Law Reform: Defining Terms
There has been much debate over the last few decades about prostitution
law reform. In the course of discussion, several terms are used to
indicate current or preferred situations, alternatives and legal strategies.
To understand the definitions of legalized, decriminalized, regulated
prostitution, etc., we need to understand the context in which these
terms are used.
and Decriminalisation according to Scarlet Alliance, Australia
PRINCIPLES FOR MODEL SEX INDUSTRY LEGISLATION
Scarlet Alliance and the Australian Federation of AIDS Organisations
Refers to the use of criminal laws to regulate or control the sex
industry by determining the legal conditions under which the sex industry
can operate. Legalisation can be highly regulatory or merely define
the operation of the various sectors of the sex industry. It can vary
between rigid controls under legalised state controlled systems to
privatising the sex industry within a legally defined framework. It
is often accompanied by strict criminal penalties for sex industry
businesses that operate outside the legal framework.
Defining terms for contemporary discussion
Although there have always been reformist efforts and movements concerning
prostitution, the prostitute/ sex worker rights movement, as we know
it today, began in the early 70's. The difference between the contemporary
movement and previous efforts is that the current movement has been
defined in a large part by prostitutes/sex workers themselves. Sex
worker activists have defined prostitutes' legal status in specific
ways since the beginning of the prostitutes' rights movement. The
current movement includes a recognition of the rights of prostitutes
to autonomy and self-regulation.
In the U.S. the
term 'sex worker' refers to an individual engaged in a range of forms
of transactional sex, working as a erotic performer or as a somatic
sexual service provider (prostitute). 'Prostitution' would be considered
a form of sex work. Although this term applies broadly, in some international
contexts 'sex work' may exclusively refer to somatic services rather
than media based services (such as web-cam) or public performance.
Common definitions of legalization
There is no official definition of legalized or decriminalized prostitution.
Those who are not familiar with the contemporary discussion about
prostitution law reform usually use the term 'legalization' to mean
any alternative to absolute criminalization, ranging from licensing
of brothels to the lack of any laws about prostitution. Most references
to law reform in the media and in other contemporary contexts use
the term 'legalization' to refer to any system that allows some prostitution.
These common definitions of legalization are extremely broad. Conflicting
interpretations of this term often cause confusion in a discussion
Many (or most) societies that allow prostitution do so by giving the
state control over the lives and businesses of those who work as prostitutes.
Legalization often includes special taxes for prostitutes, restricting
prostitutes to working in brothels or in certain zones, licenses,
registration of prostitutes and government records of individual prostitutes,
and health checks which often means punitive quarantine. The term
legalization does not necessarily have to refer to the above sorts
of regulations. In fact, in one commonly accepted definition of legalization,
legal can simply mean that prostitution is not against the law.
Refering to issues of prostitution, from sociological or activist
perspective, the term 'legalization' usually refers to a
system of criminal regulation and government control of prostitutes,
wherein some prostitutes are given licenses which permit them to work
in specific and usually limited ways. Although legalization can also
imply a decriminalized, autonomous system of prostitution, in reality,
in most 'legalized' systems the police are relegated the job of prostitution
control through criminal codes. Laws regulate prostitutes businesses
and lives, prescribing health checks and registration of health status
(enforced by police and, often corrupt, medical agencies), telling
prostitutes where they may or may not reside, prescribing full time
employment for their lovers, etc. Prostitute activists use the term
'legalization' to refer to systems of state control, which
defines the term by the realities of the current situation, rather
than by the broad implications of the term itself.
Because of the range of definitions of legalization, it is difficult
to use the term in a discussion of reform. When the general public
concerned with civil rights, privacy, etc., call for 'legalization,'
they may not be aware implications of that term, or of the problems
inherent in many legalized systems.
Sex workers rights organizations use the term 'decriminalization'
to mean the removal of criminal laws against prostitution. 'Decriminalization'
is usually used to refer to total decriminalization, that is, the
repeal of criminal laws against consensual adult sexual activity,
in commercial and non-commercial contexts. Sex worker rights advocates
call for decriminalization of all aspects of consensual prostitution.
Some documents refer to 'decriminalization of prostitution resulting
from individual decision.' Asserting the right to work as a prostitutes,
advocates claim their right to freedom of choice of management. They
claim that laws against pimping (living off the earnings) are often
used against domestic partners and children, and these laws serve
to to prevent prostitutes from organizing their businesses and working
together for mutual protection. They call for the repeal of current
laws that interfere with their rights of freedom of travel and freedom
of association. Many sex worker organizations look towards labor laws
and anti-discrimination policies to support rights and fair working
conditions. Civil rights and human rights advocates from a variety
of perspectives call for enforcement of laws against fraud, abuse,
violence and coercion to protect sex workers/prostitutes from abuse
The 'regulation of prostitution' usually refers to the criminal regulation
of prostitution, but sex worker rights advocates also refer to regulation
in terms of both civil regulation and self-regulation. They call for
sex worker regulation of businesses, and civil codes regulating sex
work establishments with regard to the conditions and rights of workers.
Those who call for autonomy support solo and collective work arrangements,
and sex worker/prostitutes' control of their own lives and businesses.
The discussion of regulation is primitive and it is difficult to invoke
concepts of self-regulation in a context that presumes police control
The attitudes of sex worker rights advocates contrast with attitudes
about sex work by anti-prostitution or prostitution abolitionist organizations.
Prostitution abolitionist movements define prostitution and other
categories of sex work as inherently exploitative. Currently prostitution
abolitionists define prostitution and other sex work as violence,
per se, emphasizing involvement in sex work as a response to childhood
sexual abuse. As a reaction to the exploitation fostered by imperialism
and military occupations, international anti-prostitution activists
oppose prostitution per say, as well as sex tourism and trafficking.
Historically, prostitution abolitionists have dedicated themselves
to rescuing women from prostitution, and training women to find alternative
careers or security in marriage. Prostitution abolitionist groups
want to end the institution of prostitution, envisioning a world where
no one sells sexual services for any reason. These organizations oppose
the 'legitimization of prostitution.' These organizations
do not self- define as prostitutes' rights organizations. They work
to reduce or abolish the sex business, advocating against pornography,
strip clubs, etc.
Obviously there is much work to be done as we create the framework
for a broad discussion of sex workers/prostitutes' rights. Each of
the linguistic approaches can be problematic: The term 'legalization'
is overbroad. The term 'decriminalization' has not worked
its way into a contemporary discussion and can elicit confusion and
misinterpretation. Obviously, all the above terms will be evoked in
thorough discussion of the issues. Consensus regarding definitions
should be established early on. As the discourse develops, it is essential
that terms be developed from the perspective of those who will be
effected by the legislation.