A dividing question 

The fight for women’s rights is still far from being led by a uniform and united group on all its positions. There is a number of dividing subjects – one of the most convergent being the legislation of sex work. An important feminist movement self-claims “abolitionist” in hoping of pure and simple abolition of sex work in its whole, on the grounds that it represents violence against women, who represent the majority of sex workers.

In response, non-abolitionist feminists, divided between regulationists and legalists, explain that the violence suffered by the sex workers is not inherent to sex work, but related to their precarious, underground and stigmatised situation. In this case, they evidently refer to consensual sex work. 

The question of sex work is related to the notion of intersectionality. Again, this theory does not reach consensus in the feminist movements, which is equally an explanation of divergences concerning the legislation of sex work. Indeed, examining sex workers’ profiles, we observe the multiple intersected forms of structural discrimination and inequality, impacting their life and affecting their decision to be involved in this domain or not. Those confronted to those multiple forms of structural discrimination and inequality – such as women and individuals discriminated on their sexual orientation, their gender identity, of their ethnic origin, etc. – are often over-represented in sex work. 

What are we talking about?

In 2016, the NGO Amnesty International published the report ‘Amnesty International policy on state obligations to respect, protect and fulfil the human rights of sex workers’ justifying their decision to take a position and making a certain number of recommendations to States ensuring sex workers’ rights.

In their report, Amnesty International uses various terminologies precisely defined to avoid any misunderstanding or misinterpretation of declarations. First of all, this report emphasises the importance of the notion of consentment in the debate. Not limiting themselves to prostitution (limiting themselves to sexual relations), Amnesty International elaborates on “sex work” and on “sex workers”. “Sex work” is defined as:

“… the exchange of sexual services (involving sexual acts) between consenting adults for some form of remuneration, with the terms agreed between the seller and the buyer. Sex work takes different forms, and varies between and within countries and communities. Sex work may vary in the degree to which it is more or less “formal” or organized.”

They solely bring in the notion of sex workers to describe adults (18 years old and above). This term is the one used by the holder of the rights themselves.

Moreover, it is vital to differentiate sex work and human trafficking. “Human trafficking” is defined in the Protocal of the United Nations which aims to prevent, restrain and punish human trafficking activities, especially the traffic of women and children (2000). The Protocol of the United States defines the term in three elements:

“1. an “action”: that is, the recruitment, transportation, transfer, harbouring or receipt of persons; 2. a “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and 3. a “purpose” (of the action/means): specifically, exploitation.”

As consent is central in the notion of “sex work”, the latter is not comparable to human traficking and sexual trafficking.

Finally, concerning the legislation, it is important to distinguish the different terms that can be employed, such as criminalisation, legalisation, decriminalisation, depenalisation, etc. In the case of sex work, “criminalisation” is the process that prohibits consensual sex work. The criminalisation of consensual sex work involving adults generally takes three different forms applied in a variety of combinations across countries. These three forms can be summarised as:

“Laws which make the act of commercialising sexual acts by consenting adults a criminal offence (…) ; laws which make the organization of adult consensual sex work a criminal offence (…) ; Laws which make the act of buying of sex from consenting adults a criminal offence and under which penalties are imposed on consumers.”

Amnesty defines penalisation as “laws, policies and administrative regulations that have the same intent or effect as criminal laws in punishing, controlling and undermining the autonomy of people who sell sex, because of their involvement in sex work”. Depenalisation is the suppression of penal sanctions, in which fines still exist. Decriminalisation no longer imposes penal sanction to violation, but can still evoke a State’s reaction. Finally, under a system of legalisation, activities that were previously illegal are to be addressed under the control of the law itself. 

For the depenalisation of sex work 

In their report, Amnesty International “calls for the decriminalization of all aspects of adult consensual sex work due to the foreseeable barriers that criminalization creates to the realization of the human rights of sex workers”. To defend the rights of sex workers, it is necessary to revoke not only the laws that criminalise the act of selling sex services, but also the qualification as a penal violation of acts of buying sexual services between consenting adults or through sex workers organisations.

The main motivation of such a position is the protection of sex workers from those who seek to exploit and harm them. Criminalisation of sex work hypocritely amount to wish for the abolishment of prostitution and sex work through their prohibition – thus harming a series of human rights of sex work, such as the rights to security, to accommodation or to health.

Decriminalisation of sex work is about protecting the concerned individuals. Indeed, the laws that criminalise prostitution and/or sex work condemn underground sex workers and put them in danger. At the core of the idea of protection, there is of course a physical element, to guarantee their rights to security, to consensual acts, without violence. In their report, Amnesty asks States to adopt a series of protective policies that go beyond protecting sex workers against rape and sexual violences, abuse of authority, aggressions, and extorsion.

Juridical protection is equally important. In fact, depenalisation, by legitimising sex workers, actually guarantees their access to health, work, and insurance, and protects them from abuses and exploitation. 

Decriminalisation somehow raises awareness and put an end to the stereotyping of sex work. A form of legalisation legitimates the implementation of judicial, political, economic, social, and cultural measures. The latter aims to fight against intersectional discrimination, harmful gender stereotypes and the denial of economic, social and cultural rights which lead to the entry into sex work, stigmatise sex workers and prevent those who wish to leave it.

Laws criminalizing prostitution and/or sex work often engender impunity for abusers of sex workers, taking into account that sex workers often fear punishment for reporting such abuse to the police. In conclusion, sex work laws should aim to protect people from exploitation and abuse, not to eradicate sex work and punish sex workers.

A legislation across countries 

The question of prostitution and sex work is not only a debate within feminist movements, but within society as a whole. In most States, prostitution is criminalised, either through laws against sex workers, or against customers, and generally against procuring.

According to the Podcast of Quoi de meuf, “Présidentielle : demandez le programme !”, published on March 20, 2022, all candidates to the 2022 presidential campaign in France without exception defended an abolitionist position, although not making it a priority subject.

Sweden appears as a model state for abolitionists, since it criminalises the customer and considers prostitution as violence against women.

On the contrary, in terms of criminalisation, there are two types of legislation. In countries like the Netherlands or Germany, prostitution is legal and regulated: prostitutes are, for example, subject to compulsory and forced medical examinations. This lack of consideration of consent is however contrary to human rights.

At the end of the day, there are a few examples of countries which, like New Zealand and, very recently, Belgium (law adopted on 18 March 2022), have completely decriminalised prostitution. The positions of these two countries are the most consistent with Amnesty International’s recommendations. Indeed, decriminalisation allows sex workers to have a status, and therefore to have access to social rights such as a pension, health insurance, paid leave, as well as to promote the entrenchment of a de-stigmatised idea of ​​the “oldest profession in the world”. These two countries are a sign that it is possible to move in the direction of normalisation to guarantee the safety of workers and, more generally, respect for human rights for all, which should be the main concern of any government.

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