For more than a century, 8 March has been celebrated as a focal point for the international movement for the advancement of women’s human rights. It is perverse therefore that the International Commission of Jurists (ICJ), an international NGO made up of 60 “eminent jurists” chose that day to publish a new report that argues for the decriminalisation of the entire prostitution system, including sex buyers (punters) and pimps. As if prostitution isn’t the cornerstone of the patriarchal oppression of women.
The report, entitled, ‘The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty’, claims to recognise women’s human rights to freedom from torture, ill-treatment, and gender-based violence, and laments the endurance of discriminatory practices that are rooted in colonial, racist, sexist, classist and other power dynamics. But completely fails to acknowledge that the prostitution system is exactly such a discriminatory practice.
The thrust of the report is that the criminal law should not be used against a whole variety of types of conduct related to sex, reproduction, drug use, HIV, homelessness, and poverty. Many of these make sense. We absolutely do not believe that homosexuality, homelessness, poverty, or abortion should be criminalised, for example. However, the report also recommends decriminalising a large number of other things, including “certain kinds of pornography”, “non-exploitative surrogacy” and perhaps even underage sex. As if pornography is not predicated on the sexual debasement of women and the eroticisation of power and dominance. As if surrogacy can ever be “non-exploitative”. As if women didn’t fight for decades for laws against the sexual abuse of children.
“Principle 17 – Sex work”
The section on prostitution is in Principle 17:
The exchange of sexual services between consenting adults for money, goods or services and communication with another about, advertising an offer for, or sharing premises with another for the purpose of exchanging sexual services between consenting adults for money, goods or services, whether in a public or private place, may not be criminalized, absent coercion, force, abuse of authority or fraud.
Criminal law may not proscribe the conduct of third parties who, directly or indirectly, for receipt of a financial or material benefit, under fair conditions – without coercion, force, abuse of authority or fraud – facilitate, manage, organize, communicate with another, advertise, provide information about, provide or rent premises for the purpose of the exchange of sexual services between consenting adults for money, goods or services.
The first paragraph is predicated on the idea that prostitution is a business arrangement to which two equally-placed individuals freely consent. There is no acknowledgement of its gendered nature – that almost all punters are male and the vast majority of those who are prostituted are female. Nor does it reflect the material reality of women and girls in prostitution. Poverty, lack of alternatives, homelessness, destitution, racism, neo-colonialism, child abuse and our hyper-sexualised culture are all factors that drive girls and women into prostitution and trap them there, and many are groomed or coerced into it by “boyfriends”, partners, family members and organised crime gangs.
The “eminent jurists” do not stop to consider the implications of accepting that the notion of “consent” has any relevance in this reality. I will come back to this later.
We agree that it makes no sense to criminalise selling sex. But punters do have a real choice and it’s their money that drives the “boyfriends”, partners, family members and organised crime gangs who freeload off women’s prostitution. So why would these “eminent jurists” want to decriminalise buying sex? It makes no sense – unless perhaps they are ardent sex buyers themselves?
It is also in direct contravention of the Palermo Protocol, the international human rights treaty that governs human trafficking, which places an obligation on states to take measures to “discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking”.
Now let’s consider the second paragraph. What they are calling for here is for the decriminalisation of the “boyfriends”, partners, family members, organised crime gangs and others who exploit and profit from (mostly) women and girls’ prostitution, along with those who run the advertising websites, brothels, and clubs, etc. that facilitate and enable that – unless, that is, there is some coercion, force, or fraud involved. But coercion, force, or fraud are usually not obvious to the casual observer and are always hard to prove. This means that under decriminalisation more or less all pimps are decriminalised, as practice has proved in both New Zealand and Germany.
The report claims to be based on international human rights standards. But decriminalising pimping directly contravenes Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is recognised as one of the core international human rights treaties.
Article 6 deals with prostitution, as follows:
“States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
This means that states have an obligation to ban pimping, including through the use of criminal sanctions. It’s unclear how those “eminent jurists” square this with Principle 17 because they don’t mention it.
There is no evidence that the “eminent jurists” have considered research and testimony from survivors that show that prostitution involves staggering amounts of violence and often meets the definition of torture and cruel or degrading treatment as defined in the United Nations Convention against Torture, another core international human rights treaty.
How could this happen?
We must ask why these “eminent jurists” would want to ride roughshod over important international human rights law that they claim to uphold?
Are they all blinded by their own privilege?
Do the human rights of marginalised women and children not matter?
According to the ICJ website, the 60-person commission includes both male and female members, but the majority are currently male. Paying for sex is a common male behaviour – so it is statistically inevitable that at least some of the male members are or have been sex buyers themselves. Of course this would motivate them to argue for the decriminalisation of the industry and to ignore the evidence of the harms it causes to women and children.
And sadly many women – perhaps especially those who have gained positions of power – have more loyalty to the men around them and the male-dominated system that they have worked so hard to succeed in than to women and girls as a collective.
There are other forces at play here too. Sex industry lobbyists have captured many of the UN agencies, including the Joint UN Programme on HIV/AIDS (UNAIDS), which was involved in the development of the ICJ report.
In 2012 UNAIDS along with the World Health Organisation (WHO) developed recommendations for the full decriminalisation of the sex industry. These were based on poor modelling studies, false assumptions, and advice from the Global Network of Sex Work Projects (NSWP), which at the time was under the leadership of Alejandra Gil, a Mexican pimp who was subsequently sentenced to 15 year in prison for sex trafficking. UNAIDS has been lobbying for the full decriminalisation of the sex industry ever since.
NSWP, who unsurprisingly were one of the first organisations to declare their support for the ICJ report, claims to work “to uphold the voice of sex workers globally and connect regional networks advocating for the rights of female, male, and transgender sex workers”. In reality, it is a partisan organisation that lobbies heavily for the full decriminalisation of the sex industry (decrim) and excludes individuals and organisations who do not adhere to their three core values:
1. Acceptance of sex work as work.
2. Opposition to all forms of criminalisation and other legal oppression of sex work (including sex workers, clients, third parties*, families, partners and friends).
3. Supporting self-organisation and self-determination of sex workers.
* The term ‘third parties’ includes managers, brothel keepers, receptionists, maids, drivers, landlords, hotels who rent rooms to sex workers and anyone else who is seen as facilitating sex work.
While most prostituted women want the selling of sex to be decriminalised, far fewer want pimps to also be decriminalised. However, decrim lobbyists typically present the arguments as a choice between criminalisation and decrim. Many women, knowing they don’t want to be criminalised themselves, feel that decrim is the only alternative.
Decrim lobbyists do not explain that there is a third option, the Nordic Model (which decriminalises selling sex but not buying or pimping), and if they do mention it, they tend to repeat scurrilous and untrue claims that it “makes women less safe” and similar.
Most of the large international funding bodies, such as the Bill & Melinda Gates Foundation, the Ford Foundation, Mama Cash, the Open Society Foundations, and the UN Population Fund, have been captured by the sex industry lobby’s propaganda and rarely, if ever, fund organisations working in this field that don’t subscribe to the NSWP position.
This means that organisations working with marginalised women and girls who oppose decrim typically find it hard to obtain funding. Consequently they run on a shoestring and may not have the resources for a website. This makes them practically invisible to the international community – unlike the better funded pro-decrim ones.
Research funding is similarly skewed towards pro-decrim researchers. New studies promoting full decriminalisation are published frequently. Many are of dubious quality and reliability. For example, 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. We have shown that the study was seriously flawed, but nevertheless it triggered widespread demands for decrim.
All of this makes it appear that there is consensus for decrim, when in fact that is far from the truth. UNAIDS is using its clout to make the situation even worse. For example, in its strategy for the five years to 2026, one if its key targets is to get decriminalisation adopted in 90% of nations globally.
This is presented under a call for fewer “punitive legal and policy environments that deny or limit access to services” – which, as usual, utilises the confusing and misleading criminalisation vs. decrim framing. It is disingenuous because UNAIDS considers the Nordic Model to be a form of criminalisation even though it does not deny or limit access to services. In fact the opposite is true – high-quality services for people involved in prostitution are a key plank of the Nordic Model. In contrast, experience shows that when prostitution is decriminalised, specialist services for women involved in prostitution disappear.
It is disappointing that the “eminent jurists” have proved themselves to be so naïve as to fall for the sex industry lobby’s propaganda. It is also a dereliction of their duty to ensure that their recommendations do not negatively impact the most disadvantaged and marginalised communities. If their “principles” are adopted and more countries open up the sex industry to the full fury of the neoliberal markets, untold numbers of girls and young women will be drawn into the industry and have their lives brutalised and we can expect to see a sharp increase in male violence against women and girls everywhere.
“Principle 16 – Consensual sexual conduct”
As the “eminent jurists” fail to consider the material inequality between the parties involved in prostitution and the implications of this for any notion of consent, we should not be surprised that Principle 16, which deals with “consensual sexual conduct”, starts with the following statement:
Consensual sexual conduct, irrespective of the type of sexual activity, the sex/gender, sexual orientation, gender identity or gender expression of the people involved or their marital status, may not be criminalized in any circumstances.
On a superficial level this might sound reasonable – but the closer you look the more disturbing it becomes. There is no mention of who gets to define “consensual”. And it would appear to include children and people with learning or other disabilities.
It is disturbing that they are making a sweeping statement that does not acknowledge and take into account the enormous disparities of power that exist in the modern world and the effect of these disparities on an individual’s power and freedom – disparities of age, of ability and disability, of wealth and power, of race, class, sex and gender.
For example, it seems that in recommending decrim, the “eminent jurists” consider that by offering herself to men for paid sexual activity, a starving homeless woman is “consenting” to sex with any randomer who turns up. As if her drive to do whatever it takes to feed herself and her hungry children is equivalent to a male office worker’s decision to boost his ego and relieve his frustrations by paying someone, who’s not in a position to complain, to submit to passionless sex with him.
Once you can accept that, it is only a small step to assume that an underage girl who apparently acquiesces to sexual activity with an older male is “consenting” – when in fact the power dynamics mean that her acquiescence is more likely to be a symptom of her lack of options and the failure of the adults in her life to protect her and prepare her for a world teeming with male sexual predators, if not that she is immobilised by terror.
This is alarming, especially as Principle 16 goes on to say: “sexual conduct involving persons below the domestically prescribed minimum age of consent to sex may be consensual in fact, if not in law”.
Are the “eminent jurists” saying here what it would seem they are saying – that sex with minors is acceptable? Are they implying that a minimum age of consent is an unnecessary restriction on “freedom”? And if so, whose freedom and whose welfare are they concerned with? Because it certainly doesn’t look as if they are considering the freedom of underage girls to grow up without sexual abuse, or the disproportionate risks that such a move would place on them.
In short, the ICJ report reads more like a male rights activist charter than a human rights treatise. We call on the “eminent jurists” to withdraw it and return to the drawing board, this time centering the welfare and human rights of the most marginalised women and children on the planet and without the assistance of the well-funded lobby for the expansion of the sexual exploitation industrial complex. And this time excluding any members who have a history of sex buying.