The Future of Prostitution Law in the United States
This essay on two popular alternatives to the criminalization of prostitution (legalization and the Nordic model) with a focus on their potential adoption by the U.S.A. consists of a literature review examining various views on the nature of the sex industry, namely works by Murphy (2014), Johnson (2014), “A Personal Choice,” by an unknown author and published by The Economist (2014) and Post (1999); research of the Netherlands’ experience with legalization, paying special attention to the growing number of persons being trafficked into the country; and an exploration of the Nordic prostitution model introduced by Sweden, which decriminalizes the selling of sex but in turn criminalizes buyers. The conclusion is that legalization has vastly failed in the Netherlands and that the Swedish approach is by far the most successful, comprehensive and progressive prostitution model, making it the one with the most potential of achieving positive results in the United States.
Keywords: prostitution, Netherlands, human trafficking, Nordic model, Sweden
The Future of Prostitution Law in the United States
The dialogue around prostitution has gained momentum in the western world in the last decade through feminist concerns and a wider trend of “sex positivity.” This mind shift makes room for a subject that not long ago would be considered too taboo for mainstream discussion. The main question surrounding the topic in the United States seems clear: should prostitution be legalized? The subject proves to be much more complicated than it appears, however, shining a light onto very serious underlying issues and attracting many varying perspectives. To reach a conclusion, the two main alternatives to criminalization should be considered: the legalization of prostitution, as best exemplified by the Netherlands, and the Nordic Model, introduced by Sweden, where sex work is decriminalized but its purchase is not.
Ample research has been conducted on both models, and proponents of each are frequently at odds. The first point of disagreement that surfaces is the very way people see prostitution as an occupation. The unnamed author of “A Personal Choice” (1999) is of the opinion that it is a job much like any other. The authors of “Is the Nordic Model for Us?” and “Legalizing Prostitution: A Systematic Rebuttal,” however, believe selling sex is nothing like other professions: Dianne Post (2014) notes that other actions that commodify the human body in similar ways (such as the selling of organs, or buying and selling babies instead of adopting) are utterly unthinkable today and that work that does not require specialized skill or knowledge can’t be considered a profession. Additionally, Meghan Murphy (2014) reminds us that prostitution is an extremely dangerous activity, making the women involved in it much more likely to, for example, be murdered than women in other occupations.
Closely tied to the nature of prostitution, and a good indicator of it, is the reality of prostituted women themselves. Murphy (2014) and Post (2014) agree that it cannot be said that most prostituted women have simply made a free choice, since marginalizing factors are, in the most part, what lead women into the sex industry (especially poverty, but also colonialism, addiction and other influences). To support her position, Murphy (2014) cites a 2008 survey including over 800 “sex workers” in which 89% reported they wanted to leave the industry. In “A Personal Choice’s” view, however, most prostitutes are, in fact, merely exercising free choice (A Personal Choice, 1999). Elizabeth M. Johnson (2014) remarks on the fact that prostitutes, unlike people involved in other illegal trades such as drug trafficking, are often at an economic disadvantage compared to their customers (or, as they are usually called by women in the industry, “johns”). Johnson (2014) adds that those women are also at a higher risk of having violence inflicted upon them, usually by a customer, while having less legal recourses to protect themselves and seek justice.
While the impact of prostitution on women involved in it is relatively easy to see, its larger, more nuanced social impact must not be neglected. Murphy (2014) believes prostitution has a negative impact on how people view women, as well as the relationships and dynamics between the genders, reinforcing the patriarchal domination of women, and as such is incompatible with feminist thought. Similarly, in Post’s (2014) opinion, prostitution negatively affects all women by: objectifying them through the sale of their bodies as commodities; allowing men to define them by sexualizing their bodies; undermining their roles in society; and maintaining a moral double standard between men and women.
Having considered all of these major aspects of the sex industry, the ultimate, hardest question it raises is the juridical one: what is the best comprehensive legal approach to prostitution in the United States? Murphy (2014) is of the opinion that yes, the Nordic model should be adopted, decriminalizing prostituted women so that they have a better chance of leaving, as well as pursuing the legal system if violated, while criminalizing pimps and “johns,” and thus tackling the demand for sexual services (it should be noted that decriminalization is not the same as legalization: the latter entails making the occupation and its professionals regulated and licensed by the government as they generate tax revenues—it means that if a woman were to go to an employment agency without any qualification, they could try to persuade her to take such a job, and possibly remove her unemployment benefit if she refuses). To back her position, she cites that the model has been giving Sweden great results, with prostitution being reduced by half and much fewer men reporting paying for sex (Murphy, 2014). She also adds that the government should adopt a long-term, preventative approach by tackling the factors that cause women to go into prostitution in the first place, as well as offer help for women who wish to exit it, and train the police force to properly deal with the new state of affairs.
Post (2014) is of the opinion that prostitution should not be legalized or in any way legitimized (for that would only further its social and economic relevance), and that individual prostitutes shouldn’t be criminalized. In his article, Johnson (2014) displays a mostly impartial position, merely calling for the end of discrimination in the enforcement of prostitution laws, whatever they are: both buyers and sellers should be persecuted equally. Additionally, he states that the standard of proof for the defense of discriminatory enforcement should be lowered. Standing with the most divergent position on the matter, however, the author of A Personal Choice (1999) believes that, unless children or human trafficking are involved, the government should not intervene. In the article, they suggest that the natural shift of prostitution to the online environment will make it safe and thus no longer a problem (A Personal Choice, 2014).
Prostitution is a challenging problem and an urgent concern for human rights advocates, involving several facets of our culture. Murphy stands out as the most thorough in her arguments, using a current, effective legal and social model designed to address the issue (the Nordic model) as an example, supporting the validity of her position. The same cannot be said of “A Personal Choice’s” author, who set forth their view that prostitution is merely a harmless transaction between consenting adults without sufficient evidence to back up that claim. They made use of shallow, one-sided arguments which failed to address the amply studied dangers and social repercussions associated with the occupation. When considering the sex industry, it is important that its many variables be taken into account. This has been shown throughout the sources analyzed in this review: every article had something different to contribute to the literature on the subject, even when they agreed with one another. This can be seen, for example, in the comparison between Murphy and Post: both authors agree that most prostituted women are forced into prostitution by marginalizing factors (Murphy, 2014; Post, 2014). However, while Murphy (2014) points out that most people in the sex industry wish to leave, Post (2014) chose to focus on the fact that women’s choices, no matter how seemingly “free,” should be considered within the context of their subordination to a patriarchy, thus adding a new perspective to the shared opinion, which is crucial to fully understanding and addressing prostitution.
Legalized Prostitution in the Netherlands
The experience of the Netherlands, which has legalized prostitution in the year 2000, provides great insight into the nature of sex work and the challenges of regulating it. Giving the approach great popularity, with several countries discussing the possibility of adhering to the Dutch model, and some actually doing so (as is the case of Germany, Greece and other nations) proponents of legalization (both in the Netherlands 16 years ago and currently across the globe) argue that when prostitution is regulated by the state, sex workers are safer in every way as they are free to contact the police when victimized, and have easier access to social programs like health care. They also hope that the stigma associated with the occupation will decrease. Examining the sex industry in the Netherlands over a decade after legalization, however, shows that this has not been the case.
When prostitution became legal in the Netherlands, the biggest argument for legalization was that, other than making sex workers safer, it would be a huge blow to the organized crime of human trafficking, since women would supposedly be able to freely choose the occupation and there would be no need to coerce or force anyone into it. However, this prediction has proven wildly inaccurate: from 2000 to 2009, there had been a steady, steep increase in trafficked people coming into the Netherlands: in 2000 there were 341 possible victims, and by 2009 there were 909 (Staring, 2012), the vast majority of which were being exploited in the sex industry (Staring, 2012). This shows that prostitution is not an industry that privileged Dutch women with better prospects would choose, while women from poor countries who are struggling financially can be more easily lured or coerced into it.
Exposing and fighting this sector of organized crime has proven incredibly difficult—in a recent effort to curb trafficking, the Dutch government has criminalized illegal residence. Research shows, however, that the opposite is likely to occur: traffickers will have a very powerful blackmail strategy now that their victims will be more scared than ever to go to authorities, in fear of being arrested and deported. The high incidence of human trafficking into the Netherlands is organized crime’s response to a lucrative market: the legal status of prostitution creates a larger demand for it, in part from sex tourism, including for illegal forms of sex work, like underage (even prepubescent) prostitutes: studies have shown that far more men hire prostituted women in places where the trade is legalized than they do where buying sex is criminalized, with 1 in 4 men admitting to the practice in Germany under legalization, versus 1 in 13 in Sweden since they’ve created the Nordic model (Murphy, 2014).
Even though there is a boost in demand as men feel more comfortable paying for sex, the act of selling it is still far from socially acceptable in the Netherlands. Since legalization, prostitution has not miraculously become something Dutch people decide to do out of passion or because they think it’s a fun or easy job: it’s still a last resort, made obvious by the fact that most prostitutes are immigrants from poor regions and that, according to a survey including 800 prostitutes from several countries of varying levels of criminalization and legalization, 89% wish to leave (Murphy, 2014). This stigma is partially the result of the heterosexual double standard regarding sex which results in sex workers (especially women) being looked down upon. This trend, among other things, causes clients to objectify prostituted women, becoming less likely to empathize or care if they see abuse. It also leads to prostituted women lying to their families, hiding their true occupation, and often enduring ridicule and harassment from others when they learn of their livelihood, which causes a great deal of stress and psychological trauma (Vanwesenbeeck, 2005).
Immigrant prostitutes, including many that have ended up in the Netherlands as victims of human trafficking, have an even harder time: they often can’t go back to their families because they wouldn’t be accepted after working in the sex industry (Willemsen, 2006). Even those who have only done sex work for short periods of time and in a casual manner report feeling ashamed and dirty, and are often in denial about the nature of what they have done, stating that it was not quite prostitution, as shown in their testimonials in the study Young Dutch People’s Experiences of Trading Sex: A Qualitative Study (van de Walle, Picavet, Van Berlo & Verhoeff, 2012). Vanwesenbeeck’s study shows that emotional exhaustion is extremely high among sex workers and nurses alike, but the psychological distress seen in pathologically high rates among prostituted women is depersonalization: having been linked to low self-esteem and low autonomy, it serves as an unhealthy coping mechanism in which victims distance themselves from what they do, becoming very cynical towards their clients (Vanwesenbeeck, 2005). These patterns seen in the psyche of sex workers demonstrate that prostituted women (even those in a relatively privileged position) don’t feel equal to their clients in the context of the transaction, nor are they seen or treated as such.
While the psychological and emotional distress caused by social stigma is a significant burden that negatively impacts sex workers’ health, even more pronounced is the impact caused by the constant threat and reality of physical or sexual violence from clients: prostitutes are 16 times more likely to be murdered than other women (Murphy, 2014), and legalization hasn’t changed that. In Amsterdam, window prostitutes are murdered every year, and recently several brothels have been shut down because it was found that organized crime had taken over (Murphy, 2014). In her study containing a small sample of 105 relatively privileged sex workers, Vanwesenbeeck has found that within just one year, one in four had experienced bullying at work, while a quarter experienced physical violence, and almost half surveyed claimed to know of physical violence suffered by colleagues (2005). The hope that violence would cease once prostitution became legalized was based on the idea that they would now be able to press charges against their aggressors without fearing prosecution. This expected outcome hasn’t come to pass, due to the fact that large numbers of sex workers have been trafficked and are residing in the Netherlands illegally, in addition to the reality that even those working legally often do not wish to be exposed as prostitute by pursuing justice. Furthermore, rape and other forms of sexual harassment thrive in cultures where women are objectified, and prostitution is the apex of sexual objectification of women—once it’s been normalized, it comes as no surprise that men’s attitude toward sex workers would worsen.
Sixteen years after legalizing prostitution, the Netherlands has only seen an increase in exploitation and human trafficking in its sex industry, which remains extremely dangerous, poorly regulated and socially unacceptable to most people. “In Amsterdam, the Deputy Mayor—who recently became Deputy Prime Minister of the country—took the position that no women chooses this work voluntarily” (Huisman & Kleemans, 2014, p. 220). The question raised by Holland’s failure is a fundamental one that all nations should ask themselves before following suit: is it really possible to strip crime and abuse from an industry that is so intrinsically linked to human rights violations, objectification and sexism?
The Nordic Model
The United States has legalized sex work in some cities in the state Nevada, and both legalization and criminalization have proved futile in tackling the problems imposed by the sex industry. A promising alternative is the Nordic Model, pioneered by Sweden and subsequently adopted by Norway, Denmark, Finland, Iceland, Northern Ireland and, most recently, France. The Nordic approach sees violence and crime as inherent to sex work and seeks to undermine it.
The Swedish prostitution model (locally called the Kvinnofrid law), established in 1999, has a comprehensive design but a simple premise: born primarily from the effort of female parliamentarians with a feminist agenda, the model focuses on tackling the demand for prostitution by criminalizing buyers of sex (by charging them with fines), while protecting prostituted women by decriminalizing the act of selling sex, in an attempt to avoid further victimizing people in an already underprivileged position and who often come from troubled backgrounds (Post, 1999). It operates in this fashion because it recognizes prostitution as a gendered issue—both a product of gender inequality and a tool in maintaining the subordination of all women—as well as a form of violence against women and a violation of their human rights; it recognizes the fundamental power imbalance in the dynamics between (overwhelmingly) men who pay for sex, and (overwhelmingly) women who sell their bodies, in which the male clients are in a privileged position relative to the sex workers, who usually choose prostitution as a last resort. Viewing prostituted women as victims of a patriarchal structure, the model also offers them exit strategies for those who wish to leave the sex industry, as well as social support services aimed at helping sex workers stay safe. This aspect of the law is essential because, especially with prostitution under attack, people who would otherwise make a living off of sex work need alternatives and help preparing for a different industry.
Unlike both the partial legalization and the total criminalization of prostitution, which have persistently failed in making the industry respectively safer and more contained, the effort put into curbing the demand for sex work set forth by Sweden has proven extremely effective in crippling the sex industry: now, 1 in 13 men buy sex, compared to 1 in 8 before the adoption of the model (Murphy, 2014); the number of prostituted women has halved since the implementation of the Nordic model (Aleem, 2015); and violence against sex workers have also decreased dramatically (Berg, 2013), since they can now threaten to call the police on their clients. The decline in men who buy sex in Sweden, combined with the fact that over 80% of Swedes currently agree with the Kvinnofrid law (Murphy, 2014), shows that there has been a shift in mentality among Swedish citizens, where paying for sex is now frowned upon.
Despite its success, the Nordic model is not without its critics. A common concern of critics relates to the perceived double standard of decriminalizing prostitutes while prosecuting their clients. While the rationale behind that policy has already been explained by the context in which men and women trade sex, it is worth addressing a particular critique regarding a different aspect of that supposed double standard, laid out very eloquently by Cas Mudde in “The Paternalistic Fallacy of the ‘Nordic Model’ of Prostitution.” Mudde argues that by criminalizing buyers while viewing prostitutes as victims, the Swedish model is removing agency from women and treating them like children, while holding men (clients) morally accountable for their actions, and that is at odds with gender equality and feminist theory (2016). Although this is an understandable concern, it is not true that the Nordic model is holding women to a lower moral standard than men, as if they are not accountable for their choices—it is, instead, looking at those choices while considering the context in which they are made, and attempting to level the playing field by not further marginalizing and prosecuting an already oppressed group of people. Men are the ones held accountable for buying sex because, unlike prostituted women who overwhelmingly enter the industry from a place of desperation or coercion (Post, 1999), they truly, freely choose to indulge in the buying of other human beings for entertainment from a privileged position, which means they are essentially taking advantage of someone else’s unfortunate situation. The idea that sex workers and their clients play morally equivalent roles in the trading of sex is simply untrue.
A very important critique of the Nordic model is one put forth by human rights organization Amnesty International. Through their own research on the Swedish sex industry, they have found that, even though the model claims to protect prostituted women, many of them are negatively impacted by law enforcement which has made the “promotion of prostitution” illegal, even if not done by third parties; law enforcement may also racially profile and deport prostitutes residing in Sweden illegally, which is inhumane; as a result of this prosecution, social stigma has increased, causing many property owners to refuse leasing to assumed sex workers in fear of getting in trouble with the police (Grant, 2016). This is a legitimate concern and a real problem in Sweden: there certainly is room for improvement in the model, and there has been improvement throughout the years. Possibly the most damaging of such initiatives, “operation homeless” actively sought to find sites where prostitutes ran their business and pressured landlords to evict them under threats of charging them with running a brothel (this program was canceled in 2014). It is important, however, to keep in mind that these efforts exist in order to keep human trafficking, notoriously common in the sex industry, in check. The ultimate goal of the Nordic model is to eradicate prostitution, as it is seen as more than a local social problem or an unfortunate symptom of poverty, but as human rights violation and a significant threat to gender equality, and any struggle along the way is worthwhile for future generations where prostitution is but an embarrassment of the past.
Undoubtedly, the most common opposition to the Nordic model comes from proponents of legalizing prostitution, who believe it is unrealistic to strive for the eradication of the occupation and that it can, once regulated, be a healthy profession like any other. This position has, of course, proven greatly naïve and inaccurate, considering the Nordic model is indeed succeeding, whereas legalization has been an immense failure everywhere it’s been implemented (the Netherlands being the best example). Since legalizing prostitution in 2000, the country has seen human trafficking flourish and its sex industry has grown to an unmanageable size (Staring, 2012).
When trying to find a solution to a phenomenon as complex and as deeply ingrained in our culture as prostitution, it is of utmost importance to look at the big picture and think ahead. Legalizing prostitution hasn’t worked because it is an extremely superficial and short-sighted approach that doesn’t foresee the challenges of distinguishing legal from illegal or exploitative forms of prostitution, and total criminalization does not work because it doesn’t address the underlying issues that drive women into sex work in the first place (such as poverty, addiction, troubled families, coercion, human trafficking and the wider context of a patriarchal society). The Nordic model, while not perfect from the point of view of the individual prostitute, succeeds because it attempts to take all of these factors into account, while looking to a future without prostitution as a goal. It is our best, most fair hope to tackle this obstinate, pervasive social ill.
Grant, Melissa Gira (2016). Amnesty international calls for an to the ‘nordic model’ of criminalizing sex workers. Retrieved from: https://www.thenation.com/article/amnesty-international-calls-for-an-end-to-the-nordic-model-of-criminalizing-sex-workers/
Mudde, Cas (2016). The paternalistic fallacy of the “nordic model” of prostitution. Retrieved from: http://www.huffingtonpost.com/cas-mudde/the-paternalistic-
Peters, Mary Ann (2016). Nordic model key to beating exploitation of sex workers. Retrieved from: http://www.cnn.com/2016/04/18/opinions/prostitution-nordic-model-
The guardian view on criminal policy: sex, money and the long arm of the law [Editorial]. (2016). Retrieved from: https://www.theguardian.com/commentisfree/2016/apr/07/the-guardian-view-on-criminal-policy-sex-money-and-the-long-arm-of-the-law
Aleem, Zeeshan (2015). 16 years since decriminalizing prostitution, here’s what’s happening in Sweden. Retrieved from: https://mic.com/articles/112814/here-s-what-s-happened-in-sweden-16-years-since-decriminalizing-prostitution#.a7SBYg1Jt
Goldberg, Michelle (2014). Swedish prostitution law is spreading worldwide – here’s how to improve it. Retrieved from: https://www.theguardian.com/commentisfree/2014/aug/08/criminsalise-buying- not-
Huisman, Wim; Kleemans, Edward (2014). The challenges of fighting sex trafficking in the legalized prostitution market of the netherlands. Crime, Law and Social Change, 61 (2), 215-228.
Johnson, Elizabeth M. (2014). Buyers without remorse: ending the discriminatory enforcement of prostitution laws. Texas Law Review, 92 (3), 717-748.
Murphy, Meghan (2014). Is the nordic prostitution model for us?. Herizons, 24 (4), 6-8.
Unknown author (2014). A personal personal choice. Economist, 412 (8899), 9-9.
Berg, Samantha (2013). New research shows violence decreases under nordic model: why the radio silence? Retrieved from: http://www.feministcurrent.com/2013/01/22/new-
Staring, Richard H.J.M (2012). Human trafficking the netherlands: trends and recent developments. International Review of Law, Computers & Technology, 26 (1), 59-72.
van de Walle, Robert; Picavet, Charles; van Berlo, Willy; Verhoeff, Arnoud (2012). Young dutch people’s experiences of trading sex: a qualitative study. Journal of Sex Research, 49 (6), 547-557.
Veen, Maaike; Gotz, Hannelore; Leeuwen, Petra; Prins, Maria; Laar, Marita (2010). HIV and sexual risk behavior among commercial sex workers in the netherlands. Archives of Sexual Behavior, 39 (3), 714-723.
Willemsen, Eline (2006). A safe return for victims of trafficking. Forced Migration Review, 25 (3), 30-31.
Vanwesenbeeck, Ine (2005). Burnout among female indoor sex workers. Archives of Sexual Behavior, 34 (6), 627-639, 13.
Post, Dianne (1999). Legalizing prostitution: a systematic rebuttal. Off Our Backs, 29 (7), 8.