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Decriminalisation vs. Legalisation

Why we are all so pro-decrim

· Behind the Curtain,Resources

Even amongst sex workers there is a misunderstanding of what the difference is, which isn't good for creating a united front for change. Some think that decriminalisation means it will be a free for all with no laws or regulations and that legalisation is the way to go. Well, let's put the difference in plain English (sources at the bottom, I'm not footnoting this for you guys this time).

Simply put, decriminalisation is the removal of laws that make sex work, or aspects of sex work, illegal. That's it. It means that sex work will be subject only to the laws that all other businesses are subject to - OHS, workplace safety, public health, and tax laws. Legalisation, on the other hand, means that the act of selling sex is legal, but in the process of making it legal, they introduce laws that regulate how sex workers operate, and requiring them to abide by a set of rules or face criminal penalties - so essentially the government telling us how to do our job, rather than just having blanket safety laws and freedom to move within them. You can take this paragraph as the TL;DR if you like!

Legalisation in Australia

It is legal in all states except NSW (decrim) and SA (illegal) to be a sex worker. These states all let you work as a sex worker with the following caveats:

  1.  If you are an independent worker, you must register (VIC, previously ACT). They take a lot of personal information about you, and connect your working name to your given name, and put you in a database that is really not as secure as you'd like to think. As well as the paperwork in a possibly locked filing cabinet. How many other professions are required to register with the police? Doctors register, but only so a governing body can keep track of their licences, which is about safety, and not with something that the police monitor. This isn't about safety, it's about control. Interestingly, most sex workers either don't register (90%+ in the ACT before they changed the law this month), or don't renew their registration once it expires, because of course, it costs money. Sex work is a job that is generally supposed to be accessible, and if you must spend money in order to legally start - well it isn't accessible to everyone anymore, is it? It was also required in the ACT to undergo a police check. I guess it isn't an effective measure when most people won't do it.
  2. If you are a brothel or agency, you must register (QLD, VIC, ACT). I don't necessarily disagree with this one, but it's another way for them to regulate the brothels and what goes on inside, which is unfair, as they should merely be subject to the same laws that any other workplace is with regard to health and safety. Registering as a brothel should be the same process as registering any other business.
  3. You cannot advertise the services that you perform, you must not advertise certain terms or images (QLD, VIC). Yep, there's a whole bunch of words you can't use in your advertising in QLD, and in both QLD and VIC, you can't advertise the services that you offer. There's no sane rationale behind this law at all - this keeps no one safe, it just makes it harder for sex workers to do their jobs. In QLD, brothels can't advertise for sex workers to come and work for them, which doesn't help anyone. In VIC, you can't have nude body parts in your images - and it used to be more strict, in that you couldn't have anything below the shoulders.
  4. You cannot work in X way (brothels: WA, TAS,NT; agencies: TAS; street work: all, incalls: VIC). So sex work is legal... but only if you do it a certain way. I understand that they are trying to prevent people from taking advantage of workers, but if we know anything, it's that prohibition does not work. In this case, it just forces things underground and means workers who got out of abusive situations won't report them to police, as they committed a crime as well. The no incalls law in Victoria makes no sense, except to attempt to prevent illegally operating brothels, but it hurts independent sex workers no end.
  5. You cannot perform XYZ services (QLD, VIC). Understandably, this is to prevent the spread of disease. However, it's not actually necessary to have laws written in for specific services, because guess what? Our public health laws already cover it. So once again, just more control.
  6. You cannot work in the same residence as another worker (TAS, ACT, NT, QLD, VIC, WA). This one actively harms sex workers, because it means that we cannot operate in a safer manner. It also makes doubles technically illegal in a lot of places. In Victoria, you're allowed to do it (with no more than one other person, so three people is right out), but you have to register as an "exempt brothel", which pretty much no one is going to do, therefore making it... as good as illegal. In WA, it is illegal to benefit from the earnings of sex work, so you can't employ a driver or security.
  7. Police are allowed to entrap you in some states by posing as a client and asking you about illegal services. If someone is offering you more money to do something that you're literally allowed to do in any other circumstance except when being paid for it, and you do this thing as your sole source of income, would you do it? Likely yes.

So this is what we are talking about when we say we don't want legalisation. We have it in most of Australia, and it makes it harder to work, and in some cases generally unsafe. To make a comparison, that's saying yes, you're allowed to be a plumber, but you can't advertise what you do, your workplace can't advertise for jobs, you're not allowed to unclog sinks, in some places you can only be an independent plumber - no companies allowed, you have to have your name on a list at the police station, and people will sneer at you for being a plumber. It makes zero sense when you apply this to another profession. Because plumbing is decriminalised - i.e., no aspect of the work is illegal outside of actions covered by workplace safety laws etc. - they don't have to deal with bullshit regulation.

Nordic Model

Also called the Swedish Model, this is something that's sort of a hot topic in the sex worker community; as SWERFs (sex worker exclusionary radical feminists) really want to promote it, and we really want it never to be put into law. It's a form of legalisation developed in Sweden, but what it does is criminalise the clients. It's legal for sex workers to work, but clients may not seek their services, which hilariously makes us less safe, and saves no one from being trafficked at all.

Clients are even more severely reticent about giving out their details, which allows serial rapists and ugly mugs to slip through unseen. Brothels and other establishments are automatically illegal, as it's facilitating the buying of sex - so there goes another method of working. Sex workers lose business as well, which really isn't awfully fun for anyone. SWERFs like this model because it plays into their narrative that sex workers are poor female victims of circumstance, and clients are filthy violent male brutes - and as we all know, this is the opposite of true.


So what happens in a place that has decrim? Is it total lawlessness and STIs everywhere? Actually no. It's been shown to be the model that's most beneficial to sex workers - it gives us room to work. Here are some benefits:

  1. It means that we're more likely to cooperate with police and to report crimes like trafficking and rape, because we're not going to get stung for committing "crimes" ourselves. Who is in the best place to see and reach out to underage trafficking victims? We are. We don't want them to exist any more than the rest of the country does, maybe more so, because people keep conflating our legal job with an exploitative crime. In general we are less likely to work in the shadows, which makes us safer.
  2. It makes sex work more mainstream, which reduces the stigma on workers, which in turn benefits their health - sex workers are more likely to be honest with doctors if they aren't going to be treated like a walking disease and judged for their work choice. They're also more likely to open up to family and loved ones, which reduces strain on their mental health. It reduces the number of people that believe us to be worth less than those who aren't sex workers - people generally think that criminals are less worthy of a lot of things. Just take a look at the comment section of any news article about a person who has committed a crime, and you'll see a stunning amount of dehumanisation in the comments to justify all manner of punishments.
  3. Here's one for the government: we are more likely to register an ABN and pay tax. Why would anyone want to pay tax when their work is stigmatised, controlled, and made illegal by the government? Before anyone whines that we should be doing it regardless, go and check out any of your local labouring or hospitality jobs, and tell me they declare all their income - and their professions are perfectly above board.
  4. It gives us opportunities to set up our own regulatory bodies, if we want them. Under legalisation, police are effectively the regulators, and that isn't fair.
  5. You still can't employ underage workers (specific laws about age and adult services and entertainment), sex workers still can't see underage clients (actually it's age 16 in NSW, but age of consent laws apply) you still can't perform unsafe sex (public health laws, laws about knowingly transmitting STIs), you still can't solicit in inappropriate places or throw a brothel next to a school (council regulations, Restricted Premises Act 1943), brothels still aren't allowed to be shitty to their workers (workplace health and safety laws, Fair Work laws). The "hell" that SWERFs promise is not actually real.

Decriminalisation is already in effect in NSW and New Zealand, and studies have shown that the outcomes for sex workers, sex trafficking victims, and for law enforcement are far better. The more you bring the work out of the shadows and into the light, the safer people are. Remember that sex trafficking is to sex work what forced labour on farms is to legitimate agricultural employment.

Those Studies

"Sienna, I've seen all these studies on Google that say legalising sex work increases trafficking..."

Those studies are inherently skewed. Do you remember the seat belt studies from the 60s? Back when seat belts came out and were installed in cars, there was a massive increase in the number of people being admitted to hospital with life threatening injuries from motor vehicle accidents. Car companies used this to say "see, seat belts are unsafe!" The actual truth was that seat belts were causing more people to make it to hospital in the first place, where previously they would have died. These studies are similar. When you decriminalise sex work, it's far easier to distinguish between the legal workers and the trafficked individuals, so law enforcement can swoop in to make arrests and help the exploited. So it's seen as an "increase in trafficking" when really it's just an increase in finding the people who were already trafficked.

The other reason these studies are flawed is because of their location. In Europe, free travel is allowed within the Schengen area. Also in Europe, all of the countries have vastly different laws when it comes to sex work. Did you know, you can be prosecuted for trafficking if you are working as a sex worker and you bring in a friend from, say, Romania, to work with you because it's safer for them? You can be considered "trafficked" because you drove yourself over a damn border to work as a sex worker. The numbers are often falsely inflated because of these types of people. This is really similar to Victoria, where state police trot out these figures of "illegal brothels" they've shut down, which are actually 95% private workers doing incalls, because working out of your own premises counts as an illegal brothel operation. Yes, really.

We have to constantly fight with the morality police on these sorts of studies. Getting any done on sex workers at all is hard, because ethics boards don't really like the subject matter, but the SWERFs who commission those studies never bother to look at the people in construction, labour, and agriculture who are exploited in similar ways. Oh no, that would be admitting that the industry isn't inherently flawed, but that there are shitty human traffickers everywhere they can get away with it.

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