A Comparative Legislative Analysis of Sex Work in Western Europe to Influence Effective Policy Reform
Author’s Note
As an aspiring human rights lawyer, I felt it only appropriate to pursue a capstone project (senior dissertation) analysing law and how legislation specifically affects human rights. I wanted my dissertation to have a feminist aspect to it as gender equality is something I’ve pursued academically and professionally. I started researching feminist issues and stumbled across the topic of sex trafficking. At first, I thought, like many before me, that by having stricter laws and regulations banning sex work would reduce sex trafficking. However, the more I researched, the more I realised I was incorrect. Not only does criminalising sex work not reduce trafficking rates at all, but it makes it harder to locate sex trafficking victims as all sex work becomes pushed underground (Mac & Smith, 2018). I realised that I need to change the perception of many who thought as I had based upon the inaccurate portrayal of sex trafficking and sex work through the media and various national legislation. Within this series, I aim to illustrate how current legislation all of the world just harms sex workers¹ without achieving the intended results of reducing trafficking. This series will be a collection of essays written as part of my capstone project, released weekly.
Abstract
For my undergraduate capstone, I aimed to promote sex workers’ rights through legislative reform proposals. I did this by analysing and evaluating the current legal approaches in Western Europe, illuminating the psychological and societal influences on legislation, and identifying how misinformation can reinforce inefficient legislation. My goal is to assess the real-world impact of different legal frameworks on sex workers to propose more effective legislation that will better protect sex workers. My dissertation concludes with a policy proposal that recommends the decriminalisation of sex work based on the knowledge gained from my analysis of the impacts of different legislative approaches.
Throughout my degree, my multi-disciplinary education has taught me to approach problems from multiple lenses to gain a more comprehensive understanding of the situations. For this reason, I chose to intertwine law and legislative politics, philosophy and ethics, psychology and sociology, and history to my analysis. I believe that it is crucial to understand humans on the psychological and social levels while understanding the dynamics of the economic and political climates, in order to solve social justice issues such as the legislative issues that cause harm to sex workers.
Within this series, I will look at:
Different legislative approaches to sex work in Western Europe;
The historical influence of taboos and stigmas on modern-day legislation;
Whether or not it’s ethical to criminalise sex work;
The relationship between sex work and sex trafficking;
How common misconceptions and the media influences inefficient legislation to combat human trafficking;
I will end the series with a policy proposal, and my recommendations, of what needs to be done based upon my two years of research on this capstone project.
Introduction
The ineffective legislation surrounding sex work is a human rights issue². Currently, sex workers are at risk of public discrimination and harassment, abuse and exploitation, arbitrary arrest and detention, exclusion from health services, social marginalisation and employment discrimination, forced eviction from their homes, lack of legal redress, sexual violence from the police and rape (Amnesty International, 2016). There is a clear need for legislative reform based on protecting human rights. This has encouraged me to use my capstone to exemplify why I believe legislative reform of sex work laws is crucially needed in Western Europe³.
Current sex work laws focus more on banning and eradicating sex work rather than protecting the people who conduct it. This is mostly based on a historically-induced stigma around sex work (Mac & Smith, 2018). Criminalising sex work doesn’t stop sex work from occurring, it just forces it underground and out of sight, putting sex workers in dangerous circumstances (Mac & Smith, 2018). The negative stigma and law-induced vulnerability of sex workers make them easy targets for exploitation and violent abuse (Mac & Smith, 2018). Reforming the laws around sex work can significantly reduce the rapes, murders, discrimination, and illnesses that sex workers face (Mac & Smith, 2018). This is why law reform is urgent and necessary.
My thesis is based on the following premises:
that sex work is a legitimate form of work;
that sex work and sex trafficking are inherently different and must be approached differently;
and that those who perform sex work have the right to their autonomy⁴ of choice in terms of pursuing sex work.
Many people who pursue sex work do so as a form of survival and have a limited set of alternative options. Even though sex work is considered to be an undesirable trade, it is a realistic and relatively common way for women, faced with economic, political and social constraints, to earn a living. Due to this, sex workers’ autonomy should not be restricted or undermined.
Women should be free to choose whether or not to monetise their bodies, whether for economic, personal or political reasons. From my analysis, I have discovered that criminalising sex work is unjust, partial criminalisation creates a trade-off between abiding by the law and ensuring safety, and legislation results in two-tier economic segregation of sex workers. Therefore, to conclude my project, I will argue for the decriminalisation of sex work. In summary, my thesis is that due to the lack of alternative options, it is unjust to criminalise sex work, as this further reduces the options available to those most vulnerable and restricts the individual’s autonomy of choice. Ultimately, sex workers facing systemic constraints must have better legal protection.
The aim of this project is not to propose a solution to fix the industry of sex work or to reduce/increase the number of people performing. The situations that lead women to sex work are predominantly economic, which means that solving the problem means eradicating poverty, racism, homophobia and other systemic inequalities that currently exist. This is outside the scope of my project. Instead, my proposal within this project is to analyse the legislative systems that exist currently and propose policy reform that will not further harm the people involved, which is what each of the current legislative approaches does.
Methodology
Reforming the inefficient legislation that harms sex workers is a complex wicked problem, an issue that is difficult to solve due to the interconnectedness of its components and the dynamic adaptive nature that it exists within. The economic, political and social justice issues surrounding sex work operate in a nonlinear way. There are multiple causes for the different issues that arise, such as societal perception, historical influence, inefficient legislation, the oversimplification of trafficking, etc. The dynamic way that the multiple agents interact results in reinforcing feedback loops that further intensify the issues of poverty and stigma, as well as creates emergent properties such as homelessness. A change in one policy or contextual factor regarding sex work will alter the rest of the system. These features are characteristics of a complex system⁵, and so, a systems thinking approach⁶ can be used to understand the system and it’s dynamics to propose a solution that will minimise the number of negative consequences that a policy may have.
Framing sex work legislative reform within the lens of a complex system, and using systems thinking tools to analyse it, will provide the most efficient and long-last policy reform as it takes into account the complexity of the situation while doing a thorough analysis of all potential network agents and interactions. This is why I chose to conduct my Capstone using this methodology.
A wicked problem can be approached in multiple ways, which is why my approach takes a multidisciplinary approach including a philosophical discussion, a sociological analysis, and a political legislative reform proposal. I have used a system-thinking approach more behind-the-scenes in the creation of this series through my research for the capstone and framing of the issue, which is explained in the appendix. In some papers, however, I have explicitly used a systems-thinking approach:
In Paper 4: Sex Work Legislation in Western Europe, I have written a paper consisting of analysis, evaluation, and comparison of five different legal approaches to sex work in Western Europe. How I approached this analysis was by conducting a root cause analysis⁷ to assess the crux of the multiple interconnected problems associated with sex work to identify the core issue to be addressed through my proposed legislative reform in Paper 6. In a complex system, due to the interconnectivity present, changing something in the system will have ripple effects on the other agents and events in the system. By identifying the root cause, this identifies the real underlying factor to the problem that needs to be addressed through legal reform to positively impact the rest of the system once addressed (Galley, 2018).
In Paper 5: The Influence of Historical Taboos on Modern-Day Legislation, I have used social network analysis, a tool to analyse how people interact in networks through thorough examination of the overall network in which they are connected (Case, 2016). Social networks can illustrate the closeness in connection through weighted connections, the centrality of certain nodes (the most connected node in the network) and theories ie. the social contagion theory (how influence can spread through networks). Specifically, I will be analysing how social contagion theory can be used to illustrate how negative stigma and taboos regarding sex work leads to social exclusion and effects legislation. Additionally, I have used this tool to examine how the media can reinforce negative stereotypes around sex work which again influences legislation.
In Paper 6: Policy Proposal using Systems Thinking, I designed activities using causal loop diagrams and root cause analysis within collaborative governance session to increase understanding of why decriminalisation has been proposed to increase societal acceptance among representatives that will ripple through the relevant social networks to reduce the risk of revolt from policy introduction and maintain a long-lasting and effective policy reform. The main aim for this series is to compile the knowledge gained from the previous papers, in combination with systems-thinking tools, to propose legislative reform that takes into account the political, social and philosophical influences, and due to this approach, is effective at ensuring a safer system for sex workers.
Overview of the series
Paper 1: The Relationship between Sex Work and Sex Trafficking (Published Week 1)
A paper examining the definitions of sex work vs sex trafficking, and analysis into how the inaccurate assumption that they are synonymous can create harmful legislation.
Paper 2: Human Trafficking: Common Misconceptions and Actual Realities (Published Week 2)
A social, political and legislative analysis of human trafficking: How perceptions of human trafficking differ from realities and how border, immigration, and citizenship laws affect levels of human trafficking.
Paper 3: Should Sex Work be Criminalised? (Published Week 3)
A feminist discussion exploring the ethics and justice of the criminalisation of the commercial sex industry.
Paper 4: Sex Work Legislation (Published Week 4-8)
An evaluative analysis of the legal approaches to sex work in Western Europe to distinguish which system best protects the human rights of sex workers.
Full Criminalisation
Partial Criminalisation
The Nordic Model
Legalisation
Decriminalisation
Paper 5: The dangers of stigmas and taboos on modern-day legislation and how to change societal perceptions (Published Week 9)
Changing the influence of historical taboos on modern-day legislation through psychological and sociological techniques.
Paper 6: Policy Proposal using Systems Thinking (Published Week 10)
Incorporating Systems Thinking to create effective policy reform of sex work policy in Western Europe.
Final Conclusion (Published Week 10)
I look forward to sharing my work with you over the next few weeks, and hope you find it insightful!
Enjoy Reading!
Footnotes
¹ For this series, I will not be using the term prostitution or prostitute as they have demeaning and negative connotations that I do not wish to propagate. Instead, I will be referring to sex work and sex workers to describe the selling of sexual acts and those who sell sexual services. The term “sex work” was coined by Carol Leigh in 1978 (Bell, 2000).
² My work and research incorporates and builds upon work predominantly conducted by: Juno Mac & Molly Smith (2018); Melissa Grant (2014); Laura Agustin (2013); and Amnesty International (2016).
³ I chose to narrow my focus to Western Europe to be able to concentrate on a particular socio-cultural, historical and political background, as these are all factors that influence legislation. Narrowing allows me to analyse multiple case studies of the different legal systems within one cultural context (European) which will add more depth to my conclusion. Having a wider scope would have required me to include these, which is outside the scope of this series. Additionally, as I am from Western Europe, I feel more able to explore sex work in this context as it is more part of my narrative.
⁴ The definition of autonomy that I will be using for this capstone project is defined as the capacity to make an informed, un-coerced decision exemplified through expressed consent and willingness (Zwolinski, 2007).
⁵ A complex system is one which involves multiple agents that interact with a variety of nonlinear dynamics (Ladyman, 2012). The system may be somewhat predictable but can be subject to change at any point, yet within the system there is an underlying pattern that can be analysed. From the complexity of the system different things arise from the dynamics and interactions in the network; these include emergent properties, feedback loops, and leverage points (Ladyman, 2012).
⁶ A systems-thinking approach is a tool that can be used to analyse complex systems as it uses multiple components that are appropriate for tackling the adapting dynamics and intricate network connections, such as a root cause analysis, causal network diagrams, leverage point identification and social network analysis (Goodman, 2016).
⁷ A root cause analysis is a systems thinking tool for identifying the causal factors of a problems, analysing them to illuminate how they are linked, and to expose the main core causal factors, the root cause/s. It is used in a complex system as different agents and events are interrelated and connected (Galley, 2018).
References:
Agustín, L. M. (2007). Sex at the Margins: Migration, Labour Markets and the Rescue Industry. Zed Books.
Amnesty International. (2016). Amnesty International Policy on State Obligations to respect, protect and fulfil the human rights of sex workers (POL 30/4062/2016). https://www.amnesty.org/en/documents/document/?indexNumber=pol30%2f4062%2f2016&language=en
Bell, K. J. (2009). A Feminist’s Argument On How Sex Work Can Benefit Women. Inquiries Journal, 1(11). http://www.inquiriesjournal.com/articles/28/a-feminists-argument-on-how-sex-work-can-benefit-women
Galley, M. (2018, March 19). What is Root Cause Analysis? https://www.youtube.com/watch?v=sFQFfrYjtPU&feature=emb_title
Goodman, M. (2016, February 27). Systems Thinking: What, Why, When, Where, and How? The Systems Thinker. https://thesystemsthinker.com/systems-thinking-what-why-when-where-and-how/
Grant, M. G. (2014). Playing the Whore: The Work of Sex Work. Verso.
Ladyman, J., Lambert, J., & Wiesner, K. (2013). What is a complex system? European Journal for Philosophy of Science, 3(1), 33–67. https://doi.org/10.1007/s13194-012-0056-8
Nicky, C. (2020). The Wisdom and/or Madness of Crowds. http://ncase.me/crowds/
Smith, M., & Mac, J. (2018). Revolting Prostitutes: The Fight for Sex Workers’ Rights. Verso Books.