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The legalization of prostitution and its impact on trafficking in women and children
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Several countries have legalized prostitution since the start of the new millennium. Canada is currently reviewing its policy towards prostitution. There is accordingly an urgent need to discuss the impact of the legalization (regulation) of prostitution in light of examples of countries that have legalized this industry with a view to drawing conclusions from these experiences which can contribute to the process of collective reflection in Canada.
After reviewing some of the data on the scale of prostitution and the trafficking in human beings for the purpose of prostitution, I will study the links between prostitution and the trafficking in women and children for the purpose of prostitution, as well as the impact of the legalization of prostitution in a number of countries. I will conclude with a discussion of the agreements signed by Canada and the obligations arising out of them for the implementation of Canadian laws.
However, a preamble to this discussion is in order in the form of a number of significant data : in Canada, the average age of entry into prostitution in 1998 varied between 14.1 and 14.8 years, depending on the province. Between 70 and 80% of the prostituted people in Canada were children when they began to be prostituted. In 1987, the number of prostituted children in Canada was estimated at 10,000 (1). According to Phillis Chester (1994), 75% of escorts had made at least one suicide attempt. Prostituted women account for 15% of the suicides reported by US hospitals (2) (the data for France are similar). Women and girls working in prostitution in Canada have a mortality rate that is 40 times the national average (3). In my book, La mondialisation des industries du sexe [the globalization of the sex industries] I show that violence is intrinsically interwoven with prostitution, that it is an essential element of it. While the conditions under which prostitution is carried out can undoubtedly exacerbate its inherent violence, it is primarily the social relationships which underpin prostitution that are the fundamental cause of this violence. The pimps’ recruiting methods are not really the simple accumulation of private "abusive" behaviours, but occur within a structured system which requires violence. The violence committed by a substantial number of customers derives from the fact that the mercenary nature of the transaction confers upon them a position of domination.
Prostitution is ontologically a form of violence. It feeds on violence and in turn amplifies it. Abduction, rape, submission - there are submission camps in a number of European countries, not only in the Balkans and in Central Europe, but also in Italy, where submission is called "schooling" - terror and murder are still the midwives and outriders of this industry ; they are essentially not only for market development, but also for the "manufacture" of the "goods" as they contribute to making prostituted people "functional" - this industry demands total availability of the body. A study of street prostituted people in England established that 87% of them had been victims of violence during the past 12 months ; 43% were suffering the consequences of serious physical abuse. (4) A research study in Chicago showed that 21.4% of women working as escorts and exotic dancers had been raped more than 10 times. An American study in Minneapolis showed that 78% of prostituted people had been victims of rape by pimps and customers, on average, 49 times a year. 49% had been the victims of abduction and had been transported from one state to another and 27% had been mutilated. (5) I could multiply the data generated by field studies.
What I want to emphasize here is that the women and children who are the objects of trafficking for the purpose of prostitution as well as the vast majority of prostituted people, have very often been subjected to violence. A large number of them are supplied to the market on a "turnkey" basis : "Any woman can be broken in 10 days and turned into a prostitute", in the words of the Bulgarian manager of a rehabilitation centre (6). Their abduction by traffickers of all kinds, who become their owners, their "commodification" - human beings metamorphosed into "goods" that are sold on the sex market -, their depersonalization, and then their consumption demand the rape of their humanity and require violence. The violence to which prostituted people are subjected is multiple and often unspeakable, indescribable. Violence is intrinsic to prostitution : the commodification and merchandising are aimed at forcing the sexes to submit to the satisfaction of the sexual pleasure of others. The second is also inherent : a person becomes prostituted as a result of sexual, physical, psychic (in 90% of cases, according to a range of studies), social and economic violence. The third is linked to the expansion of prostitution and to the ensuing deterioration of the conditions to which prostituted people are subjected : "The customer has no further hesitation about being increasingly violent towards the prostitute and today she must be extremely vigilant", claims Chant, of the Bus des Femmes, an association established in Paris over a decade ago by former prostituted people. (7)
The conditions under which prostitution is exercised are thus not the cause of this violence, although this is the thrust of the organizations that argue in favour of the total decriminalization of prostitution or of its legalization. The cause is to be found not in the conditions under which prostitution is carried out, but in the carrying out of it.
The scale of the sex industries
Every year, approximately 500,000 women who are victims of trafficking are released onto the prostitution market in the countries of Eastern Europe (8) ; 75% of the women who are victims of this trafficking are 25 years of age or under, and an indeterminate, but very large, percentage of them are minors. Some 4 million women and children annually are the victims of the worldwide trafficking for the purpose of prostitution. In 2001, it was estimated that the number of prostituted people in the world (9) was 40 million, a figure that continues to rise. The phenomenon assumes unimaginable proportions in some countries, accounting for between 0.25% and 1.5% of the population in the Philippines, Malaysia, Taiwan (10), etc.
The prostitution industry accounts for 5% of the GDP of the Netherlands, between 1 and 3% of Japanese GDP and in 1998, the International Labour Organization (ILO) estimated that prostitution accounted for between 2 and 14% of the total economic activity in Thailand, Indonesia, Malaysia and the Philippines.
During the 1980s, there were three times more victims of trafficking for the purpose of prostitution in South-East Asia alone than in the entire history of the African slave trade. The African slave trade, which continued over a period of 400 years, claimed 11.5 million victims, whereas the trafficking for the purpose of prostitution in South-East Asia alone claimed 33 million victims in a decade. (11)
Over the past three decades, the countries of the Southern hemisphere have experienced a phenomenal growth in prostitution and in the trafficking of women and children for the purpose of prostitution. For slightly more than the past decade, this has also been the case in the countries of the former Soviet Union and in Eastern and Central Europe and the Balkans. Sabine Dusch (2002 : 109) estimates that worldwide prostitution generates a turnover of approximately 60 billion euros, i.e. over US $72 billion. In 2002, the profits from the trafficking in women and children were estimated by the United Nations (UN) at between US $7 and $12 billion per year. (12) The human victims of trafficking for the purpose of prostitution are significantly more numerous than those who are the victims of trafficking for the purpose of domestic exploitation of cheap labour. (13) It is estimated that 90% of the victims of trafficking are trafficked for the purpose of prostitution. (14)
The sex industries are now major industries - some of them multinational - that generate fabulous profits and substantial hard currency inflows, which has an impact on countries’ balance of payments and thus on their current account ; they are even regarded as vital in the economies of a number of countries.
However, the unbridled growth of the sex industries has had the effect of calling into question mark basic human rights, specifically those of the women and children who have become sexual commodities. The status of women and children has even seriously deteriorated. Henceforth, in many countries of the third world as well as in those of the former Soviet Bloc, under the impact of structural adjustment and market economy policies, women and children have become new raw resources in the context of the development of national and international trade. From the viewpoint of their possessors, these women and children have a dual advantage : this is reflected in the marketing not only of bodies and sexes, but also by that of women and children sold in succession to a variety of criminal pimping networks and then to clients, hence the frequently cited concept of the appearance of a new form of slavery to characterize the trafficking of which millions of women and children are the victims.
Prostituted people of foreign origin and human trafficking
The example of the Netherlands provides a good indicator of the expansion of the sex industry in recent decades and the growth of trafficking for the purpose of prostitution : 2,500 prostituted people in 1981, 10,000 in 1985, 20,000 in 1989 and 30,000 in 1997. The Netherlands has become a preferred destination in the world of sex tourism. In Amsterdam, where there are 250 brothels, 80% of the prostituted people are of foreign origin and "70% of them have no papers", as they are victims of trafficking. (15) In 1960, 95% of prostitutes in the Netherlands were Dutch, whereas by 1999 the figure was a mere 20%. In Denmark, where prostitution is also legal, the number of prostituted people of foreign origin who are victims of trafficking has increased ten-fold over the past decade. (16) In Austria, 90% of prostituted people are originally from other countries. In 2003, the number of victims of trafficking for the purpose of prostitution was estimated at 20,000 annually, compared to 2,100 annually at the start of the previous decade. In the ten years from 1990 to 2000, 77,500 young foreign women have fallen prey to traffickers. These young women, who are frequently minors, and who can be purchased on the markets in the Balkans for US $600, are subjected to an average of between 30 and 100 sexual contacts a day. (17) Ten years ago, the number of prostituted people of Greek origin was estimated at 3,400 ; this figure remains more or less the same to day, but with the explosion of the prostitution industry, the number of prostituted people of foreign origin has multiplied by ten. The revenues derived from prostitution in Greece are estimated at US $7.5 billion a year.
Talking of foreign prostituted people means trafficking in human beings for the purpose of prostitution (and the production of pornography), which obviously implies that the trafficking is organized. Organized pimping, which is controlled by organized crime, is the major supplier of the night clubs and brothels, of which there are 700 in the Netherlands (18), where prostitution has been regulated since October 1, 2000. This legalization, which was intended to benefit prostituted people, according to its advocates, is probably a failure, since only 4% of them have registered. (19) This legalization was supposed to put an end to prostitution of minors. However, the Organization for the Rights of the Child, the headquarters of which is in Amsterdam, estimates that the number of minors who are prostituted in the Netherlands has increased from 4,000 in 1996 to 15,000 in 2001, including at least 5,000 who are of foreign origin. In Vienna, Austria, the number of prostituted people was estimated at the start of 2000 at between 6,000 and 8,000 ; only 600 of them were registered. (20) Ten years later, there were 800 registered prostituted people and approximately 2,800 illegal prostituted people. In 1995, the number of registered prostituted people had dropped to 670, whereas the number of illegals had climbed to 4,300. (21)
As the experience in the Netherlands, Greece and Austria shows, the number of "legal" prostituted people, those who are natives of the country, is gradually dropping (in relative or absolute terms) and the number of prostituted people who are clandestine, illegal, who have a tourist visa or who are victims of trafficking is increasing. The regulation (legalization) of prostitution has thus not improved the fate of prostituted people, in contrast to the claims of activists who are in favour of such a policy. But legalization does represent a goldmine for the pimps, whose activity is now legal : over the past 10 years, the activities of the sex industry in the Netherlands have increased by 25% (22). Thanks to its liberal legislation, the Dutch government takes in US $1 billion $202 million annually in taxes, thereby becoming one of Europe’s largest pimps.
Trafficking and prostitution have increased considerably over the past decade. The hallmarks of this increase are the increasing control by networks originating in Eastern Europe and the Balkans, Africa, Asia and Latin America, and by the increase in flows of money and recycling the money derived from this criminal activity. Transnational crime has benefited from the discrepancy between the free circulation of goods and capital, the policies of restricting human migration and the fragmentation of the global penal space. It also benefits from its ability to corrupt customs officials, policemen, judges, politicians and public servants, if only from its ability to integrate them into the criminal activities themselves. It finances associations advocating the recognition and legalization of the sex industries. (23) It invades "legal" industries - nightclubs, hotels, restaurants, travel and placement agencies, transport, etc. - which are useful for all kinds of trafficking.
Legislation, expansion of prostitution and trafficking in women and children
The promoters of the legalization of prostitution in Australia (24) maintained that such a step would solve such problems as the control by organized crime of the sex industry, the deregulated expansion of that industry and the violence to which street prostituted people are subjected. In fact, the legislation has solved none of these problems : on the contrary, it has given rise to new ones, including child prostitution, which has increased significantly since legalization. Brothels are expanding (25) and the number of illegal brothels exceeds the number of legal ones. Although there was a belief that legalization would make possible control of the sex industry, the illegal industry is now "out of control". Police in Victoria estimate that there are 400 illegal brothels as against 100 legal ones. (26) Trafficking in women and children from other countries has increased significantly. (27) The legalization of prostitution in some parts of Australia has thus resulted in a net growth of the industry. One of the results has been the trafficking in women and children to "supply" legal and illegal brothels. The "sex entrepreneurs" have difficulty recruiting women locally to supply an expanding industry, and women from trafficking are more vulnerable and more profitable. The traffickers sell such women to the owners of Victoria’s brothels for US $15,000 each. They are held in servitude by this debt. The weekly profits derived from the trafficking in women in Australia by the prostitution industry is estimated at $1 million. (28)
In Germany, the legislation that entered into force on January 1, 2002 abolished the concept of "immoral activity". The hundreds of thousands of prostituted people who are German (or married to Germans) now have a status, that of "independent or salaried workers with a work contract" with the "bosses" of the eros centers. Prostitution is allowed and regulated ; it has to some extent become classified as a "profession like any other". In addition, all businesses with 15 or more employees, including brothels, are obligated to hire apprentices on pain of financial penalties if they fail to do so. What thinking person would encourage any adolescent to become an apprentice in an eros center ? Women who perceive unemployment insurance benefits and who work in restoration or bars have to accept henceforth job propositions in brothels ; if they don’t accept they can lose their benefits. In 2001, the International Organization for Migration (IOM) estimates that almost half of the women who are victims of trafficking for the purpose of prostitution in Germany have entered the country legally. (29)
Some 50,000 women from the Dominican Republic are working in prostitution abroad, particularly in the Netherlands, where at one time they accounted for 70% of the occupants of Amsterdam’s 400 prostitutes’ "windows". Between 75% to 85% of prostituted people in the red light districts of Germany are of foreign origin. Approximately 40% of Zurich’s prostituted people come from the third world. The number of brothels has doubled since the partial legalization of prostitution in Switzerland.
The legalization of prostitution thus generates a colossal expansion of this industry and of the trafficking which is its corollary.
An "abolitionist" country like France, with a population estimated at 61 million, has half as many prostituted people on its territory as does a small country like the Netherlands (16 million) and 20 times fewer than a country like Germany, with a population of around 82.4 million. In Sweden, where legislation has been passed to prosecute the customers and to decriminalize the activities of prostituted people, it is estimated that there are only about 100 prostituted people in the country for around 9 million inhabitants. In the capital, Stockholm, the number of street prostitutes has dropped by two-thirds and the number of customers has dropped by 80%. In addition, "Sweden is the only country in Western Europe not to have been submerged by the tidal wave of girls from Eastern Europe following the fall of the Berlin wall". (30) In neighbouring Finland, it is estimated that 15,000 to 17,000 people become victims of trafficking for the purpose of prostitution annually.
The most recent research, carried out by London Metropolitan University, at the request of the Scottish government and published in 2004 on its government website, "confirms what several prior studies have shown, namely that the "sex industries", sexual tourism, child prostitution and violence against prostituted people have increased markedly in all the countries that have liberalized their prostitution laws and turned pimps into respectable businessmen."
Government policies are accordingly a decisive factor in the proliferation of prostitution industries and its corollary, trafficking.
Policies favourable to the legalization of prostitution and trafficking for the purpose of prostitution form part of an international offensive, mounted by the countries that advocate regulation, against the abolitionist Convention adopted by the UN in 1949, the Convention for the Suppression of Human Trafficking and the Exploitation of the Prostitution of Others. These countries have introduced in international or regional conferences (especially in Europe) the concepts of "forced prostitution" and "forced trafficking" in contrast to "voluntary prostitution" and "voluntary or consenting trafficking".
The 1949 abolitionist Convention was adopted following the Second World War, in that burst of activity which also saw the adoption of the Universal Declaration of Human Rights. It was ratified by 72 countries, but not by Canada, United States and Thailand. It said in substance that "prostitution and the evil that accompanies it […] are incompatible with the dignity and value of a human being". The signatories agreed :
According to the advocates of the legitimization of "sex work", the 1949 legislative instrument was "limited exclusively" to trafficking in women for the purpose of prostitution and "left aside the issue of the protection of children." (32) As the negotiations in respect of the additional Protocol to the United Nations Convention against Transnational Organized Crime with the aim of preventing, suppressing and punishing the trafficking in persons, in particular of women and children (the Palermo Convention), which faltered on the question of whether there could be trafficking without force of women and children, the issue was not to amend it or improve it. The real issues focused on the concepts of prostitution, pimping, sex industries, trafficking for the purpose of prostitution and human rights in society.
The growing concerns of the "international community" in view of the scale of international crime and the increase in the trafficking of women and children and the trafficking in migrants led to the adoption by the UN of a Convention Against Transnational Organized Crime. (33) This convention established broad definitions of victims and criminal offences. However, its objectives were to harmonize a number of criminal definitions in the signatory states which were to be included in their penal codes and to formulate common rules to assist mutual penal justice and extradition procedures. The primary aims of the additional protocols were to lead other states to harmonize their penal legislation and to strengthen their judicial cooperation.
Trafficking in human beings has given rise to a plethora of different definitions. In recent years, the proposed definitions have depended in large measure on the specific needs or political stances of the organizations or institutions from which they emanated. It has accordingly, among other things, been defined from the perspective of human rights, crime, clandestine migration, exploitation of work and modern slavery. The terms "trafficking" and "trade" in human beings are frequently treated as synonymous or confused. These terms nonetheless refer to different, albeit related circumstances. Since the adoption of the UN Convention against Transnational Organized Crime and its two protocols, one on the smuggling in migrants and the other on trafficking in people, the term "smuggling" refers to illegal transportation of migrants and that of "trafficking" to the recruiting, transportation and exploitation of people. This "exploitation" may involve prostitution, slavery, forced labour and the removal of organs. International organizations and many NGOs distinguish between trafficking that is forced or voluntary and forced and voluntary prostitution, opening the door to trafficking of all kinds and to the legalization of prostitution and trafficking. This distinction between free and forced prostitution makes individual choices out of what is in fact a colossal worldwide system. The UN Convention on Transnational Organized Crime maintains that trafficking may be a punishable offence even with the consent of the victim. But by emphasizing the abusive conditions of trafficking, perceived as a violation of human rights, instead of emphasizing its intention, prostitution, the convention downplays the fact that trafficking in women and children for the purpose of prostitution is far and away the dominant factor in the international trafficking in human beings. In this convention, in contrast to the Convention for the Suppression of Trafficking in Persons and the Exploitation of the Prostitution of Others (1949), the fight against trafficking is not linked to a fight against the system of prostitution, which is the source of trafficking. On a positive note, however, this Convention formulated, during the Vienna negotiations, a definition of trafficking which "protects all the victims", whether they be "consenting" or not and rejected the positions that defended "the right of women to migrate for sex work" and wanted a definition of the treaty that did not mention "sexual exploitation or prostitution".
It should be emphasized that simply fighting against trafficking constitutes censuring the transfer of prostituted people between countries and not fighting against their prostitution. That is even more true when this "fight" concerns merely the most abusive forms of trafficking and not trafficking itself.
The 1980 UN Convention on the Rights of the Child condemns, among other things, the sexual exploitation of children. Two optional protocols to this convention were adopted by the UN General Assembly in May 2000. One of the protocols concerns the involvement of children in armed conflicts, the other the sale of children, child prostitution and child pornography. Canada actively supports the optional protocol to the Convention in respect of the sale of children and on child prostitution and child pornography. This protocol urges signatory states to criminalize these violations of the rights of children and to further punish those who exploit children, specifically in the area of sexual exploitation, both within the country and abroad, without criminalizing prostituted children, which a number of countries still do. In this regard, in Vancouver, during the 1990s, prostituted children were charged 59 times more often than their male customers. In a six-year period only six men were charged for accosting a child prostitute. Two of them were convicted. During the same period, 354 children were charged with soliciting or prostitution. (34)
In the countries which have legalized prostitution, a woman may prostitute herself if she obtains citizenship, marries a citizen of the country or acquires a temporary artists’ visa (as is the case in Switzerland and Luxembourg), and a pimp may receive the proceeds of the sale of her sex with complete impunity. The right of a person to engage in prostitution and to allow another person to benefit from the income she derives from it is regulated. People from outside these countries can obtain with ease a residence permit in a single industry, the sex industry.
Humankind is witnessing the industrialization of prostitution, trafficking in women and children, pornography and sex tourism. The various sectors of the sex industry are flourishing ; they are organized and managed by networks of pimps and organized crime. The liberalization of the laws governing prostitution in some countries has allowed the pimps involved in organized crime to acquire, emerging from the underground, the status of entrepreneurs and respected business partners. The criminal markets are naturally integrated into the legal markets where they are able to launder money with complete impunity. They now play a major role in the world economy. The United Nations Development Program (UNDP) estimates that gross criminal product makes up 15% of world trade. (35) The sex markets account for a sizeable share of this. It is estimated that the profits from trafficking women for the purpose of prostitution alone now generate more money than trafficking in firearms or drugs. (36) Thesex trade industry increasingly regarded as an entertainment industry and prostitution as "legitimate work".
There are two major consequences of the legalization of prostitution. First, the institutional officialization (legalization) of sex markets strengthens the activities of organized pimping and organized crime. Secondly, such strengthening, accompanied by a significant increase in prostitution-related activities and in trafficking, brings with it a deterioration not only in the general condition of women and children, but also, in particular, that of prostituted people and the victims of trafficking for the purpose of prostitution.
While the total decriminalization of prostitution - equivalent of the law of the jungle - is not regarded favourably by any country, the legalization of prostitution brings with it a number of problems that I have examined. The alternative is the policy adopted by Sweden, which criminalizes those who benefit from prostitution - the pimps and the customers - and decriminalizes the activities of the prostituted people, who are regarded as the prey and the victims of organized pimping.
Canada is a signatory to the Palermo Convention and the Convention on the Rights of the Child. These conventions and the Convention of 1949 must provide a framework for strengthening Canadian legislation and adapting it to the new realities. I am not a jurist, and I accordingly have no specific proposals to formulate. But the globalization of the sex industry and its exponential growth can be slowed if not stopped by policies based on these conventions : a strengthened criminalization of pimping, sex tourism and trafficking (including the case of "artists’" visas for strip clubs). In accordance with the 1949 Convention and based on the definition of victims contained in the Palermo Convention, Canada could decriminalize the activities of prostituted people, who are considered the victims of a system that is controlled and developed by national and transnational organized crime (including in countries where prostitution is legal). With the aim of combating the human trafficking for the purpose of prostitution, Canada, which is both a destination and a transit country for this trafficking, must fight against prostitution, which is the source of the trafficking. To this end, it must attack the demand, in other words, customers (both at the national level and abroad in the case of sex tourism), another cause of prostitution, through a policy of penalization such as Sweden has adopted. In that country, prostitution is viewed as one of the aspects of male violence against women and children. It is officially recognized as a form of exploitation of women and children and as a major social problem, not only for the prostituted person, but for society as a whole. The battle against prostitution and trafficking for the purpose of prostitution occurs within the overarching objective of the fight for the equality of men and women. This equality "will remain out of reach as long as men buy, sell and exploit women and children by prostituting them." (37)
French version here.
1. Hodgson (1997 : 5).
ATTAC (2003), Quand les femmes se heurtent à la mondialisation, Paris, Mille et une nuits.
Richard Poulin, sociologue
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