Criminalising the payment for sexual services

Entry from November 5, 2013

An introduction for the uninitiated

As the deadline for the submission of evidence against a bill proposal to outlaw the payment of sexual services in Northern Ireland expired on Friday, I like to provide a brief overview to those unfamiliar with the subject, and in particular to anyone who might consider such moves as a step into the right direction to protect people working in the sex industry.

In their report “The Swedish Sex Purchase Act: Claimed Success and Documented Effects”, Susanne Dodillet and Petra Östergren describe the so-called “Swedish Model”as follows.

The Swedish Model

“The “Swedish model” consists of several laws and regulations. The three main laws that criminalize or prevent prostitution involving adults are those addressing pandering, the forfeiture of rental apartments and rooms used for prostitution, and the purchase of sex.” p.3

“The overall implications of these laws is that no one can operate a brothel, rent an apartment, room or hotel room, assist with finding clients, act as a security guard or allow advertising for sex workers. This in turn implies that sex workers can not work together, recommend customers to each other, advertise, work from property they rent or own or even cohabit with a partner (since that partner is likely to share part of any income derived from sex work).” p.4

A “unique aspect of the Sex Purchase Act is how persistently the ban, or the “Swedish model”, has been marketed. One of the stated aims from the very outset was to export it to other countries. Both governments, authorities, political actors and Non Governmental Organizations (NGOs) have devoted time and money to market it internationally. Pamphlets, websites, articles, books and movies have been produced and lobby activities have been conducted towards the European Union (EU) and the rest of the world with the help of this material and via workshops, seminars and debates. Countries considering changes in their prostitution laws, have subsequently turned to Sweden for inspiration.” p.2

Two of those countries are Germany and France.

Controversies over planned prostitution legislations in Germany and France

In Germany, appeals for and against prostitution are currently the subject of much media attention. The Appeal FOR Prostitution, launched by the Trade Association Erotic and Sexual Services in Germany, aims to strengthen the rights of sex workers and to improve their living and working conditions. The appeal, which, as of this morning, has been signed by over 550 individuals and organisations, is a response to the Appeal against Prostitution,* launched by German feminist and prostitution abolitionist Alice Schwarzer ahead of the publication of her new book “Prostitution – A German Scandal”.

Prostitution is legal and municipally regulated in Germany, but following their recent victory at the general elections, Conservatives plan to roll back the country’s liberal prostitution law once the new government is formed. According to Maria Böhmer, Minister of State, prostitution requires heavier regulations, yet by signing Schwarzer’s appeal, her motives come into sharper focus: a “ban on purchasing sexual acts” and “punishment for those who buy women”. Böhmer’s party faces opposition by the Centre-Left, however, and a last-minute attempt by the outgoing Conservative-Liberal coalition government to introduce stronger regulations was dismissed by the Upper House of the German Parliament. To push through the changes, Conservatives now plan to insert into the coalition agreement they seek with the Social Democrats, and it remains to be seen if the latter will take a stand to uphold the law they introduced in 2002 together with the Green Party.

In France, 343 French intellectual men recently caused a controversy by signing a statement to defend their right to buy sexual services. The Manifesto of the 343 bastards, which outraged proponents and opponents of prostitution alike, came at the eve of a parliamentary debate on laws seeking to outlaw paying for sex and introduce 1,500 Euro fines for first-time offenders, while those caught for a second time would pay double.

While prostitution itself isn’t illegal in France, several a number of related activities are, including soliciting, procuring, operating a brothel and living off the avails of the prostitution of others. French Women’s Rights Minister and government spokeswoman Najat Vallaud-Belkacem is leading the charge to abolish prostitution in France. Like Schwarzer in Germany, she is not interested in improving the rights of sex workers but aims “to see prostitution disappear”, a “long-term project” she hopes to realise not just in France but in the whole of Europe with the help of Britain.

The Human Trafficking and Exploitation Bill in Northern Ireland

As in France, prostitution itself isn’t illegal in the UK, but the above mentioned related activities as well as kerb-crawling are. In addition, anti-social behaviour orders (ASBOs), for which hearsay evidence is sufficient, can be used to ban sex workers or their clients from certain areas. Whereas in England, Wales and Northern Ireland, “paying for sexual services of a prostitute subjected to force” is a criminal offence, Scottish law doesn’t distinguish between situations where sexual coercion occurs depending on whether or not third parties receive payment. Rape and sexual assault and the element of consent are adequately defined in the Sexual Offences (Scotland) Act of 2009. Four attempts to make paying for sexual services an offence have failed in Scotland, most recently in June 2013, when over 80% of the Scottish Parliament voted against Rhoda Grant’s proposal to criminalise the clients of sex workers.

Although the latter two attempts were accompanied by public consultation processes, during which extensive evidence was submitted regarding the negative consequences of criminalising paying for consensual sexual acts, the Assembly of Northern Ireland is the latest parliament to consider adopting the “Swedish Model”.

The 19 clauses of the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill include the following objectives:

Introducing new definitions in relation to human trafficking offences

Providing effective assistance and support for victims of human trafficking

Providing additional protection for victims and witnesses during investigations and trials

the Publication of an annual strategy paper by the Department of Justice to raise awareness of and reduce human trafficking and to set up a Northern Ireland Rapporteur

Clause 6 of the Bill, however, aims to “create a new offence of purchasing sexual services to reduce demand for trafficked individuals and combat exploitation” and proposes to amend the Sexual Offences (Northern Ireland) Order 2008 as follows:

(2) For Article 64A (Paying for sexual services of a prostitute subjected to force etc.) substitute ⁠— “64A Paying for sexual services of a person”

Thus, the bill proposal seeks to remove the element of force and outlaw any and all purchases of sexual services, regardless of consent between the individuals involved.

Following my submission to the Scottish Parliament, I submitted much of the same evidence to the Justice Committee of the Northern Irish Assembly and Lord Morrow, sponsor of the proposed bill, to highlight once again the negative consequences of a ban on paying for consensual sexual services, not only where sex workers are concerned but also where his desired objective to curb human trafficking and exploitation.

The failure of the Swedish Model

The following paragraphs are excerpts from the evidence I provided in my response to Lord Morrow and the Justice Committee of the Northern Ireland Assembly. Susanne Dodillet and Petra Östergren, in their above mentioned report, describe the effect of the “Swedish Model” as follows.

“The most common and perhaps most serious complaint regarding sex workers themselves is that they experienced an increased stigmatization after the introduction of the Sex Purchase Act. Some also state that the ban is a violation of their human rights, and many say that they don’t feel fairly or respectfully treated: they are not regarded as fully worthy members of society. Sex workers object to the fact that they were not consulted in the making of the law. Since sex workers feel they are not able to influence their legal or societal situation, they feel powerless. And since the ban builds on the idea that women who sell sex are victims, weak and exploited, many claim that the law propagates stereotypical notions about sex workers.

The National Board of Health and Welfare report that due to the ban sex workers feel less trust in social authorities, police and the legal system, and half of the respondents in the study [by the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights] say that the current legislation prevents people seeking help. Instead of the police being a source of protection, sex workers feel hunted by them, and are subjected to invasive searches and questioning. There is also a problem in that they are in an unclear legal position – they can be made to testify in a trial but they neither enjoy the rights of the accused nor of the victim. Some report that there is an increased dependency on third parties. Now that it is difficult to make direct contact with clients, sellers must rely on agents/pimps/helpers to find clients.”

Where the protection of sex workers is concerned, the Swedish Model can thus be described as an utter failure, as the murder of Petite Jasmine so tragically demonstrated. But not enough that the law negatively affects the health and safety of sex workers and makes them more reliant on third parties to arrange meetings with their clients; the law also falls short with regards to reducing human trafficking.

“When it comes to clients, it seems they are less willing to assist as witnesses in cases in which profiteers who exploit the sexual labor of others are prosecuted, since they now find themselves guilty of a crime. Clients are exposed to blackmail and robbery, and the stigma associated with buying sex means people often have to leave their jobs and positions, even on a mere suspicion.” (You can access the full report here.)

Pye Jacobsson, a sex worker and spokesperson for Rose Alliance, an organisation by and for sex and erotic workers in Sweden, states the following about the impact of the Swedish Sex Purchase Act.

“In the sex industry there are people that are being abused, that are suffering, that are trafficking victims etc. But the normal way for the police to find out is not from sex workers, it’s from clients. Because there are clients who are actually not assholes, they will say ‘this doesn’t look good’, they will call the police. And of course now they don’t call the police anymore, because if they call the police they will be accused of a crime.” (To view the interview, please click here.)

As Dr Basil Donovan, lead author of report “The Sex Industry in New South Wales”, states, “any moves to reintroduce bans or licensing of sex work would be a backward step.”

“Jurisdictions that try to ban or license sex work always lose track as most of the industry slides into the shadows. Prostitution laws are the greatest allies of the exploiters. In NSW, by contrast, health and community workers have comprehensive access to and surveillance of the sex industry. That access has resulted in the healthiest sex industry ever documented.” (You can access the full report here.)

In my letter to Lord Morrow, I question that in drafting his bill proposal he had such comprehensive access to people working in the sex industry.

To the contrary, his statements following the suggestion by Chief Superintendent Philip Marshall that “[t]here needs to be wider social debate and understanding about what prostitution actually is in Northern Ireland before we consider what the right policy might be.”, suggest that he doesn’t even wish to listen to human trafficking experts of the Police Service in Northern Ireland.

Conclusion (Excerpt)

Sex workers have a genuine interest to fight crime and reduce harm in their work environments. Given the challenges faced both by sex workers in particular and society in general, it is disappointing that time, efforts and taxes were spent to form a proposal that fails to address problems that do exist in the sex industry.

I am not a British citizen and I hope you will forgive me my lack of knowledge of inter-parliamentary communication between the respective parliaments in the United Kingdom. In Germany, communication between federal states occurs through various platforms, most prominently through the Bundesrat, the Upper House of the German Parliament. While I would not suggest that such communication is perfect at all times, I find it surprising that you apparently did not take notice of the two failed attempts to criminalise the purchase of sexual services in neighbouring Scotland, where experts of all shades provided evidence that led to the defeats of these bill proposals.

Surely, your tax payers’ money as well as your own time could be put to better use than to propose and evaluate bill proposals that have been shown by a variety of experts, including from Sweden, to be harmful to the rights of the very people the bill allegedly proposes to help, and I like to end with a quote by Daniela Danna.

“Those who state they are defending women by prohibiting prostitution are actually deaf to the voices of those who decide to prostitute themselves and see in this activity many positive aspects, offering a service and relating on many levels—not exclusively sexual—with clients who seek sex and human contact.”

Best Regards,

Matthias Lehmann
Berlin, November 1st, 2013

To view my entire submission to the Justice Committee, please click here.

While it seems less than likely that Lord Morrow himself is willing to hear evidence contradicting his beliefs, hope remains that others will take heed of the many sex workers, academics, organisations and individuals who continue to fight against the criminalisation of sex work.

The Committee Stage is due to conclude on 12 November 2013. For updates, please visit the website of the Northern Ireland Assembly or follow Research Project Korea’s updates.

Please note: the above descriptions of prostitution legislation in Germany, France and the UK are not exhaustive. This article is intended to give an introduction to those less familiar with the subject of current prostitution laws. If you have any questions or comments, please use the comment form below.

The link to the English version of Alice Schwarzer’s appeal is provided here solely for information purposes. It does not represent an endorsements of the views expressed therein. On the contrary, I like to encourage you to join the by now over 1,000 signatories of the Appeal FOR Prostitution, launched by the Trade Association Erotic and Sexual Services in Germany. Click here to find out more.