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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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