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Sex work and law reform

Submitted by on 22 Nov 2010 – 12:03

Two brothels in Amsterdam's Red Light District. Photo: Massimo Catarinella.

By Basil Donovan MD
Professor and Head of Sexual Health Program
National Centre in HIV Epidemiology and Clinical Research
University of New South Wales

More than 100 street sex workers have been murdered in Britain since 1990.  The common thread to these murders is the criminal status of the victims.  And, in many cases, it can easily be argued that criminal status contributed to their deaths.  How could that be?
Criminal status diminishes a person’s humanity. Though fully aware that prostitution laws are merely symbolic, politicians feel the need to telegraph their public disapproval.  In turn, men of unsound mind such as Steve Wright or Peter Sutcliffe read these laws as a signal that sex workers are fair game.
Criminal status removes human rights, particularly the protection of the police.  A feature of the British serial murders was that other sex workers were aware that women were missing, but poor relationships with the police resulted in delays and initially half-hearted investigations.  In a similar vein, in 2002 a man was charged with the murder of 26 of the 63 ‘missing’ sex workers in Vancouver, Canada.
But sex workers are not only killed by serial killers.  Like any of us, sex workers are subject to domestic violence, or they find that they are keeping bad personal company, or they simply ‘pull a bad trick’ – an abusive client that physically or sexually assaults them, or steals from them.  But if going to the police is not an option, the situation can escalate.
Brothels operating outside the law become havens for all sorts of criminality, particularly drug dealing.  Because sex workers inhabit a brutal world without police protection they often require the services of a pimp or minder, and he will have friends.  Prostitution laws are the greatest allies of the exploiters.
Prostitution laws invariably lead to police corruption and exploitation. In general the police regard policing sex work as distasteful and futile.  Prostitution laws undermine the job satisfaction and the self-esteem of the police, so policing those laws is given low priority.
So what options do legislators have?
One option is to license brothels or individual sex workers, sometimes called ‘legalising’.  Licensing was introduced into many European jurisdictions early in the 19th century under the Napoleonic Code. Through licensing, it was argued, unscrupulous elements can be kept out of the sex industry and, through mandatory screening, we can all be reassured that the sex workers are ‘clean’.  That is, free of sexually transmissible infections.  And the government can claim to be ‘in control’.  I must confess, when I first thought about the issue 30 years ago, this seemed like the best option.  Licensing seems attractive, if you can reconcile the fact that it could be viewed as officially-approved sin.
Unfortunately, licensing never works.  Never.  As early as 1899, at a European conference, everybody pooled their experience with licensing and the findings were remarkably consistent. In every country, most of the sex industry remained outside of the licensing system and thus remained criminalised, and corruption abounded.  The unlicensed sex workers’ fear of detection alienated them from authorities such as public health services so sexual diseases abounded.  Consequently, most European countries gradually abandoned licensing during the 20th century, although it has hung on in some former colonies in Latin America where it is steeped in police and medical corruption.  Bogus health certificates can lubricate a good lifestyle.
Thus it has been perplexing to watch some jurisdictions introduce licensing systems toward the end of the 20th; notably Singapore, and Queensland and Victoria in Australia. And it’s 1899 all over again.  In each place at least half of the sex industry (more than 90% in Queensland) operates outside the system and an unhealthy underclass of unlicensed sex workers has been generated.  Archbishops and licensed brothel owners sing from the same song-sheet, exaggerating the numbers and urging the police to close down the unlicensed brothels.  It’s good to keep the competition down, and it makes good press.  And then there is the added expense of self-serving bureaucracies called Prostitution Licensing Authorities.
Meanwhile, the Australian Capital Territory in 1992, New South Wales in 1995, and New Zealand in 2003 opted to decriminalise adult prostitution.  So what are the outcomes? Firstly, the policed emitted a collective sigh of relief, and corruption evaporated.  Pimps evaporated.  The politics abated. Despite dire predictions, the size of the sex industries remained static, and many believe they even shrank. Certainly there are fewer street workers.  Many sex workers pay tax.  Historically low levels of sexual diseases have been documented in decriminalised sex workers, despite epidemics in the general population.

Of course, sex work in these decriminalised environments remains stigmatised. But at least the sex workers have had their human rights restored, and one of the potentially most damaged and vulnerable groups in society is protected from the likes of Wright and Sutcliffe.