In its Monday editorial on trends in prostitution law, the New York Times commendably accepts the position sex workers have long advocated for: Sex workers should not be regarded as criminals. You could almost hit "close tab" right there and call it a day for sex workers' rights.
Keep reading. The alternative the Times offers? Sex workers should instead be treated as “victims,” which the editorial claims can be accomplished by increasing criminal penalties against their customers. But there’s no evidence, in the editorial or elsewhere, to support that assertion. What’s more, leading global health and human rights organizations have already condemned that approach, as have sex workers themselves.
The editorial was inspired by France, where last week, after a heated national debate, the general assembly passed a bill levying fines against people who buy sex. (The law isn't yet in effect; the Senate is expected to pass it next year.) This law, the Times editorial board writes, "would bring France more in line with a growing consensus among European and American governments that it makes better sense to treat prostitutes as exploited and abused victims rather than as criminals." But passing stronger laws against buying sex and treating sex workers as victims does nothing to actually protect sex workers’ health, safety, or rights, and only perpetuates a system in which sex workers are endangered by the police.
The proposed French law introduces new penalties for activities related to buying and selling sex, only one of which is the highly publicized "fines for johns." The law is quite broad, and targets many more people who are involved in the sex trade than customers. Internet service providers in France must block websites—including those hosted outside the country—that are believed to violate the new law; this could potentially include sex workers' own websites. One French MP asserted the law would also permit cybergendarmes to monitor Internet and telecommunications activity related to commercial sex, which sex workers fear could invade their privacy and publicly expose them.
Supporters defend this law as "decriminalizing the prostitute," but even with it, authorities would still have the power to target sex workers (and those presumed to be sex workers) with local "public order" by-laws, which have been used by law enforcement in France and elsewhere to harass, arrest, or even deport sex workers. (In the United States, police do the same, using city and state laws against "loitering with intent to solicit" sex, or "manifestation" of prostitution.) Such police surveillance is the norm for sex workers worldwide, where it is often accompanied by police violence. Anti-prostitution policing, even that which is supposedly not targeted at sex workers, relies on racial, ethnic, and gender profiling. It reinforces stigma against sex workers. It is how sex workers are made into criminals in the public eye. And it is dangerous for sex workers’ health, which is why the World Health Organization and Human Rights Watch oppose this sort of approach. A 2012 WHO report states that "laws that directly or indirectly criminalize or penalize sex workers, their clients and third parties, and abusive law enforcement practices" undermine HIV prevention efforts and limit sex workers' access to care.
The Global Commission on HIV and the Law, a project of the U.N. Development Program, opposes the criminalization of the customers of sex workers, as well as laws that make it impossible for sex workers to legally conduct business, like provisions that prohibit renting premises to work from; communicating about work in public, by phone and online; and laws that prevent sex workers from paying for security or other support persons. In examining laws in 140 countries, the Global Commission found that more than 100 criminalize some aspect of sex work, concluding, "The legal environment in many countries exposes sex workers to violence and results in their economic and social exclusion." That is, laws against sex work harm, not help, sex workers.
All this is also why STRASS, France's sex workers' union, opposes the law, which “actually doesn't remove any of the problems which sex workers, and more generally women, sexual minorities, and migrants are facing regarding their access to their rights," Morgane Merteuil of STRASS emailed to me, "but only proposes more social control, and more cops." Why isn’t the union’s perspective—or, really, the perspective of any sex worker who will have to live under these new laws—granted a single word in the Times' endorsement? This exclusion doesn't distinguish the Times much from French lawmakers themselves, who, sex worker advocate Thierry Schaffauser notes, did not invite current sex workers to speak on the bill in parliament.
Instead of offering the voices of sex workers or even their health advocates, the Times has taken as fact the claims of anti-prostitution policymakers: that by abolishing or reducing the incidence of sex-for-sale, what follows is a better life for the people who sell sex. But the Times does not go so far as to cite any evidence for this. It would be hard for them; there isn't much.
The Times does mention Sweden, whose 1999 ban on the purchase of sex was in part a model for the French law. "This so-called 'Swedish approach' is seen as more just to sex workers, who are perceived as victims by its proponents," writes the Global Commission. But in Sweden, they report, the law has resulted in an increase in violence, with sex workers pushed further underground, and further from support systems. When the Global Commission issued its report in July 2012, there had been over 2,000 arrests for buying sex in Sweden, and two convictions. "Workers do not consider themselves to be victims," the commission wrote, "and are almost always unwilling to testify against their clients." Sweden’s approach, they warn, “has been applied in other countries and has actually resulted in grave consequences for the workers."
What about in the United States? The Times board wrote approvingly earlier this year on “specialized criminal courts” in New York and a handful of other cities that have been developed with the “sex workers are victims” ethos in mind. But these programs rely on arrests to get sex workers into social services, and the threat of prosecution to keep them there.
We could also look to Norway, which followed Sweden in criminalizing the purchase of sex. There, sex workers report still facing evictions from police and ongoing police surveillance; they "do not perceive the police as an ally they can turn to when they are the victim of a crime," according to a 2012 city of Oslo report.
It’s not hard to understand why sex workers do not greet the police as liberators. I'm thinking here of the photographs from a police raid on sex workers published (though later taken down) by the London Evening Standard just last week. In the photos, the women are seated in a flat in Soho, hands thrown up to shield their faces from the camera’s lens. The photographer was a guest of the Metropolitan Police, whom the women did not call. According to Sex Workers' Open University, a sex workers’ rights organization based in the U.K.:
On the 4th December police raided 25 premises in Soho and evicted, detained and harassed sex workers. They kicked down doors, closed working flats, took money and personal items, and manhandled women in the street in front of the photographers and news crews they invited to witness this violence and intimidation. The media presence included Sky news, BBC and the Evening Standard. It would seem that "victims" of sex work need to be publicly humiliated and shamed in the media in order to be properly saved from their work.
The "hundreds of police" that the Standard reports swarmed Soho that evening put these women out in the cold or sent them to detention. The police claimed that by shuttering their flats, they were delivering the women to safety. Westminster City Council leader Phillipa Roe told reporters, "Westminster City Council is ready to help any vulnerable woman—themselves victims of crime, trapped in a way of life where they have little or no control." But the women never asked for such assistance or protection. We need to ask why before we race to pass yet more laws to "help."
When the Times writes of a “growing consensus” in Europe and the United States over how to best legislate prostitution, they don’t mean a consensus involving the sex workers themselves. Each time laws based on the Swedish model, like the one in France, are proposed, sex workers are among the loudest opponents. In the past few months alone, we've seen protests from sex workers demanding to have their voices heard on sex work laws, demanding voluntary care and services without the threat of arrest or prosecution, and demanding justice from those who target them for violence, including the police, When sex workers protest their victimhood and demand full inclusion in society, we need to start listening.