By Seiya Morita
In 2009, Norway was the second country, after Sweden, to enact Nordic Model legislation. The Nordic Model is a legal framework for the social abolition of prostitution, which is a fundamental violation of human rights. The framework has three pillars: 1. prohibiting the operation of brothels, the mediation of prostitution and third-party profit from it; 2. criminalising the purchase of sex; and 3. providing social, medical and economic support for leaving the sex trade instead of punishment for being in it.
Of these three components, number 2, the punishment of sex buying, is absolutely key. There is now a possibility that Norway may repeal this provision.
A Criminal Law Council, appointed by the Norwegian Crown in 2019, was tasked with conducting a full review of sexual offence provisions in Chapter 26 of the country’s Criminal Code. On 19 December 2022, the Council submitted to the Ministry of Justice its report, ‘Criminal law protection of the right to sexual self-determination: Proposal for reform of the Criminal Code Chapter 26’, which runs to over 360 pages. That the title focuses on the ‘right to sexual self-determination’ is a red flag and leaves little surprise that the report recommends decriminalising the purchase of sexual services from adults. This recommendation is in section 35.3.3, which discusses criminal provisions relating to prostitution.
The report does not propose the complete decriminalisation of prostitution. It recommends retaining the prohibition of procurement and third-party profit from prostitution (pimping). But, if the Norwegian government accepts the recommendations and the parliament passes the draft amendment, Norway will be reduced in its abolitionism to that of a country like Japan.
In Japan, everyone knows that prostitution is widespread under the so-called Prostitution Prevention Law. The Norwegian Criminal Law Council’s recommendations will create a similarly unworkable legal framework for Norway.
The Council’s logic for decriminalising sex buying is based on typical ‘pro-sex work’ arguments. The beginning of section 35.3.3 states that:
“The Council recommends that the purchase of sexual services from adults be decriminalised. Consideration for the protection of the individual’s right to sexual self-determination is a central principle of criminal law regulation of sexuality today. In the Council’s view, this justifies decriminalisation in this case. The prostitution market exists on the basis of global and national inequality, but this does not mean that individual prostitution takes place in a context where the person selling sex has no other options or is necessarily harmed by the act.”
While acknowledging that prostitution markets are based on inequality, the Council states that that does not mean that individuals involved in prostitution do not have other options and are necessarily harmed by it.
Human sexuality is not at all the same as labour or work. Firstly, sexuality requires personal integrity to sustain its dignity. Prostitution intrinsically violates this. Secondly, female genitals are vulnerable, and intercourse involves their penetration. In prostitution, the sex buyer is always one-sidedly using the woman’s vulnerable body parts. Under such conditions, women’s physical safety can never be guaranteed. Thirdly, historically, the subordination of women has been based on men’s domination of women’s sexuality. Prostitution is the preeminent method of dominating women’s sexuality.
The report is able to argue that the purchase of sex isn’t harmful only because it ignores these realities.
The nature of prostitution makes sex buying an act of sexual violation or sexual exploitation, regardless whether formal consent is given and whether the person being bought perceives it as an act of violation or not. (In fact, many prostituted people do perceive it as an act of violation – even if it is only later that they can acknowledge this.) Ignoring the inherently violative and exploitative nature of the act of purchasing sex, the Council’s report maintains that the purchase of sexual services should not be criminalised because individual prostitution does not necessarily occur in forced situations or cause individual harms.
Even if we assume, for argument’s sake, that an act of purchasing sex does not in itself inflict direct harm on anyone, from a public order perspective it would still be prudent to prohibit it. Indeed, such prohibitions are made in other arenas. For example, the laws of Japan and many other countries prohibit the possession of guns, while their possession in itself does not harm anyone. As long as guns are not fired at people, no one is injured. However, if their possession was decriminalised, it would create social conditions more amenable to many actual crimes, thereby violating the human rights of many people and destroying the fair order of society. This is why their possession is prohibited.
The same logic can apply to prostitution. By punishing the purchase of sex, we can reduce prostitution as a whole and thereby prevent the spread of direct harm, including trafficking in persons and violence in prostitution (which the Council also considers crimes). This one point alone justifies the prohibition of purchasing sex.
The report then raises doubts about any positive effects of the existing prohibition on sex buying:
“The case for using criminalisation to target those parts of the prostitution market that are characterised by exploitation, particularly trafficking, is that this can give police the tools they need to identify, and therefore counter, such exploitation… The prohibition of the purchase of sexual services from adults can be understood as an instrument in this context. When the ban on the purchase of sexual services from adults was evaluated in 2014, this was a moment police officials described as an advantage of the introduction of the provision. At the same time, questions can be raised as to whether this is how the prohibition is used. Since the introduction of the provision, less trafficking for prostitution purposes than before has been detected and prosecuted.”
This is a strange statement. Since one of the purposes of prohibiting the purchase of sex is to curb the number of trafficking cases by curbing prostitution itself, it is quite possible to interpret the fact that fewer cases of trafficking for the purpose of prostitution are being detected than before as an indication that the prohibition’s original purpose has been achieved. If there were in fact more cases of trafficking being detected and prosecuted, the authors of the report would surely bring that up as evidence that the ban on purchasing sex is not helping to curb sex trafficking.
The report uses the typical argument of ‘pro-sex work’ groups that the Nordic Model law has some negative effects. According to the report, prostitution is now conducted in more unsafe conditions; prostitution is being relegated to a grey zone (the ‘going underground’ argument); prostitutes are being placed in more difficult living conditions; and so on.
The report seems to misunderstand the Nordic Model. It is not about making prostitution safer and more comfortable, but about abolishing prostitution as a violation of human rights. While care will naturally be taken to ensure that this is carried out in a way that does not disadvantage prostituted women as much as possible, the legislative objective is not to make prostitution itself more possible. As already mentioned, prostitution is a fundamental violation of the safety of the women both within and outside of it.
The most ridiculous of the supposed negative effects the report cites is that people in prostitution ‘hesitated to contact the police,’ if they were ‘exposed to a breach of law’ in prostitution, ‘because it would reveal their prostitution activity, and therefore make their clients, and thus their base of income, vulnerable.’
This does make one question the report authors’ grasp of basic logic. It is clear that here a ‘breach of the law’ does not refer to sex purchasing, but to other things, like physical violence, refusal to use contraception, being forced to perform an act that is not what was consented to, etc. Even if sex purchase itself was not criminalised, if prostitutes were exposed to some breach of law and reported to police, the customers would naturally be arrested (if properly investigated). This might jeopardise their livelihoods, or at least they would fear that it would, and so they’d hesitate to report it to the police. This ‘hesitation,’ therefore, has nothing to do with the provision against sex purchasing at all. Rather, the argument is precisely a reason why we should condemn prostitution.
Whether or not sex purchasing is a punishable offence, and even if all aspects of prostitution are completely decriminalised, people in prostitution almost always hesitate to contact the police if punters commit some form of violence or other illegal act against them, out of fear of jeopardising their livelihood. What the argument shows is that prostitution itself is inevitably prone to violence and other illegal acts, and that prostitution (as a whole as well as individually) is conducted within a context of coercion and inequality.
The report then argues that:
“violence and sexual assault against persons selling sex committed by customers or persons posing as customers should be prevented and prosecuted as such, and not through a general ban on buying sexual services from adults.”
This is another piece of logic often brought up by ‘pro-sex work’ groups, but it is a proposition that has long been proven wrong. It is extremely difficult to prove that an act is illegal when it happens within a legal environment and it is even more difficult to crack down on it. That is why the Nordic Model was conceived and implemented.
It would be equally unrealistic to legalise the carrying of guns but only crack down on them if they happen to be used to commit a crime. The police do not keep a close watch on legal activities, and are generally indifferent to individual harms occurring among them. They usually take the attitude that the harm caused by engaging in prostitution at one’s own risk is self-inflicted.
In contrast, the Nordic Model law takes a completely different approach – premised on the understanding that women in prostitution are already victimised by being sold and bought for sex. Under the Nordic Model, society is directed to redress the other harms women suffer in prostitution. Of course, the attitude of the police must also change. But the decisive moment for this change is precisely when sex purchasing is criminalised as a violation of human rights and therefore, logically and inevitably, society as a whole, takes this stance.
As mentioned, if the recommendations are accepted, Norway will cease to be a Nordic Model country and will regress to the level of a country like Japan. But perhaps it will not stop there.
Decriminalisation of sex buying is merely a stepping stone towards the complete decriminalisation of the whole sex trade. In fact, the report affirmatively cites the policy of Amnesty International and the medical journal The Lancet, which advocate comprehensive decriminalisation of prostitution (decriminalising not only sex purchasing, but also the management of brothels, the mediation of prostitution, and pimping).
Because the Nordic Model law cannot suddenly be converted to full decriminalisation, the report recommends, as its first decisive step, the abolition of the important core of the Nordic Model law, the ban on sex purchasing. This must not be allowed to happen.
In solidarity with Norwegian abolitionists, we must mobilise international public opinion to maintain the Nordic Model law in Norway!