What It Would Mean to Decriminalize Sex Work
During the 2021-2022 legislative session, at least three states—Hawaii, Missouri and Vermont—considered bills that would decriminalize voluntary sex work. While none of those passed, the state of California and other jurisdictions have had more success chipping away at laws—such as those against loitering thought to be related to sex work—that disproportionately affect people in the commercial sex industry. And while no form of sex work decriminalization has been widely accepted in the United States, a number of jurisdictions have shifted law enforcement’s focus from sellers to buyers over the last decade.
Collectively, while these shifts do not necessarily signal that sex work decriminalization is on the horizon nationwide, they do indicate that a conversation is brewing across the partisan divide. Below, we explain why advocates want to decriminalize commercial sex and the pros and cons of some of the most popular approaches.
Why do advocates want to decriminalize sex work?
“The harms caused by the criminalization of consensual adult sex work are numerous and severe,” Ariela Moscowitz, director of communications at Decriminalize Sex Work, said in a press release last year. In 2020, 12,895 people were arrested for commercial sex-related offenses. In addition to arrest and incarceration itself, the prohibition of sex work has been shown to have far-reaching consequences. Compared to the general population, people who sell sex are at increased risk of becoming victims of stalking, violence and sexual assault; contracting and transmitting infectious diseases; losing their children; experiencing stigma and more. Current and former sex workers can be fired from their jobs or prevented from engaging in other careers. They are denied access to typical entrepreneurial resources like business loans, and growing numbers report being banned from basic online services and communities, from food delivery to social media to payment platforms. These consequences are amplified for vulnerable groups, including those who sell on the streets versus indoors, people of color and transgender individuals.
It is clear that despite prohibition and the harms it causes, the commercial sex industry is thriving throughout the United States. Thus, advocates argue, decriminalizing sex work is the most practical path to making the job safer for all. For example, decriminalization reduces sex workers’ chances of experiencing harassment or violence at the hands of law enforcement, and may even increase their willingness to reach out to police if they are being threatened or stalked. In addition, sex workers in countries that have partially or fully legalized the vocation carry a lower burden of HIV and other sexually transmitted infections (STIs). The lack of a criminal record makes it easier to find housing or, for those wanting to leave sex work, to get a job outside of the industry.
What’s more, just as the harms of prohibition may reach all of society, the benefits of decriminalization have the potential to extend beyond sex workers themselves. Not only do sex workers provide comfort and pleasure, they often advocate and educate for safer sex practices. And, the mitigation of the above prohibition-related harms results in potential cost savings for communities. Furthermore, removing prohibitions on commercial sex—with or without adding licensing regulations—has been associated with 30 to 40 percent reductions in city-wide sexual abuse and violence.
Still, while sex worker advocates agree that arresting and incarcerating sex workers is undesirable, beyond that, different stakeholders have distinct visions for alternatives to prohibition.
What models are being proposed?
Partial decriminalization: Commonly referred to as the “Nordic Model,” the “Equality Model” or the “End Demand Model,” partial decriminalization permits the sale of sexual services and does not criminalize sex workers. However, it continues to ban the purchase of sex and, in many cases, prohibits third parties—from pimps to landlords—from profiting off of commercial sex. Various versions of this model exist in France, Canada, Iceland, Norway, Sweden and other countries.
The model is rooted in the assumption that all sex work is exploitative, participation as a seller cannot be truly consensual and all commercial sex is a form of trafficking. Those in favor of partial decriminalization thus argue that while eliminating the criminalization of sex workers is important for their protection, the ultimate goal should be to end society’s demand for commercial sex. In line with this, proponents cite reductions in sex trafficking and reductions in societal demand for and acceptance of commercial sex as primary benefits of this approach.
Detractors, however, point out that this approach leaves the industry’s most vulnerable with even fewer, riskier options. As Sex Worker Advocate Coalition (SWAC) Coordinator for Washington, D.C.-based harm reduction organization HIPS Chibundo Egwuatu explained in an interview, “Instead of sending them to jail, we just ruined their ability to make a living. I guess that seems less violent in the sense that it’s not corporal punishment, but starving people is not great either, you know? And when we look at it for real, on the ground, what happens is that [under partial decriminalization] sex workers tend to accept worse work.”
Indeed, emerging research from countries with partial decriminalization suggests that by continuing to target buyers, the approach reduces sex workers’ economic stability, makes it more difficult to engage in risk-reducing practices such as screening clients and can lead to increased violence. In addition, Egwuatu noted, restrictions on third-parties profiting not only make it more difficult for sex workers to work with trusted drivers or operate safer “indoor” businesses, they can prevent sellers from teaming up with one another to offer mutual support and assistance.
Full decriminalization: In contrast, full decriminalization of sex work permits all consensual commercial sex involving adults without adding industry-specific regulations while leaving nonconsensual commercial sex (i.e., sex trafficking) illegal. This approach to sex work and associated activities has been applied in New Zealand and parts of Australia. It is supported by Amnesty International, the World Health Organization and other non-governmental organizations on public health and human rights grounds.
In the United States, most sex worker advocates support a full decriminalization approach, citing the importance of bodily autonomy and the idea that sex work is legitimate work and as such should not be subject to additional regulations. Advocates for this approach highlight research showing that full decriminalization reduces violence and sexual assault against sex workers—including at the hands of law enforcement—and cuts risk for infectious diseases such as HIV and other STIs. Furthermore, because this approach treats sex work like any other job and allows sellers to organize and work with third parties, it provides for safer work environments, improved access to preventative health services and more stable economic opportunities.
Opponents of full decriminalization, however, express concerns that the approach legitimizes existing inequities by continuing to allow people with privilege to “buy sexual access” to those who are vulnerable. Further, these groups argue that full decriminalization boosts demand, creating a larger commercial sex market and thus increasing trafficking, although conflicting research suggests there is no connection between decriminalization of consensual sex work and sex trafficking.
Legalization: Legalization of sex work is characterized by regulations—such as requiring brothels, sex worker registration or HIV testing—aimed at controlling the industry. Germany, the Netherlands and Nevada are famous for taking this approach, although it can also be found in various incarnations in several other countries.
Although legal and regulated sex work already exists in several nations and even within the United States, it is not the model most of the country’s advocates push for. In fact, Egwuatu explained, the approach can create a two-tiered effect in which privileged groups gain access to legal work while vulnerable groups remain in an illegal, far more dangerous position. Consistent with this, in Germany, migrant sex workers—who comprise the majority of sellers—face considerable administrative barriers to working legally. Others note that legalization and regulation could require workers to contribute a percentage of their income for taxes, forcing them to work more hours for the same income. Finally, opponents note, legalization can still lead to run-ins with law enforcement because police are often the ones enforcing commercial sex industry regulations.
Leading by Example
As jurisdictions across the United States seek to reduce the harms caused by the prohibition of commercial sex, debates around the best approach will likely continue. In addition, states will need to navigate federal law. Although the federal government does not explicitly ban commercial sex, it does include some restrictions on how and where consenting adults can sell sex. Fortunately, this is an instance where our system of state-level legislation can shine, as states can watch and learn from one another to develop an approach that respects federal guidance while mitigating risk to and providing protections for sex workers as equitably as possible.