197 – Legalization or Decriminalization: What Does it All Mean?

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Dr. Sandie Morgan and Dave Stachowiak are joined by Dr. Donna Hughes to discuss the four different legal approaches to prostitution and their impacts on society. Dr. Hughes is the founder and editor-in-chief of Dignity: A Journal on Sexual Exploitation and Violence. She shares her years of experience on this highly debated topic to better inform our community.

Key Points

  • There are four legal approaches to prostitution that all have different impacts on sex trafficking: criminalization, legalization, decriminalization, and the Nordic (Abolitionist) model.
  • Criminalization is the current model of the United States that criminalizes everyone involved in prostitution.
  • Legalization includes removing criminal penalties and turning sex work into a regulated business.
  • Decriminalization also removes the criminal penalties, however, there are no regulations put into place.
  • The Nordic model holds perpetrators accountable and provides services for victims.
  • Countries that utilized the legalization approach anticipated getting rid of organized crime, but only succeeded in expanding illegal, unregulated prostitution.
  • We need to be aware of legislators organizing for the decriminalization of prostitution in order to raise awareness and oppose their strategies.


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Dave [00:00:00] You’re listening to the Ending Human Trafficking podcast. This is episode number 197, Legalization or Decriminalization: What Does it All Mean?  

Production Credits [00:00:10] Produced by Innovate Learning, maximizing human potential.  

Dave [00:00:31] Welcome to the Ending Human Trafficking podcast. My name is Dave Stachowiak.  

Sandie [00:00:36] And my name is Sandie Morgan.  

Dave [00:00:39] And this is the show where we empower you to study the issues, be a voice, and make a difference in ending human trafficking. Sandie, your work has really just built relationships and connections and partnerships around the globe, and today we’re so glad to be able to dive in on that first piece. We talk about in every introduction, studying the issues, and being able to bring a voice to who really just has tremendous expertise in this area. We are thrilled to welcome Dr. Donna Hughes. She is a professor and holds the Eleanor M. and Oscar M. Carlson Endowed Chair in women’s studies. She has a joint appointment with Gender and Women’s Studies and Criminology and Criminal Justice. She’s the founder and editor in chief of Dignity: A Journal on Sexual Exploitation and Violence. Donna, we’re so glad to welcome you to the show.  

Donna [00:01:29] I’m really thrilled to be here.  

Sandie [00:01:31] It’s an important topic and I would love to talk about a lot of your work, especially if people have not found Dignity: A Journal on Sexual Exploitation and Violence. We’ll have a link to that in our show notes.  

Donna [00:01:46] Thank you.  

Sandie [00:01:46] And Dr. Hughes really digs deep on these issues, but today we want to talk about a growing discussion or debate in our community about Legalization or Decriminalization: What Does it all Mean? So, can you kind of give us a primer on legalization and decriminalization with regards to prostitution and human trafficking?  

Donna [00:02:14] OK, there are four legal approaches to prostitution and all of them have a different impact on sex trafficking. The first is the one that in the United States people are most familiar with and that’s criminalization because, except for a few counties in Nevada, all states in the United States have criminalized prostitution. And what that means, is that everyone involved in prostitution whether it be prostituted woman, the sex buyer, the pimp or the trafficker, or the brothel keeper, all of those people are criminalized. It’s really a prohibitionist model. One of the other models is legalization. And you hear a lot of people saying, “well why don’t we just legalize it?” Which I can talk a little bit about why that’s not a good idea in a moment, but what legalization means is that of course you remove the criminal penalties and you turn it into a business where you have regulations. For example, where you’re allowed to have a brothel, what time it’s allowed to be open, you know those kinds of things. And the women would be taxed, and the brothel keeper would be taxed. And it really turns it into sex work rather than prostitution. And the pimps who we normally know are really often quite unsavory characters and quite cruel, are turned in to business managers. And that is the model that exists in the Netherlands and in Germany and a few other places. Another of the models that you mentioned is called decriminalization. And decriminalization means that you remove all criminal penalties for any of the acts involved in prostitution or pimping or brothel keeping. You remove all of the penalties, but you don’t put into place any regulation. This is what the advocates of decriminalization want, what is called the sex work advocates. They want to have all criminal penalties removed. They like to talk about it as just a private act between consenting adults in a hotel. And when you bring up the legalization, what’s interesting is that you find that they don’t want legalization because they don’t want regulation. They seem to think that it’s possible to have this commercial activity in which they are free to carry it out in any way they want.  

Sandie [00:05:02] So when you’re looking at those four models then, the sex workers rights argument then is not for legalization but for decriminalization. Is that what I understand?  

Donna [00:05:19] That’s correct. If you go back to the 1990s there was a move towards legalization and that’s what happened in the Netherlands and in Germany. But what’s the sex worker rights people learned, along with the pimp, was that they didn’t like regulation. Even that was too much for them. They really wanted it to just be totally open for them to do whatever they want, without any kind of interference even a regulatory one. 

Sandie [00:05:51] So the German and the Netherlands model, those are legalization, not decriminalization models, correct?  

Donna [00:06:00] That’s correct.  

Sandie [00:06:01] And what have been the problems that we’ve learned by watching those models?  

Donna [00:06:07] Well particularly in the Netherlands, one of the arguments for legalization was that it was going to get rid of organized crime. The women would be able to rent a window in Amsterdam, they would be able to conduct their own business. But what everyone soon learned was the pimps were still there, they were still monitoring. Matter of fact I talked to someone at Interpol a number of years ago who investigated this and said, “well the pimps are still there. They sit in the coffee shops across the canal and count how many men go into the windows. And then they meet the women when they come out when their shift is over, and they escort them away assuming taking the money as well.”  

Sandie [00:06:55] Wow.  

Donna [00:06:56] So it did not get rid of the pimps, as was expected. Also, one of the things that they saw, that although they may have had some regulations for what was happening right in Center City and the visible sex industry, what happened was that there was an explosion of the illegal sex industry in apartments all around the city. So, there was this core that you could say were following some regulations, but it led to a tremendous expanse of illegal unregulated prostitution. And of course, the organized crime stepped into that and made a tremendous amount of money.  

Sandie [00:07:34] How did legalizing it create that environment where illegal activity could happen?  

Donna [00:07:41] You would have to go in and get your license and they could regulate the windows. If you’re just putting advertising on the Internet, the men could be coming to any kind of an apartment or hotel throughout the city and no one is there to have any regulations or monitor it.  

Sandie [00:07:58] So, there is a parallel for me in one of the challenges we have here in California. We’re trying to find labor trafficking victims, but labor trafficking investigations are much more difficult because the people are in occupations that are legal. So, if I’m looking for trafficking victims in restaurants, there’s no law against washing dishes and bussing tables so you end up creating a similar parallel in sex trafficking when you legalize. That’s my perspective because then it’s not as easy to prove the force broader coercion elements of a human trafficking case.  

Donna [00:08:44] You’re absolutely right. And that’s what has happened in Germany, where they have huge mega brothels where all forms of prostitution are legal, but because it’s legal, the police now say well we don’t have any cause to go in and investigate. Everything, according to the laws, that’s happening there is legal. And it makes it very difficult for them to do any kind of investigations on sex trafficking.  

Sandie [00:09:09] It’s challenging. So, what about the Nordic model. How does that fit in this debate?  

Donna [00:09:16] OK. Yes. I said that there were four models, legal models. This is the fourth one and it was introduced by feminists back in the 1990s and finally was passed in 1998 in Sweden. And it’s an abolitionist model, and what I mean by abolitionists is they support the idea that you hold perpetrators accountable and you provide services to victims. And if we look at what’s happening in prostitution, we see that the people that are getting hurt are the women who are involved in selling sex, while the people that are perpetrators that are usually involved in causing the harm are the sex buyers and the pimps and the traffickers. So, in the Swedish model, the sex buyers, the pimps, or the traffickers, and the brothel keepers are all made into criminals. It’s a criminal act to do those things, while the victims in this case the women who are selling the sex are decriminalized. And when they are found they are referred to services.  

Sandie [00:10:27] So sometimes people misinterpret that and call that decriminalization, but it really isn’t.  

Donna [00:10:35] Right. There’s a lot of confusion right now with the word “Decriminalization” because some people say well the Swedish model and by the way, the Swedish model has now been passed in a number of other countries including Norway, France, Canada, and Israel. So, it really is no longer the Swedish model. It’s no longer the Nordic model. I believe we need to call it the abolitionist model.  

Sandie [00:10:58] Oh I like that.  

Donna [00:11:00] Because it aims to hold the perpetrators accountable and provide services to the victims.  

Sandie [00:11:06] So one of the things that happened, we had a big media blast here in California last year over legislation that went through here in California that “decriminalized” minor sex trafficking. And so, law enforcement officers would see a minor being sold for sex and arrest no one. And that was horrific because now the traffickers were operating with impunity, and it took a lot of corrective education to turn that around.  

Donna [00:11:45] So although the abolitionist model decriminalizes the victim, what the sex work advocates, say, proponents of the sex industry, are proposing is what is referred to as full decriminalization. They also want the penalties removed from the sex buyers, from the pimps, and from the brothel keepers. And a lot of people don’t know that when they hear decriminalization, they think it’s only going to take the penalties off the victims, and it will do that. But what they want is full decriminalization and a lot of people then are pretty surprised when they understand that there’s a difference between the abolitionist model’s decriminalization and the sex work proponents full decriminalization.  

Sandie [00:12:31] And how do you define sex workers? Because they define themselves differently maybe then an abolitionist might.  

Donna [00:12:41] Yes. It’s not a term I use. The only time I use that term is when I’m sort of referring to what people to proponents and what they are proposing, otherwise I use other terms. I don’t do anything to normalize the buying and selling of sex.  

Sandie [00:13:02] OK so the challenge in choosing a language is normalizing something that is not supposed to happen, right?  

Donna [00:13:15] That’s right. This is a bit of a battle for terminology and who is going to win the war of words. And that’s why we have to be quite careful about the terms we use and to explain them to people because there is a lot of confusion about it. What you were saying earlier is that they decriminalize minors in selling sex. I totally support that, of course, children should not be arrested and criminalized for being victims of sexual abuse, any more than if there was a child who was being sexually abused by a coach, or a teacher, or a priest. We wouldn’t think about arresting that child. We’d say of course not that child is a victim and the teacher, the coach, the priest needs to be held accountable. And we need to think the same way around prostitution. Absolutely if someone is underage, then they are a victim and they should never be arrested, and they need to be provided with shelter and services.  

Sandie [00:14:18] So the idea of using terminology, one of the things that we try to keep forefront here is the reason we use the word trafficking in our legal elements in our approach to ending the exploitation of people for sex or labor, is because trafficking is the term used for people who sell weapons or sell drugs. These are things that are not supposed to be sold. So, we adopted the same language in this battle because people are not supposed to be sold whether it’s for labor slavery or sexual exploitation. Are there other terms that we should be really careful about?  

Donna [00:15:04] Well I would say that we even have to be a little bit careful of trafficking, using that term because it does have a legal definition. There is a U.S. federal law and there’s a California law that defines exactly what trafficking is. And it usually requires for an adult, the use of force, fraud, and coercion. Although anyone who is involved in the commercial sexual exploitation of a child is criminalized and the victim is never criminalized or should not be criminalized. And that leads to some confusion and I think getting back to what you were talking about earlier about the police then simply ignoring the activity means that we need a lot of police training. I mean remember we really are shifting the paradigm for the police work. In some ways changing things for turning some things upside down, and it’s going to require a lot of education, a lot of training for police to know how to respond when they see a particular situation, particularly when it might involve a minor. But I would add, it doesn’t matter if we’re advocating any kind of change in laws right now throughout the United States, except those counties in Nevada, it is illegal to purchase sex or to solicit someone for prostitution. Therefore, we could go after what is referred to as the demand the sex buyers with laws we have in place right now. We might want better laws, but we have what it would take right now to go after the demand or the sex buyer.  

Sandie [00:16:45] That’s profound. And we need to schedule another podcast to talk about what that strategy would look like. I’m looking at the time and I want to spend a little bit of focus on what’s happening in Rhode Island and why that should concern all of us.  

Donna [00:17:03] OK, in Rhode Island, in the late 1970s there was an advocacy group called C.O.Y.O.T.E., which stands for call off your old tired ethics, filed suit against the chief of police of Providence Rhode Island, the capital, and the attorney general of Rhode Island for sex discrimination. This was a federal lawsuit and their charge was that they were enforcing the prostitution laws unfairly and that they were arresting many more women than they were arresting men. And as you know throughout the country, if you look at the statistics of who gets arrested using prostitution laws, it’s usually the women. So, it was very clear that they were going to win this federal lawsuit of sex discrimination because, in fact, they were arresting more women than men. Well the legislators, and I think it was just to a couple of people, decided they could figure out a way to get themselves out of this federal sex discrimination lawsuit. And that is they changed the law, they decriminalized prostitution if it occurred indoors. And at the same time, they made a lot of noise and talked a lot about how they were changing the law for what we call street walking or soliciting on the street. But it’s sort of unknown that they had decriminalized it indoors. Well, this went on for, I won’t give you all the details of it, for twenty-nine years. Finally, it was discovered actually back in the late 90s early 2000s that there was no law against prostitution if it occurred indoors and this was decriminalized, meaning they had removed the code from the criminal code. It wasn’t regulated, it simply meant it was a void in the criminal code when it came to anything that prostitution indoors. And this led to, once this was found out, to a proliferation of prostitution and strip clubs. A lot of the Asian Massage Parlors which of course are run by Asian organized crime came into the state and started to become a real sex tourist destination. So, it was discovered that many leading businessmen who were making money by renting properties at an increased rate to the massage parlors. And there was just no regulation or criminal laws against this at all. And a matter of fact, the mayor at one time said it was the Wild West.  

Sandie [00:19:54] Wow.  

Donna [00:19:54] And as it’s become more widely known, there were just pimps massage parlor operators, you know strip club owners just coming to the state. Matter of fact, they were bringing men in on buses from surrounding states like Connecticut and Massachusetts for a weekend or an evening at the strip clubs. So, what happened was it took a couple of years, but finally, in 2009 the legislators passed a law to re-criminalize prostitution or to make it a crime for prostitution to take place indoors as well as outdoors.  

Sandie [00:20:34] OK. And then more recently now there is more discussion back on the table, right?  

Donna [00:20:43] Well what we found was that there was a legislator representative, who even back in 2009 opposed the passage of a new law criminalizing indoor prostitution, and everyone has sort of known that’s her point of view for some time. Well this past winter, a couple of months ago, she said she was going to introduce a bill. She did introduce a bill that would have set up a study committee to review the laws on prostitution. She named some of the people or some of the organizations who should be on the committee, the study committee. And they were the advocates of decriminalizing sex work. So, it’s very clear what her agenda was. And that really got people’s attention because most people remember what was happening back in the years before. Just 10 years ago and certainly a lot of people remember what the fight was to make sure that we ended decriminalized prostitution. So that got a lot of attention. One of the things that I knew and that is that they have introduced the same kind of legislation in New Hampshire that seems to be their leading proposal and that is let’s just form a commission or a study group which should see you know let’s just take a look. Maybe it needs a fresh look. But when you see who they’re proposing to be on the committee you know what the outcome is going to be. And of course, as soon as they could get a report written by a legislative committee saying that we think you should leave decriminalize prostitution, well then, they could wave it around and say OK this we need to respond to this and so forth. Also, one of the things we found out and the same thing is happening up in New Hampshire and that is that there are organizations that are paying for lobbyists within the state to lobby legislators for the decriminalization of prostitution. So that’s something we need to be aware of and start checking the secretary of state’s Websites for each state to see if these organizations are paying for lobbyists, and you’re in the state to advocate for decriminalizing prostitution.  

Sandie [00:23:01] So this is something that we need to be more aware of and learn how to be strategic in our response instead of just waiting for it to be on the ballot.  

Donna [00:23:13] Yeah absolutely. As soon as you hear, a matter of fact, we know that in California they’re already organizing. So, if you oppose decriminalized prostitution, then you really need to be organizing now and finding out who is heading the organizations, what their strategy are, and start raising awareness of what this means. One of the things that I think we should ask some of these kinds of questions. Number one they like to say well what’s wrong with you know private behavior between consenting adults. Well first of all, do you know of any other kind of commercial business or commercial services that are allowed to operate unregulated? I don’t know of any. And if you go to a nail salon or a salon to get your hair done, people have to be licensed, there are health inspections. So why is it that they think that somehow they should be, are going to be free to operate outside of any kind of a regulatory environment?  

Sandie [00:24:16] Wow. Dr. Donna Hughes, you have raised some really high profile questions and we’re going to have to spend more time investigating this. Your Website we’ll link will be on our show notes. And as this discussion continues to escalate around elections and legislation, we need to be really diligent in studying these issues, so we understand why we believe what we believe, why we don’t want legalization and decriminalization. And your voice on this is so important. Your years of research and we just want to thank you so much for coming on the Ending Human Trafficking podcast today.  

Donna [00:25:06] Thank you for asking me. I enjoyed it.  

Dave [00:25:10] Sandie, thank you so much. Donna, thank you so much for your wisdom and your expertise. Sandie, as you mentioned so much that has been brought up by this conversation and we would invite you to take the next step in visiting endinghumantrafficking.org. You’re going to find the links for everything we’ve talked about in this episode, the links to Donna’s work and the Journal. In addition, there’s also a link there for you to hop online and download Sandie’s book, The Five Things You Must Know, a quick start guide to ending human trafficking. It’ll teach you the five critical things that Sandie and her team here at the Global Center for Women and Justice have identified that you should know before you jump in to join the fight against human trafficking. You can access all of that, by going over to endinghumantrafficking.org. And if you have a question that’s come up from today’s conversation, our email address is a great way to start a conversation with us feedback@endinghumantrafficking.org is where to go. And Sandie, I will see you back in two weeks for our next conversation.  

Sandie [00:26:15] Thanks, Dave.  

Dave [00:26:16] Take care, everyone.  

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