The Right Way to Regulate Prostitution
In recent days, two major European countries, France and Germany, have moved to amend their prostitution laws to make it riskier to pay for sex. The French and German approaches, however, are fundamentally different.
France decided this week, after almost three years of deliberations, to switch to the so-called Swedish or Nordic model, which exists in Sweden, Norway, Iceland and Northern Ireland: Sex work is legal, but paying for it isn't. Johns will be fined 1,500 euros ($1,700) for the first offense and 3,700 euros for the second.
It doesn't just sound absurd to the uninitiated. French prostitutes marched against the law, carrying typically irreverent signs such as "Whores Are Angry: Don't Touch Our Clients." In real life, of course, France's 30,000 to 40,000 prostitutes still won't be paid in flowers and champagne. They will simply have fewer clients, and those they still get won't care too much whether the sex worker is involved in a legal business or some exploitative underground scheme.
The logic behind the "Swedish model" is ostensibly feminist, but essentially abolitionist. It's a way of banning prostitution while putting the onus on the client rather than the prostitute, who is viewed as a passive victim of sexual exploitation. As Jay Levy and Pye Jakobsson noted in a 2014 paper exploring the effects of Sweden's 1999 law that criminalized paying for sex, the voices of sex workers as owners of their sex-selling have been excluded from mainstream political debate in Sweden.
Having interviewed numerous sex workers for the paper, the researchers came to the conclusion that the criminalization of payment hasn't done much to protect prostitutes -- or even to reduce the scale of the sex business, except the cheapest street variety. Prostitution moved indoors and often underground. Those who sell sex to survive and who couldn't afford to rent an apartment for business have faced increased competition because of a shortage of clients willing to risk dealing with a street prostitute. Police continued to harass sex workers, threatening to go after their clients. Levy and Jakobsson wrote:
In contrast to assertions that sex workers are protected from legal repercussion and authoritative interference by only the sex buyer being criminalized, there are reports that sex workers experience difficulties with the authorities, law enforcement, and have further difficulties with social services and in gaining access to service provision, fed by the discourses framing the sex purchase law.
In France too, making life more dangerous for the johns won't really protect the prostitutes. It doesn't matter which end of the trade one bans, it's still a ban, a clueless way to handle a business that has survived longer than perhaps any other.
Germany, which effectively legalized prostitution in 2002, has a more nuanced approach. The legalization has spawned a huge industry: The government says there are about 200,000 sex workers in Germany, but unofficial estimates raise that number closer to 700,000. A business this size isn't easy to control. Human traffickers have flourished, and abominations such as flat-fee brothels where there is no limit to the number of prostitutes a client can be with in the course of one visit have sprung up. So after the 2013 federal election, the parties that make up the ruling coalition agreed to pass a law that would better regulate the sex industry.
This week, the German cabinet approved the draft law, making it all but certain that parliament will pass it. The proposal does away with the flat-fee brothels and "gang bang parties," as similar establishments are known. It also establishes fines for clients -- but not for buying sex as such; Germany will punish clients for having sex with a forced sex worker.
Justice Minister Heiko Maas believes there are tell-tale signs of forced labor. Though the German sex workers' union disagrees that a layman can read those signs, the new bill will keep clients on their toes. It should be their responsibility not to patronize places where prostitutes are, in effect, forced labor -- or to suffer the consequences when police shut them down.
There are other dryly practical security improvements in the German bill, including the mandatory use of condoms, the registration of prostitutes (who can even have a pseudonym on their registration documents, though not in the government database), hygiene requirements for brothel owners. There is nothing unreasonable about the new requirements, nothing that could endanger the business or drive it underground -- a particular concern of Maas's.
Prostitution is a seedy business, even in Germany where most sex workers ply their trade officially and pay their taxes. Yet no one, not even strict religious states such as Saudi Arabia, has managed to eradicate it. Sex is complicated, even when it is transactional, and it cannot be reduced to the simple scheme implicit in the "Swedish model."
The German approach of allowing the sex industry to operate openly, studying its workings and regulating away the most unsavory aspects of the business is more realistic than the French one which, coupled with overworked police officers' reluctance to spy on people in a generally permissive sexual culture, is unlikely to be effective.
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