Criminalize vs. Decriminalize Sex Work: The Debate Continues

This post was co-written by Mellissa Withers and Tasfia Jahangir.

Prostitution, a form of sex work, is a longstanding, yet highly stigmatized occupation. Sex work is an umbrella term that includes any type of labor where a sexual service is provided in return for a benefit. Sex work includes prostitution (direct sexual services), as well as other activities like pornography, and phone sex. It is important to note that sex work refers to a consensual transaction between adults and should not be mistaken for sex trafficking, which can involve violence, threats, deception, or other forms of coercion and exploitation.

Contentious debate surrounding the nature of prostitution exists. Because most individuals in this occupation are either cis- or transgender women, and the majority of sex buyers are male, conversations around sex work are deemed as crucial feminist issues.

However, the discourse on prostitution is also highly polarized among feminists. On one hand, many perceive sex work in general as a means of improved conditions for working people through which they can gain economic liberation from a patriarchal system. On the other, it is viewed as an entrenched system of gendered violence built upon the sexual and economic exploitation of the most marginalized.

Over time, these contradictions have globally influenced a wide range of legislative approaches to sex work in general and prostitution in particular. Here, we examine some of the empirical research that is available within different legal approaches to sex work, particularly as they relate to the health, safety, and overall well-being of sex workers.

Criminalization

Feminists who demand the eradication of commercial sex argue that framing sex work as work normalizes the sex trade and silences the violent and exploitative reality of the sex industry.

Criminalization policies broadly aim to reduce the perceived individual and societal harms of prostitution by introducing laws and regulations explicitly targeting those engaged in prostitution. Such approaches exist on a broad spectrum, from prohibition to abolition and neo-abolition. Prohibition policies directly make prostitution illegal and have been adopted in the United States (Nevada is an exception), 30 nations in Africa, over 25 countries in Asia, and at least 20 in Europe. Abolition, the most prevalent approach worldwide, makes all formalized activities related to prostitution illegal, such as pimping, brothel-keeping, and procuring. As of 2022, at least 62 countries around the world are implementing policies making prostitution illegal.

Neo-abolitionism, otherwise known as the “Nordic model,” involves policies that make the purchase of sex work illegal, while the sex workers themselves are not penalized. Neo-abolitionism is unlike the prohibitionist or abolitionist models where sex workers who are charged with the crime of prostitution or crimes related to prostitution can be fined or arrested. Proponents of the Nordic model view prostitution as inherently harmful and aim to end sex work by reducing the demand for commercial sex. This viewpoint has been a contentious issue within the women’s rights community in many countries and globally.

Decriminalization

Views about sex work have shifted in many countries, resulting increasingly in public support for the decriminalization of prostitution. Organizations like Amnesty International and Human Rights Watch, as well as prominent anti-trafficking groups like Anti-Slavery International and the Global Alliance Against Trafficking in Women, all support the decriminalization of all adult prostitution on human rights grounds.

Criminalization of sex work is a social justice issue because it disproportionately impacts women, people of color, immigrants, and LGBT individuals (particularly transgender), communities that are already over-policed and heavily criminalized, as well as more vulnerable to negative health outcomes, such as HIV. Such groups favor a harm reduction approach to sex work; instead of attempting to prevent a behavior, harm reduction efforts prioritize the safety, rights, and dignity of individuals engaging in the behavior.

Other drivers of the increasing public and governmental support for decriminalizing prostitution exist:

• Clear evidence from around the world shows improved health outcomes. Studies in settings where prostitution is criminalized have reported higher drug use, lower condom usage, higher STI rates, and a host of other negative health outcomes as compared to settings that have decriminalized or legalized it. Studies have shown access to and utilization of health services among sex workers is also significantly better where prostitution is decriminalized.
• Decriminalization can also improve worker protection and labor rights. Redirection of the attention to the occupational dimension of prostitution may enable sex workers to secure labor rights, unemployment benefits, health care, and life insurance if sex work is decriminalized.

• Decriminalization also improves safety for sex workers. Human Rights Watch has consistently found in research across various countries that criminalization makes sex workers more vulnerable to violence, including rape, assault, and murder. Criminals may see sex workers as easy targets because they are unlikely to receive help from the police and, in fact, intentionally avoid the police. Criminalization of prostitution exposes sex workers to abuse and exploitation by law enforcement officials, such as police officers. Reports of extortion, harassment, and physical and verbal abuse of sex workers by police officers are common. Sex workers will be more likely to secure police protection to deal with threatening or violent situations. Criminalization further marginalizes sex workers, by pushing them underground. For example, in Sweden, where the Nordic model originated, sex workers say the policy resulted in sex work shifting to clients’ homes because of fears of clients being arrested. But this shift means that sex workers have fewer escape options if a client becomes violent. It also undermines sex workers’ ability to seek justice for crimes against them. A 2014 report by the National Bureau of Economic Research (NBER) found that decriminalization of prostitution contributed to a large decrease in rapes.

The opposition to the decriminalization of prostitution suggests that the anticipated benefits of decriminalization have been exaggerated. Critics cite research examining the experiences of sex workers that points to the inherently marginalizing and violent nature of the profession itself, suggesting that decriminalization is not the magic solution that has been suggested.

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For instance, in New Zealand, where sex work is decriminalized, one study that utilized qualitative interviews conducted with sex workers in the city of Christchurch revealed that a majority of them did not feel that decriminalization has curbed the violence that they experience. Even in areas where prostitution is decriminalized, sex workers may confront exceptional risks of assault and murder. Similarly, it has been found in Austria and Netherlands that legalizing and regulating sex work has not decreased the prevalence of the illegal, underground practices of the sex industry, therefore suggesting that the abusive work environments of sex workers have not improved. In fact, despite legalization efforts in countries such as Netherlands and Denmark, licensed brothels did not welcome regulatory inspections, and sex workers still had to resort to anonymity, secrecy, and informal cash transfers. However, more recent evidence indicates that there are highly frequent inspections, as well as sanctions for non-compliance.

Conclusion

In the real world, sex work legislation is much more complex and nuanced and “not monolithic." Decriminalization, and criminalization policies and implications will rarely be identical from country to country. For example, the selling of sex is considered legal in both Bangladesh and Netherlands. However, the Netherlands enforces a high level of organization and regulation, while Bangladesh has a much more informal sex work industry. Moreover, the legality of sex work can vary not only between countries but also within them, across different legal jurisdictions. Countries like the United States, Mexico, El Salvador, and Australia demonstrate such regional variations.

Domestic sex industries do not exist in a vacuum, and these complexities are further exacerbated when considering the potential impact of the domestic sex trade on international sex trafficking. According to the International Labor Organization, an estimated 11% of trafficking cases worldwide constitute forced commercial sexual exploitation. Research on human trafficking is riddled with reporting biases. Given its subversive nature, there are numerous methodological constraints to gathering conclusive and accurate evidence on this topic.

Although the wide range of differences in policies within and across countries theoretically provide ample opportunity for “natural experiments," the nature of the sex work industry is largely covert and stigmatized. As such, it is difficult to gather sufficient data and conclusively understand the effect of different legal frameworks and policies, preventing experts in the field from coming to a consensus on the best legislative approaches to address the impact of sex work. Furthermore, while many current or former sex workers have vocalized their own rich perspectives from having worked within the industry, they are often excluded from these larger conversations in research and policymaking, in part due to stigma. This gap, as well as the contextual differences that give rise to variations in sex work legislation, requires proposed solutions on this issue to utilize more community-informed approaches. These inconsistencies reflect the multifarious debate surrounding the legal stances on sex work.

Mellissa Withers, PhD, MHS, is an Associate Clinical Professor of Preventive Medicine and Director of the Master of Public Health (MPH) Online Program at the University of Southern California.

Tasfia Jahangir worked as a Research Assistant with Mellissa Withers at the Institute of Inequalities in Global Health at the University of Southern California. She is currently a Master of Public Health Candidate at Emory University, and an incoming Fulbright Research Grantee at the University of Toronto.