Category: DSW Newsletter #33 (February 2022)

After a multi-year effort to decriminalize consensual, adult sex work in Victoria, the Sex Work Decriminalisation Act 2021 passed the upper house by 24 votes to 10, clearing its final hurdle to becoming law. Though the bill will go back to the lower house for another vote, it has a clear majority behind it. Sex workers and supporters are celebrating this hard-won victory while acknowledging that there is still much work to be done to realize the full human rights of sex workers.

The reforms under the new law will not be in full effect until December of 2023. Repealing the Sex Work Act of 1994 is the first step in the two-year-long process. The state will also do away with its registry requirements for sex workers, mandated STI tests, and street-based sex work will be partially legalized in some parts of the state. The Equal Opportunity Act has been amended to make it unlawful to discriminate against an individual based on their “profession, trade or occupation.” Sex work will now be regulated through standard planning, occupational health and safety, and other regulations that apply to all businesses in Victoria.

Sex work in Victoria is currently regulated by a legal model that allows sex work to occur under very specific conditions, as laid out by the Sex Work Act of 1994. Licensed providers are able to operate regulated brothels and escort agencies. Independent sex workers must obtain a license and submit to mandated health testing. Any sex work that occurs outside this schema is criminalized. Advocates criticize this system for creating an unequal industry, where about 80% of the workers are still criminalized. These are usually the most disadvantaged and marginalized sex workers, “particularly migrant sex workers, gender diverse sex workers, they’re the ones that are usually in that illegal underground area and the consequences of that is many feel they are not able to report unfair work practices and crimes to police,” reports Matthew Roberts, spokesperson of Sex Work Law Reform Victoria. Even for legal sex workers, because of the registry, their personal information is public information, showing up on police checks and sometimes interfering with custody or housing cases.

Upper House MP Victoria Patten has campaigned for decriminalization for decades. She led a 2019 review of sex work laws that recommended decriminalization to protect the human rights, health, and safety of sex workers in Victoria. “This campaign really started in the early 1980s and we have seen iterations of legislation designed to control and effectively stigmatize sex workers,” Patten told ABC News. “We have legislation currently in place that is not fit for purpose. It doesn't work on any meaningful level, it doesn't protect anyone and, in fact, it does quite the opposite.”

Sex worker groups consulted throughout the process have largely been supportive of the bill. Still, there is some concern that the bill as written will leave some sex workers without protection. “In our campaigning, we've been very upfront that this is not decriminalization unless it’s decriminalization for all of us,” said Jules Kim, chief executive at Australia’s largest sex worker organization Scarlet Alliance. “We’re still really committed – and I think the sex worker community is out [rightly] celebrating [the bill] – but we’re committed to continu[ing] pushing for further reforms. … We’ll continue to fight really hard to ensure that the many positive elements of the bill extend to everybody.” Concern over equal protections centers around street-based sex work and the fear that laws regulating where and when street work can occur will encourage law enforcement to continue harassing, surveilling, and arresting sex workers. The government has introduced new offenses to prohibit street-based sex workers from operating in certain areas such as those close to schools, childcare facilities, and places of worship. “Unfortunately the bill does fall short in some areas,” Vixen Collective acting manager Dylan O’Hara said. “It does need strengthening to ensure that all parts of our sex worker community can enjoy the benefits of decriminalization. We need this to be full, genuine decriminalization that extends to all sex workers.”

Still, the new law is a critical step in combatting the discrimination sex workers are subject to while accessing banking, housing, education, employment, and other resources. A 2020 study conducted by the Centre for Social Research found that 96% of workers had experienced discrimination in the past 12 months. Kim says “the bill will go a long way in addressing these issues and improving our access to work health and safety, our access to redress in the same ways that other workers are able to.”

Amnesty International released a report reviewing Part 4 of the Irish Criminal Law (Sexual Offenses) Act, enacted in 2017. The provision introduced amendments to the previous sexual offenses law, passed in 1993, criminalizing the purchase of sex, living on the earnings of prostitution, and brothel-keeping, significantly increasing the penalties for the latter. Through interviews with 30 different Irish sex workers, and 13 civil service representatives, academics, and practicing medical doctors, Amnesty’s report examines the repercussions of the criminalization of sex work in Ireland, even after the sale of sex has been nominally decriminalized.

The report finds that sex workers in Ireland still fear for their safety due to the indirect criminalization of activities associated with sex work, stigmatization, and a lack of access to critical resources such as housing. Amnesty has determined that the conditions of sex workers under the 2017 law violate the Istanbul Convention, which Ireland joined in 2019. The convention requires member states to “effectively protect everyone’s, in particular women’s, right to be free from violence without discrimination, through, among other things, ‘abolishing laws and practices which discriminate against women.’” Amnesty’s research demonstrates that Ireland’s law criminalizing the purchase of sex, and increasing penalties for brothel-keeping and living off the earnings of sex work, has severely compromised the safety of sex workers, particularly for those with intersecting vulnerabilities including race, gender, drug use, homelessness, and migrant status.

Ireland’s law follows the increasingly popular, but misguided belief that decriminalizing the sale but not the purchase of commercial sex and thus seemingly “targeting buyers” will “end demand” for commerical sex, putting an end to sex work. Proponents of this model, often called “End Demand,” the “Nordic/Swedish Model,” the “Equality Model” or the “Entrapment Model,” claim that the same health and safety benefits that are realized under the full decriminalization of sex work can be achieved while maintaining criminal penalties for buyers, though this is untrue.

As has been observed in Sweden, Norway, Canada, and other countries where this model has been implemented, Amnesty’s report demonstrates the harms of “End Demand.” Under this policy, Irish sex workers are still subject to violence and discrimination when seeking resources. They see the Irish police force, the An Garda Síochána, as a threat rather than a resource, even though they are not technically committing a crime. The criminalization of prostitution-related crimes like brothel-keeping has a “chilling effect”¹ on sex workers’ ability to exercise their human rights and operate safely, as sex workers still fear arrest if they work together, though this is one of the main ways to protect their safety. Sex workers routinely reported that they had been forced to engage in riskier practices since the law passed and 23 out of 30 interviewees had experienced multiple forms of violence. Interviewees’ experiences included physical attacks and threats; sexual assault, including rape; robberies; stalking; verbal abuse and harassment, including online.

Sex workers also face extreme challenges in acquiring and maintaining housing. According to a 2021 report by the Irish Human Rights and Equality Commission, concerns about the lack of available and affordable housing, including social and emergency housing in Ireland have been growing in recent years. Provisions criminalizing “living off the earnings of prostitution” allow landlords to be fined and prosecuted for renting to sex workers. Given the scarcity of housing, this dynamic contributes to increasingly stringent and dangerous living conditions for many sex workers.

These risks are not distributed equally. Sex workers face intense stigma, combined with an adversarial relationship with the Gardai, leading to impunity for anyone who might wish to harm them. Interviewees routinely cited deeply entrenched negative and patriarchal societal attitudes and prejudice directed at sex workers. These attitudes were intensified by intersecting forms of discrimination based on race, gender and gender identity, socio-economic circumstances, migration status, and/or drug use.

Sex workers and service providers agreed that decriminalization is necessary to protect the safety and health of Ireland’s sex workers, particularly those with intersecting vulnerabilities. The report highlights that people engage in sex work for many different reasons, under a variety of circumstances. Many are either receiving government aid or working in other sectors and turn to sex work to supplement their income and support their families. For migrants, transgender individuals, or others who might face discrimination in other labor sectors, sex work might be one of their only viable work options. Decriminalization is the only legal model that has been shown to reduce rates of violence against women, instances of STIs, exploitation in the sex trade, and increase access to critical resources, all of which Ireland’s current model has failed to do.

“Equality Model” bills have been proposed in various states across the United States in the 2022 legislative session, including Hawaii, New York, and Massachusetts. Though these laws may seem well-intentioned, they do not benefit sex workers and make sex work dangerous. For the sake of those who are the most vulnerable to violence and abuse, we must adopt decriminalization and make laws based on evidence rather than ideology.

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1 For the purposes of international human rights law, a “chilling effect” is defined as “the negative effect any state action has on natural and/or legal persons, and which results in preemptively dissuading them from exercising their rights or fulfilling their professional obligations, for fear of being subject to formal state proceedings which could lead to sanctions or informal consequences such as threats, attacks or smear campaigns.”