Partial Decriminalization of Sex Work Could Cause More Harm Than Good
The criminalization of sex work in the United States creates harmful conditions in which sex workers experience the harshest penalties, including anti–sex work violence and stigmatization. Over the past decade, many states, including Maine, Massachusetts, New York, and Vermont, as well as Washington, DC, have proposed legislation to decriminalize sex work, but none of the proposed policies have passed.
Most recently, New York legislators have again introduced legislation to decriminalize sex work. The Sex Trade Survivors Justice and Equality Act offers a partial decriminalization model of sex work, unlike the 2019 proposed bill that would have fully decriminalized sex work. The new bill would hold clients accountable by decriminalizing the sale of sex but maintaining legal penalties for the purchase. Under the bill, pimping and brothels would remain illegal, but sex workers would have prostitution and loitering charges expunged from their records. (We use the terms “sex worker” or “worker” to include any consenting adults who engage in a range of sexual labor for the exchange of money or other valued goods.)
This bill was created in conjunction with antitrafficking advocates and survivors, but many sex workers and allies have spoken out about the dangers of implementing a partial decriminalization model in the US. Centering the voices of sex workers in discussions on comprehensive decriminalization and considering the harms of these policies is particularly important because LGBQ/GNCT communities, people of color, and women are overrepresented in sex work and are the most at risk for being victimized. Risks increase at the intersection of these identities, as transgender women of color are disproportionately harmed when sex work is criminalized. Although the New York bill is meant to support people in the sex trade, partial decriminalization, rather than full decriminalization, can further expose people involved in sex work to additional violence and stigmatization.
Other countries have created partial decriminalization policies with varied outcomes
The partial decriminalization response model (PDF), commonly referred to as the Nordic Model for its use in Iceland, Norway, and Sweden, aims to shift legal penalties onto the buyer rather than the worker. Specifically, partial decriminalization classifies the workers as victims to protect them from legal penalties. This model was developed under the assumption that if demand is responsible for driving the market, then criminalizing that demand will deter buyers and protect workers from legal ramifications. Many countries that have enacted the model have experienced a complicated range of negative outcomes, demonstrating that the concerns of sex workers aren’t theoretical.
In 1999, under Chapter 6 of the Swedish penal code, Sweden prohibited the purchase of sex but not the sale. This model has since gained widespread support from the European Union, with several countries adopting a similar model. A decade later, Norway became the third country in the Nordic region to prohibit the buying, but not selling, of sexual services under Section 316 of its penal code. It gained support in response to several abolition-oriented advocates in the early 2000s. When these laws were passed, similar to New York’s proposed legislation, some sex workers felt they were not engaged in the process or writing of the legislation. In Sweden, some workers reported that when they did attempt to raise concerns, they were ignored.
Partial decriminalization has been a popular approach among lawmakers and prohibitionists because of its perceived benefits. Sweden’s partial decriminalization law was developed based on the idea that women who were involved in sex work were inherently victims of male exploitation and needed to be protected and supported rather than prosecuted. As such, the perceived benefits of partial decriminalization rely on the availability of social services, called exit services or exiting schemes, that are used in Nordic countries. Medical, mental health, housing, and rehabilitation services are all integral contextual pieces meant to assist those involved in sex work reclaim their agency. Without those resources and supports in place, partial decriminalization risks isolating workers without a safety net for them to fall back onto.
Partial decriminalization can further endanger sex workers
The American Civil Liberties Union found that when sex work is criminalized, even partially, there is an increased risk of violence toward sex workers, primarily from clients and law enforcement because of difficulties screening clients and violence associated with police interventions. Workers experiencing violence are less likely to report when they have been victimized, making them more vulnerable to abuse. Research has shown that although police involvement and arrests have decreased significantly in places that have enacted decriminalization legislation, there are still reports of abuse experienced by workers at the hands of clients and law enforcement.
Partial decriminalization also fails to acknowledge the existing power imbalance, or “asymmetry of need,” that exists between workers and buyers. Sex workers often have their own strategies to maintain their safety, but because partial decriminalization penalizes buyers, negotiations are rushed to avoid police detection. As a result, workers are less likely to have their boundaries respected and more likely to experience violence or aggression. Partial decriminalization also makes it difficult for workers to work safely above ground or use open channels, which can exacerbate the challenges of sex workers in more precarious circumstances, especially sex workers of color and LGBQ/GNCT sex workers, who are already at higher risk of violence and exploitation.
Partial decriminalization is still criminalization and ultimately endangers sex workers. If policymakers want to address sex work, they can center the voices of sex workers to support and protect them from victimization.
Special thanks to Nell Godellas and Lauren Farrell for their additional feedback and assistance in the development of this work.
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LGBTQ+, immigrant rights, harm reduction and criminal justice reform groups, led by people who trade sex, launched 20+ organization coalition, Decrim New York, to decriminalize and decarcerate the sex trades in New York City and State. Senate Labor Committee Chair Ramos and Womens Health Committee Chair Salazar and Assembly Health Committee Chair Gottfried announced intention to introduce comprehensive decriminalization bill this session. (Photo by Erik McGregor / LightRocket via Getty Images)