Sex work and the law – it’s complicated

Although sex workers around the world lobby for decriminalisation, sex work law remains controversial. CHERYL OVERS writes The question of whether female sex work (performed by both trans and cisgender women) is legal or illegal in any country cannot be answered with a simple “yes” or “no”. Criminal law covers the different activities, people and settings associated with commercial sex by variously prohibiting selling, buying and/or brokering sex, and by criminalising sex workers, sex venue operators, landlords and often customers. The global map of sex work law reveals that, although sex work is totally illegal in only a handful of countries, some aspects of commercial sex are illegal in most parts of the world. Typically, sex work is prohibited in some settings and under some conditions, but allowed or tolerated in others. For example, it may be legal for one woman to sell sex from a property but illegal for multiple women to do so. Even where selling sex is not itself illegal, it may be illegal for an immigrant or an HIV-positive woman. It may also be illegal for a landlord to rent to a sex worker. This means it is more helpful to begin by asking: “What prostitution-related activities are illegal?” Equally importantly, but often overlooked, we also need to ask what non-criminal law has impacts on sex work.

What does the criminal law say?

Countries such as Nepal and Sri Lanka prohibit all aspects of sex work by defining it as human trafficking, even where the sex worker consents. In some Muslim countries, sharia laws on adultery render all prostitution activities illegal. In countries like Russia, Malawi, Bosnia and Herzegovina, and Guyana, only selling and organising prostitution are illegal. In other places, such as Argentina, Ukraine and Algeria, selling sex is only illegal if it involves public solicitation or – as is the case in Senegal, Madagascar and Chile – failing to submit to medical examination. Historically, buying sex has not been illegal. But France, Sweden, Canada and some parts of the US have recently criminalised the buyer. Organising and profiting from prostitution are the most common prohibited offences. These activities are illegal in most countries. However, in countries such as Colombia, Cambodia, Indonesia and the US, it is legal to operate sex businesses if licensed. A further complication is that sex work laws are not necessarily uniform in each country. They vary in federations such as Australia, Germany, the US and Mexico. In many countries, different local or state government laws apply in different parts of the country. Reforms to sex work law, for example in Romania and Latvia, have removed some offences to reduce harms associated with criminalisation of female sex workers. Only a few jurisdictions, including New Zealand, New South Wales in Australia, Switzerland and Uruguay, have also removed third-party offences. Sex workers refer to this system as “decriminalisation”. Most law reforms have, instead, replaced repealed criminal provisions with regulations requiring licensing, mandatory condom use or medical screening, or restrictions on freedom of movement or association. Sex workers call this “legalisation”. It is the approach taken in Germany, Hungary and parts of Australia other than NSW.

Civil and administrative law

As well as sex-work-specific criminal law, sex workers worldwide are subject to many non-specific laws. These include laws that tackle vagrancy, obscenity, child protection, immigration, human trafficking, HIV transmission, drugs, public nuisance and expressions of gender transgression. In some countries, such as Bangladesh and India, women suspected of being victims of sexual exploitation can be placed in administrative detention. Migrant, indigenous, trans and drug-using sex workers are particularly vulnerable to these administrative and minor criminal infractions. However, the nature and extent of the use of these provisions are masked because they do not usually generate court cases or documentation. In addition, administrative law affects both the work and private lives of sex workers through business and health regulations, fiscal rules, and local ordinances and policies. These govern where and how sex can be sold, and what workplaces, facilities and services sex workers can access. Illegality and stigma prevent sex workers from benefiting from regulations, criminal law and anti-discrimination provisions that can protect other workers and people. Because labour law does not usually apply to sex work and because sex workers are ineligible to form or join unions and as a result commercial sex workplaces are often exploitative, unhealthy and physically unsafe. Lacking civil rights also means sex workers may be unable to complain about crimes against them. They may also be unable to enforce contracts, claim welfare, borrow money, or make civil claims in family and property matters in courts. This leaves many without redress against violence or exploitation. This is most obvious where commercial sex is highly criminalised. But it is also true in “legal” systems, such as the state of Victoria in Australia, where sex workers must register and attend examinations for sexually transmissible infections (STIs), may not associate with other sex workers, and can lawfully be refused mortgages and life insurance.

Enforcement and impact

To understand sex work law, we must consider accounts of both the “law on the books” and the “law on the street”. These frequently diverge. Although reliable primary data about law enforcement are scarce, there is strong evidence that where the rule of law is weak, sex workers are subject to arbitrary, corrupt and abusive enforcement. However, even in the most democratic countries, human rights violations are reported by sex workers – particularly if they are trans women or migrants. It is well documented that criminalisation and corrupt law enforcement force sex workers into “underground” spaces, impedes their willingness to test for HIV and STIs, and their ability to negotiate condom use. Confiscation of condoms by police and their use as evidence of prostitution are particularly clear examples of counterproductive and harmful enforcement.

Ways forward

There is no doubt that sex work law leads to widespread human rights abuses and is counter-productive. It denies sex workers equality, dignity and workplace safety. A better understanding of what laws there are and how they impact sex work is needed to conceptualise new and more effective legal and regulatory frameworks. Cheryl Overs is a Senior Research Fellow, Monash University and this article was first published by The Conversation In most countries, sex workers have formed groups which are fighting against discrimination