1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

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prostitution, brothels, and pimping all are legal. 190 Another forty countries have partially decriminalized sex work, otherwise known as restricted legality. In addition to the brothel/pimping differentiation, 191 countries can restrict legality by geography, 192 gender, 193 jurisdiction, 194 “role,” that is buying or selling, 195 sex act, 196 and the role of the differentiate punishment by gender or by role, i.e., prostitutes and customers. [add examples]. [also find a country where penalties differ by jurisdiction: maybe Australia and U.S.?] 190190 These eight are Ecuador, Germany, Greece, Indonesia, the Netherlands, New Zealand, and Venezuela. [add procon cite; and again, eventually we’ll want the cites to the countries themselves.] As in jurisdictions that have criminalized sex work, jurisdictions that have legalized it embrace different rationales. For instance, Argentina’s constitution provides, "The private actions of people that do not offend in any way the public order and morality, nor damage a third person, are only reserved to God, and are exempt from the authority of the magistrates." [add other, different rationales]. 191 For instance, in ten countries, prostitution and brothel ownership are legal, but pimping is not. See, e.g., [add cite to procon] (Belgium, Columbia, Costa Rica, El Salvador, Guatemala, Panama, Peru, Singapore, Switzerland, and Turkey). [what about Italy and Israel, which only speak to pimping, which they criminalize?] Other countries criminalize both brothels and pimping. [which countries are these?]. As noted above, in no country is pimping legal if brothel ownership is not. See supra note [x] and accompanying text. 192 Several countries ban prostitution from “public” places. France and Canada both explicitly restrict prostitution to “private” places and make solicitation in public places illegal. In the United Kingdom "persistent" solicitation in public places is illegal, as is “kerb crawling.” Finland [fill in]. [which country says this? “Selling and purchasing sex in public is illegal.”] Other countries, such as Singapore, take the opposite approach, limiting prostitution to designated “red-light districts.” [add procon and country cites]. In Mexico, prostitution is legal, but many cities restrict it to certain districts. [add procon and country cites]. 193 Some countries engender the criminalization or liability for prostitution. In Bangladesh female prostitution is legal but male prostitution is not. [add procon and country cites]. In Egypt, the man, assumed to be the customer, is considered a witness and is exempt from punishment in exchange for testifying against the prostitute, assumed to be a woman. [add procon and country cites]. [find other gendered examples]. 194 In Mexico and Australia, prostitution is left to the individual states, although it is criminalized in the former and legal in the latter. [eventually we’ll add cites to these; for now just put in the procon cite]. The United States leaves the status of prostitution to the individual states, but it is criminalized everywhere except for eleven rural counties in Nevada, with populations of less than 250,000. See supra note [x], and accompanying text. Between 1980 and 2009, “indoor” prostitution was legal in Rhode Island because of an unintentional legislative loophole. The state enacted new legislation criminalizing all prostitution in November 2009. [we’ll need cites to all of the Rhode Island stuff]. Some municipal jurisdictions, such as San Francisco, intermittently contemplate decriminalization. [add cite to Prop K debate]. See also Law, supra note [x], at [pincite]. [figure out after previous section is done] Some call for explicit nonenforcement of state laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at [pincite] (discussing San Francisco and New Jersey Task Forces as case studies of local reform); Leigh, supra note [x] (discussing San Francisco Task Force recommendations to suspend enforcement of state laws against prostitution and redirecting resources to services for sex workers and enforcing nuisance laws).] 195 In some countries, selling sex is legal, but buying it is criminalized. This is the case in Iceland, Malaysia, Norway, and Sweden. [is this next statement accurate?] These countries recently introduced this differentiation, influenced in large part by feminist/sex work advocacy groups. 196 For instance, Japan criminalizes only intercourse; other sexual acts are legal. [add procon and country cites]. 34
states. 197 Finally, the “status” of prostitute can influence other rights and capabilities, almost universally negatively. 198 Despite the complexity of how countries impose and implement criminalization, the overwhelming majority have a limited vision of regulatory options. They are limited to complete criminalization, or variations on decriminalization. 199 Those that have moved from decriminalization to active “legalization” through regulation mainly limit it to mandating age limits, health requirements, and registration on sex workers. 200 A very few countries have, following the erotic exceptionalist call, legalized prostitution without enacting any other accompanying regulation. 201 More often, the absence of regulation appears to be a regulatory vacuum than an intentional alignment with exceptionalism. 202 The lone exception is New Zealand, whose Occupational Health and Safety agency has issued a comprehensive set of guidelines for the sex industry. 203 In sum, the regulatory imagination seems extraordinarily constrained. What would an approach look like, that 197 In Turkey, the brothels are state-owned, and it is illegal to “shelter a person for prostitution.” [add procon and country cite]. 198 For instance, in Turkey sex workers cannot be married and their children are barred from occupying high rank in the army or police, or marrying persons of such rank, although they can work in other areas of government service. [add procon and country cites]. In the United States, prostitution can preclude an alien from obtaining a visa. Immigration and Nationality Act, 8 U.S.C. 1001, et. seq., as amended (naming as ineligible for a visa anyone who “is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.”). In Nevada, prostitutes cannot [check on this: I think they are restricted re where they can live, etc. Check India too]. 199 [fix this] Prabha Kotiswaran points out how criminal, prohibitory laws have become fetishized by both sides of the decriminalization debate. “While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex workers.” Kotiswaran, supra note [x], at 579. In sum, contra Foucault’s injunctions against juridical understandings of modern regulation, “Both camps thus view the criminal law as having a unidirectional repressive effect on the sex industry.” Kotiswaran, supra note [x], at 613. Elsewhere, Prabha Kotiswaran cautions “irrespective of our political positions on sex work, it is not possible to sustain a corresponding preference for regulation without acknowledging that legal rules are perpetually ensnared in complex rule networks and without studying the disparate effects of the most wellmeaning legislative proposals at the most minute level of negotiations between sex workers and other stakeholders in the sex industry.” Id. at 625. See also, Law, supra note [x], at [add pincite] (describing suggested feminist reforms, including equal criminalization, criminalizing pimping, [add others]). 200 Compare Austria (requiring prostitutes to register, undergo periodic health examinations, be 19 years old or older, and pay taxes); Latvia (requiring monthly health check); Netherlands (prostitutes must be over 18 and clients must be over 16 and prostitutes must register and pay taxes); Singapore (requiring mandatory health checks, that prostitutes be 16 years or older, and confine their work to designated districts); Switzerland (requiring prostitutes register with city authorities and health authorities and get regular health checks). Other countries impose far more intrusive requirements and restrictions. In Turkey and Greece, health checks can be as often as twice a week and in Turkey workers must carry an identity card indicating the dates of his or her health checks. Costa Rica has minimal requirements. Prostitutes “must be over 18 years old and carry a health card showing how recently they had a medical check-up.” [find some interesting variations on these]. 201 See, e.g., [fill in Brazil code and regulation]. 202 Some countries do not address or define prostitution at all, leaving its status unclear. This is the case in long-standing nations such as Bulgaria, Spain, and Indonesia, as well as newer ones. In Kyrgyzstan, for instance, prostitution is not a crime but its exact legal status is unclear. [we’ll need the procon and eventually the country citations for these]. 203 A GUIDE TO OCCUPATIONAL HEALTH AND SAFETY IN THE NEW ZEALAND SEX INDUSTRY [add citation]. 35
Page 1 and 2: Regulating Sex Work Adrienne D. Dav
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1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

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