Decriminalising Sex Work vs The Nordic Model

Written By Lauren Mulvihill

“Beginning on Jan. 1, prostitution by minors will be legal in California. Yes, you read that right. SB 1322 bars law enforcement from arresting sex workers who are under the age of 18 for soliciting or engaging in prostitution, or loitering with the intent to do so. So teenage girls (and boys) in California will soon be free to have sex in exchange for money without fear of arrest or prosecution.”

This is according to the Washington Post, and it was a sentiment mirrored by thousands of people in the US. There were clearly some crossed lines. For an adult to have sex with a person below the legal age of consent is considered in all other contexts to be rape, and yet until very recently, this basic tenet of law had been suspended in the State of California if an exchange of money was involved. Children could receive a criminal record as a result of their own exploitation. This is why “prostitution by minors” was not legalised – it was decriminalised.

In 2016, Amnesty International released a report wherein they called for the decriminalisation of sex work and the furtherment of human rights protections for sex workers. The report defined ‘sex work’ as a consensual exchange of services between adults, as opposed to non-consensual and otherwise coercive sexual exploitation. Decriminalisation is overwhelmingly the preferred legal model of similar rights-focused groups, including Human Rights Watch, WHO and UNAIDS. Most importantly, decriminalisation is the model favoured by sex workers themselves. Despite these endorsements, there is still significant controversy surrounding the decriminalisation model and a number of alternative approaches have been proposed. As many sex workers have pointed out, these alternatives – though often well-meaning – are rooted in moralistic judgments that focus less on the protection of workers themselves as they do on the political agendas of their proponents. Former sex-worker, activist and comedian Miranda Kane put it well in the subtitle of a recent article: “Amnesty International are right to lobby for the decriminalisation of consensual sex work after undertaking a two-year study where they actually talked to sex workers; and… a bunch of Hollywood A-Listers, who are so desperate to get away from the ‘Actress/whore’ stereotype that they demonise the only way a marginalised section of society can afford to live, all from the safety and comfort of their Beverly Hills mansions, are wrong.”

But let’s look at the alternatives. Aside from full criminalisation (where sex work is completely illegal) and legalisation (where sex work is legal, but only in very limited circumstances – this, as I will explain, is the situation as it stands in Ireland), the Nordic Model holds the most sway as a seemingly progressive solution to the dangers faced by sex workers. Put simply, the law – which was first enacted in Sweden in 1999 – criminalises the buyer of sexual services, rather than the provider. The Nordic Model was championed by pressure groups who believed all sex work to be an extension of a patriarchal culture, and fundamentally demeaning to women. Not only does this stance ignore the existence of male and transgender sex workers, it strips rational, consenting adults of autonomy in decision-making. As Elizabeth Nolan Brown wrote in Time Magazine, the ‘sex worker as victim’ narrative has its roots in the Victorian era: nowadays, it’s seen in the common conflation of ‘sex work’ and ‘sex trafficking’ in the media.

In practice, the Nordic Model is problematic for a number of reasons. Although its main aim is the protection of sex workers themselves, those in the industry must often compromise their own safety in order to protect the privacy of their clients. Moreover, workers can’t organise or live together for security purposes for fear of being accused of operating a brothel. This serves to make working conditions increasingly dangerous. An interviewee identified as an internet- and street-based escort in Jay Levy’s 2010 study of the effects of the Nordic Model illustrates this:

“Twenty seconds, one minute, two minutes, you have to decide if you should go into this person’s car… now I guess if I’m standing there, and the guy, he will be really scared to pick me up, and he will wave with his hand ‘Come here, we can go here round the corner, and make up the arrangement’, and that would be much more dangerous.”

Government outreach programmes have been defunded. The criminalisation of clients also has the obvious effect of depriving workers of income. While many have claimed that the number of sex workers operating under the Nordic Model has declined significantly, research in this area focuses overwhelmingly on those operating on the streets, who, according to Sex Workers Alliance Ireland (SWAI), comprise only about 10% of the population. Even this decline may not be representative due to the fact that the laws have pushed the sex industry underground in order to attract clients. Additionally, we should ask ourselves: why, exactly, is it seen as a good thing that consenting adults may have lost their jobs simply because that job involves the provision of sex?

In Ireland, ‘prostitution’ is not an offence in and of itself, but many activities associated with it are – public solicitation, for example. According to UglyMugs.ie, in order to operate legally as a sex worker in this country it is necessary to work alone (organising in groups could constitute a brothel, which is illegal). This is a major occupational hazard, as sex workers can and have been the victims of hate crime; UglyMugs, who are the only non-profit in the country working to record human rights abuses against sex workers in both the Republic and the North, received 85 reports in December 2016 alone. The vast majority of these (79) originated south of the border, and of the total recorded, only one crime was reported to police. Websites such as UglyMugs.ie and Saafe.info have been set up in response to help those in the industry share important safety and general information. And while we can’t accurately gauge how many sex workers are currently operating in Ireland for a number of reasons including a reluctance to engage with surveys and varied definitions of what the term can refer to (in cases of phone-sex operation or webcam performance, for example) it can be assumed that most of us will know someone who has engaged in some form of sex work.

Decriminalisation is the preferred model of sex workers and human rights organisations because it not only legitimises the work, but it creates a safer environment. This model offers the greatest scope for protecting the human rights of sex workers, which may include increased access to healthcare, ability to report crimes, and ability to organise for safety purposes. Laws that criminalise exploitation, trafficking and violence will not be affected and may even be strengthened. On that note, there is no reliable evidence suggesting that decriminalisation increases rates of human trafficking, which is and should remain an abuse of human rights. In addition to all this, decriminalisation may serve as an important step in reducing the high levels of stigma attached to sex workers. Prejudices against the group are so commonplace as to barely raise an eyebrow, despite their deplorable and dehumanising nature – think of every “dead hooker” joke you’ve heard or read; the countless examples of murder victims identified solely as “a prostitute”; or the incredibly dangerous belief that sex workers cannot be raped.

Moreover, if the true aim of those seeking to criminalise sex work is to help those being exploited within the industry – how, exactly, does penalising a victim help them?

Margaret Huang of Amnesty International USA acknowledges that decriminalisation is not a “magic bullet” for solving the difficulties faced by sex workers. However, without decriminalisation, they cannot expect the equal treatment under the law needed to improve working and social conditions in a meaningful way. After hundreds, if not thousands, of years of speaking over those engaged in the ‘oldest profession’, of ignoring them, of mythologizing them, of vilifying them – is it not time we started listening to them? Bearing that in mind, I’ll leave you again with the words of Miranda Kane:

“I stand in front of you to say look at us. Look at sex workers. We do not deserve the stigma you have attached to us. We are human, we are average, we come in every size, shape, colour imaginable. We are beautiful, we are frumpy, we watch TV in onesies and we have chosen to make a living in a way that doesn’t maim, doesn’t murder, but the stigma we have attached to us is worse than any criminal.”