The 2020 US election, Prostitution Laws & Human Trafficking

In many ways, Senator Joe Biden’s selection of Kamala Harris as his Vice President is historic: She is the first woman of colour on a major party ticket, as well as the first female Vice-Presidential Democratic pick in more than three decades. 

However, many on the left were not overly pleased with the decision, critical of Harris’s  regressive record when she was District Attorney of San Francisco and Attorney General of California. Among these critics were sex workers’ rights advocates, who have been vocal about Harris’s historically aggressive approach to policing the community and her perceived backflips on the decriminalisation of prostitution. 

The legal status of sex work is a domestic factor which can impact upon the incidence of sex trafficking. Under the Trump administration prostitution has remained illegal in all states (with the exception of Nevada). Alternatively, much of Europe as well as Australia and New Zealand have opted to decriminalise or legalise sex work. Eight countries have also adopted the ‘Nordic Model’ where the buying of sex is criminalised, not the seller. 

Senator Harris recently commented that a Biden Administration would be in favour of a national decriminalisation agenda. Would this legislative change work in favour of America’s fight against human trafficking or against it?

Regardless of the 2020 outcome, the current debate on how to best regulate prostitution has divided America. The core legal approaches are as follows:

Prohibition

Prohibition aims to eradicate the market for paid sex, undercutting the sex trafficking business model, by targeting both supply and demand. In practice, this approach is problematic. In the United States, law enforcement overwhelmingly targets the sellers rather than buyers of sex. Annually 70,000-80,000 people are arrested for prostitution and estimates suggest that 70% of those arrested are female prostitutes and madams, 20% are male prostitutes and pimps, while only 10% are buyers. This approach carries an unfair gender bias against females and discourages victims of sex trafficking from coming forward to authorities due to fears that they may be punished. Thus, the sex industry is driven underground making it difficult for the legal system to deliver justice to victims.

Legalisation 

Through legalisation, states opt not deter people from selling or buying sex. Proponents of this approach argue that the criminalisation of prostitution makes trafficking more attractive. They argue that permitting prostitution reduces the prevalence of sex trafficking by allowing sex businesses to recruit local women who freely choose prostitution as their occupation There is insufficient evidence to support such claims. Research suggests that rates of sex trafficking remain high in places where prostitution is legal. European adopters of the legalisation approach, such as the Netherlands and Germany, have ‘the highest numbers of trafficked women in Europe.’

Critics argue that legalisation increases the size of the sex market, encouraging traffickers to exploit women and girls in greater numbers to meet increased demand. Evaluations have also found that legalised prostitution allows traffickers to hide victims in plain sight as consenting sex workers. The Chief of the German organised crime fighting unit in Stuttgart claimed that, since legalisation, his unit was fighting organised crime with ‘one hand tied behind their back’ as legal brothels provide ‘the perfect place to launder the proceeds of other organised crime.’

Strongly supporting the experiences of the Netherlands and Germany, a 2010 quantitative analysis reported that ‘sex trafficking is most prevalent in countries where prostitution is legalised.’ A 2012 study also overwhelmingly supported these findings. Researchers investigated the effect of legalised prostitution on human trafficking inflows from 150 countries and found that on average ‘those with legalised prostitution reported a greater incidence of human trafficking inflows than countries where prostitution is prohibited.’ The study also reviewed the longitudinal effects of legalising and criminalising prostitution and found that the criminalisation of prostitution in Sweden resulted in the shrinking of the prostitution market and the decline of human trafficking inflows while the inverse was true in Germany.

Nordic Model 

The Nordic model, also known as the Demand model, criminalises the buyers of sex, but not sellers. This approach has grown in popularity as it focuses on shrinking the market for prostitution in order to reduce demand for trafficked women. This approach assumes that sex trafficking is lucrative due to the economic principles of supply and demand. ‘Traffickers choose to trade in humans due to the low start-up costs, minimal risks, high profits, and large demand.’

The Swedish law aims to combat human trafficking by acknowledging the connection between prostitution and trafficking. Approximately 400- 600 people are trafficked into Sweden each year. Since Sweden’s adoption of the Nordic model, this number has remained constant, with no significant increase in the number of recorded victims. Two years following the passage of the law, a Swedish taskforce reported a 50% decrease in the number of women prostituting and a 75% decrease in the number of men who bought sex. Thus, while the number of people trafficked into Sweden is believed to have remained level, there have been reported decreases in the number of people selling and buying sex which has reduced the attractiveness of the Swedish sex market for human traffickers. Critics claim that since the Swedish law passed, prostitution has not decreased, but rather been forced underground. While it is difficult to assess these arguments empirically, Sweden is no longer an attractive market within Europe for human traffickers. Swedish police have confirmed this view that the Nordic model has resulted in deterring traffickers from Sweden and pushed them into other countries.

The normative objectives and results of the Nordic model also cannot be underestimated. When Sweden introduced the legislation, it had merely 30% community support. Today the figure is close to 80%. The legislation has had the effect of changing Swedish culture. It is no longer socially acceptable to pay a woman for sex. This, alongside harsher penalties for buyers, has led to Sweden having a much smaller human-trafficking problem compared to other European nations. 

Recommendation

The fight against global sex trafficking is counterproductive if countries have conflicting approaches to regulating domestic prostitution. Having reviewed the various legislative approaches, it is evident that targeting demand is an integral part of any legal solution. Though imperfect, the Nordic model has a proven track record of reducing the demand for prostitution which minimises the incentives for human traffickers to conduct their businesses. 

According to the most recent polling, the Biden Harris ticket will be victorious in November. As the decriminalisation model has proven unsuccessful in reducing human trafficking, Biden and Harris should re-calibrate their official stance on regulation to reflect the Nordic Model. This will shrink the demand for prostitution in the US, thus making the American sex market less attractive to human traffickers. 

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