Rights, not rescue: why sex workers call for decriminalisation

The woman standing at the door asks me if I’ve booked an appointment and hands me a surgical mask in replacement of my own cotton one. I check in at reception, tell them I’m here for my certificate. I wait for my call conspicuously on Swanston St, mask in place and a sticker stamped onto my chest that says I’ve been asked the appropriate Covid questions.

The public perception and stigma that informs mandatory STI and HIV testing for sex workers in Victoria is in stark contrast to the statistics. Epidemiological research shows that sex workers living in so-called Australia have the lowest rates of STIs and HIV out of any subpopulation. We have achieved the virtual elimination of HIV in our communities and our rates of STIs are among the lowest in the world. Studies conducted at registered brothels across the country show the rate of prophylactic use sits at over 99 per cent, regardless of whether testing is mandatory in any state or territory.

Despite the evidence, the myth that sex workers are vectors of disease who pose a risk to public health continues to inform legislation where, in states like Victoria and Queensland, we are forced to engage in mandatory testing—a practice not only expensive and against the advice of UNAIDS, but evidentially ineffective and unnecessary. (The stigma associated with sex workers being vectors of disease is written into our very language. Most romance languages for the word prostitute—in Spanish, puta; in Italian, puttana; in French putain—evoke the Latin putida, which means ‘stinking or rotting’, and gives us English words like putrid.)

Mandatory testing is a perfect example of the way Australian sex industry legislation is driven by stigma and personal ideology over evidence-based, best-practice models that prioritise sex worker safety and human rights. Not only are these laws outdated, failing to provide protections as new forms of sex work become popular—Victoria’s Sex Work Act was created only two years after the internet was born—but their effects are completely divorced from their purported aims.

There are currently two main regulatory models being implemented around the world: criminalisation and licensing. The ‘Swedish’ model, a form of criminalisation, has been implemented across eight countries since its introduction in Sweden in 1999. Decriminalisation, the model advocated for by sex worker-led organisations— In Australia: Scarlet Alliance, the national peak sex worker body; Respect Inc, from Queensland; Vixen Collective, from Victoria; SIN, in Adelaide; SWOP, in the NT, NSW, and the ACT; SWEAR and Magenta out of WA, and the Tasmanian Sex Worker Project to name a few—, as well as UNAIDS, Human Rights Watch, World Health Organisation, Global Alliance against Trafficking in Women, and Amnesty International, has been implemented fully or partially only three times worldwide: twice in so-called Australia, with full decriminalisation implemented in the Northern Territory in 2020 and partial decriminalisation in New South Wales in 1995; and across Aotearoa/New Zealand, which partially decriminalised in 2003.

Across Australia, the laws surrounding sex work change from state to territory—sex workers are criminalised, regulated through licensing, and fully or partially decriminalised depending on our location. The aims of these laws—and the central voices leading the laws—also vary. In South Australia, where sex work is criminalised, the Summary Offences (1954) and Criminal Law Consolidation (1935-1976) acts aim to eradicate the sex industry altogether. This criminalisation is driven by the idea held by some radical feminists that says all sex work is violence against women.

Most supporters of criminalisation cite protecting women and exposing exploitation as the basis for their support of this model. In their eyes, decriminalisation—or even licensing—condones this violence. But their lack of consultation with sex workers in their support for this model speaks to the disconnect between the objectives of criminalisation and its material effects.

Supporters of the criminalisation model respond to the symbolic violence of sex work by giving more power to the police and the state. However, most of the actual violence done to sex workers is committed or reproduced directly by the police and the state. The laws themselves undermine sex worker safety strategies, reducing the control we have over our work and placing us in direct opposition with the police.

Acting South Australian assistant police commissioner John Venditto told a parliamentary committee that their priorities in policing the criminalised South Australian sex industry are on drug trafficking, organised crime, child abuse, and sexual servitude. However, the most common sex industry-related charges made in South Australia are for keeping an illegal brothel (a charge often laid against individual sex workers who conduct in-calls) or receiving money in a paid brothel. Venditto admitted to the committee that ‘very few’ charges laid were in alignment with their priorities. ‘From memory I think it was two drug ones … they’re not highly represented in these figures.’ Under criminalisation, sex workers bear the brunt of the law.

Criminalisation does not protect sex workers; it targets them. Sex workers with children fear loss of child custody. Migrant or travelling sex workers fear deportation (see here and here, as well as the work of Laura Augustin), and are discriminately targeted, harassed and raided by police under the guise of fighting sex trafficking. Because sex work is not included on the Consolidated Sponsored Occupation List, travelling sex workers are not eligible to apply for a long stay visa or skilled occupation visa. This ensures travelling workers cannot work within the law, and allows the federal government to deport travelling sex workers under the guise of fighting sex trafficking. Street-based workers fear incarceration and fines, and are forced to prioritise avoiding arrest over implementing safety strategies. All this fear is exacerbated by the incessant, ever-present force of racism in policing and the criminal justice system. The driving force of the criminalised model is a ‘clean up the streets’ mentality that focuses on punishing sex workers into abandoning our employment. These stress methods are how advocates of the criminalised model hope to eradicate the sex industry.

The other effect of criminalisation is that it blocks access to justice. Exploitation thrives in criminalised markets because workers cannot report crimes for fear of conviction themselves. Fear of police only pushes the sex industry further underground, creating barriers to reporting crime—and making us vulnerable to perpetrators of violence who are aware of this—as well as fuelling harmful stigma and normalising the sex worker experience as ‘other’.

There are no workers or industrial rights in a criminalised workplace. The effects of criminalisation speak to its true nature; it is not about ensuring human rights, nor is it about fighting exploitation. The effect of criminalisation is to ensure exploitation thrives.

Sex workers understand that after contact with the police, criminalised communities have less power, not more. Often laws that praise themselves as being ‘for’ sex workers spare no thought to where they leave us after we have been fined, evicted, incarcerated, deported or, ‘best case scenario’, the sex industry is shut down altogether. As the key stakeholders in sex industry law reform, sex workers are in an acute position to be able to align the aims and effects of the legislation that applies to our community.

Queensland—which used to use the criminalisation model—adopted the licensing framework in 1999. This was the result of the 1989 Fitzgerald enquiry, conducted in response to the police and state corruption occurring within the then-criminalised Queensland sex industry. The enquiry claims the licensing model was intended as a means to limit police access to and powers over the lives of sex workers. However, the licensing model’s real effect is to sanction police surveillance, producing and reinforcing stigma and discrimination and creating barriers to justice. Due to the failures of licensing in Queensland, 80 per cent of sex workers are forced to work illegally. This means that for 80 per cent of sex workers, the licensing model is covert criminalisation.

The licensing model creates a two-tiered industry, where the majority of workers are forced to work outside the law to protect their own safety. Independent work—what I do, among other things—is ‘legal’ so long as you work alone. Safety strategies performed by most workers—working in pairs, sharing a room or hotel with another worker, messaging a friend your location or when your client is due to arrive or leave, describing what services are and aren’t offered, using a driver another worker recommends—are criminalised. (A driver is someone you employ who not only drives you to and from your bookings, but waits outside. This is primarily a safety mechanism developed to let your client know that their booking is being monitored. It is an important job, best trusted to someone recommended by another worker.)

It is legal to work in a brothel so long as it is licensed, but there are only twenty licensed brothels across the entirety of Queensland. Massage parlours, which are populated primarily by an Asian and migrant workforce, are not eligible for licensing and are disproportionately raided by police. Entrapment against sex workers is legal in Queensland, and there have been reports to Scarlet Alliance of ‘Asian sex workers being singled out for surveillance and arrest based on their assumed connection to organised crime, of which there is no evidence.’

As with the criminalised model, sex workers bear the brunt of the law. Most of the charges against sex workers under the laws in Queensland are not for violent crimes but for the safety strategies they use. Kayla Rose, secretary of Respect Inc, speaking at Queensland’s sex worker organisation symposium in 2018, explained that

sex work is rated as very low on the Crime Harm Index, yet resources are being put towards targeting sex workers for petty crimes. When sex workers report a crime, including serious crime, they are turned away, told there is no crime, or treated so badly they do not proceed.

Licensing is a failure. Licensing focuses state resources on maintaining these complex and ineffective systems of regulation—whose main focus, statistically across the states where it is implemented, is on policing advertising infringements, street-based workers and Asian and migrant workers.

The stigma and criminalisation the licensing model produce are baked in at every level. They’re a feature, not a bug. We should not have to compromise on our safety to meet a set of laws written by people with no working knowledge of our needs or our industry.

While under the criminalised and licensing models the persecution of the sex worker takes priority over the criminalisation of the client, the Swedish Model turns its focus towards clients and third parties (although it is important to say that in most countries where the Swedish model has been introduced, it is introduced in addition to laws that already criminalise aspects of sex work). The Swedish Model ostensibly decriminalises those who sell sex, aiming to reduce prostitution while also lifting the threat of criminalisation. “hile most supporters of the Swedish model claim to be removing the criminalisation of sex workers, its material effects on the lives of sex workers prove otherwise.

The Swedish Model creates a culture that prioritises the client’s needs and disempowers the sex worker. It is true that this drives some clients away from the industry—though this in itself is an anti-sex worker sentiment. But it also puts sex workers in a more precarious position, not less. As clients grow scarce, workers become obliged to put their clients’ needs before their own safety. As those that remain make efforts to avoid police protection, workers are forced to work away from populated areas, and have less time to talk services, condom use, and gauge the client’s demeanour before accepting a job.

A thriving business means more power to turn down clients who appear edgy or services that are outside a worker’s personal boundaries. Fewer clients means less money, which gives clients bargaining power and forces workers to take more risks to earn their living. It’s easy to say ‘no’ when you know your rent is paid and there’s food on the table. The Norwegian government itself has acknowledged that their sex industry is now a ‘buyer’s market’.

In Northern Ireland, where the Swedish model was implemented in 2011, a review by the Queen’s University of Belfast stated that

… the terrain of commercial sex now seems much riskier and more underground than it was previously with both clients and sex workers taking steps to avoid detection. For a law whose rhetoric is about ending violence against women it is somewhat paradoxical that it appears to have subjected many women (and of course male sex workers) to a highly unsafe work context, resulting in a heightened state of anxiety.’

But this is, unfortunately, part and parcel of the Swedish model’s application across the world. Ann Martin, head of Sweden’s anti-trafficking unit, admitted this:

I think of course the law has negative consequences for women in prostitution but that’s also some of the effect we want to achieve with the law. It shouldn’t be as easy as it was before to go out and sell sex.

These stress methods reveal the undercurrent of whorephobia that underpins the Swedish model.

As with criminalisation and licensing, the true targets of the Swedish model are sex workers. A terrifying example of this was ‘Operation Homeless’, who’s task force STOP Group—a dedicated anti-trafficking unit—focused on enforcing the subsection that makes it an offence to ‘let premises on the understanding that such premises shall be used for prostitution.’

‘Operation Homeless’ focused on evicting primarily Black and migrant women from their houses, stating that this attempt to unsettle and pressure the sex industry was a means of preventing crime. Between 2007 and 2014, 400 apartments were forcibly vacated in Oslo. As reported by Amnesty International, most workers were given between a day and less than an hour to leave the property, losing their bond, any rent paid, and sometimes their belongings. While STOP Group no longer exists as its own task force, ‘Operation Homeless’ has been mainstreamed into the work of the Oslo police force.

The former CEO of Pro Sentret—an Oslo sex worker outreach organisation—told interviewers,

the discussion before the sex purchase law was passed had been about poor, migrant women. The debate in Parliament on the day the law was passed was mostly about trafficking. After that though the rhetoric very quickly changed to ‘isn’t it great the streets are clean’.

Again we see a carceral, punitive, ‘clean up the streets’ mindset driving ostensibly ‘progressive’ laws.

As the key industry stakeholders of the sex industry, sex workers should be at the forefront of sex industry law reform. When sex worker voices are centred in lawmaking, as was exemplified in the Northern Territory’s successful run for full-decriminalisation in 2019, we see the application of best-practice, human rights-based approaches to legislating the sex industry.

Decriminalisation positions sex work as ‘work’ in both law and policy. This enables workers to access regulations that already exist for the rest of the Australian workforce, affording us better control over our working conditions. It is not no regulation, but whole-of-government regulation that opens up the civil protections available to all other workforces to those working within the sex industry.

Scarlet Alliance states that decriminalisation ‘improves our abilities to implement safer sex practices, enhances opportunities for collective bargaining and industrial advocacy’ (in terms of holiday leave, sick leave, superannuation, parental leave, industrial award coverage), ‘recognises contracts made for working purposes,’ (between sex worker and client, or in the hiring of premises, drivers or security), ‘legitimises income’ (allowing workers to pay taxes, claim work-incurred expenses and apply for loans), ‘and gives sex workers better legal redress for unfair dismissal and other injustices in the work place’.

Under full-decriminalisation, sexual exploitation, harassment and assault are all still a crime. The difference is that under decriminalisation, sex workers will be able to report these crimes without fear of conviction themselves.

Criminalising sex workers—either overtly with the criminalisation model, or covertly with licensing or the Swedish model—ensures we remain a precarious workforce. Any law whose effects are homelessness, deportation, incarceration, the removal of children, financial discrimination, and state surveillance is not a realisation of trans and women’s rights under patriarchy, or workers’ rights under capitalism, or BIPoC rights under colonialism and white supremacy. The idea that this could be so is evidence of how deeply accepted the bigotry against sex workers is across so-called Australia and the world.

The Andrews government pledged last year to decriminalise the Victorian sex industry—a project of reform that is being voted on today. This comes after more than thirty years of shared advocacy work done by the Victorian sex workers, the Victorian peer sex worker organisation Vixen Collective, and Australia’s national peak body Scarlet Alliance. As other states in Australia continue fighting for decrim—South Australia is currently making its fourteenth attempt, and Queensland announced a review into decriminalisation last August—and with the collective knowledge gained from the successful run for full-decrim by the Northern Territory and the pitfalls of the application of partial-decrim in New South Wales, Victoria has an opportunity to continue the legacy of sex worker advocacy in so-called Australia, and pioneer a model of full-decriminalisation that leaves no sex workers behind.

Full decriminalisation means no specific laws that prohibit or control street-based sex workers. Evidence shows that criminalising sex work in certain places creates increased risk and barriers to sex workers using safety strategies like working in a familiar location, networking with peers, screening clients, carrying prophylactics and negotiating services before a booking.

Full decriminalisation means removing police powers, putting an end to the targeting, detention, deportation and surveillance of marginalised sex workers, and ensuring sex workers have full access to Work Health and Safety as well as industrial, anti-discrimination and anti-vilification protections.

Full decriminalisation means no specific laws that prohibit migrant workers and temporary visa holders from working in the sex industry. The exclusion of migrant sex workers from the rights awarded to Australian citizens would be unacceptable as well as ironic, considering our immigrant ‘nation’ exists on stolen land, Aboriginal sovereignty of which was never ceded.

Sex workers across so-called Australia call for law makers and civilians to centre our voices and recognise us as the key stakeholders in sex industry law reform. We are a community that is constantly vilified, stigmatised, and discriminated against. Outright criminalisation, the Swedish model and licensing write that stigma into law, sanctioning discrimination across all sectors of society including housing, banking, work, and travel. We cannot continue writing laws that are fuelled by stigma. Sex workers call for an evidenced, best-practice, human rights-based approach to regulating the sex industry. We call for full decriminalisation.

Al Speers

Al Speers is a writer and sex worker based in Naarm.

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