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Analysis
At this moment in the United States, prostitution is an illegal activity actively criminalized under federal law.
And most state laws.
And most municipal codes.
There are a bunch of ways that sex workers (sellers of sexual services including, but not limited to prostitution); sex buyers (johns or clients); and other third parties (managers, brothel owners, advertisers, etc.) are criminalized for being “in the market” of prostitution.
If we think about prostitution itself as an illegal activity, then anyone who interacts with the act of prostitution is liable for criminal and/or civil penalties under this paradigm. Anyone “in the market” is a criminal—which is why sex workers are calling for policy action across the nation.
There are several policy actions that are at the forefront of sex workers’ rights activism that address the laws surrounding prostitution. These actions are, loosely, decriminalization of sex work, legalization, and partial or asymmetrical legalization (i.e., the Nordic Model). The decriminalization of sex work is the preferred policy action by sex workers and sex workers’ rights activists. But the Nordic Model is gaining popularity internationally. Is that a good thing?
The Nordic Model is not decriminalization.
The Nordic Model gets a lot of credit in the public sphere thanks to countries like Norway and Sweden, which have boasted success in furthering public health interest with this model, where the sellers of erotic services are not penalized for selling, but customers are penalized for buying. This model doesn’t work for sex workers’ rights advocates in the context of the United States, where people aren’t guaranteed medical or social benefits and customer interest is required for profit.
In contexts where essential needs aren’t guaranteed by a person’s jurisdiction, e.g., the United States, any paradigm that limits the power and autonomy of consumers and sellers of sex will do more harm than good, according to most experts.
Decriminalization, on the other hand, refers to the complete dissolution of penalties around an act or object. In the case where prostitution and its surrounding market are criminalized, decriminalization refers to the removal of penalties for “being in the market” at all. Sex workers and sex workers’ rights activists globally call for full decriminalization of prostitution and all prostitution-related charges.
A question we get a lot is, what is the functional difference between these paradigms?
Under the Nordic Model (sometimes called the Equality Model), third parties privy to and buyers of erotic services are penalized. This includes advertisers and now, thanks to FOSTA/SESTA, advertising platforms are now liable to criminalization as well.
I’m sure you’re thinking, “In lieu of sending the sellers to jail, arresting pimps and johns instead is at least a step forward, right?” Actually, sex workers want clients and third parties decriminalized, too.
Why?
Savannah Sly of New Moon Fund, a full-time advocate and career sex worker, told Pleaser: “The Nordic Model is a form of economic siege that promotes scarcity mentality amongst sex workers, driving competition and destabilizing safety practices. When there are fewer clients to make money from, sex workers lose bargaining power and are likely to compromise on prices and terms of service. Based loosely on ‘supply and demand’ theory, the Nordic Model fails to acknowledge the human rights of sex workers, and makes working conditions more hazardous.”
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The Nordic Model is problematic for sex workers for several reasons.
1) In theory, this asymmetrical criminalization is what’s known as an end-demand tactic, where the goal is to literally end demand for prostitution, thereby eliminating “the market.”
With the end goal of eliminating a market, the Nordic Model is basically a form of commercial sex prohibition. We’ve seen what prohibition does: It only pushes a market underground.
2) In practice, this model creates market conditions that are rife for abuse and coercion of sexual services by the provider.
The study of market economics demonstrates how policy will impact market conditions such that the consumers of a product will change their behavior to accommodate the market shift. In this case, the Nordic Model restricts the negotiating power of the service provider. This articulates why it’s important to craft policy with the people who are impacted. If you’ve never participated in the sex trade, how would you understand this power dynamic?
Obviously, this is an issue in the American capitalist context. If a customer has a high risk of being arrested or otherwise penalized for buying a service they are less likely to buy that thing. Bad for the economy, bad for the workers who lose out on income. This is particularly important when thinking again about who is most likely to be in conditions of poverty and lack access to adequate resources for upward mobility; those are Black and brown people, queer and trans people, and people with disabilities.
3) Third-party criminalization, in this very specific context, is theoretically intended to stop exploitation, coercion, and force; however, what it actually does is restrict the providers’ ability to advertise services and safely plan with others.
Depending on the jurisdiction, third parties almost always include co-workers or house managers (in the case of a brothel), the websites that host the ads (like Backpage or Craigslist Personals), or even a close friend who gives you a ride to and from a date to ensure your safety. This means sex workers are encouraged to work alone, and often, on the street.
According to research from Decriminalize Sex Work, “The implementation of laws that criminalize clients clearly correlates with an increase in violence perpetrated against sex workers.”
So, why is decriminalizing better for sex workers?
- According to the ACLU, decriminalizing sex work advances LGBTQ+ equality, fights mass incarceration, and increases access to economic and social mobility.
- There’s evidence of decreased exploitation in the sex industry in places where decriminalization has been implemented. According to advocacy experts Decriminalize Sex Work, a 501(c)3 advocacy organization, “Full decriminalization of sex work has reduced exploitation where and when it has been implemented… The same health and safety benefits of decriminalization are not observed under partial criminalization policies.” DSW quotes the Northern Ireland Department of Justice’s 2019 report analyzing the three years of the impact of laws criminalizing clients of sex workers in Northern Ireland.
- Decriminalization shows evidence of increased public health and safety, boasting better health outcomes for sex workers and the general public.
- Criminalization is society’s way of telling us what is morally right and morally wrong. The dissolution of criminal penalties related to the sex trade shows a shift that validates sex work as work and ensures the rights of participants in “the market.” This is a step toward the destigmatization of sex workers, a highly stigmatized group.
