibitionist model
The most
repressive legal regime is the absolute prohibition of prostitution, as in the
US and China. Prostitution is seen as deviant or criminal behaviour, for which
prostitutes need to be punished or forcibly re-educated. All activities related
to prostitution are prohibited and all parties involved are criminalized, including
the prostitute. Although this type of legislation purports to eliminate
prostitution, there is no evidence that countries where prostitution is
outlawed have been even remotely successful in achieving this aim. Rather than
eliminate prostitution, the illegality of prostitution as such renders
prostitutes fully dependent on third parties. Since they have no legal
protection at all – for they themselves are liable to arrest and prosecution –
they find themselves in the complete power of brothel owners, pimps and
middlemen on the one hand, and police officers and court officials who are
willing to turn a blind eye in exchange for money or free sexual services at
the other hand. This makes prostitution a very lucrative source of income for
all involved parties, with the exception of the prostitutes themselves.
The abolitionist model
The laws of the
majority of countries are based on what is called the abolitionist model.
Within the abolitionist view, prostitutes are not seen as deviants or as
criminals, but as victims. Prostitution is considered to be a form of sexual
violence. The underlying idea is that prostitution persists only because
brothel-keepers, pimps and traffickers lure women into prostitution to profit
from their earnings. Therefore the abolition of prostitution and the protection
of women can best be achieved by penalising those ‘third parties’, that is,
anyone recruiting for, profiting from or organising prostitution. Prostitutes
themselves, on the other hand, are basically seen as passive victims that need
to be ‘rescued’ and protected from exploitation. The price of this protection,
however, is that prostitutes are turned into ‘non-persons’: objects rather than
subjects. They are considered neither equal nor legitimate partners in the debate,
that is: independent persons capable of assuming individual agency, judging
their own situation and formulating their own needs, demands and
perspectives.
In the
abolitionist model, all activities of
‘third parties’ such as recruitment for prostitution, aiding and
abetting, managing a brothel, rental of premises for prostitution, procurement,
pimping and living off the earnings of prostitution are illegal. This places
prostitutes in a profoundly ambivalent legal position. Although not forbidden,
it is well-nigh impossible to work as a prostitute, since any type of work
requires some form of organisation, such as renting a working place, bringing
in customers and co-operation with colleagues. The law itself deprives
prostitutes of crucial means of assuring an income, such as facilities to
recruit clients, to advertise, to hire accommodation, or to conclude labour
contracts. The impact of such anti-prostitution legislation on prostitutes is
invariably a combination of isolation, stigmatisation, marginalisation and
social exclusion. Moreover, the prohibition of any legal organisation of
prostitution encourages its association with (organised) crime.
A recent form of
abolitionist policy – touching on a prohibitionist system - is criminalising
the ‘perpetrator’: the client. The result of this policy is indeed less women
visibly soliciting on the streets. However, this doesn’t mean women have
stopped doing sex work. It is more probable that sex workers and their clients
have chosen less visible ways of making contact. Sex work is driven
underground.
Moreover,
criminalising clients leads to a heightened risk of violence against
prostitutes. Negotiations on price and venue have to happen very quickly so as
not to be noticed, which gives prostitutes less time to properly assess the
risks.[1]
A more principled problem with the abolitionist
approach is that it excludes sex workers themselves and their views from the
debate, neglecting the right of women to speak up for themselves and to have a
legitimate voice in any debate concerning their situation. Prostitutes are by
definition not seen as individuals with
a mind of their own, who can make their own decisions, and whose opinions need
to be listened to. The image of a prostitute as an active acting person is
irreconcilable with the passive, exploited victim of the abolitionist ideology.
Of course prostitution has everything to do with power
relations between men and women, but this is true of many institutions in our
society. In the Netherlands, for instance, married women were only legally
considered to be adults after 1957. Before that, they had the legal status of a child. Just as the solution at that
time was not the abolition of marriage or the disqualification of married
women, but the promotion of their (legal) rights as individuals, the solution
now is not the further marginalisation and stigmatisation of prostitutes but
the strengthening of their position.
Regulation model
In the regulation
approach, prostitution is considered to be an inevitable or even necessary
evil. The existence of prostitution is more or less accepted, but at the same
time considered a threat to public health and order. To protect society against
the dangers of this ‘necessary’ evil, prostitution is controlled through the
introduction of regulations and various state sanctioned measures in the
interest of public order, public health, public morals or public decency.
Although their work is not illegal, prostitutes are not given legal rights as
workers, nor does the state take responsibility for their working conditions.
Regulation generally takes place through different forms of
mandatory registration and other methods of state control. These include
mandatory medical checks to protect ‘public health’; prohibitions on working
outside certain areas or places; prohibitions regarding soliciting, and
regulations on the nationality and residence status of the women concerned,
often with corresponding penalties for women who fail to comply with those
regulations, such as fines or imprisonment. Mandatory registration might not
only negatively affect sex workers’ future employment opportunities and the
liberty to change professions, but also creates a distinction between ‘legal’
and ‘illegal’ forms of prostitution. Many women do not want to register because
they fear the stigmatising effects or cannot
register because of their illegal status, like most migrant workers. In
both cases women end up in an illegal circuit, with all the negative
consequences this entails.
Although most EU member states formally prohibit any
‘exploitation of prostitution’, in practice most countries have more or less
extensively regulated prostitution, thus combining abolitionist legislation
with a regulatory practice.
None of these approaches, whether they criminalize,
victimize or control prostitutes, have shown any concern with the rights or the
working and living conditions of prostitutes. The models were designed to
either eliminate the sex industry or control it, but reality has shown that
they failed in the execution. There are no signs whatsoever that the attempts
to abolish prostitution have ever worked. Instead, the repressive legal systems
have driven prostitution businesses underground where they flourish in an
illegal and informal but tolerated subculture. All three of these approaches
put sex workers in a vulnerable position in which they can easily be abused,
violated or exploited. Aside from the abuses sex workers are subjected to
within the industry, in addition they often face state abuses, such as police
extortion and arbitrary detention.
The abuses sex workers are subjected to are similar in
nature to those experienced by others working in low status jobs in the
informal sector. However, the stigma attached to prostitution further
discriminates and marginalises sex workers.
As stated before, the dominant legal approaches to
prostitution are based on moral and ideological presumptions and are designed
to protect society from either prostitution itself or the negative effects. In
order to develop a legal system that ensures the protection of sex workers’
rights, these moral and ideological presumptions need to be challenged. Whereas
societies have defined prostitution as either a crime, deviant behaviour, a
necessary evil or sexual abuse, sex workers throughout the world define it as
work, an economical activity, labour or a profession.
Labour Approach
GroenLinks therefore advocates a fourth approach, which
focuses on the rights of the sex workers themselves: the labour approach. This
approach has come from sex workers themselves. Rather than to be spoken for,
sex workers all over the world have increasingly organized and raised their
voice. They fight exclusion from the ordinary rights which society offers to
others. They advocate the recognition of sex work as labour and the
decriminalisation of prostitution businesses, so that the regulation of the sex
industry can be achieved under civil and labour law, instead of criminal laws.
The labour
approach opens a whole new range of instruments to combat violence and abuse in
the sex industry. By treating sex work as labour, the same instruments that
have been developed more than a century ago to end abusive and exploitative
conditions in other industries can be used to end the malpractices in the sex
industry: labour laws and labour emancipation. Sex workers have been excluded
from labour emancipation for more than a century. This exclusion has put
prostitutes in a position without any legal protection and without any workers
rights, and has kept brothel-keepers in a position of power.
Starting point for any policy should be that
prostitution is a form of labour, albeit with its own special character.
Special, if only because of hundred years of exclusion from labour rights and
protection under labour law. As a result,
the present labour relations in the sex industry can best be
compared with those in factories or on
farms at the end of the 19th century. Special also because the
stigma will not suddenly disappear with the recognition of sex work as labour, or
the legalisation of the sex industry.
However, the consequence of the fact that prostitution
is not a ‘normal’ job should not be the exclusion of prostitutes from labour
rights, but instead the search for ways of applying or complementing labour law
to allow for the specific character of prostitution, in the same way that has
been done for many other forms of labour that are out of the ordinary.
Why a labour approach?
GroenLinks
strongly advocates the labour approach because of several reasons:
Prostitutes are human beings
A labour approach
does not treat prostitutes as objects to be protected, but as subjects to be
taken seriously. Sex workers are people with a voice of their own, who should
not be patronised. Treating them as victims that need to be protected ‘for
their own good’ reduces them to children and only further weakens their
position, making them more vulnerable to abuse.
More and
more sex workers are organising themselves to demand their rights and better
working conditions. They are not served by the exclusive role of victims that
they are given by anti-prostitution feminists. On the contrary, they deserve
respect and support in their struggle for emancipation in the broader women’s
movement. A fundamental principle of feminism is that women are viewed as
independently thinking and acting beings, who have the right to take their own
decisions instead of having others decide what is ‘good for them’. That means
women have the right to define their own problems, set their own agenda and be
involved in any debate that concerns them. Application of this principle means
that sex workers are viewed as legitimate and equal partners in the debate.
Labour rights
A labour approach
entitles sex workers to labour rights. Labour emancipation is the most effective
instrument to change the power-balance between prostitutes and brothel-keepers.
If labour regulations were applicable in the sex industry, prostitutes could
legally conclude civil and labour contracts, they could sue abusive employers
and clients, they could insure themselves against the consequences of
unemployment or illness and they would be entitled to state benefits and
pensions. All these measures are common to regular professions.
Critical consumers
A labour approach
gives clients the opportunity to be ‘critical consumers’. Just like we would
like people to be critical consumers in other areas, such as not buying
tropical rain forest woods, products made with child labour and products
resulting from the exploitation of farmers in third world countries, we would
like clients of prostitutes to only visit prostitutes that work under self
controlled conditions. In the Netherlands, the Prostitution Information Centre
is regularly asked by clients how they can know whether the lady of their choice
is not coerced into prostitution, or what measures are open to them if they
suspect that a prostitute they’ve visited is the victim of trafficking in
women.
Less violence against
prostitutes
A labour approach
takes prostitution out of the area of bad, criminal, deviant or immoral
behaviour, for the prostitute as well as the client. Research has shown that
men who don’t have problems or feelings of guilt about visiting prostitutes
tend to be more respectful towards prostitutes. Men who believe that visiting a
prostitute is deviant, bad behaviour are far more likely to be violent.
Application
of the labour approach
This labour
approach is currently developed within the new legal framework in the
Netherlands. Since October 2000, the commercial operation of sex businesses on
a consensual basis is no longer against the criminal law, while at the same
time the sanctions on the use of deceit, violence or abuse are raised. Any
recruitment or extraction of sex work by means of violence, threat with
violence, deceit or abuse of authority is a criminal offence with a maximum
penalty of 6 to 10 years imprisonment. It is not important whether or not the
person concerned knew she or he would work in prostitution, or would like to
continue to work in the sex industry under free conditions. The core of the
crime is coercion, not sex work. In short, the management of voluntary
prostitution is now legalised, and the exploitation of prostitution is punished
more severely.
At the same time, brothels are subjected to
a licensing system by city ordinances and have to meet certain standards
concerning city planning, hygiene, fire safety and management. If an owner does
not meet these requirements, the brothel will eventually be closed under
administrative law, which is a much easier and more effective procedure then
prosecuting for pimping in court.
Five years after
the change of law the Dutch government has put much effort in the control and
regulation of the sex industry. At this moment, the new possibilities that
decriminalisation has offered are mainly used to develop new instruments for
control and regulation of the sex industry, rather than to take positive
measures aimed at sex workers to improve their position, to develop and
introduce labour standards in the sex industry, to regulate labour relations
and to support the labour emancipation of prostitutes. Moreover, the government
is not willing to take the full consequences of the new law, that is, the
recognition of prostitution as legitimate and legal work that is regulated and
protected by the same laws as other types of work. Sex work remains the only
type of work for which it is legally impossible for migrants to obtain a work
permit. This excludes migrant sex workers from the legal sex industry and
pushes them further underground, where before they were tolerated in the Dutch
sex industry. Rather than improving their situation, the change of law has thus
worsened conditions for them profoundly. Ironically, the exclusion of migrant
form working in the legal sex industry is defended by the argument of combating
trafficking.
This is where
GroenLinks separates from the policy of the Dutch government. GroenLinks
believes that the recognition of prostitution as a form of labour should be
accompanied by measures to improve the position of sex workers and to support
their labour emancipation. Also, migrant sex workers should be able to get a
work permit under the same regulations and conditions as other professions.
Opportunities
to improve the position of prostitutes
The fight against trafficking in persons figures high
on the international agenda and it is encouraging that leading international
organisations like the United Nations and the European Council have taken their
responsibility by adapting a new UN Protocol on trafficking and an EU Framework
decision. It is our firm belief, however, that prevention is equally important
as crime control in the fight against
trafficking. Prevention, not from sex work or labour migration, but from abuse,
deceit, violence and exploitation.
The notion of trafficking in persons under Dutch law
includes women that are forced into prostitution against their will, but also
the use of any form of deception, force, abuse, violence and exploitation in
prostitution. This means it applies also to women who made their own decision
to work as a prostitute, but have been misled about the circumstances under
which they would work or who are subjected to force, violence or exploitation
in the course of their work. This should be combated with all means possible.
A major problem in defending sex workers’ rights is that
sex work is persistently confused with trafficking in women, which results in
policies that impose unacceptable levels of regulation on sex workers in
Europe, adversely affect the protection of their human rights and lead to the
deportation of large numbers of migrant workers. Although trafficking is widely recognised as a serious
violation of human rights, the debate tends to focus on crime control and the
protection of state borders and rarely includes the interests and perspectives
of trafficked persons or the protection of their human rights.
Like in other large, complex and protracted battles
against a comprehensive enemy, a coalition should be contrived. In the fight
against trafficking, crime fighters should seek collaboration with
international labour organisations, but most of all with sex workers
organisations all over the world. The only effective way to protect sex workers
is to give them the rights they are entitled to as humans, as ctizens and as
workers.
Sex
workers’ rights movement
The International
Committee on Rights of Sex Workers’ in Europe (ICRSE) has started a process
with the purpose of strengthening the sex workers’ rights
movement in Europe. Sex
workers’ rights organisations have decided to seek out and unite with new
allies from organisations concerned with human, labour and migrants’ rights.
The ultimate objective is to challenge and redefine debates on prostitution,
the sex industry, trafficking and migration, with sex workers playing a leading
role.
As the ‘kick off’ for this process ICRSE will organise a
European Conference on Sex Work, Human Rights, Labour and Migration on 15,16
and 17 October in Brussels in
order to encourage an innovative and progressive debate, which challenges
neoconservative trends. The European Greens will host the last day of the
conference in the European Parliament.
The conference will bring together both organised and
independent sex workers with specially invited key persons from NGO’s and
European and international labour, migrants’ and human rights organisations,
activists and politicians, including European parliamentarians, to facilitate the exchange of ideas across
organisational boundaries. Sex workers themselves will form the
majority of those attending and speaking at the conference.
Together the participants in the conference will discuss
how sex workers’ demands can be implemented, and how strategies can be
developed to raise political and public awareness and build alliances that will
result in a strong, co-operative Sex Workers’ Rights Network in Europe.
This will hopefully result in a Sex Workers Manifesto that
formulates the starting points for structural solutions to end exploitation and
the violation of human rights of sex workers in society, in work situations and
in the process of labour migration.
Position of
GroenLinks
The position of GroenLinks on prostitution is that:
- The
human rights of men and women involved in prostitution should
unequivocally be the main focus of any policy on prostitution
- Prostitutes
should not be victimised, but viewed as independent, acting people who
need to be involved in any policies concerning or affecting their
situation
- Sex
workers should therefore be encouraged as much as possible in organising
themselves to stand up for their rights. Whatever support possible should
be given to the initiatives of the International Committee on Rights of Sex Workers’ in Europe
(ICRSE) to promote the rights of prostitutes
- Prostitution
should be considered a form of labour, in order to give the people working
in prostitution rights under labour law, adapted to the specific character
of prostitution as a form of labour. Migrant prostitutes should be entitled to a work
permit, in order to give them the rights necessary to prevent their
exploitation
- Clients
of prostitutes should be given a chance and be encouraged to be ‘critical
consumers’, so they can refrain from visiting prostitutes under
exploitation and can report instances of trafficking and exploitation.
[1] See also the report written by the Norwegian Ministry of Justice
and the police as part of their research on the question of legal reform in
Norway, “Purchasing Sexual Services. in Sweden and the Netherlands. Legal
Regulation and Experiences”, http://odin.dep.no/filarkiv/232216/Purchasing_Sexual_Services_in_Sweden_and_The_Nederlands.pdf