Impact of Criminal Law on the Health, Safety and Human Rights of Sex Workers

[The Sex Worker Inclusive Feminist Alliance (SWIFA) was formed as part of a long-term strategy of building alliances across the sex workers’ rights and women’s rights movements to advance the acceptance of sex workers’ rights within the women’s movement and the core group of organisations in the alliance include: Amnesty International – International Secretariat, CREA, FEMNET, Global Alliance Against Traffic in Women (GAATW), Global Network of Sex Work Projects (NSWP), International Women’s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), and Women’s Global Network for Reproductive Rights (WGNRR).]

The International Commission of Jurists (ICJ) recently published a new set of legal principles to address the harmful human rights impact of unjustified criminalisation of individuals and communities. The 8 March Principles were created and endorsed by lawyers and jurists from around the world. They offer a clear, accessible, and operational legal framework and practical legal guidance to parliamentarians, judges, prosecutors, and advocates to address the harmful impact of criminalisation of certain conduct on health, equality, and other human rights. 

Based on general principles of criminal law and international human rights law and standards, they set out a human rights-based approach to criminal laws that typically penalise conduct associated with sex, reproduction, drug use, HIV, homelessness, and poverty. 

As part of the development of the principles, ICJ, in partnership with NSWP, undertook a global e-consultation with sex workers, seeking input on the impact of laws criminalising all aspects of sex work, including the sale of sexual services, the purchase of sexual services and the facilitation, management or organisation of sex work; and the legal and policy reforms needed to address and overcome those impacts. ICJ also consulted more broadly with a range of civil society actors, lawyers, academics, human rights organisations, as well as OHCHR, UNAIDS, WHO, and UNDP. These consultations took place in-person as well as online, through a variety of means, including through a questionnaire. 

Principle 17 on sex work states:

– The exchange of sexual services between consenting adults for money, goods or services and communication with another about, advertising an offer for, or sharing premises with another for the purpose of exchanging sexual services between consenting adults for money, goods, or services, whether in a public or private place, may not be criminalized, absent coercion, force, abuse of authority or fraud. 

– Criminal law may not proscribe the conduct of third parties who, directly or indirectly, for receipt of a financial or material benefit, under fair conditions – without coercion, force, abuse of authority or fraud – facilitate, manage, organize, communicate with another, advertise, provide information about, provide or rent premises for the purpose of the exchange of sexual services between consenting adults for money, goods, or services.

This elaboration confirms the endorsement by jurists, as advocates for justice and human rights, of the position advocated by sex workers’ rights activists, and other leading international authorities on health and human rights, for many years. 

The Principles also confirm that criminal laws cannot be justified even if they have been adopted with the stated aim of ‘protecting’ sex workers, public safety, public order, the rights or freedoms of others, national security, public morals, traditions, religious beliefs or cultural values in any given country or society. Sex work should also not be placed under specific regimes of administrative regulations (e.g., zoning; mandatory testing for sexually transmitted infections, including HIV) that have been shown to endanger sex workers.  

The Impact of Criminalisation

Research by NSWP found that 193 countries and dependencies criminalise one or more aspects of sex work in some form, through the criminalisation of the sale of sexual services, the purchase of sexual services and/or the facilitation, management, or organisation of sex work (often referred as the criminalisation of ‘third parties’).  Many countries also use criminal and/or civil laws not specifically related to sex work to sanction sex workers, including laws criminalising “vagrancy”, “loitering”, “public decency”, “immorality”, “nuisance”, or “public disorder”, to harass and arrest sex workers.

Sex workers face discrimination based on their status as sex workers and may face additional, intersecting forms of discrimination, punishment or structural inequalities based on their gender, gender identity, gender expression, sexual orientation, race, caste, ethnicity, indigenous identity, migrant status, HIV status, or drug use. 

The criminalisation of sex work threatens numerous human rights, including the rights to: privacy and to family life; liberty and security of person; freedom from torture and other cruel, inhuman and degrading treatment or punishment; health; adequate housing; just and favourable conditions of work; freedom of expression; freedom of association; freedom from discrimination and to equality before the law and equal protection of the law without discrimination, and other human rights in several ways. 

Globally, the criminalisation of sex work drives violence and other human rights abuses against sex workers, reduces access to essential services, and fuels stigma and discrimination. At the same time, criminalisation fosters a culture of impunity for perpetrators of violence, heightening sex workers’ vulnerability while making them less likely to report incidents of violence due to fears of negative legal repercussions for them, sexual assault, and discriminatory treatment by police. Criminalisation also impacts sex workers’ ability to implement safer sex practices due to the confiscation of condoms by police. By-laws, such as criminalising solicitation and loitering in public places, are also disproportionately used against sex workers, forcing sex workers to shift their activities to more hidden and precarious environments to avoid police detection. 

Criminalisation and punitive policies have also been found to reduce sex workers’ access to rights-based health services while increasing their risk of HIV infection and other STIs. 

The Nordic Model / Client Criminalisation

Laws criminalising the purchase of sexual services, also known as ‘End Demand’ legislation or the Nordic Model, are often framed as a strategy to promote gender equality and combat trafficking through the eradication of sex work. In reality, such legislation exacerbates, rather than ameliorates, sex workers’ vulnerability to violence, discrimination, and exploitation. ‘End Demand’ models are rooted in ideology which erroneously equates sex work with exploitation and human trafficking. As a result, countries that have adopted ‘End Demand’ legislation disproportionately enforce these laws in spaces occupied by sex workers, including homes, neighbourhoods, and work establishments. Sex workers – not clients or traffickers – incur the majority of profiling, surveillance, and policing. The over-policing of sex worker spaces leads to frequent police stops, identity checks, and questioning, as well as increased arrest, detention, and penalisation for sex work- and non-sex-work-related crimes. Sex workers in Canada, France, and Sweden have reported being threatened with criminal charges, detention, and physical violence, and have also been harassed to act as witnesses against their clients. ‘End Demand’ laws are also used to justify raids on sex workers’ workplaces and homes, which can lead to forced evictions, loss of livelihood, and, in the case of migrant workers, deportation. 

‘End Demand’ legislation reduces sex workers’ access to justice by increasing punitive interactions between sex workers, law enforcement and judicial systems, including loss of child custody, eviction, property seizure, and deportation. In Norway, sex workers reported multiple instances of police failing to respond to reports of violence or threatening situations. Additionally, they expressed concern that the police would use these reports as a pretext to intimidate and harass sex workers. In Ireland, in spite of the drastic surge in crime documented by UglyMugs.ie, less than 1% of sex workers using the app said that they have or will report these crimes to the gardaí (national police service of Ireland), indicating that the government’s policies have neither protected sex workers, nor fostered their trust. 

The harmful effects of ‘Nordic Model’ or ‘End Demand’ legislation on violence, exploitation, and stigmatisation have been well documented. In Ireland, UglyMugs.ie, an app used by sex workers to confidentially report incidents of crime and abuse, noted a 90-92% increase in reported incidents following the adoption of the ‘Nordic Model’ in 2017. 

The criminalisation of clients also compels sex workers to shift their activities underground. Fear of arrest discourages clients from visiting indoor establishments or meeting at hotels, which in turn leads sex workers to travel to clients’ homes or other distant locations, exacerbating their vulnerability to both violence and exploitation. Clients’ fears of arrest have also reduced sex workers’ negotiation power, and fewer clients are willing to provide sex workers with personal identifying information that can act as an insurance and safety measure. Even laws which seek to ‘regulate’ the sex industry are frequently dangerous and counterproductive – merely increasing criminalisation, vulnerability, and human rights abuses against sex workers. 

The Importance of Decriminalisation

International best practice guidelines, supported by a substantial body of evidence, promote the full decriminalisation of sex work as the best means to reduce violence, improve health outcomes, and uphold the human rights of sex workers. Decriminalisation guarantees sex workers the same health and safety standards as other workers. Decriminalisation is the legal framework favoured by the overwhelming majority of sex worker-led organisations worldwide, as well as leading authorities in health and human rights.

The Joint United Nations Programme on HIV/AIDS (UNAIDS), UNFPA, WHO, UNDP, the World Bank, Amnesty International, Médecins Du Monde, Human Rights Watch, the Global Commission on HIV and the Law, Open Society Foundations, the Global Network of People Living with HIV, the Global Action for Gay Men’s Health & Rights (MPact), the International Women’s Health Coalition, the Association for Women’s Rights in Development, the American Jewish World Service, the Global Alliance Against Traffic in Women (GAATW), The Lancet, The Global Fund for Women, the Elton John AIDS Foundation, Frontline AIDS, the International Community of Women Living with HIV, Global Health Justice Partnership of the Yale Law School and Yale School of Public Health, European AIDS Treatment Group, ILGA-Europe, the Platform for International Cooperation on Undocumented Migrants (PIKUM), Freedom Network USA, STOPAIDS, La Strada International, International Planned Parenthood Federation European Network and ILGA World all call for the decriminalisation of sex work. 

Modelling estimates have shown that the decriminalisation of sex work could reduce HIV infections amongst sex workers and their clients by 33-46% over the next decade, through its combined effects on reducing violence, promoting safer work environments, and increasing condom use. As attested by UNAIDS, the decriminalisation of sex work “is key to changing the course of the HIV epidemics among sex workers and in countries as a whole.” UNAIDS has urged states to decriminalise sex work and activities associated with it, including removing penalties for the purchase and sale of sex, management of sex workers and brothels, and other related activities. 

In New Zealand, following the decriminalisation of sex work in 2003, sex workers have reported improved working conditions, negotiation power, and increased confidence in asserting their legal and employment rights. Sex workers in New Zealand have also reported improved relationships with law enforcement and an increased likelihood of reporting incidents of violence to the police. In Australia, the New South Wales Ministry of Health commissioned a report that reviewed the legislation, which  found that the reforms that decriminalised adult sex work had “improved human rights; removed police corruption; netted savings for the criminal justice system; and enhanced the surveillance, health promotion, and safety of the NSW sex industry.” Contrary to early concerns, the NSW sex industry has not increased in size or visibility. 

When sex work is decriminalised sex workers have improved access to workplace health safety and rights, access to industrial protections and avenues for redress in instances of violence and exploitation – including those inflicted by the state. 

The 8 March Principles are vitally important as they recognise the need for the full decriminalisation of sex work, including sex workers, clients and third parties. Human rights are indivisible and universal. 

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The Sex Worker Inclusive Feminist Alliance was formed as part of a long-term strategy of building alliances across the sex workers’ rights and women’s rights movements to advance the acceptance of sex workers’ rights within the women’s movement. 

The core group of organisations in the alliance include:

• African Women’s Development and Communication Network (FEMNET) 
• Amnesty International – International Secretariat (AI)
• CREA
• Global Alliance Against Traffic in Women (GAATW)
• Global Network of Sex Work Projects (NSWP) 
• International Women’s Rights Action Watch Asia Pacific (IWRAW-AP)
• Women’s Global Network for Reproductive Rights (WGNRR)