Most States have specific legislation that governs the prostitution system. Prostitution related provisions are not stand-alone, but usually integrated into administrative and criminal law. Many have ratified related international law, including anti-trafficking conventions, but have domestic laws that contradict the State’s international commitments. Generally, the detection and identification of victims of trafficking in women and girls remain low. Broadly speaking, there are four main legal frameworks that govern prostitution at the national level, with variations therein. Some legal approaches criminalize all or certain actors related to prostitution, and all criminalize sexual exploitation, especially in the context of conflict and war.
The prohibition approach, also known as criminalization, sanctions all actors involved, often on moralistic, cultural and/or religious grounds, and is practiced in such States as China, the Islamic Republic of Iran and most of the United States of America. In some States, such as the Russian Federation and Lebanon, it sanctions the persons exploited in prostitution as well as the actors organizing and benefiting from it, without criminalizing the sexual act buyers. Some countries prohibit profiting from prostitution and third-party exploitation, even though those rules are rarely enforced. The impact of this approach is often discriminatory in that prostituted women and girls suffer most of the consequences; they are most often arrested and prosecuted, socially marginalized, persecuted, incriminated and incarcerated. They face barriers in housing, health and financial services, schooling for their children, and access to justice. Police and law enforcement officers in these countries are frequently reported as perpetrators of violence, as victims are more likely to be exposed to police raids, extortion, deportation and sexual abuse and violence. In other countries, prostitution can be administered or condoned under visa or labour mobility schemes, and immigration authorities may be involved in the prostitution system. Exit or support services under such frameworks usually do not exist, except for rehabilitation programmes, which are conceived often as form of punishment. Buyers of prostitution are rarely apprehended, arrested or convicted, and third parties are rarely held to account. Often, State authorities, law enforcement and even religious figures in positions of power are sexual act buyers and/or participate in organizing and profiting from prostitution.
The regulation approach is practiced in Austria, Germany, Switzerland and Uruguay. In these countries, the State legalizes, organizes, regulates and profits from the prostitution of others and all commercial sex establishments through administrative or territorial laws. The approach does not address the conduct of buyers of prostitution, except through laws on rape and sexual assault, or public order, should a prostituted woman file a complaint. Often grounded in public health or city planning requirements, this approach places control on the prostituted women, prescribing their conduct, location, timing and mandatory registration within the State. While acknowledging the harm of the “working environment characterized by pimping and exploitation”, rather than seeking to eradicate
them it proposes to manage them through State interventions, such as mandatory health checks, zoning, levies, contracts and the penalization of women who do not comply with regulations. The purported intentions to destigmatize prostituted women, “create jobs” with social security, better health-care conditions, reduce violence and curb criminal networks have not been achieved under this approach. For example, in Germany, of the 250,000 estimated prostituted women, only 28,280 had registered with the authorities by end of 2022, and only 50 among them had an official employment contract. Moreover, in a fully legalized system, States benefit from the prostitution of women through personal income tax imposed on them, the corporate taxing and licensing fees required on brothels
and/or cyber enabled businesses, in essence becoming a “pimp State”. In Switzerland, the annual revenue generated by the commercial sex industry is estimated to be 3.2 billion CHF.133 This approach has resulted in a significant increase in foreign women in prostitution, mostly from economically challenged Eastern European countries and from the Global South. These women rarely obtain employment contracts despite the law recognizing prostitution as employment, and are in debt bondage with their pimps and traffickers.
Legalization of prostitution increases the demand, fosters violence against women and girls and weakens the tools required for law enforcement to monitor, target and prosecute perpetrators, including traffickers and other third-party exploiters. Courts may treat situations of violence in prostitution as “work incidents”, and the rape of prostituted women by sexual act buyers as “theft of services”.
The decriminalization approach adopted in countries such as New Zealand and Belgium is very similar to regulation in framework and impact. The approach decriminalizes and deregulates, at the federal level, third parties, buyers and prostituted persons; however, it leaves in place administrative, police or health controls to the responsibility of local municipalities. The legal and structural aspects of the regulation versus decriminalization frameworks are almost identical. It also advocates for “harm reduction” policies such as negotiating access to brothels, identifying sexually exploited children and
access to reproductive checks. By removing the illegality of third parties, decriminalization has aided traffickers, boosted sex tourism and expanded the overall size of the prostitution market. The continued high demand creates a massive incentive for exploiters to traffic and exploit vulnerable women, and has failed to discourage unsafe sexual practices and widened the spectrum of “offers” to include even pregnant women, and attracted vulnerable young women into the sex trade. Decriminalizing the sex trade has kept the identification and prosecution of traffickers low, as is the case in Switzerland and Germany. It has also placed the burden on prostituted women, especially those subjected to unsafe or slavery-like conditions, to pursue costly and protracted legal action against their employers through
labour courts. It has increased the demand with new mega brothels, and emboldened entitlement among buyers, leading to increase in violence. The approach also lacks State mechanisms for exiting prostitution or obtaining social and professional integration.
Both the regulation and decriminalization approaches view prostitution as inevitable and the elimination of male demand for sexual acts impossible. Researchers have discovered that, in 150 countries, demand increased when prostitution was legal. Countries that have legalized or decriminalized prostitution have recorded higher rates of sex trafficking, violence, abuse and rape and increased prospects for money laundering and drug trafficking.
The abolition approach, also known as the “Nordic” or “equality model”, adopted in Sweden, France, Ireland and Canada, maintains the international standard on the sexual exploitation of the prostitution of others and trafficking in persons by criminalizing third parties and decriminalizing prostituted persons, but adds the criminalization of buyers as the main actors who drive the demand and fuel the commercial sex industry. By shifting the criminal responsibility to the buyer and considering prostituted persons as victims of systemic discrimination, as well as violence against women, it offers prevention, protection and exiting alternatives to them. This approach has demonstrated concrete positive results by improving the situation of persons in or at risk of exploitation; deterring buyers and third parties; and reducing harmful gender stereotypes. For example, in Sweden, no murders of prostituted women by buyers or pimps have been reported, and a large percentage of women have successfully exited the system with the support of specialized organizations. In Canada, there has been a noticeable drop in the number of murders of prostituted women and in the number of women guilty of minor offences. France has fined nearly 8,000 buyers and increased victims’ compensation as a result of a 54 per cent increase in proceedings against pimps and buyers. Ireland has implemented national campaigns to educate young people about the risks of recruitment into the sex trade. The legal obligation to treat prostituted women as victims entitled to protection and rights has resulted in the expansion of State-sponsored victim-support services. All States have introduced public awareness
courses to discourage demand, and training for law enforcement on a victim-centred, trauma informed approach. Courts in both France and Canada have ruled that prostitution is inseparable from pimping and human trafficking, violates human dignity and undermines women’s right to equality.
From:
Prostitution and violence against women and girls
Report of the Special Rapporteur on violence against women and girls,
its causes and consequences, Reem Alsalem* (Human Rights Council – United Nations)
