Amnesty International (AI) have released a draft policy arguing for global decriminalisation of sex work. As a rule, decriminalisation of consensual actions between individuals that do not directly harm others is something I support. Prioritising the removal of legislation that disproportionately hurts the worst off/most marginalised is top of this agenda. However, wading into an unfamiliar political landscape and applying libertarian principles without care for the consequences is not something I endorse. In this case, I think AI have missed a trick on nuance, in mandating a global recommendation for decriminalisation.
In a previous paper, AI say:
Approaches that categorise all sex work as inherently nonconsensual, actively disempower sex workers; denying them personal agency and autonomy and placing decision-making about their lives and capacity in the hands of the state. They also limit sex workers’ ability to organise and to access protections which are available to others (including under labour laws or health and safety laws).
Arbitrarily broad laws prohibiting organisational aspects of sex work often ban sex workers from working together, renting secure premises, or hiring security or other support staff, meaning that they face prosecution themselves if they try to operate in safety.
This is a sound argument for decriminalisation. Even those who think that we should categorise sex work as nonconsensual should nevertheless see that at least decriminalising it makes it safer (since we can regulate and sex workers can report illegal behaviour without fear of prosecution themselves!).
There are two main criticisms of Amnesty’s plan. One is the fact that they somehow see the needs of buyers as relevant to how we should treat sex workers (i.e. because some clients of sex workers often purchase these services because they would otherwise struggle to enjoy them unpaid, we ought to consider making it easier for them to do so). I sympathise with this concern – nobody has the right to sexual gratification, so the idea of legislating with this in mind just seems bizarre.
But the main reason to be sceptical of Amnesty’s call for decriminalisation globally, is that they don’t appear to have done an awful lot of research to understand whether decriminalisation is right everywhere.
Sure, it’s very likely to be a good idea in the UK and most European nations. We can debate the merits of various regulatory frameworks to put in place once this has gone ahead. For example, despite concerns that decriminalisation would lead to more prostitution, and more visible prostitution, the evidence in New Zealand post-decriminalisation does not support this. From other countries, we see that police are a huge source of violence against sex workers (the study attached to that link is very graphic) and by the admission of police and sex workers themselves, the lack of access to justice for sex workers is a huge problem. If decriminalisation makes any headway in increasing sex workers’ ability to use the legal system to assert their rights, this is a step forward. The BMJ recognises that decriminalisation improves sexual health for sex workers.
But in every other policy debate, we would always consider whether the subject of our enquiry differs depending on the context in which we’re applying it. Do cultural, social, economic and legal differences between countries inform the kind of effect we might expect decriminalisation to have? It is impossible for them not to have a huge impact on the success of decriminalisation.
Consider the example of a country where the stigma attached to sex work includes serious bodily harm to the sex worker by aggrieved members of the community to which they belong. By criminalising sex work on the part of the buyer (commonly known as the ‘Swedish’ model), you increase the incentive for the buyer not to ‘out’ the sex worker, which may actually make the sex worker safer. The example of Cambodia gives us reason to suspect that it isn’t as simple as decriminalising – according to the same source, Cambodia is highly restrictive of women’s sexuality, which indicates that decriminalisation is not going to deliver the benefits we might hope for, and might do much worse if society takes the police’s place.
Imagine a situation in which decriminalisation would actually result in higher people trafficking, masked as sex work to reduce the legal repercussions. Criminalising the practice, either by punishing organisers of sex workers or by criminalising buyers may result in higher welfare for sex workers particularly as it discourages their exploitation. In Sweden, anecdote suggests that traffickers are seeing it as a less profitable place to operate, suggesting that there are some perks to criminalising the purchase of sex whilst not criminalising the sale – this kind of outcome might be appropriate for countries which have particular concerns about people trafficking, or whose current legislation makes it difficult to appropriately address trafficking. Again, though, it raises the worry that this second-best policymaking actually targets the wrong problem and is evidence that Sweden hasn’t got to grips with trafficking and is having to do so via indirect means. We also need to worry whether global trafficking volumes have changed – or just been moved elsewhere, to places where perhaps women don’t have the same degree of access to justice.
This isn’t to say we shouldn’t aim for decriminalisation in the long-term, but to recognise that there are a number of factors which will get in the way of achieving the aim we are pursuing in decriminalising in the first place – advancing the autonomy and, hence, safety, of sex workers. When embarking on a full-scale decriminalisation, perhaps we ought to consider addressing those problems concurrently. Certainly, Amnesty shouldn’t be mandating what the entire world should be doing with such insensitivity to the cultural, economic and legal norms of the various nation states that might alter the consequences of decriminalisation.