Legal prostitution: A crime against humanity? - Fellows' seminar by Max Waltman

“People who advocate for legalisation of prostitution tend to think prostitution is the prostituted person’s choice. The argument is that legalisation will make it better by giving prostituted people some empowerment, but research shows that people in prostitution don’t get the upper hand. Legalisation gives the more powerful actors more advantages,” said Max Waltman of the Department of Political Science at Halmstad University, Sweden. “Despite extensive social-science research documenting the coercion and damage attendant and endemic to the sex industry, and decades of legal debate on approaches to this problem, no effective legal challenges have resulted,” continued Waltman. “Countries following the Swedish (now ‘Nordic/Equality’) prostitution model law, which penalises buyers and third parties while supporting prostituted persons to escape, have decreased prostitution’s incidence, while countries in which prostitution is legalised have seen trafficking and other violative abuses metastasize.” Still, “legal prostitution is being aggressively pursued across the world. However, a large body of evidence shows that legalisation does not improve the situation of people in prostitution but pushes them deeper into the abyss. We believe that legal prostitution should be categorised as a crime against humanity,” he added.

Waltman’s project, conducted with one of the foremost feminist legal scholars in the world—law professor and human rights lawyer Catharine MacKinnon—analyses in-depth the prospect of holding authoritative actors accountable for legalised prostitution under the international legal rubric of crimes against humanity. The research commenced in 2020, and outputs include four manuscripts in different stages of completion. Waltman pointed out that the majority of prostituted persons – which cannot be described as “sex workers” since that term does not take into account the serious human rights abuses in prostitution – are in any case subordinated and disadvantaged in terms of gender, age and ethnicity, with many having experienced prior sex abuse (including childhood) and suffering mental-health issues including post-traumatic stress disorder (PTSD). “Prostitution is closely associated with childhood sexual abuse – estimated at 60 to 90%, which is double that of the general US population. Many prostituted persons are young runaways – in a nine-country study, 47% of 854 entered prostitution before the age of 18. They have little or no education and a lack of alternatives for survival—89% surveyed indicated they wanted to leave but didn’t know how.” “In the same study, 68% of the respondents had PTSD,” he noted. In many countries, there is also a disproportionate number of Indigenous women involved in prostitution – “many existing in a revolving door of homelessness, rape and sex trafficking”. Prostitution is often closely controlled by gangs. An estimated 60–70% of prostituted persons in the licensed prostitution areas in the Netherlands, for instance, are forced by criminal groups, according to a United Nation’s report by Joy Ngozi Ezeilo, who was Special Rapporteur on Trafficking in Persons in 2012. Such situations entail a high incidence of human trafficking. “84% of prostituted persons are estimated to be controlled by third-party profiteers who abuse their ‘position of vulnerability’ and ‘lack of real or acceptable alternatives,’ thus exercising ownership of their person. So legal prostitution means de jure legal enslavement,” Waltman explained. Evidence also shows that the clients (or Johns) often have a history of rape or sexual aggression and are more likely to have been arrested, subject to restraining orders and charged with violence against women – “this is the population set loose among prostituted people when legalised”. Waltman pointed out that a coercive environment is the norm in most prostituted persons’ lives, with poverty and the resulting lack of leverage the main reason. “This is a coercive circumstance that legalisation whitewashes or exonerates: ‘If it’s legal, it can’t be that bad.’” The legal term here is ’enforced prostitution’, which is listed among crimes against humanity, defined as ’taking advantage of a coercive environment’ or such people’s ’incapacity to give genuine consent’,” Waltman explained. “Crimes against humanity are well documented to be integral to prostitution – prostituted persons are bought, sold, tortured, abducted and deported, and subject to clients not paying and police officers demanding sex.” “The project has documented that legalised and fully decriminalised prostitution releases a tsunami of crimes against humanity for which these policies guarantee domestic impunity,” he said. “Empirical evidence marshalled shows that legal prostitution exponentially increases ‘widespread’ and ‘systematic attacks’ against prostituted persons, including ‘rape, enforced prostitution, human trafficking, sexual slavery’, and other atrocities enumerated under international law and the Rome Statute of the International Criminal Court (ICC). Close case readings focusing on the ICC support the theory that legal prostitution be recognised as a crime against humanity. And officials who legalise and fully decriminalise prostitution are argued to be criminally responsible for the crimes against humanity that their actions unleash.”

Comparing models

Waltman also compared data from countries that have fully legalised prostitution like New Zealand, Germany, The Netherlands, Thailand and Bangladesh with countries employing the Nordic/Equality model like Sweden and France in which only the clients and pimps are criminally penalised. He also pointed to differences within the legalising models. “Some countries are more regulated. For example, New Zealand doesn’t allow foreign prostituted persons while Germany does.” “Sweden has seen a five-times decrease in prostitution in 10 years, while Germany has had a three to four-times increase in 10 years, some due to an influx of Eastern Europeans.” Waltman further referred to “a 2016 report commissioned by the European Commission, which estimated that Germany had roughly 30 times more people in prostitution than Sweden per capita. Likewise, in 2003, New Zealand had 5932 women in prostitution, which meant that it had roughly 23 times more prostituted women per capita than Sweden’s roughly 600 women in 2007”. “There is also some evidence of an increased demand for harmful sex, given that the Johns have increased leverage when there are more prostituted persons and buying sex is legal.” “Sweden has seen no murders of prostituted persons since 1999 while some countries have experienced more murders after legislation. Sex buyers also pay more – two to three times more than in countries where prostitution is fully legalised. In Sweden, prostituted persons can charge about R5200 per hour whereas those in the ‘Dutch window’ system earn less than R10 000 per week, where the legal pimps also take their cuts.” “New Zealand has also failed to prevent child prostitution in the sex industry,” he added. “There is also evidence that legalising prostitution legalises sex trafficking even when this is purported to remain a crime.” He also noted that in many of the countries where prostitution is legal, there is a lack of adequate access to services and no clear guidance as well as no plans to support alternatives for prostituted persons. “The legalised inclusion and social-security argument has not happened.”

What about South Africa?

The Criminal Law (Sexual Offences and Related Matters) Amendment Bill 2022 aims to decriminalise prostitution and is still under discussion. Waltman believes that the South African government should take into account the evidence against legalisation in its decision making. “The large body of evidence shows that legalisation does not improve the situation of people in prostitution. There are not improvements in working conditions, equality, and the reduction of crime and violence. It still thrives behind the legal façade.” “Brothels take most of the profits in a legalised environment. No one has estimated the total cost to society of prostitution – but it’s likely to be astronomical if we include things like sexually transmitted infections, HIV, suicide, unwanted pregnancies, expensive abortions and PTSD.” “Prostitution also multiplies in the legalised environment.” “India and Bangladesh have legalised prostitution,” he continued. “There are millions in prostitution. Legalisation makes it open season. It has not made prostitution safer – pimps are emboldened by legalisation and non-compliance by the prostituted person equals punishment. In South Africa, the pimps will run with the profits and throw out the prostituted people who don’t comply.” “In the Equality Model, a woman can report a John, which makes them afraid. Also, the penalties imposed on Johns could be used to help the women,” he said. “The law is more on their side. If you legalise you take away the women’s leverage.” “This model is not yet in a country with poor state structures,” he continued. “But there are many examples of the effects of legalisation – in Thailand, for example. With legalisation, South Africa could be branded as the Thailand of Africa.” He believes that globally, we cannot afford to condone legalisation, which leads to “a cascade of atrocities against vulnerable people, including causing disease and PTSD at a level that even combat veterans don’t experience”.   Michelle Galloway: Part-time media officer at STIAS Photograph: SCPS Photography