The Case for Decriminalization

Sex work should be decriminalized because the criminalization of sex work violates the rights of sex workers and their clients and it has bad consequences. The case for decriminalization has three parts. First, criminalization violates the rights of sex workers and their clients. Second, decriminalization would be better on balance for sex workers’ and clients’ well-being. Third, criminalization is inegalitarian, especially because laws that prohibit the sale or purchase of sex subordinate both sex workers and their clients to fines and incarceration. Throughout this analysis, arguments are developed that fall along a spectrum of idealization.

In Defense of the Nordic Model

Chapter 3 of Watson’s contribution returns to provide the full defense of the Nordic Model. Evidence is presented that policies of toleration (whether decriminalization or legalization) are proven to increase the trafficking of persons for sexual exploitation. Additional evidence that demand reduction is the most effective legal approach to prostitution is given. Further, recent research on the behaviors and attitudes of buyers is presented to further make the case that targeting demand is central to eliminating the harms of prostitution. Finally, a series of objections to the Nordic Model are considered and replies given.

Prostitution and Sex Equality

Watson aims to present the initial positive case for the Nordic model as a sex equality approach to prostitution. It is argued that social conditions of inequality (based on sex, age, class, race) structure the conditions of entry into prostitution and structure it internally. Watson addresses a series of objections to arguments in favor of restricting markets in sex. Those objections include that any position aiming to curtail prostitution must rest on some form of unjustifiable moralism or paternalism;, that prostitution should be understood as a fully voluntary choice and protected as such; that even if prostitution is exploitative, allowing such exploitation makes persons in prostitution better off than they would be otherwise; and, finally, that persons have rights to markets in sex such that any prohibitive policies violate rights.

Introduction

Watson and Flanigan provide an overview of the structure of the book, highlighting some of the important points of agreement and disagreement contained in their respective contributions. Both Watson and Flanigan reject criminalization, the dominant approach to prostitution. Both agree that criminalizing prostitution serves to further harms and exacerbate the inequality that persons in prostitution experience. Additionally, Watson and Flanigan both reject paternalistic justifications for restricting prostitution and each are committed to principles of equality. However, they differ over how to conceptualize and define equality, and, importantly, over which approach to prostitution best embodies principles of equality.

Defending Decriminalization

Many scholars, activists, and officials oppose decriminalization. First, some people argue that criminal penalties do not violate rights because people do not have rights to buy or sell sex. Others object that decriminalization would increase the prevalence of sex work, which is worse than other jobs, and so paternalistic limits on the industry are justified. Another set of objections presses the claim that the sex industry has negative externalities, such as increased rates of sexual transmission of disease, human trafficking, rape, or crime. Finally, some claim that a decriminalized sex industry would exacerbate existing economic or social inequalities. This chapter shows that these objections do not succeed in justifying alternatives to decriminalization.

Why “Sex Work” Cannot Be Understood as Just Another Form of “Work”

Watson critically engages with the often-repeated argument that “sex work is work like any other form of work.” Advocates of this argument rely upon it as a basis for either decriminalization or legalization. Watson dismantles this claim by showing that where sex is the “service,” occupational health and safety standards applicable to every other form of work cannot be met. Further, the various ways in which persons in prostitution may be thought of as “workers” is explored and arguments are given that relevant legal standards in the context of discrimination laws and employment laws cannot be met in the context of “sex work.” Thus, the burden of argument falls on advocates of decriminalization to legalization to argue for a series of exemptions from generally applicable laws. However, such exemptions are unwarranted, do not achieve their aims, and would require institutionalizing inequality for persons in prostitution.