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The difference between decriminalisation and legalisation of sex work

There is a crucial distinction between these two terms that is frequently blurred in the debate around the different models.

Sex work divides feminist opinion like few others issues. The ideological clash – prostitution as violence against women vs simply a job – may never be resolved but where debate coalesces, around proposed legal systems, ideas become concrete and can be logically hashed out.

Largely, both sides agree that criminal sanctions against sex workers themselves should be lifted. At present, while selling sex is legal in the UK, women who work together for safety can be prosecuted for brothel-keeping and thousands end up with criminal records for loitering and soliciting.

Some claim, however, that people (usually men) buying sex should be criminalised, as is the case in Sweden. Others argue that this endangers sex workers, forcing them to work in secluded, dangerous conditions so that clients can go undetected.

Tension is escalating as the English Collective of Prostitutes (ECP) prepares to hold an evidence-gathering symposium in Parliament on 3 November, heralding a campaign for full decriminalisation. The ECP campaign mirrors that of MSP Jean Urquhart who, backed by sex worker organisations and health charities, is calling for sex work to be decriminalised in Scotland. In the other corner will be the End Demand campaign, which wants the government to follow Sweden by implementing a Sex Buyer Law.

So let the battle commence, but let it do so on clearly-defined terms. The ECP and Urquhart are campaigning for decriminalisation. This is not – as has been suggested in countless media reports – legalisation.

Insisting on clarification isn’t petty quibbling. The models are so distinct that when York Union last week changed the title of its debate to “This House believes the legalisation of prostitution would be a disaster”, both sides thought they were arguing in favour of the motion. Sex worker and activist Laura Lee, who was up against outspoken abolitionist Julie Bindel at the debate, had to “tear up her notes” when it emerged that York Union actually meant “decriminalisation”, something Lee wholeheartedly supports.

The York mix-up wasn’t unique. Since Amnesty released its draft proposal for the decriminalisation of sex work, countless articles have conflated the terms, inaccurately holding up Germany and the Netherlands as examples of “decriminalisation gone wrong”.

Some clarification: under legalisation, sex work is controlled by the government and is legal only under certain state-specified conditions. Decriminalisation involves the removal of all prostitution-specific laws, although sex workers and sex work businesses must still operate within the laws of the land, as must any businesses.

Clear examples of a legalised system in Europe come from the Netherlands and Austria; a murkier example from Germany. In the Netherlands, brothels have been legal since 2000, but only if they comply with specific requirements and, in some cases, undergo regular visits from the police. Street workers must operate in designated areas, outside which they will be committing a criminal offence.

In Austria, most regions require sex workers to register, either directly with the police or, via a brothel owner. A national agreement stipulates that every sex worker must undergo a weekly health check, evidence of which must be provided in a compulsory booklet. Both of these measures, says Amnesty International, are human rights violations.

The situation is more confusing in Germany as federal states implement wildly different approaches, ranging from de facto forced registration in Bavaria to Munich’s almost city-wide no-prostitution zones. Elsewhere, licensing requirements support the much-publicised “mega brothels” at the expense of smaller operations which don’t have the resources to comply. The German government is currently debating bringing in compulsory medical examinations. 

For some sex workers, these models of legalisation have brought benefits, including access to the welfare state and better negotiating rights with bosses. For others – and, in particular, those who are already marginalised – life has got harder. State-imposed regulations have created a two-tier system, so that the undocumented or those who use drugs now work in clandestine, almost invariably less safe, conditions. These systems increase the power of managers, who know that women have few options for where they can work.

Accurate trafficking statistics are notoriously hard to come by and definitions can be slippery. In the Netherlands, coercion is more likely to take place outside the regulated spaces, although the Dutch government states:“It also happens that prostitutes who are exploited according to Dutch standards do not see themselves as a victim of exploitation.” In Germany, the most reliable figures come from by the Federal Criminal Police Office, which suggests that, since the Prostitution Act, the number of victims has declined. According to Eurostat’s latest report, the German per-capita rate of trafficking between 2010 and 2012 was lower than that of Sweden.

But here’s the thing: these are not the models that human rights and sex worker-led organisations across the world are advocating. The only country to have fully decriminalised sex work is New Zealand. According to research, both street-based and indoor sex workers there report better relationships with the police and say they feel safer. Indoor workers are protected by employment laws and can take employers to court. Contrary to fears, decriminalisation has not led to overall growth of the industry and trafficking has not increased.

This, then, is what sex worker-led organisations are calling for. Simply for prostitution-specific criminal law to be dropped and sex work treated as any other business. No one is demanding that the industry be allowed operate in legal grey area. Just as sex workers would be protected by labour, health and safety, human trafficking and other relevant law, so they would have to abide by it.

Crucially, legal systems shape public perception. While any element of an industry is criminalised, stigma is fuelled. One study suggests that men who see prostitution as just another sector of work are less likely to be violent. The ripple effect of legislation becomes “even more” significant in the global south, says Dr Prabha Kotiswaran, Senior Lecturer in Criminal Law at King's College, London.

“Stigma surrounding sexual labour is so strong in an Indian context and the criminal law adds to the stigma,” Kotiswaran says. “There’s a huge gap between what the law claims to do and what it actually does; how it’s used socially if not legally. Criminal law is frequently used to threaten a whole range of marginalised groups: transgender people, young people, gay people, sex workers.”

In their warring hearts, those in both camps share concern for the safety of sex workers. What differs is belief on how this can be brought about. It is right that debate should happen – much is at stake – but without clarity as so what each side is calling for, the conversation is nothing but farce. It is decriminalisation, not legalisation, for which sex workers around the world are fighting.

Editor's note, 21 October: this article originally referred to the wrong host for the debate at York. This has been corrected.

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PMQs review: Jeremy Corbyn prompts Tory outrage as he blames Grenfell Tower fire on austerity

To Conservative cries of "shame on you!", the Labour leader warned that "we all pay a price in public safety" for spending cuts.

A fortnight after the Grenfell Tower fire erupted, the tragedy continues to cast a shadow over British politics. Rather than probing Theresa May on the DUP deal, Jeremy Corbyn asked a series of forensic questions on the incident, in which at least 79 people are confirmed to have died.

In the first PMQs of the new parliament, May revealed that the number of buildings that had failed fire safety tests had risen to 120 (a 100 per cent failure rate) and that the cladding used on Grenfell Tower was "non-compliant" with building regulations (Corbyn had asked whether it was "legal").

After several factual questions, the Labour leader rose to his political argument. To cries of "shame on you!" from Tory MPs, he warned that local authority cuts of 40 per cent meant "we all pay a price in public safety". Corbyn added: “What the tragedy of Grenfell Tower has exposed is the disastrous effects of austerity. The disregard for working-class communities, the terrible consequences of deregulation and cutting corners." Corbyn noted that 11,000 firefighters had been cut and that the public sector pay cap (which Labour has tabled a Queen's Speech amendment against) was hindering recruitment. "This disaster must be a wake-up call," he concluded.

But May, who fared better than many expected, had a ready retort. "The cladding of tower blocks did not start under this government, it did not start under the previous coalition governments, the cladding of tower blocks began under the Blair government," she said. “In 2005 it was a Labour government that introduced the regulatory reform fire safety order which changed the requirements to inspect a building on fire safety from the local fire authority to a 'responsible person'." In this regard, however, Corbyn's lack of frontbench experience is a virtue – no action by the last Labour government can be pinned on him. 

Whether or not the Conservatives accept the link between Grenfell and austerity, their reluctance to defend continued cuts shows an awareness of how politically vulnerable they have become (No10 has announced that the public sector pay cap is under review).

Though Tory MP Philip Davies accused May of having an "aversion" to policies "that might be popular with the public" (he demanded the abolition of the 0.7 per cent foreign aid target), there was little dissent from the backbenches – reflecting the new consensus that the Prime Minister is safe (in the absence of an attractive alternative).

And May, whose jokes sometimes fall painfully flat, was able to accuse Corbyn of saying "one thing to the many and another thing to the few" in reference to his alleged Trident comments to Glastonbury festival founder Michael Eavis. But the Labour leader, no longer looking fearfully over his shoulder, displayed his increased authority today. Though the Conservatives may jeer him, the lingering fear in Tory minds is that they and the country are on divergent paths. 

George Eaton is political editor of the New Statesman.

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