How should we regulate sex work?

Based on a lecture given by Daniel Pryor to Oxford University Libertarian Society on 30 January 2019.

Earlier this week, a 35-year-old Leicestershire woman was fined £130 after being caught “loitering for the purpose of prostitution”. She also admitted to breaching a suspended sentence for theft. You have to possess the wisdom of a British magistrate to not understand that a sex worker is quite likely to have to take to the streets again in order to pay the fine.

It’s a cycle that many sex workers know well. And it’s one that leaves them in a vulnerable position.

This cycle of poverty is one of the many reasons why the UK’s approach to regulating sex work is a failure. Some are reluctant to even use the term “sex work” (conceived as a non-stigmatising phrase) and prefer to discuss “prostituted women” to symbolise the lack of choice women have over being “used” in prostitution.

I fall on the side of the former. Exploitation and abuse are serious issues in the sex industry, but to rob all sex workers of agency with a term like “prostituted women” is inaccurate and dehumanising.

There is no truly representative sex worker. They can be anyone: single mothers topping up low wages, full-time escorts, migrant women, students paying their way through university, survival street sex workers, and more. But we can make some generalisations based on data.

Unsurprisingly, the overwhelming majority of sex workers are women who work with male clients, and around three-quarters of UK sex work takes place indoors. And our policy in this area affects a lot of people – there are nearly 73,000 sex workers in the UK.

Our current policy is simple: buying and selling sex is legal if it takes place behind closed doors and is done alone. Being a third party to sex work, street soliciting, and kerb-crawling is illegal and punishable by fines, illiberal “prostitute cautions”, and jail time.

Failures in the law are equally clear. While our ban on brothels is intended to prevent exploitation, it also criminalises sex workers sharing premises, such as “pop-up brothels”, for safety. Juno Mac, a British sex worker, amply described the results of this in a 2016 TED talk:

“A couple of years ago, a friend of mine was nervous after she was attacked at work, so I said that she could see her clients from my place for a while. During that time, we had another guy turn nasty. I told the guy to leave or I’d call the police. And he looked at the two of us and said, ‘You girls can’t call the cops. You’re working together, this place is illegal.’ He was right.”

Then there’s the case of Christy Norman, a 70-year-old cleaner earning £6-an-hour who was convicted of managing a Bournemouth brothel in July 2017. And our ban on street sex work forces it underground, away from police oversight and accessible health outreach services.

Thankfully, politicians have started to acknowledge these failures and there is an impetus for change. Let me help them. There are three major options are on the table.

The first is to legalise sex work: something that sounds intuitively appealing to liberal-minded folks. After all, we support the legalisation of drugs and we think that regulated markets have positive impacts for consumers. Under legalised systems, buying, selling, and organising sex work is legal but only under restrictive state-specified conditions. The Dutch government argues that doing so “enables the government to exercise more control over the sex industry” and “strictly enforce regulations”.

But legalisation leaves most sex workers out in the cold. In Nevada, the only US state to have legalised sex work, heavy restrictions and licensing requirements for brothels have created a situation where the vast majority of Nevadan sex workers remain criminalised. The illegal market in Las Vegas alone is thought to be 66 times bigger than Nevada’s entire legal market. Various local laws also make life harder for most sex workers, from restrictions on leaving the county while working, to bans on sex workers owning cars.

The second option is to criminalise those who buy sex, sometimes referred to as the “Nordic model” or “end demand”. Selling sex is technically legal under this system, but buyers are punished with fines and jail time if caught. The reason it’s called the Nordic model is that’s where it started – Sweden in 1999 and Norway in 2009. People love a scandi noir, and the approach has enjoyed a surge in popularity. Canada, France, the Republic of Ireland, Northern Ireland, and Iceland have all passed “end demand” laws in recent years. Proponents include some anti-trafficking organisations, some survivors of sex trade violence, and most second-wave feminists. In the words of Rachel Moran, a survivor and co-founder of anti-trafficking charity SPACE International:

“The concept is simple: make selling sex legal but buying it illegal – so that women can get help without being arrested, harassed, or worse, and the criminal law is used to deter the buyers, because they fuel the market.”

Radical feminist Julie Bindel stresses to point out that this is “no moralistic anti-sex law”: the main purpose is to reduce the overall size of the sex work market and disrupt sex trafficking, thereby minimising exploitation and violence against women.

Its name is wrong though. It really should be called the Mary Whitehouse or disgusted of Tunbridge Wells approach – because you get to judge everyone involved while feeling self-righteous about yourself.

And does it work? No. End demand laws create a “buyer’s market,” according to the Norwegian government that adopted it. Sex workers with a plethora of alternative employment options may choose to exit the market as demand dwindles, but the most marginalised sex workers are left competing for a smaller and smaller pool of clients.

You only need know a smattering of economic principles to know what happens next. Supply is inelastic at the lower end of the market – any reduction in demand results in a much smaller reduction in the number of more vulnerable sex workers. Faced with no alternative, they must lower their prices, work longer hours, offer riskier services like bareback sex, move to more secluded areas, and spend less time screening their clients (who are now entirely the sort of people who aren’t afraid to commit a crime).

In Sweden, all of these issues are well-documented. Stigma against sex workers has also increased on an individual and institutional level, with support services eschewing tried-and-tested, liberal harm reduction approaches in favour of making life hell for sex workers.

In Norway, Operation Homeless saw hundreds of evictions of sex workers after police threatened landlords with prosecution on the grounds that they were assisting prostitution. Although Operation Homeless ran from 2007 to 2011, the practice continues to this day informally – it disproportionately targets Nigerian migrant women. End demand laws don’t prevent exploitation, but increase it.

The final option – and I cannot stress enough how much I support it – is full decriminalisation of sex work. Treat sex work like other forms of employment subject to minimal licensing laws for organised prostitution. Understand that sex workers are adults with agency. Give them legal protection against violent clients and overbearing governments.

Although it’s sadly overlooked by governments, this is not an idea from the fringe. It’s supported by Amnesty International, the World Health Organisation, some anti-trafficking organisations, many liberals, and most importantly sex workers around the world. It’s also popular here – a majority of the UK population supports such a move.

There is one bright spark in a world of criminalisation, but it’s on the other side of the world. New Zealand adopted full decriminalisation after passing the Prostitution Reform Act in 2003, and five years later a comprehensive government evaluation report found that while it had “little impact” on the numbers of people working in the sex industry:

“…over 90% of sex workers in each sector felt that they have legal rights … over 60% of sex workers in each sector felt they were more able to refuse to provide commercial sexual services to a particular client … Research indicates there has been some improvement in employment conditions.”

When sex workers have the law on their side against abusive clients and managers, they’re safer. Economic evidence confirms that decriminalisation means more bargaining power, less violence against women, and improved public health. Rhode Island legislators accidentally decriminalised indoor sex work in 1980, and contemporary research shows that this legislative change reduced reported rape offences by 30 per cent and female gonorrhoea incidence by 40 per cent.

But Daniel, won’t decriminalisation mean more sex trafficking? More desperate women in more desperate situations, stuck in a life of crime and controlled by gangs?

It’s a hard no. Sex workers with local knowledge of the sex industry are best placed to report forced prostitution if they have good relationships with the police. If you hear virtually any claim about sex trafficking and its relationship to sex work regulation, it’s probably not true. The most influential, highly-cited papers in the field regularly make basic errors: poor quality data, conflating different forms of trafficking, counting people who “self-traffick”, using cross-sectional study designs instead of longitudinal, and more. It certainly exists in the UK and around the world, but it’s also worth remembering the abject failure of Operation Pentameter Two in 2009:

“The UK’s biggest ever investigation of sex trafficking failed to find a single person who had forced anybody into prostitution in spite of hundreds of raids on sex workers in a six-month campaign by government departments, specialist agencies and every police force in the country.”

Many opponents of decriminalisation also argue that prostitution is inherently violent against women, regardless of consent. The logical conclusion of this position is that there isn’t any difference between rape of sex workers and consensual transactions – frankly, they see sex workers as having had all human agency stripped from them. It is, however, reasonable to argue that economic conditions and other circumstances affect the power dynamics in commercial sex transactions. The goal of policy should be to reduce exploitation and violence, focusing especially on the most egregious abuse. And the policy that accomplishes this is full decriminalisation.

So, where next for the UK? Recent years have seen positive moves; in 2016, the first inquiry that the home affairs select committee ever held into prostitution did not go as far as full decriminalisation, but made a number of positive recommendations such as decriminalising soliciting, allowing sex workers to share premises, and removing past criminal records for prostitution.

In the interim, two paths present themselves. The first is copying the United States in passing a FOSTA-SESTA style law. In April 2018, U.S. lawmakers (spearheaded by presidential hopeful Kamala Harris) passed a bill that gutted online free speech protections to make websites legally responsible for any facilitation of sex trafficking that occurred on their services. Research indicates that these services make sex workers much safer. The introduction of Craiglist’s “erotic services” section led to a 10-17 per cent reduction in the female homicide rate.

The shutdowns of sex worker forums that followed have robbed sex workers of the ability to adequately screen clients before meeting them. They’ve also made it harder for sex workers to find clients online while working indoors, and have prompted a shift from less dangerous indoor sex work to street-based alternatives.

The second path is to build on the success of managed street sex work zones. The UK’s only one is based in Holbeck: an industrial area of Leeds. Introduced in October 2014, an evaluation one year later found that it had improved relations between police and sex workers, increased willingness to report crimes, and provided better access to health interventions. Similar zones in the Netherlands have reduced rates of sexual abuse and rape by a third. They aren’t perfect, but they help protect the most vulnerable in the absence of full decriminalisation and local authorities should learn from what works in Holbeck while trialling their own innovations.

The sex work debate is a perfect example of how liberal policies can improve the lives of the most marginalised people in the country. Decriminalisation is no panacea, but a large body of evidence shows that it stands the best chance of tackling the many burning injustices inflicted upon sex workers in Britain. One can only hope that politicians choose the right path.

Written by Daniel Pryor

Daniel Pryor is Head of Programmes at the Adam Smith Institute. He conducts original policy research and is also responsible for organizing the ASI’s events, as well as running the Institute's education programmes. His research interests include immigration, drug law reform, sex policy, and lifestyle freedom. He tweets as @DanielPryorr.