[Sex Work Series] Legalisation in The Netherlands
Updated: Dec 20, 2020
[Sex Work Series] Paper 4d: Sex Work Legislation Case Studies - Legalisation in The Netherlands: 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.
According to philosopher Peter Singer, “if sex work is not going to disappear anytime soon, anyone who cares about the health and safety of sex workers – not to mention their rights – should support moves to make it a fully legal industry” (Singer, 2016, para. 8). Full legalisation, taxation, and regulation of prostitution, as seen in the Netherlands and the US state of Nevada, has been the proposed solution by much liberal organisation. For this section, I will be exploring the Netherlands as a case study. Legalisation, as an approach to sex work, means that sex work is legal and regulated under certain conditions set by the state, ie. in certain areas, and is usually subject to taxation (Mac & Smith, 2018). It is important to note that criminalisation laws still exist in the legalisation approach, yet only concerns sex work that is done outside of the legal requirements set by the state. Regulatory requirements often consist of “sex workers’ age and immigrant status, recruitment strategies, mandatory registration, health checks, geographical locations, building regulations, etc” (Vanwesenbeeck, 2017, p.1631).
Legalisation can have positive effects such as the provision of health care, legal protection, safety provisions and generation of income from taxation. Regulating sex work can help provide both sex workers and clients with safe interactions. In the Netherlands, sex workers are required to have licenses and engage with mandatory health checks (Vanwesenbeeck, 2017). This helps to reduce the spread of HIV/AIDS and other sexually transmitted diseases and infections (STDs/STIs). Sex workers can report violent clients and get help from the police, as they are under the protection of the law (Wagenaar, 2017). However, legalisation and regularisation can also have negative impacts on sex workers. Legalisation requires licenses, health checks, deposits, taxation, and the involvement of the state, all of which are put in place to regulate and monitor the sex industry (Mac & Smith, 2018). This in principle seems a good practice, however in reality, gaining a license, registration and complying with this legal system is often a lengthy bureaucratic and expensive process.
Professor Hendrik Wagenaar (2017) examined sex work in the Netherlands in detail to analyse how legalisation affects sex workers in the industry. The study consists of a two-fold comparison examination, the first study compared the formulation, implementation, and effects of sex work laws in twenty-one European countries over 150 years, and the second study focused analysis into detailed local vs national-level sex work policy in Austria and the Netherlands (Wagenaar, 2017). This approach incorporated the breadth and depth of study to assess the true impact of these laws. Wagenaar (2017) found that in the Netherlands, regulation of the sex industry has been more and more controlled over the last decade (Wagenaar, 2017). Enforcement of legislation has become stricter, with discrimination and stigma against sex workers also increasing significantly (Wagenaar, 2017). Wagenaar (2017) has deemed this progression to a more controlled system “regulatory drift” (Wagenaar, 2017, 1:02). He details it as the “slow accumulation of more repressive policies” (Wagenaar, 2017, 6:47) and found this to be particularly prominent at the national level in the Netherlands (Wagenaar, 2017).
Additionally, Wagenaar (2017) found that in the Netherlands the number of legal brothels allowed to operate was capped to a specific number (which varied by city). This allowed for brothels to transition into oligarchies where brothel-owners could increase profit while subjecting sex workers to strict and dire working conditions (Wagenaar, 2017). Sex workers in the Netherlands have been told by managers when giving complaints that they had “too many demands” (Vanwesenbeeck, 2017, p. 1634) and “cannot be too choosy when you decide to do this work” (Vanwesenbeeck, 2017, p. 1634). Strict working conditions can have negative impacts on the mental health of sex workers (Vanwesenbeeck, 2005). By requiring sex workers to work in brothels and enabling managers to set the working conditions of sex workers, this takes the agency from sex workers and can act as a paternalistic enabler of oppressive tendencies, especially in an industry that is so heavily tied to gender. This is further enforced by the oligarchical structure increasing the power of brothel owners through reduced competition.
The bureaucratic nature of entering sex work, such as gaining a license and meeting the health requirements, was designed intentionally as a deterrent to joining the industry (Mac & Smith, 2018). Yet, even if regulatory restrictions are successful as a deterrent to some to engage in legal sex work, this does not stop the illegal sex work occurring. More vulnerable sex workers who are unable to comply with intense regulations, such as migrants or people fleeing domestic abuse needing quick cash, are forced to into the black market of sex work ie. sex work that does not comply with the regulations, such as conducted in private, tax-evading, or through the use of unlicensed pimps. Legalisation can create a “two-tier” system (Mac & Smith, 2018, p. 339) that economically segregates those who can afford to jump through the legal hoops involved and those who need cash fast so are forced into illegal secretive practices that do not comply with the legal requirements. Those who cannot comply with the legal requirements are criminalised, rather than protected, in the same way as a legal system with full criminalisation, which as outlined above, comes with significant issues.
Legalisation is “often accompanied by strict criminal penalties for sex industry businesses that operate outside the legal framework” (Nyabwana, 2017, para. 2), and in practice, in the Netherlands, those who can’t afford the licenses often work under a pimp/brothel owner who in exchange for them paying all the fees they are subject to their management which is often controlling, restrictive, or even manipulative and abusive in reality (Mac & Smith, 2018). The economically vulnerable are therefore forced into riskier, more dangerous positions where they will be criminalised rather than protected. Legalisation doesn’t solve the problems associated with full criminalisation, instead, it aids those who can afford to choose to become sex workers, not those who are economically dependent on the industry as the welfare system has failed to protect them for different reasons ie. disability, migrants, etc. Vanwesenbeeck (2017) detailed how the Netherlands has become “increasingly “rule-heavy,” to the extent that many sex work practices are actually penalised” (Vanwesenbeeck, 2017, p. 1632). In addition to this, Vanwesenbeeck (2017) found that the state-funded exit services are so weakly funded or hard to access that sex workers prefer to stay in the industry for economic purposes (Vanwesenbeeck, 2017).
Legalisation conceptually protects sex workers, yet in practice, the regulations and restrictions create barriers to entry that economically segregate sex workers, with those unable to jump through the legal hoops being subject to criminalisation which results in the same issues that a criminalisation system does. The real focus in the Netherlands should be on economic policy reforms, to include more budget for the public sector and social welfare, as well as migration policies, to protect the most vulnerable population who are forced into this industry. As quoted by Singer, “it is time to put aside moralistic prejudices, whether based on religion or an idealistic form of feminism and do what is in the best interests of sex workers and the public as a whole" (Singer, 2016, para. 12).
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