Getting Screwed: Sex Workers and the Law

by Alison Bass

  While no amount of coercion in the sex trade is acceptable, the numbers of prostitutes who are being trafficked and exploited under the Dutch system of legalization is much lower than the local media claim, researchers in the Netherlands say. Among the prostitutes interviewed in the licensed sector, only 8 percent indicated that they started doing sex work under some form of coercion, the 2007 study found.40 As Siegel concludes, “The image of the Netherlands as a country where almost everything is permitted with its legalized prostitution and which attracts and facilitates human traffickers from all around the world is a myth. . . . As a social phenomenon human trafficking is limited in Dutch media and in public debate to a vague generalized abstraction, which does not distinguish between voluntary independent sex work and the cases of violent exploitation.”41

  What the media also fail to report is that there actually seems to be less violence against sex workers in countries that have legalized and regulated the sex trade. For example, a comprehensive 2005 study of prostitution throughout the continent, commissioned by the European Parliament, found that countries (such as Denmark and Spain) that have an abolitionist approach to prostitution (in other words, it is decriminalized but not regulated as a form of work) appear to have a higher level of violence than countries that have legalized prostitution, such as the Netherlands and Germany.42

  Despite such findings, the Swedish ethnographer Ida Kock and many sex worker advocates are critical of Germany’s approach. In 2002, Germany decriminalized prostitution and allowed its municipalities to decide whether they wanted to legalize and regulate the trade. (Cities and towns with a population of less than 50,000 were allowed to completely ban prostitution.) Sex work is thus legal in a number of Germany’s major cities, including Frankfurt, Berlin, Hamburg, and Bremen. Sex workers can legally work in hotel-brothels, sauna clubs, and their own homes, and as in the Netherlands, most of the women working in the sex trade come from Eastern Europe. Only 40 percent are of German background.43 In the decade since Germany decriminalized the trade, prostitution-related crimes have declined markedly and trafficking has also declined, according to German government statistics.44

  However, all sex workers in Germany are required to register as prostitutes, and Kock says that most don’t register because they don’t want the stigma of wearing the Scarlet S. “The German model is so unsuccessful because so many sex workers don’t register,” she says. “No one wants to be known as a sex worker in public.”

  The German approach is “similar to the Nevada model: paternalistic, corporate, and dominated by men,” Koch says over a box lunch on the second day of the Desiree Alliance conference. “The Nevada model is very demeaning for people who work in the industry; there is mandatory testing and the brothels take 50 percent of the women’s earnings. The giant brothels in Germany are the same.”

  Even though Germany’s 2002 law granted adult sex workers the right to enter into contracts with brothel owners and sue clients for nonpayment, in reality, the vast majority of sex workers in Germany don’t sign contracts or press for greater rights. “Prostitutes fear that employment contracts will jeopardize their anonymity,” reports Weitzer in his 2012 book. “Owners dislike contracts because they would then have to pay insurance premiums for their employees, who also would be entitled to holiday pay, pregnancy leave and social security benefits.”45

  New Zealand’s Successful Approach

  To Kock (and many sex worker advocates), the safest and most successful governmental approach to prostitution can be found Down Under — in New Zealand. In 1995, New South Wales, the highly populated region in Australia that contains the country’s capital, Sydney, was the first in that area of the world to decriminalize brothels and street prostitution, allowing local councils to regulate where brothels could be located and in what form. However, living on the earnings of a prostitute remained illegal (except for those running a brothel), as did advertising for prostitution and procuring prostitutes. In 2003, New Zealand officials went much further, removing criminal prohibitions against solicitation, living on the avails of adult sex work, and operating indoor venues where sex work takes place.

  The New Zealand Prostitution Reform Act, as the 2003 law is known, retained prohibitions on underage prostitution and made it a serious offense to compel anyone to sell sex or arrange for or receive commercial sexual services from someone under the age of eighteen. The act, which some researchers argue is essentially legalization, requires brothels, escort agencies, and other venues to be licensed and allows for periodic inspections of the premises by law enforcement, health, and social services agencies.46 In both New Zealand and New South Wales, sex workers themselves do not have to register as prostitutes; if they want to pay taxes and obtain health and social security benefits, they can register as a service worker or an independent contractor. “That’s a huge deal,” Kock says. “That means that when you go to the tax office, you don’t have a stranger asking you questions about your sex work.”

  According to several studies, lifting the ban on prostitution has improved working conditions for both indoor and street workers in New Zealand and New South Wales. It has made it easier for streetwalkers to insist on condom use and has enabled indoor workers to refuse clients without being penalized.47 Indeed, in February 2014, the New Zealand Human Rights Review Tribunal awarded a sex worker sizable damages for sexual harassment by a brothel owner.48 In a 2006 study of 772 sex workers in five locales around New Zealand, the majority said they feel safer since decriminalization; the police no longer harass them and they feel more comfortable reporting crimes.49

  Decriminalization has also made it more likely for sex workers to practice safe sex, an undeniable public health benefit. In a 2010 study that compared sex work in three Australian cities, researchers found that women who worked in licensed brothels in Melbourne, where prostitution is legal and those who worked in New South Wales, where it is decriminalized, were much more likely to have access to free condoms than sex workers in Perth, where all forms of prostitution are criminalized.50

  Neither New Zealand nor New South Wales requires mandatory testing of sex workers for HIV infection and other sexually transmitted diseases. Instead, their governments rely on community-based health education programs that encourage safe sex and educate sex workers about AIDS and other diseases. As a result, sex workers in New Zealand and New South Wales have “very high condom use rates” and a very low incidence of HIV transmission, according to a 2012 report issued by the United Nations Development Programme.51

  In contrast, the U.N. report found that countries in Asia and South Pacific that criminalize some aspects of sex work or heavily regulate it in certain locales (with mandatory testing) have not been nearly as effective in preventing HIV epidemics among sex workers. The problem, the report noted, is that the majority of sex workers in countries such as Cambodia, China, Taiwan, Thailand, and the Philippines operate illegally or outside the regulated sector. And because these workers fear arrest, they are much less likely to use condoms and practice safe sex. The report concluded, “Criminalization increases vulnerability to HIV by fueling stigma and discrimination, limiting access to HIV and other sexual health services, condoms and harm reduction services, and adversely affecting the self-esteem of sex workers and their ability to make informed choices about their health.”52

  The report also found that antitrafficking laws in Cambodia, India, Malaysia, and the Philippines have been used to justify raids on brothels that result in the abuse of sex workers and undermine efforts to reduce the spread of HIV.53 In Cambodia, for example, Human Rights Watch documented cases in which sex workers (who were not being trafficked) were “rescued” from brothels and detained at police centers, where they were beaten up after trying to escape. One woman told Human Rights Watch that the guards threatened to “slit our throats” if she and other sex workers tried to escape again.

  In what some consider a supremely ironic twist, one of the leaders of the antitrafficking movement in Camb
odia who encouraged these brutal crackdowns was recently forced to resign from her own antitrafficking organization amid allegations that she had lied about being a child trafficking victim herself and had encouraged other young women to fabricate trafficking stories. Somaly Mam has raised millions of dollars to combat trafficking (the foundation bearing her name raised $2.8 million in 2012 alone from wealthy Western donors). Mam’s antitrafficking work was frequently cited by New York Times columnist Nicholas Kristof, and indeed, Mam’s foundation was listed as a “partner” of Kristof’s own antitrafficking movement, Half a Sky, on his website.54

  In February 2012, while speaking at the White House, Mam said that she had been sold into sex slavery at the age of nine or ten by a man she knew as Grandfather. However, acquaintances and teachers who knew Mam as a child said that she had come to their Cambodian village with her parents and stayed there until she graduated from high school, according to a 2014 Newsweek cover story. One of the women Mam coached, Meas Ratha, gave a chilling performance on French television in 1998, describing how she had been sold to a brothel and held against her will as a sex slave. In late 2013, according to Newsweek, Ratha finally confessed that her story was fabricated and carefully rehearsed for the cameras under Mam’s instruction. She also said she had been chosen from a group of girls who had been put through an audition.55

  Mam’s ex-husband, Pierre Legros, who helped her start her first antitrafficking initiative in the 1990s, acknowledged that the lure of big money provides incentives for antitrafficking nonprofits, such as Mam’s foundation and an organization he cofounded with Mam to rescue trafficking victims, to inflate statistics and distort the truth. “If you have no story, you don’t have money,” he told the New York Times.56

  While Mam has stepped down from her own foundation, “the consequences of her fables will prove harder to correct,” wrote one former sex worker in a New York Times op-ed piece that ran the same day as the news of her resignation. “Ms. Mam and her foundation banked on Western feel-good demands for intervention, culminating in abusive crackdowns on the people she claimed to save,” wrote Melissa Gira Grant, the author of Playing the Whore: The Work of Sex Work. “In brutal raids on brothels and in parks . . . women were chased down, detained and assaulted.”57

  Not surprisingly, it was antitrafficking zealots such as Mam and Legros who criticized New Zealand’s move toward decriminalization, warning that it would bring a flood of prostitutes to New Zealand. But since the passage of the 2003 act, the number of sex workers in the country has remained relatively stable. In addition, there has been no increase in the number of underage workers, according to a government-funded 2008 study done by the Prostitution Law Review Committee, a commission of eleven experts appointed by the Ministry of Justice to review the impact of the Prostitution Reform Act. Trafficking remains a relatively minor problem in New Zealand, which retains one of the most favorable rankings in the U.S. 2013 Trafficking in Persons Report. Overall, the 2008 Ministry of Justice study concluded that the “majority of individuals involved in the sex industry [in New Zealand] were better off now than under the prior system.”58

  Given New Zealand’s isolated location (its closest neighbor, Australia, is 2,583 miles away), it is not surprising that trafficking is not a major problem there. In contrast, Germany and the Netherlands, by virtue of their central European locations, are much more vulnerable to the migration of both voluntary and involuntary sex workers from other parts of Europe, Latin America, and Africa.

  The Stigma of Sex Work

  Many researchers and sex worker advocates prefer the New Zealand approach because it recognizes the entrenched stigma involved in being a sex worker and does not force sex workers to declare their occupation publicly. The government has also made an effort to include the voice of sex workers on the committee in charge of implementing the 2003 law.

  Even Down Under, however, sex work remains stigmatized. Sex workers are looked down upon by the general public and are often estranged from their families. Of the 772 New Zealand sex workers surveyed in a national study done by the University of Otago’s Christchurch School of Medicine, most felt that the stigma attached to sex work was a greater risk to their health than the risks from violence, exploitation, and unsafe sex. While decriminalization has made it possible for sex workers to practice safe sex and better protect themselves from violent clients or pimps, it has not significantly lessened the impact of the stigma on the sex workers’ mental health, the study found.59

  Much of the existing stigma against sex workers comes from entrenched views of marriage and female sexuality, as discussed in Chapter 4. In a 2010 book about the New Zealand prostitution reforms, Gillian Abel, a public health researcher at the University of Otago at Christchurch, and Lisa Fitzgerald, a public health sociologist at the University of Queensland, Australia, cite the same problem: “Sex workers and most especially female sex workers do not conform to ideals of ‘normal’ sexuality with its accompanying presumptions of female passivity in the sexual domain. They are, therefore, as Sibley has termed ‘othered’ — different from ‘normal’ decent citizens, framed as ‘deviant’ and generally stereotyped as involved in drug use, gang activity, crime, spread of sexually transmitted infections and with threatening the moral fabric of society.”60

  In a Skype interview months after we met by the pool in Las Vegas, Ida Kock also connected the stigma surrounding sex work to “ideas about female sexuality and female chastity” and warned that such entrenched stereotypes will not change quickly. “I think we all overestimate the value of changing the law,” the Swedish ethnographer says. “We can have better legislation that protects sex workers’ rights, but the stigma won’t go away overnight.”

  In the meantime, Eva-Marree Kullander Smith’s young children are in the care of Swedish Social Services, the same agency that refused to let her raise them. They will never know their mother or how hard she fought for them.

  Canada’s Public Health Experiment

  When Valerie Scott was a child growing up in New Brunswick, the northeastern province of Canada just over the border from Maine, she would watch old westerns on rainy afternoons. And that’s when she fell in love with saloon girls. “The cowboys running around killing each other bored me, but I lived for the moment when the saloon girls came on,” Scott recalls. “The cowboys couldn’t pull the wool over their eyes, and sometimes they’d get their own saloon. I knew that’s what I wanted to be: a saloon girl.”

  This was, of course, years before Valerie understood exactly what saloon girls did, but even when she gleaned the truth (from a friend at the age of eleven), she wasn’t deterred. After graduating from high school, she majored in science at the University of Guelph in Ontario (near Toronto) and began working as an exotic dancer to pay her way through school.

  “One of my first costumes was a nineteenth century saloon girl,” Scott says. “I danced for seven years and worked up to feature status.” By the early 1980s, she had dropped out of school and was performing burlesque in a different city every night, from Philadelphia, Miami, and New York to Toronto, Vancouver, and San Juan, Puerto Rico. She eventually tired of the constant traveling and, at the age of twenty-four, discovered a new way of working in the sex industry.

  “I put a companion ad in the Globe and Mail [a major Toronto newspaper] and ran it for one week,” Scott says. “I received ninety-three replies, and I threw out the ones with poor grammar, reasoning [that] they probably wouldn’t have a very good job. And then I began to work.” She would meet clients in a public place, and if they passed her screening test, she would take them to her apartment or a hotel. Most of her clients were men from Toronto, many of them married. “I remember standing in the hallway of my apartment after the third or fourth client I’d seen and thinking, ‘I could kick myself for not getting into the business sooner,’ ” she says. “This is a good job. I don’t care what everyone says.”

  By the mid ’80s, however, Scott was disgusted, not by the sex work, but by
the stigma surrounding it from every facet of society. “I couldn’t handle being treated like I was a disposable person,” she says. “I couldn’t handle my colleagues being treated like that. And I hated lying to my parents and friends about what I was doing.”

  In 1985, the conservative government then in power in Canada passed a law that prohibited communicating in a public place for the purpose of engaging in prostitution. Known as the communicating offense, it made life on the streets much more dangerous for streetwalkers, who, because of the fear of being arrested, could no longer take the time they needed to assess clients before they climbed into their cars. What Scott saw politicized her.

  “I didn’t work on the street, but too many of my colleagues who did were getting hurt,” Scott says. “I would take women to the police station to have them report the violence, and the police would say to my face, ‘It’s part of their job.’ ”

  One day, Scott was listening to the CBC (Canadian Broadcasting Corporation), and she heard John Crosby, then Canada’s justice minister, talking. “He was carrying on about sex workers like we were vermin,” Scott says. “That was it. That was the moment.”

  Scott joined the Canadian Organization for the Rights of Prostitutes (CORP) and became active in the sex workers’ rights movement. The first lawsuit she and CORP filed challenged, on constitutional grounds, the new law making communication for the purpose of prostitution a criminal offense. But in 1990, the Supreme Court of Canada upheld the law. Scott wanted to carry on the fight, but her group didn’t have the money. “Challenging all the [prostitution] laws was a $200,000 case,” she says. “We had $40 in our legal fund.”