Legalization or criminalization?
No democratic government sofar has eradicated sex outside marriage and for other purposes than procreation. They have tried and sometimes they do it by just discriminating by good sex and bad sex. Good sex is supposed to happen between heterosexual married couples who have made a romantic commitment for the rest of their lives and for the sole purpose to beget children. The same holds good for the Dutch government. But the ‘bad’ sex has always been there, most notably in the form of commercial sex.
Let me continue with two simple statements.
1. It is not forbidden to have sex, in no country.
2. 2Second: paying people is also legal. So why it is illegal to pay for sex or to offer sex for payment? That was more or less the question the Dutch government asked itself in the year 1977. In that year a commission, the commission Melai came up with an answer to that question.
Roughly it went like this: a state, a government should not be concerned with what people do in their private bedrooms. And they want to be paid for this…. So what. This happened at the time when prostitution became more visible and it became known that people were receiving clients in their own homes..
SO In the results of this committee two things are important:
- the recognition that the state should not interfere in the sexual lives of adults. It is not the duty of the state to distinguish between good and bad sex,.
- Second, prostitution was seen as a private affair: between a sexworker and a client. Note, between TWO parties. The committee did not concern itself with the place where this agreement between a sexworker and a client took place. But prostitution was not confined to private homes. It also happened in nightclubs that were established at the time. They were the result of the sexual revolution that started in the seventies. They catered for men who did not have access to free women or did not want to run the risk that a woman would call him at home. And there was window prostitution. As I said, prostitution had become visible and neighbourhoods started to complain. City counsels were looking for an instrument to concentrate the public hindrance caused by this burgeoning prostitution business. Local councils couldnot manoeuver the brothels to a certain district because they might be accused of brothelowning. And that was illegal. So prostitution was not illegal, making use of the services of but running a brothel was illegal. In this context the first discussion about decriminalization of the third party started. The local counsels got help in this debate from an unexpected corner: a group of prominent feminists and the sexworkers. All over the world sexworkers had come out and had asked for recognition of their job. In the Netherlands they were supported by feminists. Why feminists? To make this clear I have to ask you a few questions. Don’t worry, they are rherotical questions, I don’t expect an answer.
- Who disapproves of women working outside the home?
- Who disapproves of people who have sex outside marriage
- Who is going to condemn someone who has more sexual partners? Who is going to condemn someone who doesn’t have sex just for procreation? So who is going to condemn someone who does all these things at the same time? Who has a sexual life that is considered modern? So the argument was, if you disapprove of sexworkers, you disapprove of all women who have sex outside marriage, who have had in their lives more sexual partners, of women who don’t just have sex for procreation. So the argument was, condemn a whore and you condemn almost all of us.
- This powerful lobby led to the statement you have a right to choose to work as a sexworker, but you also have the right to refuse it. The Rode Draad managed to get the argument for better working conditions in the public debate so here we were:
There was a need for an instrument for a prostitution policy, the workers claimed they wanted better working conditions and the feminists demanded sexual autonomy. There you have the setting for decriminalization, which by the way took another few years to take effect. So the law forbidding brothel keeping disappeared. But does that mean that there are no laws for brothels. No. Quite the contrary: brothels fell under all other laws. For instance the brothel owners had to comply with labour laws. The working conditions had to meet the standards other professions had. If a client raped a woman, he had to deal with all the laws against rape. When a brothel owner forced a woman to take on a client., to render services she doesn’t want or to take more clients when she wants to go home, he could be excused of sexual intimidation. In theory. I explicitly say, in theory. Because what happened? The Dutch government supposed wrongly that the prostitution business will become a state of the art branche of industry. But that didn’t happen. The brothelowners refused to comply with labour rights. The labour inspectorate is still sitting back, doing nothing. Brothelowners force the women to work more hours than they want. So has the first and foremost target of the decriminalizing, that is to IMPROVE the position of the women been met? The answer is: yes but not as much as it should have. If you want to apply laws to the prostitution business, you also have to ENFORCE them. And that didn’t work. But….. in the long run I have seen some improvement. First of all, abuse is not taken for granted anymore. Before the decriminalization, it was common to work for women 12 hours a day. Now this is considered abuse. And if they want sexworkers can claim their right before court. Very few do this, but one woman got her unemployment benefit.
And about the other objectives of the decriminalization:
1. To have an instrument to control prostitution. That was at the onset of the process one of the main objectives, as stated earlier. Local councils got too much power. Most of them preferred to work with licences. Local councils were free to give licences to as many brothels they allowed on their territory. By the way, that was a mistake. Most villages and small towns only licensed existing brothels, with brothelowners who were very reluctant to grant women labour rights.
2. To stop minors working in the brothels. I must say, in this respect the law has been successful. Hardly ever the police finds women who are underaged in the licensed brothels.
3. To take the criminality out of the prostitution world. This was done by screening the applicants on a criminal record before issuing a license. This has more stricter been enforced of late. And yes, a lot of brothels have been closed now.
4. To put a stop to undocumented people working in prostitution. This was a goal that was criticized by many activists. But, there is no way around it, if you apply the same laws that hold good for all industries, you have to apply the same laws for migrant workers in all professions.
And the last goal? What happened in that respect? The last goal was to stop force and coercion in prostitution. Has it succeeded in that way? The answer is no, but you may ask if that has to do with the decriminalization. If we talk about force and coercion we talk about force and coercion with a capital f and with a low cast f. Force with a low cast f may mean that women are not always free to refuse clients and to decide which services to render and which not. In this respect it has improved but we still hear too many incidents that that doesnot happen. But still, abuse and sexual harassment of sexworkers have been recognized as a problem. It has been recognized in other professions but now, slowly, slowly, we are negotiating with the police and the government how to remedy this. We can successfully state, even if you are employed, whether inside or outside prostitution no one can force to have sex with a third person. And there is force and coercion with a capital F and C. This is also called traffic in women. That has not stopped either but I come to that at the end of my presentation. That is a global international problem and has nothing to do with lifting the ban on brothels or not. But you have to wait a while before I go into that. By now I just gave a brief evaluation of the decriminalization. But there are more things you want to know the state of affairs in the Netherlands.
Some facts: The number of brothels have decreased dramatically: with one third. This may have different causes: a number of brothels have been closed because they did not comply with the rules. A lot of brothels have been closed voluntarily, in the respect that brothel owners preferred to close the place instead of paying social security. Another number of brothels have been closed simply because clients stopped coming. They were too expensive, too old fashioned and did not cater to the tastes of younger men. Recently a research has been published that in general people like to experiment with other kinds of erotical entertainment: webcamsex, internetporn, swingers clubs etcetera. And last but not least because the women at home are more ready to experiment with what I called bad sex (between parenthesis) like oral sex, sm and threesomes. In other words, we see the sexual emancipation of non sexworkers. Since the introduction of the mobile telephone, for instance, it is possible to have a date without having to call the date at home, risking the partner to answer the telephone like in the seventies, as I explained talking about the nightclubs. Does this mean there are less sexworkers in the Netherlands? Yes we think so, but we will never know but it is against privacy laws for the police to register people for their profession. Municipalities are now getting interested in supporting the women who want to get out. But I must say, not all municipalities do more than just paying lip service to this idea.
That is all very well, you may say, but the real answer is that illegal prostitution has burgeoned in all places. I can’t really say a lot about that, because the official statistics by the government still have to be published. Yes, there is illegal prostitution, but there always have been. But what is illegal prostitution: is it that women don’t want to pay taxes? Or is it prostitution without a licence? Or is it prostitution under conditions of slavery and abuse?
Yes we have seen illegal places, we know they exist. But the visible illegal prostitution is according to our perception far less than the legal prostitution. And they have a hard time staying in business: the police is very alerted.
And yes, we see – mostly Dutch women – not wanting to pay tax and not wanting to comply to the wiles of brothel owners. They prefer to work from their own homes. That is illegal in a lot of municipalities.
And most certainly, there is a lot of illegal prostitution in unregulated escort agencies. And yes, undocumented women are quite likely to be exploited and abused there. The police in most regions is right on top of that. But this abuse of undocumented women has always happened, before and after the decriminalization. And this is the moment to come back to the question I have not yet answered.
To answer this I will take you on a trip to a country in Europe where most undocumented women in the Netherlands originate from: Bulgaria, one of the eastern European countries that has freed itself of the soviet regime. I went there with a Bulgarian speaking colleague It is a poor country. But prostitution is not decriminalized. Brothelowning is a criminal offence. Working outside brothels is considered hooliganism. We have been there and we spoke to the women working there.
What did we see and hear: there is no adequate healthcare for the women. When they work inside a night club: the brothelowner will make the contacts for them. SO they have no say whatsoever in which clients to take. Nightclubs are managed by criminal networks who pay off to the police. The women have no say whatsoever in working hours, conditions etcetera. Besides they have to pay heavily to the mafia of the brothelowners. But not only to them. They also have to hand over money to their personal pimps who terrorize them more often than not. And last but not least they have to pay to the police in the hope that the police doesn’t fine them or just put them in jail. They are so heavily fined they can never get out of prostitution. We spoke to the women who were trafficked to the Netherlands. They didn’t make any money but…. They at least had some peace for a few months. They worked in what we call by now slavery like conditions, which is traffic according to a new international law in Europe. So these Bulgarian women escape traffic in their own country by becoming trafficked to the Netherlands and other European countries. By the way according to European law you can also be trafficked if you know you are going to enter prostitution but are put to work in slavery like conditions. And what are these slavery like conditions:
Working long hours
Being forced to sleep on the job or to have inadequate housing
No sexual autonomy: not being able to choose your clients
Bad or no payment
Having to give up a lot of your takings to intermediaries
Dependency on brothelowners or other third parties
To suffer abuse of power, for instance from the police,
And if I look world wide, if I look at Brazil, Eastern Europe, India and lots lots lots of other countries: sexworkers suffer abuses and work in slavery like conditions. So if you want to stop traffic in persons you have to better their position. And this starts with decriminalization: then you don’t need pimps, you can report police corruption and you have civil rights and you can go to the court to enforce them.
So stop criminalization, give human rights to sexworkers and then we are fighting traffic in women. Decriminalization is only a start to better the situation of sexworkers!!!!