By J Smith

Background

In a recent opinion piece, the Council of Europe’s Human Rights Commissioner, Dunja Mijatović, argues that criminalizing any party involved in the prostitution industry increases stigma and the risk of violence against women in prostitution.

In order to protect women from stigma, harm, and law enforcement (who, she suggests, often represents a danger to women in prostitution), a “human-rights based” approach must be implemented – the full decriminalization of pimps, brothel-keepers, sex buyers, and sellers.

Exposure to violence and inadequate protection from law enforcement and the justice system

Mijatović claims the increased violence among people who sell sex “…is mainly due to their marginalisation and unsafe working conditions, as well as harmful attitudes which persist in society…” She ignores client and pimp violence and the fact that throughout the world, clients and pimps are responsible for almost all murders and violence against women who sell sex. She instead cites law enforcement as the common abusers of women selling sex, yet curiously praises the inclusion of mandatory emergency buttons in rooms in brothels under full decriminalization in Belgium (2022) – ignoring the obvious fact that the need to implement such extreme measures is because of prevalent client violence.

One survey of women in prostitution in New Zealand, which adopted full decriminalization under the Prostitution Reform Act (PRA) in 2003, found that almost 10% of the respondents were physically assaulted by clients, 16% were threatened with physical violence, 3% were raped and 18% had a workplace injury due to violence by a client in the past 12 months alone. “Most of the injuries were sustained through violent altercations with clients, or clients who had been too rough, causing vaginal or anal trauma…” Despite assurances that labor protections will protect women, “…very few reported that they would approach Occupational Safety and Health Services for help [7.6%].”

While Mijatović argues that “A human rights based approach to sex work also means access to rights of sex workers should be proactively facilitated… [such as] access to social rights, including health, housing, education and labour rights…” the connection between fully decriminalizing pimping, brothel-keeping, and sex buying to achieve access to housing, education, or healthcare for low-income women seems nearly incomprehensible.

Criminalisation of “sex work”

Referencing the opinions of Amnesty International and Human Rights Watch, she claims stigma hinders women in prostitution’s access to health services, housing, education, and childcare. She advocates decriminalizing “third parties”, (including pimps, brothel-keepers, and buyers), seemingly in the name of stigma-reduction. The cited Amnesty International paper, provides no evidence the Nordic Model will cause or has ever caused stigma of women in prostitution and provides no evidence full decriminalization will or has ever decreased stigma. Human Rights Watch in contrast, claims they base their support of full decriminalization on their own research which was conducted in several countries – none of the countries having implemented full decriminalization^[1] or the Nordic Model.

Mijatović portrays “third-parties” as supportive “family, friends and colleagues” who are negatively affected when full decriminalization is not implemented. She praises Belgium’s full decriminalization, claiming “The new law also decriminalises third parties, who will no longer be penalised for opening a bank account for sex workers or renting out accommodation, and it allows sex workers to advertise their services…” Most respondents in the cited survey (Brouwers, L. 2020) reported that, of the “third-parties” they have worked with, they almost always included controlling parties such as brothel-keepers (79%) and/or “managers” (59%). Of women working in clubs, 61% were recruited by “organisers”. Conversely, few women surveyed have ever hired a personal assistant (3%), personal driver (5%), or a receptionist (7%). One woman was quoted saying she would not be in prostitution if it were not for third-parties.

Words with negative connotations – such as “pimp” are avoided at all cost – in favor of euphemisms such as “manager” and “third-party”, but according to Brouwers:

“Managers – third parties who have some control over workers’ pay, time or work and who directly profit off sex workers’ labour… Most managers are paid by taking a cut of the worker’s earnings (often a percentage of their income).”

Brouwers, L. 2020, p26

This is what is commonly known as a “pimp”. The Brouwers study claims that while some women appreciated “third-parties” dealing with administrative tasks, many described abusive experiences with “managers” (pimps) controlling them through fines, forcing them to have sex with men against their will, and verbally abusing them with racism, transphobia, xenophobia and sexist body shaming. The author however, makes the perplexing claim that decriminalizing pimping and brothel-keeping will give these women power over pimps and brothel-keepers.

Brothel-keepers interviewed after full decriminalization in New Zealand claimed that women who work for them are not allowed to refuse clients unless there is a very good reason, giving the example of a client being a family member. They claimed, “How can they refuse? The girls are paid to do it”. The final review of the New Zealand Prostitution Law Review Committee (PLRC) claimed “[T]here are still some sex workers that are being required to provide commercial sexual services against their will…” and that brothel-keepers adapted to the new laws quickly. For example, when debt bondage was banned under full decriminalization, brothel-keepers simply changed the name of debt bonds to “indemnity” and continued the practice.

While Mijatović speaks of decriminalizing non-exploitative parties such as landlords and bank tellers, she ignores the fact that most non-exploitative third-parties (such as landlords, bank tellers, accountants, family members) are not criminalized in the majority of Europe, or the world. Similarly, while she praises Belgium because women in prostitution can be independent workers under full decriminalization, women in prostitution can be independent workers in numerous countries in Europe, including Nordic Model countries – yet she seemingly condemns the Nordic Model as causing abuse because women are not employees of legal brothels and because pimping is criminalized. Full decriminalization offers only one thing that policies before it have not, the full decriminalization of all exploitative parties (brothel-keepers, pimps, and purchasers of sex).

It would be difficult finding someone who would argue that bank tellers should go to prison for helping women open bank accounts (or proof that this has ever happened). It is entirely disingenuous of Mijatović to act like that is the extent of “third-party” activity. If the goal were to strengthen laws so that non-exploitative parties, such as landlords, were clearly not in an alleged legal gray zone under brothel-keeping laws, simply advocate for that – it is a position most abolitionists and women’s rights activists would support.

To support the assertion that any “third-party” criminalization is dangerous, Mijatović cites a report from Front Line Defenders. According to the commissioner, they found that, “such laws [criminalization] further endanger and undermine the work of human rights defenders…they make it dangerous or illegal for activists to organise health and human rights outreach in brothels or to contact victims for fear of being arrested and accused of criminal activity”.

This cited research was carried out in highly volatile areas: El Salvador, Myanmar, Tanzania, Kyrgyzstan, and Tunisia, where prostitution is illegal and police brutality is rampant. Drawing parallels between the impact of policies on human rights defenders in these countries – with Myanmar recently experiencing what has been termed a “genocide” – and potential effects in European countries under the Nordic Model seems to be quite the stretch of the imagination to say the least. Moreover, this overlooks the fact that in countries where the Nordic Model is in place, human rights defenders and non-governmental organizations (NGOs) who offer support to people who sell sex do operate effectively and openly and collaborate with law enforcement without the challenges faced in Kyrgyzstan.

She argues that prostitution is not the same as violence against women and that criminalization of “third-parties” with the goal of protecting women from violence makes no sense because, “…gender-based violence is already criminalised”, regardless of the victim being in prostitution or not. However, she also states that it was only in 2023 that women in prostitution gained the right to refuse clients in Belgium, Belgium historically operating under legal prostitution.

New Zealand also has the legal right to refuse clients and this has not worked in practice. In a 2007 post-full decriminalization survey of people in prostitution in New Zealand, 35.3% of the respondents had accepted a client they didn’t want to in the last 12 months and that 10.5% had refused a client and had then been punished.^[2]

There is no confusion in countries that have adopted the Nordic Model. Nonconsensual sex is criminal rape – not a labor rights issue.

“Sex work” in relation to sexual exploitation and trafficking in human beings

She claims two anti-human trafficking organizations, Global Alliance Against Traffic in Women (GAATW, 2011) and La Strada (2016) “… consider that the criminalisation of the purchase of sex has no proven impact on preventing and combating human trafficking and may even undermine the identification of victims of trafficking among sex workers and their protection.” Despite La Strada’s claim, “We are aware that the sex industry is a vulnerable sector for human trafficking…” they also claim they oppose criminalizing men who purchase sex, as, “…La Strada respects the right of people to make their own individual decisions, including the decision to undertake sex work…”

GAATW endorses full decriminalization of prostitution claiming “sex workers and their allies” want full decriminalization, citing an organization that has been documented to also represent pimps and brothel keepers. If endorsements are so compelling to the commissioner, it is disheartening that she chooses not to take into consideration the endorsements from the numerous anti-human trafficking organizations such as Coalition Against Trafficking in Women (CATW) or Equality Now that support the Nordic Model.

Evidence indicates significant human trafficking and coercion within the legal sex trade. Dutch prosecutors suggest up to 70% of women in prostitution in the Netherlands are coerced. The US Trafficking in Person report (2013) states that up to 90% in Spain may be controlled by crime networks. A 2021 European Parliament study reveals most men who purchase sex from migrant women in the EU are likely buying from trafficking victims, with the majority of women in prostitution in the EU being migrants.^[3]

Moreover, the link between child sexual exploitation – trafficking under international law – and prostitution is undeniable. In a survey of women in prostitution in New Zealand, 29.1% of Māori, 31.7% of Pacific islander, and 11.7% of people of European descent reportedly entered “sex work” before the age of 18 (victims of child sexual exploitation). In another study, across nine countries, an average of 63% (ranging from 34 – 84%) of women engaging in prostitution as an adult were sexually abused as children.

GAATW believes that criminalization will hamper victim identification as clients will not be able to report human trafficking to the police without fear of their own arrest. In a survey of sex buyers in Germany, 55% claimed to have personally observed human trafficking or pimping and 62% of the sex buyers stating that they suspected trafficking, however, only 1% of buyers who observed this reported it to the police. Out of the over 300,000 men who purchase sex at least once a year in Switzerland, only six (not 6% – just six clients) reported concerns to the National Hotline Against Human Trafficking and Exploitation in 2021. This is no higher than the six clients who reported to the hotline prior to their client trafficking awareness campaign in 2019.

The commissioner argues against the Nordic Model, alleging criminalizing third parties does not reduce trafficking. However, we do know not criminalizing the sex industry increases sex trafficking. Despite legal or decriminalized prostitution being portrayed as safe and illegal prostitution being portrayed as dangerous, according to INTERPOL, over 80% of the criminal networks in the EU use legal businesses to hide their criminality. In 2023, the European Parliament reported:

“…according to Europol, there are Member States where prostitution is legal, making it much easier for traffickers to use the legal environment to exploit their victims; whereas human traffickers often use legal businesses to cover up their exploitative activities; whereas legalised prostitution therefore serves as an incentive for human trafficking for the purpose of sexual exploitation; whereas Europol reports establish that, where prostitution is legal, trafficking in human beings and violence perpetrated against its victims and other people in prostitution increases tenfold, as perpetrators can hide behind legal structures; whereas organised crime and corruption, human trafficking, very violent crime and corruption grow when all facets of prostitution are legalised; whereas the demand for ‘sexual services’ is large and widespread and buyers cannot and/or do not attempt to see the coercion that pushes people into prostitution; whereas this demand cannot be met without women and girls that are victims of trafficking or those who would exit prostitution if they could…”

European Parliament, 2023, p. 11

Evidence supports the idea that not just legal prostitution, but full decriminalization of prostitution hampers victim identification as well. For example, New Zealand has never officially documented a sex trafficking case in the 20 years since decriminalization, which has been used to claim that sex trafficking in New Zealand under decriminalization has never occurred. However, the United States Department of State Trafficking in Person Report (2022) claims there is ample evidence to prove that trafficking occurs within New Zealand’s legal sex industry, and that the restrictions in the Prostitution Reform Act hamper the ability to identify victims.

Following the decriminalization of prostitution in Belgium on June 2, 2022, identified cases of human trafficking for sexual exploitation fell by 33.7%, from 457 in 2021 to 303 in 2022, which could potentially represent a significant decrease in victim identification.

Additionally, Belgian police were forced to close at least 30 brothels last year due to the extensive sex trafficking of Nigerian women. This raises concerns about the extent to how “destigmatized” the purchase of sex is in Belgium, which increases the demand for prostitution – a demand which clearly has not been filled by consenting women alone.

Mijatović claims:

“As far as third-party criminalisation is concerned, proponents argue that such legislation reduces demand, helps decrease the volume of sex work overall and contributes to the fight against gender-based violence and human trafficking for the purpose of sexual exploitation…However, there are consistent reports showing that, in some states, not only have commercial sexual services not been reduced but they have possibly even increased in the period following the criminalisation.”

The “consistent reports” she cites, is in fact just one report from Northern Ireland, which was completely debunked. While the author of the Northern Ireland report claimed there was no decrease, even an increase in the number of women in prostitution after the Nordic Model, the analysis has numerous significant methodological errors that when accounted for showed a reduction in prostitution after the law. She raises the specter of deportation in Nordic Model countries. The Nordic Model does not cause deportation – in fact more women appear to be banned from entering the country or deported from countries with full decriminalization, such as New Zealand, than Nordic countries. She claims:

 “Criminalisation and the enforcement of punitive provisions against sex workers, clients or third parties has significantly reduced sex workers’ access to rights and essential services and has led sex workers to live and work in a clandestine manner and in isolation, in fear of the justice system.”

While she decries criminalization of third-parties as causing women to be in fear of the justice system, she is herself spreading the misinformation that police are predominantly responsible for the violence against women in prostitution. In the Republic of Ireland, research shows that there was no spike in violence among women in prostitution after the implementation of the Nordic Model and that women in prostitution had a more positive relationship with the police after the implementation of the Nordic Model and an increased willingness to report violent crimes. The judicial system now takes these reports very seriously, with numerous convictions of people who committed crimes against women in prostitution, ranging from 2 to 20 years imprisonment. Although violence remains high, there was no spike in violence after the Nordic Model.

The way forward: a “human rights based approach”

Mijatović states “Council of Europe member states should adopt a human rights based approach to sex work [decriminalization].” She baselessly claims that while criminalizing “clients or third parties has significantly reduced sex workers’ access to rights and essential services” and causes them to live in fear and isolation,

 “…decriminalisation of consensual adult sex work has had positive effects on the safety of sex workers and on their access to social protection and health services, resulting in improved health outcomes.”

Under decriminalization in New Zealand, there was no reduction in violence, no increased use of condoms, no reduced stigma, no increase in reporting crime to the police. While most women had knowledge of occupational rights, women were incapable of asserting them, only 7.6% of women claimed they ever would report rights violations to Occupational Safety and Health (OSH). One survivor of prostitution in New Zealand claimed:

“Of course we’re still stigmatised when the men who pay to bypass sexual consent have been decriminalised and our pimps who financially exploit the situation are legitimized as just regular business operators and entrepreneurs. The only way to think it’s OK to abuse us this way is to dehumanise us and believe we deserve it. That it’s our ‘choice’ and therefore our fault.”

Chelsea Geddes, 2018

In addition to no evidence of a protective effect, there was a dramatic increase of the scale of the sex trade. New Zealand Police estimates document that from pre-law to post-law the number of women in prostitution increased from 4,272 to 5,932, an increase of 39%. From a survey of women in prostitution, of those who entered prostitution after decriminalization, 41% reportedly entered prostitution because it was “not against the law.”

The UN Working Group which the commissioner cites numerous times admits: “…certain problems, such as stigma and societal discrimination persist even in decriminalised contexts…” If stigma fuels danger associated with prostitution, yet full decriminalization fails to reduce stigma, how could one argue that decriminalization solves all problems linked to prostitution or that it represents a human rights approach compared to the Nordic Model, which decriminalizes selling sex, offers exit services, and criminalizes exploiters – which is more aligned with human rights principles. However, it seems that according to Mijatović, a policy such as the Nordic Model is completely incompatible with human rights, as she stipulates:

“A human rights based approach also means that consensual sexual relations between adults for remuneration should not be criminalised.”

While this is worded in such a way that it invokes an image of two equals engaging in mutually enjoyable sex – the observed realities demonstrate that the issue of consent becomes challenging due to the numerous vulnerabilities that drive people into prostitution in the first place. Multiple researchers in countries with decriminalized and legal prostitution report not including migrant women in prostitution in research because the women could not speak the local language. Not only were they excluded from surveys and interviews, but in New Zealand, brothel-keepers physically prevented researchers from entering majority Asian brothels to distribute the survey. This raises concerns about the willingness of these women to engage in prostitution at all, as interviews with NGOs and other brothel-keepers after decriminalization reported that many migrant women are known to be isolated within these brothels. The Prostitution Reform Act (decriminalization) restricts police ability to inspect brothels and legally prevents police from compelling age identification of those who appear to be minors in sexual exploitation – effectively preventing their protection.

One wonders how the issue of consent is dealt with or how the negotiating power of people in prostitution would be increased by decriminalizing pimps (a common claim) when so many people in prostitution cannot verbally communicate with their clients to negotiate? “Sex work” NGOs that perform mandatory inspection of legal brothels in Geneva have noted that, in a plurality of brothels, “negotiations” regarding the sex acts women will perform are conducted between receptionists and clients, as “sex workers” lack the basic language skills to do so. Among the 1,394 contacts made in the historic sex work district of Geneva in 2021, 92% of interviews were conducted in a language not local to the country. Commissioner, is this your idea of “consensual sexual relations between adults?”

Listen to “sex workers”

While Mijatović claims: “…sex workers in all their diversities and their representative organizations must be duly consulted and included in the policy-making process…”

The vague term “sex worker” doesn’t specify whether the “work” involves direct sexual intercourse, such as prostitution, indirect activity such as webcam modeling, or exploitative roles like pimping,

One investigation found that only 3% of members in Call Off Your Old Tired Ethics (COYTE)^[4] were women in prostitution and that organizations that claimed to be “sex worker unions” were anything but:

“In spite of my efforts, I was not able to find any group that functions as a trade union in the true meaning of the term: an organisation run and financed by its members, negotiating with employers to promote the best interests of workers. Although there may be or may have been such groups, I still draw the conclusion that the majority of groups calling themselves trade unions for prostituted individuals are mislabelling and misrepresenting themselves. Instead, most of them are interest groups using the term ‘trade union’ to make prostitution out to be a job like any other.”

Kajsa Ekman, Being and Being Bought, p. 69

Confirming Kajsa’s findings, a study commissioned by the EU Parliament found: “The organisations usually present themselves as grassroots organisations; however, the IUSW [“International Union of Sex Workers”] represents also brothels and pornographic film makers.” The largest “sex work” organizations in the world including Global Network of Sex Work Projects (NSWP),^[5] indeed defines “sex workers” as including pimps and brothel-keepers, and therefore represent their interests. Amnesty International, who is repeatedly cited in the commissioner’s opinion piece, began supporting full decriminalization of pimps, brothel-keepers and sex buyers at the recommendation of a known pimp who has misleadingly described himself as a “sex worker.”

Hopefully, when the commissioner speaks of the need to include “sex workers” in “all their diversity” in policy-making, she is not including pimps or brothel keepers, who clearly financially and personally benefit from their own decriminalization. Despite claiming the “experiences and perspectives” of all “sex workers” are essential for developing policies that support human rights and dignity, the experiences of women who have exited prostitution are often ignored in favor of “current sex workers”.

Mijatović claims to have consulted with “sex workers” and their “representative organisations” prior to endorsing full decriminalization. Given the vague definition of “sex worker”, that could include anything from a woman selling sex to a man selling women, and the documented presence of pimps and “third parties” in “sex worker representative organisations”, it is reasonable to wonder who Mijatović consulted with.

Moreover, It does not appear that any of the hundreds of women’s rights and anti-human trafficking organizations globally who have called for the Nordic Model were included among the “relevant international organisations and experts…” she consulted. Given their apparent exclusion, it is unfortunate that her opinion piece incorrectly suggests a unanimous agreement among experts and rights organizations regarding prostitution policy.

Conclusion

Mijatović’s opinions are in direct opposition to the rights of the most marginalized in Europe, migrant women, people with disabilities, as well as women, who she acknowledges are disproportionately in prostitution. By advocating for decriminalization of exploitative parties, she empowers only brothel-keepers, pimps, and sex buyers. Her opinion piece seems to systematically neglect the danger posed by clients, pimps and “third parties”, while overrepresenting the danger posed by law enforcement. The human rights commissioner’s implication that police are a danger to women in prostitution – apparently citing police behavior in Myanmar and El Salvador – sets a dangerous precedent, as it undermines women’s trust in law enforcement and deters them from reporting abuse.

Her emphasis on the need for increased social support in Europe, including an increased access to education, housing, and healthcare, is welcome, yet the vast majority of women in prostitution are migrants, many not from Europe. The inherent challenge in addressing exploitation lies not just in economic inequality in Europe, but in the disparity between policies in Europe and economic conditions in the Global South. For example, many trafficking victims come from countries like Nigeria and Vietnam, where European economic policies have little influence on women’s safety.

As long as there is a demand for prostitution in Europe, encouraged by a legal or decriminalized system, sex trafficking of women from regions with economic insecurity will occur. Full decriminalization advocates may propose providing work visas to women for the purposes of prostitution to provide labor rights, however, this would unethically chain these women to prostitution to escape violence in their home countries.

The only feasible strategy to address the exploitation of women in prostitution, given its transnational nature, is to reduce the demand for it. Contrary to meaningless slogans like “stigma kills!” and “rights not rescue!”, true human rights include life, liberty, freedom from slavery, and the right to work and education. Human rights, which are inherent to every human being, do not extend to the access to women’s bodies.

There are extensive human rights abuses in the legal and decriminalized sex trade.^[6], When confronted with such reports, advocates of decriminalization often deflect, citing the right to bodily autonomy, or accuse those highlighting abuse as moralizing or stigmatizing. However, the Human Rights Commissioner has an obligation to contend with these ugly truths.

Despite numerous regulatory changes, whether through the introduction of new rules or the removal of existing ones, pimps and brothel-keepers have consistently adapted to policies meant to safeguard individuals in the sex trade. These policies end up legitimizing the industry, inadvertently increasing demand, the industry’s scale, and the extent of exploitation. This situation contrasts with sectors like agriculture, which, although human rights violations occur, the industry is vital for survival – in contrast, men’s access to women for sex on demand is not.

Women who would demand equality, under the abolishment of prostitution, are now being silenced and shamed, as advocates for full decriminalization argue women’s equality can only come at the expense of more vulnerable “sex workers” lives. The evidence supports the opposite – all benefit from gender, racial, and economic equality.

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Please write to your country representatives in the CoE Parliament (PACE)

Mijatović published her piece while the European Court of Human Rights is currently considering a challenge to the French Nordic Model legislation. This raises the question of whether she was seeking to influence the Court’s decision. But regardless of her motivation, it reads like an attempt to influence the Court in this matter. This is a very serious matter. We have therefore prepared a template letter that you can use to write to your country representatives in the CoE Parliament (PACE).

Notes

^[1] Including Cambodia, China, Tanzania, the United States, and most recently, South Africa.

^[2] Respondents who claimed they did feel more empowered felt this because selling sex was not criminalized – not because pimps were decriminalized. PLRC 2008 p. 17

^[3] EU Parliament, 2023, p. 18; Schulze, E., et al., 2014, p. 27

^[4] An organization which presents itself as a “sex work union”

^[5] Which represents numerous “sex work” organizations

^[6] For example:

• GHI. (2021). Une Genevoise vend sa virginité pour un demi-million de francs accessed Feb 17, 2024
• The Independent (2017) Pregnant women are being legally pimped out for sex – this is the lowest form of capitalism
• Psychology Today (2016) Erotic Lactation. accessed 2/19/2024
• Lamprecht, C. (2023). “Deeply inhuman: Excitement to brothel poster in Jakomini.
• Der Speigal (2023) Rape, forget, lost.