By Esther
The Journal of Law and Economics recently published a study that claimed to have found a causal link between the liberalisation and prohibition of prostitution and the incidence of rape. On the basis of this one study, there has been a flurry of posts on social media and elsewhere demanding the legalisation of prostitution.
The claim was based on a comparison of the incidence of reported rape in various European countries that have different prostitution laws. In this important article, Esther, who is herself a prostitution survivor, shows that the study is based on a multitude of flawed assumptions and misleading analysis of the data.
The basic assumption
The study bases its claim on the redefinition of paying for sex as “substitute rape”. This reminded me of some of the other ways that true levels of criminal activity can be concealed for political reasons.
For example, there is a relationship between reporting theft to the police and having contents insurance that will cover your loss (because insurance companies only pay out if the theft has been reported to the police). Making contents insurance so expensive that only the wealthiest could afford it, would reduce reported “theft” dramatically and enable politicians and academics to claim that they had virtually eliminated property crime. Theft would have been re-framed as the appropriation solely of the property of the affluent and well-connected.
The researchers support the view that rape is an adaptive strategy by males in the human evolutionary environment which increases when obtaining consensual sex becomes more difficult. In other words, all men are potential rapists.
Here is the study’s principal hypothesis:
“Suppose that a man could be a purchaser of commercial sex or be a rapist and that he makes the choice on the basis of the costs and benefits of these two options. We expect prostitution liberalization to reduce rape via the substitution mechanism: men who view commercial sex and rape as having similar costs may choose prostitution over rape if prostitution becomes cheaper and more easily available, and they may choose rape if prostitution becomes costlier and less accessible.” (Page 761)
Prostitution is not an activity that results in less sexual violence. Rather it is one in which a buyer acquires immunity from being reported and prosecuted through the payment of compensation to a subclass of women. Violence inflicted on prostituted women ceases to be considered or documented as sexual violence.
The victim’s compensation is taxed by the state and subjected to deductions by others in return for silence. No assessment is made of the wider risks to society of acts of violent misogyny which, when merely being spoken or written about on “incel” forums, are considered to make a man a terrorist risk.
The researchers refer to “commercial sex” rather than just “sex”. A sex buyer doesn’t pay for sex, he pays for “control of sex”. The commodity traded is control of sex with another person.
“Commercial sex” involves the replication of sexualised violence represented in pornography. The internet has created a market in increasingly violent and degrading acts that have nothing to do with intimacy and are inflicted on women involved in prostitution as part of a cascading narrative of “violence positivity” which buyers then normalise elsewhere – just as viewers of porn do when they overlook the fact that performers may have payment withheld until they sign consent forms.
“Commercial sex” includes being defecated on, urinated on, ejaculated on, and being exposed to other serious health and safety hazards and acts of physical and sexual violence without the protection that would be required in any workplace environment and at a frequency that can never be made safe.
Amnesty International and other human rights organisations regard acts like these as torture prohibited under Article 3 of the European Convention on Human Rights where the recipient is a political prisoner. But not when the recipient is a woman involved in prostitution, which they reframe as “work” – even though they would not tolerate such treatment being inflicted on members of their own families or the social class from which most of their staff are drawn.
Universalism in the streets, “nepomania” in the sheets.
What is the state for if it isn’t for the human flourishing of all?
Payment removes the “perpetrator” label, not the risk.
How to manipulate crime statistics
For several decades victims of banking fraud in the UK and some other countries have reported it, not to the police, but to their banks, who compensate victims and get to decide for themselves which cases they then report to the police. In some cases, decisions not to report may reflect concern about publicising flaws in banking security systems and damaging public confidence in the security of the assets they have invested.
One consequence of this has been a much-reduced police response in terms of staff and funding directed at tackling fraud, reflecting its diminished prioritisation as a crime issue and societal problem. The National Crime Agency, which is responsible for investigating organised crime groups, who are the main perpetrators of fraud, doesn’t work directly on fraud.
Fraud is, however, the most common crime in England and Wales, costing the UK economy £137 billion a year. According to statistics recorded by the police themselves, fraud accounted for 15% of all crime in 2021. The Crime Survey for England and Wales carries out an annual telephone survey to provide a better, but still imperfect, picture of the extent of crime. In 2021 fraud accounted for 39% of crime reported by the survey sample.
This scenario will be familiar to survivors of the sex industry in New Zealand like Chelsea Geddes and the many survivors in Germany who report that, while the total decriminalisation of prostitution is presented as a means of enabling law enforcement to focus on sex trafficking, in practice it operates as a deterrent to police raiding brothels and results in apathetic responses by the police to those women who risk being dismissed for damaging the business interests and reputations of brothel-owners by reporting violence at the hands of buyers.
Other flawed assumptions
The study considers prostitution solely from the perspective of costs and benefits to buyers, brothel-keepers and pimps:
“From the cost perspective, liberalization decreases the cost of commercial sex. Lee and Persson (2018) show that liberalization expands the size of the sex market, cuts entry costs for sex workers, and lowers prices of sex services. Cunningham and Shah (2018) find that transaction prices for sex services decrease by 33 percent after legalization.” (Page 761)
That’s right. If you were involved in prostitution at the point when the law changed you would have experienced a 33% loss of income for performing the same “services”. This is why owners of megabrothels which took over and concentrated the market in Germany struggled by their own admission to persuade German women already involved in prostitution to accept their terms. Instead the megabrothel owners resorted to consorting with biker gangs who trafficked women into Germany and used violence and coercion against them.
The researchers also say:
“Legalized prostitution expands the overall commercial sex market, attracts more sex workers to the industry, and increases the variety of choices for clients. In Germany, for instance, since the legalization of commercial sex in 2002, the number of sex workers has more than tripled: at least 400,000 prostitutes are now working in a multitude of venues, ranging from flat-rate sex clubs and sex boxes in street-walking zones to megabrothels and a large eBay-style sex auction website.” (Page 761)
Describing the expansion of the commercial sex market in Germany, which was facilitated so that the supply of prostituted women would exceed the huge increase in demand which followed the change in the law there, and the consequent lowering of prices prostituted women could charge, as something that “attracts” them is pure propaganda.
The researchers consider whether “liberalisation” has affected reported rates of other crimes but have been highly selective about the crimes chosen for this analysis.
They have not mentioned links between prostitution and the drugs trade.
Buyers are so confident that women they pay for sex have substance use issues that they often ask whether you can obtain Class A drugs like heroin and cocaine for them. As a result, men involved in drug distribution have additional interests in becoming your pimp.
What constitutes rape?
The study claims that European judicial definitions of rape are similar. This is key to its assertion that it is possible to make comparisons between different European countries.
This claim is untrue.
The standard definition of rape for the purposes of international comparisons used by the researchers refers to a woman having sex “against her will”.
The different ways the expression “against her will” is evidenced in different countries means that its meaning is not consistent.
Since the 2000s there have been legal changes in several of the European countries used in the study sample, with consent-based provisions replacing what had previously been coercion-based models in which evidence that a victim actively but unsuccessfully resisted would be required to secure a conviction.
Changes that require affirmative consent have widened the circumstances in which complaints of rape can be made.
The guidance to Crown Court judges in England and Wales on directions to juries on consent issues in rape trials also advises that a jury may need to be alerted to the distinction between submission and consent. It refers to a court judgment which distinguished between reluctant but free exercise of choice, especially in a long-term loving relationship, and unwilling submission due to fear of worse consequences.
Another factor that will make a difference is public levels of understanding about what constitutes rape. Many people in England and Wales may be unaware, for example, that initiating sex with someone while they are asleep constitutes sexual assault.
Incidence of rape
Public perceptions of the police and prosecuting authorities in different countries and their treatment of complainants (or categories of complainant they consider an undeserving use of resources) affect willingness to report rape, whatever the judicial definition may be.
Official reports of crime statistics in England and Wales frequently emphasise that changes in levels of police recorded crime may reflect changes in police recording practices and the willingness of victims to report. This is why the number of offences recorded by the police remains well below the number of victims estimated by the annual Crime Survey for England and Wales.
The countries that have adopted the Nordic Model tend to be countries that have both high levels of gender equity (which is often why they have adopted it) and high rates of conviction for rape. This is particularly the case with Sweden. Whether they have higher rates of conviction because reporting methods are different there is not known. The likelihood that a rape will be reported is higher in countries with higher levels of gender equity, which is also highly correlated with rape conviction rates across the whole of Europe.
The official crime statistics from Eurostat, where the researchers obtained their data, don’t report delays in processing cases or reports of rape that are dismissed because the courts work against rape victims in countries that don’t have high levels of gender equity.
Gender equity is highly correlated with rape conviction rates across the whole of Europe. A report by statisticians at the Swedish National Council for Crime Prevention shows that if Sweden had the same laws on rape as Germany, its recorded rates of rape would be almost a third of what they are.
Are men more likely to commit rape or sexual assault if they find it difficult to obtain sex through marriage or partnership?
The study claims that its findings are stronger when it is more difficult for men to obtain sex through marriage or partnership.
Data from many countries in fact shows that, contrary to the impression given by the media’s focus on rape and sexual assault by strangers, rape is most commonly perpetrated by someone known to the victim.
In England and Wales for example, data published in 2021 which showed that 1 in 4 women had been raped or sexually assaulted as an adult, found that 1 in 2 rapes against women are carried out by their partner or ex-partner. In 5 out of 6 rapes the perpetrator was someone the victim knew.
Analysis of the nature of assaults covering victims within the 16-59 age range found that:
- Almost half (49%) had been a victim more than once.
- Fewer than one in six (16%) reported the assault to the police and of those that told someone but not the police, 40% stated embarrassment as a reason. 38% did not think the police could help, and 34% thought it would be humiliating.
- More than four in ten (44%) were victimised by their partner or ex-partner.
- Nearly one in ten (9%) were victimised on the street, in a car park, park, or another open public space compared with over one-third (37%) in their own home.
The most common perpetrators of rape are men who have access to sex or who previously had it and now wish to inflict punishment for their loss of access on the person who removed it.
The researchers claiming to have found a causal link between prostitution regulation and rape rates also say:
“The increased access to legal prostitution may also allow for better matching of buyers and sellers of commercial sex. Potential sex offenders who would normally commit acts of sexual assault in the general population may choose consensual acts with voluntary sex workers (Bhuller et al. 2013; Ciacci and Sviatschi 2016).” (Page 762)
Would these potential sex offenders be matched with the many women involved in prostitution who experienced sexual and violent abuse since they were children and who were abandoned once they turned 18 on the basis that they were exercising “choice”, or would they be matched with women who hadn’t had this experience to “even the load”?
The maintenance of community safety, fairness and some level of order and predictability is a core attribute of a functioning state or community, without which other actors will step into the vacuum created by its withdrawal.
Most rapists are known to their victims and their actions are a display of their power within that framework. Paying for a simulation of it outside a coercive relationship dynamic is more likely to defer than deter future offending and is likely to make offenders better at avoiding future detection.
When I was studying for a Masters’ degree, I attended a lecture about global cities during which the speaker said that two essential elements for a city that wished to be considered a “global” destination attracting businesses, or politicians, academics and NGOs as a conference or meeting destination, were access to recreational drugs and access to prostituted women.
This would only be true if you accepted that business and other visitors to global cities are, and always will be male and that the supremacy and inequality resulting from this is immutable. For the most part, these visitors are not single men. Their status amongst their male peers would be lower if they were.
The argument used by the sex industry and its lobbyists is now that a subclass of “othered” women must be made available for a cohort of men who are not in fact commonly represented amongst perpetrators of rape.
Paying for sex does not make men less violent or less of a risk to women or civil society in general. In fact, the opposite is true.
Men involved in both political or terrorist violence and organised crime, for example, make use of prostituted women because atomised lifestyles are preferred to the operational risk that ongoing relationships and consequent responsibilities which would connect them with civil society are to them.
If it were the case that access to prostituted women made men less violent, one of the first steps taken by military officers would be to remove any brothels or prostituted women from the vicinity of the male soldiers under their command during operations and in environments where they had “rest and recreation”. Throughout the history of armed conflict, where in most instances the majority of those in combat have been male, the reverse has been the case.
The offer of “othered” women as symbols of the conquest and domination of other nations and ethnicities is a form of ongoing colonialism and a feature of many modern conflicts. It also drives traffic to and within online porn sites whose owners wouldn’t tolerate such treatment of their wives, partners, and female relatives.
Misleading use of data
The study includes the following chart of rape rates across time in “prohibited”, “liberalized” and “control” countries within the researchers’ sample:
The Eurostat dataset from which this was taken runs until 2020, but the researchers have cut off the data from 2016 – even though two of the “prohibited” countries, France and Ireland, introduced the Nordic Model in 2016 and 2017, respectively.
The graph shows aggregate rates in countries that have adopted the Nordic Model increasing dramatically, while aggregate data from all the other countries have constant rates of rape. This is objectively untrue. In 2015 there was a spike in reported rapes across Europe. The researchers included countries with “liberalized” sex industries that did not have increases in reported rape rates – most likely because they do not have the high levels of gender equity conducive to the reporting of rape (unlike the countries that have introduced the Nordic Model).
If you disaggregate the rape rate by country you can see that almost all countries in Europe had increasing rape rates, regardless of the method they use to regulate prostitution:
Within the “liberalized” and “control” countries, the only countries with decreasing rate of rapes have extremely small baseline rates. Only two countries in the “liberalized” group – Spain and Slovenia – had a reduction in recorded rates of rape. Neither of these countries has the levels of gender equity of Sweden and Norway and there is likely to be greater hesitancy in reporting rape there.
The researchers’ own analysis elsewhere in the study shows that countries with higher gender equity have higher rates of recorded rape, but the researchers seem to regard evidence of greater confidence in how victims will be treated by the state as a “fail”.
The data from Spain shows that from 2000 to 2010 there was a decrease in reported rapes from approximately 5 per 100,000 to 3 per 100,000. This is such a small difference that it is unlikely to be statistically significant. Similarly, in Slovenia there was a decrease from 3 in 100,000 to 2.5 in 100,000. Again, this is unlikely to be statistically significant.
All the other countries that show a reduction in reported rapes in the whole disaggregated dataset follow this trend. The researchers chopped off the data just before 2016 when some of these countries did have increases in recorded rape rates.
There were only 8 countries in the liberalization group, 17 in the control group, and 6 in the prohibition group. It appears that the researchers took the average of all the countries in the respective groups and used them as the main variables of interest for their entire analysis. In doing so they averaged countries in the “liberalized” group, such as Germany and the Netherlands, where the rates for rapes were increasing, with Spain and Slovenia which had tiny baseline rates that are likely to reflect a lack of gender equity. This then pulled the mean increase in rape rates for the entire “liberalized” group down and makes the liberalized group and the control groups look as if rates of rape had remained constant.
There are many examples in statistics of the dangers of using aggregated data in this way and the risks are taught in most statistics courses. The researchers cannot have been unaware of the misleading impression this use of data can give.
The researchers also included in their sample Eastern European countries which are both origin countries for victims of trafficking and sex tourism destinations. They are also culturally different from the other countries in the sample and, unlike most countries in Western Europe, generally have decreasing rape rates.
In their model, the researchers use variables which are historically very highly correlated, such as rates of marriage, population, immigration, unemployment, sex ratios, gender equality, GDP and prostitution regulation method. Predictor variables should only be correlated to the variable you are predicting, which for this study is reported rape rates. If some predictor variables are highly correlated to each other, your model can do some unusual things, referred to by statisticians as multicollinearity.
All Nordic Model countries have high GDP, high gender equity, liberal immigration laws and other highly correlated variables, so using these variables to predict rape rates alone will make the model very unreliable. It isn’t clear whether the researchers tested the model for this.
Another troubling feature of the study is the use of a 10% threshold for statistical significance, meaning that they are willing to accept a 10% chance that their results are significant due to chance alone. They then make inferences as if the results are facts. Researchers usually use 1% and 5% as thresholds of statistical significance to reduce the possibility that their findings can be attributed to chance. Several of the study findings were statistically significant at the 10% level.
“Opportunity costs”
The researchers’ inaccurate claim that sex buyers are mainly motivated by being unable to access sex through marriage or partnership means that the trade-off they consider a rational buyer to make is limited to setting the cost of paying for control of sex against the risk and cost of conviction for rape.
This is presented as if there are no other potential consequences, and as if a buyer is an atomised individual making a decision with no surrounding social or cultural context.
When academics and commentators say that the stigma attached to prostitution is greater than it was in previous centuries, what they are really lamenting is women and girls gaining social and political rights and wider options in life, including education, control over their fertility and reproductive potential, the right to own property, equal rights to divorce and employment rights.
Ultimately it is the consequences of the social and political advancement of women and girls that the researchers who carried out this study (and other academics and commentators who advocate for the expansion of the sex industry) object to.
The premise that men who pay for control of sex are unable to access it elsewhere is false because many, if not most, men who pay for sex are in relationships. They fear the loss of the unpaid sex, unpaid emotional support and domestic duties performed at home by their wife or partner, including the care of their children and other family members.
Men who are single are concerned about what their families will think, or that their peer group will see paying for sex as evidence that they are not successful in attracting partners.
The wider social cost that the researchers do not acknowledge is what buyers will do, what they will pay or what information they will provide to others who facilitate access to prostituted women for them, or who discover their true identities, in return for this information being kept secret.
This is why, for example, commercial sex websites and brothel-owners do not require buyers to provide proof of their identity and why the reputations of their respective businesses depend on the prioritisation of the public reputations of buyers above the safety of the women they charge for the use of their premises and websites.
It is sex buyers themselves who are most invested in maintaining the stigma associated with prostitution and the businesses that give them access to prostituted women service this investment.
The opportunity cost to women recruited into prostitution isn’t considered by the researchers at all. The women are of no significance to researchers with a buyer/pimp focus.
Being paid to have sex with the CEO of a global corporation at a conference and being open about it won’t get you a position of any value in that business. Investors will fear that your ability to feign attraction and sexual pleasure for reward and dissociate where necessary could have an impact on what you say about financial information or what you report to shareholders. All it will get you is greater career isolation in the sex trade.
In an era of elite overproduction of graduates, students with wealthy parents who expect their offspring to glide into senior positions in the professions and business will express support for poorer students entering the sex industry to support their studies. They know that the poorer students will thereby be eliminated from competing with them for the positions they consider their birth right.
Hence the enthusiasm they express for violence-positive feminism and its “Don’t rape me, rape them” message.
That’s a terrific analysis. Excellent work.
I am so tired of the apparent ‘liberal’ cries to have a underclass of rapeable women just to make men feel less guilt.