Prostitution law(Redirected from Prostitution (criminology))
Prostitution law varies widely from country to country, and between jurisdictions within a country. At one extreme, prostitution or sex work is legal in some places and regarded as a profession, while at the other extreme, it is a crime punishable by death in some other places.
In many jurisdictions, prostitution – the commercial exchange of sex for money, goods, service, or some other benefit agreed upon by the transacting parties – is illegal, while in others it is legal, but surrounding activities, such as soliciting in a public place, operating a brothel, and pimping, may be illegal. In many jurisdictions where prostitution is legal, it is regulated; in others it is unregulated. Where exchange of sex for money is criminalized, it may be the sex worker (most commonly), the client, or both, who are subject to prosecution.
Prostitution has been condemned as a single form of human rights abuse, and an attack on the dignity and worth of human beings, while other schools of thought state that sex work is a legitimate occupation; whereby a person trades or exchanges sexual acts for money and/or goods. Some believe that women in developing countries are especially vulnerable to sexual exploitation and human trafficking, while others distinguish this practice from the global sex industry, in which "sex work is done by consenting adults, where the act of selling or buying sexual services is not a violation of human rights." The term "sex work" is used interchangeably with "prostitution" in this article, in accordance with the World Health Organisation (WHO 2001; WHO 2005) and the United Nations (UN 2006; UNAIDS 2002).
In most countries, sex work is controversial. Members of certain religions oppose prostitution, viewing it as contrary or a threat to their moral codes, while other parties view prostitution as a "necessary evil". Sex worker activists and organizations believe the issue of sex worker human rights is of greatest importance, including those related to freedom of speech, travel, immigration, work, marriage, parenthood, insurance, health insurance, and housing.
Some feminist organizations are opposed to prostitution, considering it a form of exploitation in which males dominate women, and as a practice that is the result of a patriarchal social order. For example, the European Women's Lobby, which bills itself as the largest umbrella organization of women's associations in the European Union, has condemned prostitution as "an intolerable form of male violence". In February 2014, the members of the European Parliament voted in a non-binding resolution, (adopted by 343 votes to 139; with 105 abstentions), in favor of the 'Swedish Model' of criminalizing the buying, but not the selling of sex. In 2014, the Council of Europe has made a similar recommendation, stating that "While each system presents advantages and disadvantages, policies prohibiting the purchase of sexual services are those that are more likely to have a positive impact on reducing trafficking in human beings".
The Wolfenden Committee Report (1957), which informed the debate in the United Kingdom, states:
[the function of the criminal law is] to preserve public order and decency, to protect the citizen from what is injurious or offensive and to provide safeguards against the exploitation and corruption of others, ... It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular code of behaviour, further than is necessary to carry out the purposes of what we have outlined.
Views on what the best legal framework on prostitution should be are often influenced by whether one can view prostitution as morally acceptable or not; indeed Save the Children wrote: "The issue however, gets mired in controversy and confusion when prostitution too is considered as a violation of the basic human rights of both adult women and minors, and equal to sexual exploitation per se. From this standpoint then, trafficking and prostitution become conflated with each other."
In December 2012, UNAIDS, the Joint United Nations Programme on HIV/AIDS, released the "Prevention and treatment of HIV and other sexually transmitted infections for sex workers in low- and middle- income countries" document that contains the following "Good practice recommendations":
- All countries should work toward decriminalization of sex work and elimination of the unjust application of non-criminal laws and regulations against sex workers.†
- Governments should establish antidiscrimination and other rights-respecting laws to protect against discrimination and violence, and other violations of rights faced by sex workers in order to realize their human rights and reduce their vulnerability to HIV infection and the impact of AIDS. Antidiscrimination laws and regulations should guarantee sex workers’ right to social, health and financial services.
- Health services should be made available, accessible and acceptable to sex workers based on the principles of avoidance of stigma, non-discrimination and the right to health.
- Violence against sex workers is a risk factor for HIV and must be prevented and addressed in partnership with sex workers and sex worker led organizations.
Legal themes tend to focus on four issues: victimization (including potential victimhood), ethics and morality, freedom of the individual, and general benefit or harm to society (including harm arising indirectly from matters connected to prostitution).
Many people who support legal prostitution argue that prostitution is a consensual sex act between adults and a victimless crime, thus the government should not prohibit this practice.
Many anti-prostitution advocates hold that prostitutes themselves are often victims, arguing that prostitution is a practice which can lead to serious psychological and often physical long-term effects for the prostitutes. They may also argue that the act of prostitution is not by definition a fully consensual act, as they say that all prostitutes are "forced" to sell sex, either by somebody else or by the unfortunate circumstances of their lives (such as poverty, lack of opportunity, drug addiction, a history of childhood abuse or neglect, etc.).
In 1999, Sweden became the first country to make it illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute). A similar law was passed in Norway and in Iceland (in 2009). Canada (2014), France (2016) and the Republic of Ireland (2017) have also adopted a similar model to that of the Nordic countries (Denmark excluded).
Economic and health issues
It is argued that street prostitution is not victimless as it may damage the reputation and quality of life in the neighbourhood and diminish the value of property. Peter De Marneffe notes that many prostitutes have not finished school, affecting their ability to be able to have a career that they might have preferred. Therefore, prostitution also affects the application of their talent in other areas of the economy in which they can succeed. Maxwell (2000) and other researcher have found substantial evidence that there is strong co-occurrence between prostitution, drug use, drug selling, and involvement in non-drug crimes, particularly property crime. Because the activity is considered criminal in many jurisdictions, its substantial revenues are not contributing to the tax revenues of the state, and its workers are not routinely screened for sexually transmitted diseases which is dangerous in cultures favouring unprotected sex and leads to significant expenditure in the health services. According to the Estimates of the costs of crime in Australia, there is an "estimated $96 million loss of taxation revenue from undeclared earnings of prostitution". On top of these physical issues, it is also argued that there are psychological issues that prostitutes face from certain experiences and through the duration or repetition. Some go through experiences that may result "in lasting feelings of worthlessness, shame, and self-hatred". De Marneffe further argues that this may affect the prostitute's ability to perform sexual acts for the purpose of building a trusting intimate relationship, which may be important for their partner. The lack of a healthy relationship can lead to higher divorce rates and can influence unhealthy relationship to their children, influencing their future relationships. Although this is more difficult to control by law, it should be considered when creating policies in protecting prostitutes' psychological health.[according to whom?]
Condom use is not always a part of sex work, and if sex work were legalized, this could change. By keeping prostitution illegal, there are no laws to govern how the work is performed. It is a well-known fact[according to whom?] that condoms help reduce the spread of sexually transmitted diseases, including AIDS. If prostitution was legalized, one of the laws could be the requirement of the use of condoms. It was reported in 2010 that out of eighty-six countries, only about twenty eight countries reported regular condom use in sex work ("sex workers"). If sex work was legalized, the amount of condom use would increase, leading to better protection for both the worker and the client.
The United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others favors criminalizing the activities of those seen as exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws), while leaving sex workers free from regulation. The Convention states that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person".
Sigma Huda, a UN special reporter on trafficking in persons said: "For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experience with prostitution does not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include disparities based on gender, race, ethnicity and poverty. Put simply the road to prostitution and life within “the life” is rarely marked by empowerment or adequate options."
However, sex worker activists and organizations distinguish between human trafficking and legitimate sex work, and assert the importance of recognizing that trafficking is not synonymous with sex work. The Sex Workers Alliance Ireland organization explains: "victims of human trafficking may be forced to work in industries such as agriculture, domestic service as well as the sex industry. It is critical to distinguish human trafficking, which is a violation of human rights, from voluntary migration." The Open Society Foundations organization states: "sex work is done by consenting adults, where the act of selling or buying sexual services is not a violation of human rights. In fact, sex workers are natural allies in the fight against trafficking. The UNAIDS Guidance Note on HIV and Sex Work recognizes that sex worker organizations are best positioned to refer people who are victims of trafficking to appropriate services."
According to a 2007 report by the UNODC (United Nations Office on Drugs and Crime), the most common destinations for victims of human trafficking are Thailand, Japan, Israel, Belgium, the Netherlands, Germany, Italy, Turkey, and the US. The major sources of trafficked persons include Thailand, China, Nigeria, Albania, Bulgaria, Belarus, Moldova, and Ukraine.
Researchers at Göteborg University released a report in 2010 that argued that prostitution laws affect trafficking flows.
NGOs, academics and government departments often categorise the approach to prostitution laws and approach into 5 models:
|Models||Selling sex||Buying sex||Organizing sex||Buyer solicitation|
Whilst prostitution itself is legal, 3rd party involvement is generally prohibited. Solicitation is also often prohibited. Whilst this model recognises prostitutes may choose work in the trade, it is morally wrong. Laws are designed to stop prostitution impacting on the public. e.g. England
Neo-abolitionists believe there is no free choice for people entering prostitution, it violates their human rights and that prostitution is the sale and consumption of human bodies. Whilst prostitutes themselves commit no crime, clients and any third party involvement is criminalised. e.g. Sweden (Also called the "Swedish model" or "Nordic model".)
Whilst prostitution is not prohibited, there is legislation to control and regulate it. The extent and type of control varies from country to country and may be regulated by work permits, licensing or tolerance zones. e.g. The Netherlands (also called "regulationist".)
The decriminalization of sex work is the removal of criminal penalties for sex work. In most countries, sex work, the consensual provision of sexual services for money or goods, is criminalized. Removing criminal prosecution for sex workers creates a safer and healthier environment and allows them to live with less social exclusion and stigma. e.g. New Zealand
Although prostitution is mainly performed by female prostitutes there are also male, transgender and transvestite prostitutes performing straight and/or gay sex work. In Vienna, in April 2007, there were 1,352 female and 21 male prostitutes officially registered. The number of prostitutes who are not registered (and therefore work illegally) is not known. A recent study by TAMPEP, on the prostitute population from Germany, estimated that 93% of prostitutes were female, 3% transgender and 4% male.
Arrest statistics show that in those states where buying and selling sex are equally illegal, the tendency is to arrest the service provider and not the customer, even though there are significantly more customers than sellers. Thus, it is a fact that more women than men are arrested, and the true extent of the crime is underreported. James (1982) reports that, in the United States, the arrest ratio of women to men was 3:2, but notes that many of the men arrested were the prostitutes rather than the clients.
Developed vs. developing countries
"By 1975, Thailand, with the help of World Bank economists, had instituted a National Plan of Tourist Development, which specifically underwrote the sex industry ... Without directly subsidising prostitution, the Act [the Entertainment Places Act] referred repeatedly to the personal services' sector. According to Thai feminist Sukyana Hantrakul, the law 'was enacted to pave the way for whorehouses to be legalised in the guise of massage parlours, bars, nightclubs, tea houses, etc." See Aarons Sach, "A prostitute at nine," The Times of India Sunday Review, 22 January 1995. With particular reference to children, the United Nations Convention on the Rights of the Child creates specific obligations. Article 34 stipulates that:
- State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall, in particular, take all appropriate national, bilateral, and multilateral measures to prevent:
- The inducement or coercion of a child to engage in any unlawful sexual activity.
- The exploitative use of children in prostitution or other unlawful sexual practices.
- The exploitative use of children in pornographic performances and materials.
As of 2000, twenty four countries had enacted legislation criminalising child sex tourism, e.g. in Australia, the Crimes (Child Sex Tourism) Amendment Act 1994 covers a wide range of sexual activities with children under the age of 16 committed overseas. Laws with extraterritorial application are intended to fill the gap when countries are unwilling or unable to take action against known offenders. The rationale is that child-sex offenders should not escape justice simply because they are in a position to return to their home country. There is little research into whether the child sex tourism legislation has any real deterrent effect on adults determined to have sex with children overseas. It may be that these people are simply more careful in their activities as a result of the laws. There are three obvious problems:
- the low level of reporting of sexual offences by child victims or their parents;
- the poverty which motivates the decision to survive economically through the provision of sexual services; and
- the criminal justice systems which, in the Third World country may lack transparency, and in the First World country may involve hostile and intrusive cross-examination of child witnesses with no adult witnesses to corroborate their evidence.
Views of prohibitionists
In most countries where prostitution is illegal, the prohibition of the sex trade is subject to debate and controversy among some people and some organizations, with some voices saying that the fact that prostitution is illegal increases criminal activities and negatively affects the prostitutes.
Those who support prohibition or abolition of prostitution argue that keeping prostitution illegal is the best way to prevent abusive and dangerous activities (child prostitution, human trafficking etc.). They argue that a system which allows legalized and regulated prostitution has very negative effects and does not improve the situation of the prostitutes; such legal systems only lead to crime and abuse: many women who work in licensed brothels are still controlled by outside pimps; many brothel owners are criminals themselves; the creation of a legal and regulated prostitution industry only leads to another parallel illegal industry, as many women do not want to register and work legally (since this would rob them of their anonymity) and other women can not be hired by legal brothels because of underlying problems (e.g., drug abuse); legalizing prostitution makes it more socially acceptable to buy sex, creating a huge demand for prostitutes (both by local men and by foreigners engaging in sex tourism) and, as a result, human trafficking and underage prostitution increase in order to satisfy this demand.
A five-country survey of 175 men for the International Organisation for Migration found that 75% preferred female prostitutes aged 25 or under, and over 20% preferred those aged 18 or under, although "generally clients did not wish to buy sex from prostitutes they thought to be too young to consent to the sexual encounter."
Some have argued that an extremely high level of violence is inherent to prostitution; they claim that many prostitutes have been the subject of violence, rape and coercion before entering prostitution including as children, and that many young women and girls enter prostitution directly from state care in at least England, Norway, Australia and Canada.
In some countries, (or administrative subdivisions within a country), prostitution is legal and regulated. In these jurisdictions, there is a specific law, which explicitly allows the practice of prostitution if certain conditions are met (as opposed to places where prostitution is legal only because there is no law to prohibit it).
In countries where prostitution is regulated, the prostitutes may be registered, they may be hired by a brothel, they may organize trade unions, they may be covered by workers' protection laws, their proceeds may be taxable, they may be required to undergo regular health checks, etc. The degree of regulation, however, varies very much by jurisdiction.
Such approaches are taken with the stance that prostitution is impossible to eliminate, and thus these societies have chosen to regulate it in an attempt to increase transparency and therefore reduce the more undesirable consequences. Goals of such regulations include controlling sexually transmitted disease, reducing sexual slavery, controlling where brothels may operate and dissociating prostitution from crime syndicates.
In countries where prostitution is legal and regulated, it is usual for the practice to be restricted to particular areas.
In countries where prostitution itself is legal, but associated activities are outlawed, prostitution is generally not regulated.
Mandatory health checks
Not all countries with regulated prostitution require mandatory health checks (because such checks are seen as too intrusive, a violation of human rights and a discriminatory policy, since the clients don't have to be subjected to them).
A few jurisdictions, however, require that prostitutes undergo regular health checks for sexually transmitted diseases.
In Nevada, state law requires that registered brothel prostitutes be checked weekly for several sexually transmitted diseases and monthly for HIV; furthermore, condoms are mandatory for all oral sex and sexual intercourse. Brothel owners may be held liable if customers become infected with HIV after a prostitute has tested positive for the virus. Prostitution outside the licensed brothels is illegal throughout the state; all forms of prostitution are illegal in Las Vegas (and Clark County, which contains its metropolitan area), in Reno (and Washoe County), in Carson City, and in a few other parts of the state (currently 8 out of Nevada's 16 counties have active brothels, see Prostitution in Nevada).
The regulation of prostitution is problematic because standard labor regulations cannot be applied to prostitution. The typical relation between employer and employee where the employer is in a position of authority over the employee is, in the case of prostitution, viewed by many as contrary to the physical integrity of the prostitute. It is forbidden to order a person to have sex on a given moment at a given place. Many sex operators also do not want to pay social security contributions, which comes with paid labor. Therefore, many prostitutes, in countries where prostitution is regulated, are officially listed as independent contractors. Sex operators typically operate as facilitators only and do not interfere with the prostitutes.
Status of unregulated sex work
The existence of regulated prostitution generally implies that prostitution is illegal outside of the regulated context. For example, Nevada has laws prohibiting the following: engagement in prostitution outside of licensed brothels, encouragement of others to become prostitutes, and living off the proceeds of a sex worker.
Demands to legalise prostitution as a means to contain exploitation in the sex industry is now gaining support from organisations such as the UN and the Supreme Court of India.
Below there is a presentation of the legal status of prostitution around the world, as of May 2018
In these countries prostitution itself (exchanging sex for money) is illegal. The punishment for prostitution varies considerably: in some countries, it can incur the death penalty, in other jurisdictions, it is a crime punishable with a prison sentence, while in others it is a lesser administrative offense punishable only with a fine.
- Africa: Angola; Burundi; Cameroon; Chad; Comoros; Djibouti; Egypt; Equatorial Guinea; Gabon; The Gambia; Ghana; Guinea; Liberia; Libya; Mauritania; Mauritius; Morocco; Niger; Republic of the Congo; Rwanda; São Tomé and Príncipe; Seychelles; Somalia; South Africa; Sudan; Swaziland; Tanzania; Uganda; Zimbabwe;
- Americas: French Guiana; Greenland; Grenada; Guyana; Haiti; Jamaica; Puerto Rico; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Suriname; Trinidad and Tobago; United States (Except Nevada); U.S. Virgin Islands
- Asia: Afghanistan; Armenia; Azerbaijan; Bahrain; Bhutan; Brunei; Cambodia; China; Georgia; Iran; Iraq; Japan; Jordan; Kuwait; Laos; Maldives; Mongolia; Myanmar; Nepal; North Korea; Oman; Pakistan; Palestinian Territories; Philippines; Qatar; Russia; Saudi Arabia; South Korea; Sri Lanka; Syria; Thailand; Turkmenistan; United Arab Emirates; Uzbekistan; Vietnam; Yemen;
- Europe: Albania; Andorra; Belarus; Croatia; Gibraltar; Kosovo; Liechtenstein; Lithuania; Moldova; Montenegro; Russia; San Marino; Serbia; Ukraine
- Oceania: Guam; Marshall Islands; Northern Mariana Islands; Palau; Papua New Guinea; Samoa; Vanuatu;
In these countries, there is no specific law prohibiting the exchange of sex for money, but in general most forms of procuring (pimping) are illegal. These countries also generally have laws against soliciting in a public place (e.g., a street) or advertising prostitution, making it difficult to engage in prostitution without breaking any law. In countries like India, though prostitution is legal, it is illegal when committed in a hotel.
- Africa: Algeria; Benin; Botswana; Burkina Faso; Central African Republic; Côte d'Ivoire; Democratic Republic of the Congo; Ethiopia; Lesotho; Madagascar; Malawi; Mali; Mozambique; Namibia; Sierra Leone; South Sudan; Togo; Zambia;
- Americas: Anguilla; Antigua and Barbuda; Bahamas; Barbados; Bermuda; Brazil; British Virgin Islands; Cayman Islands; Costa Rica; Cuba; Dominica; Dominican Republic; Falkland Islands; Guadeloupe;< Guatemala; Honduras; Montserrat; Nicaragua; Paraguay; Saint Martin; Turks and Caicos Islands
- Asia: Cyprus; Hong Kong; India; Israel; Kazakhstan; Kyrgyzstan; Macau; Malaysia; Singapore; Tajikistan; Timor-Leste;
- Europe: Belgium; Bosnia and Herzegovina; Bulgaria; Czech Republic; Denmark; Estonia; Finland; Italy; Luxembourg; Malta; Monaco; Poland; Portugal; Republic of Macedonia; Romania; Slovakia; Slovenia; Spain; United Kingdom (except Northern Ireland)
- Oceania: Australia (South Australia, Western Australia); Cook Islands; Fiji; Kiribati; Nauru; Solomon Islands; Tonga; Tuvalu
- Americas: Belize; Canada; Martinique;
- Europe: France; Iceland; Ireland; Northern Ireland (UK); Norway; Sweden;
In some countries, prostitution is legal and regulated; although activities like pimping and street-walking are generally illegal. The degree of regulation varies by country; for example, not all countries require mandatory health checks because such checks are seen as intrusive, a violation of human rights and discriminatory.
- Africa: Eritrea; Senegal; Tunisia
- Americas: Aruba; Bolivia; Bonaire; Chile; Colombia; Curaçao; Ecuador; Nevada (except Carson City and Clark, Douglas, Lincoln, and Washoe counties); Panama; Peru; Saba; Sint Eustatius; Sint Maarten; Uruguay; Venezuela;
- Asia: Bangladesh; Lebanon; Taiwan; Turkey;
- Europe: Austria; Germany; Greece; Hungary; Latvia; Netherlands; Switzerland
- Oceania: Australia (ACT, Northern Territory, Queensland, Tasmania, Victoria); Easter Island
The decriminalization of sex work is the removal of criminal penalties for sex work. Removing criminal prosecution for sex workers creates a safer and healthier environment and allows them to live with less social exclusion and stigma.
- Africa: Cape Verde; Guinea-Bissau
- Oceania: Australia (New South Wales); New Zealand; Niue; Pitcairn Islands; Tokelau
Legality varies with local laws
In these countries prostitution is permitted, prohibited or regulated by local laws rather than national laws. For example, in Mexico, prostitution is prohibited in some states but regulated in others.
- Africa: Kenya; Nigeria
- Americas: Argentina; El Salvador; Mexico; Nevada (USA);
- Asia: Indonesia
- Oceania: Federated States of Micronesia
The enforcement of the anti-prostitution laws varies from country to country or from region to region. In many places, there can be a discrepancy between the laws which exist on the books and what occurs in practice. For example, in Thailand, prostitution is illegal, but in practice, it is tolerated and regulated. Such situations are common in many Asian countries.
In areas where prostitution or the associated activities are illegal, prostitutes are commonly charged with crimes ranging from minor infractions such as loitering to more serious crimes like tax evasion. Their clients can also be charged with solicitation of prostitution.
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- Special Rapporteur on the sale of children, child prostitution and child pornography
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