Decriminalisation is defined as removing the criminal laws and governing the sex industry with the same laws and regulations that apply to other businesses and service providers. If there is one thing the entire sex workers rights movement agrees on it’s that sex work should be decriminalised. While no one ever claimed that removing criminal laws against adult sex work is a magic bullet there is overwhelming consensus and evidence that it’s the essential first step for sex workers to access the same mechanisms that enable people in other lawful occupations to attain equality and justice.
The sex workers rights movement formulated decriminalisation in the 1970s/80s. At the time we had hardly any access to information. Gail Pheterson’s ‘Vindication of the Rights of Whores’ and ‘Prostitutes: Our Lives’ by Claude Jaget brought new ideas and news of the first Prostitutes Collectives actions in the UK, Germany, France and elsewhere as well as accounts of the prison like brothels of Nevada and horrid state run ‘Eros centres’ in Germany. Under those models the state allowed some sex work in some are highly regulated conditions in which workers had no rights while criminalising all other sex workers. Mandatory health ‘checks’ are typically imposed under legalisation. Everyone was horrified. The need to distinguish between legalised and decriminalised sex work rapidly came into focus. It was crucial to develop the rights based concept of decriminalisation and to put it permanently at the top of sex workers agenda globally and locally.
In my case, thanks to COVID, locally means the Australian state of Victoria which is about decriminalise sex work after thirty years of disastrous legalisation. I worked, studied and was an activist here until 1989 so I thought I may as well spend lockdown supporting sex workers to identify exactly which ‘ordinary business regulations’ should apply to a decriminalised sex industry here. Big mistake. Ploughing through a mountain of regulations that cover planning, occupational health and safety, work conditions, alcohol, advertising, etc etc etc (and I really mean etc) to find these fair ‘ordinary business regulations’ that will work for sex workers is both tedious and frustrating. But worse than that, when we drill down into the regulatory framework we quickly hit a rock.
I began the ascent of the regulation mountain by looking at the regulations that apply to similar businesses. The regulations that apply to gyms or clinics might apply to large brothels. Those that apply to self employed hairdressers, personal trainers or accountants might apply to private sex workers. I’m looking for regulations that don’t require sex workers to put their names on a register. I’m looking for regulations that will make safe workplaces and control how bosses treat sex workers. I’m looking for regulations that are cheap and easy to comply with. I’m looking for regulations that can’t be misused by the authorities that grant and enforce permissions. I’m not finding them. Finally it dawns on me. Times have changed.
In 2020 the regulatory framework of a wealthy country like Australia requires every business and service provider to apply for a dizzying number of permits and permissions; to pay various fees and taxes; to register their names in various places and to comply with a web of regulations including allowing access to authorities to inspect and enforce those regulations. No one gets out this. Some combination of these rules apply whether you are a large engineering plant or a self employed hairdresser working from home. Some can be done by ‘non natural persons’ such as companies but most require the legal name of a ‘natural person’. Most of the applications and notifications can be done online, which means data is permanent, joined up and verifiable.
When ‘decriminalisation’ was formulated we were smoking indoors. We weren’t wearing seatbelts in cars and we could walk into banks and open an account in whatever name we wanted. No one was groaning about ‘red tape’ or ‘health and safety’ because it was minimal. There were always regulations and records and cross checking of course, but analogue data collection and retention was expensive and limited. At the same time I know that what hasn’t eroded is sex workers downright refusal to comply with regulations that involve sacrificing their privacy and autonomy. Nor has their lack of faith in government data protection.
So I’m quite thrown by discovering that history has narrowed the gap between ‘legalisation’ and ‘decriminalisation’ in this way. As Maggie McNiell says, ‘what we’re seeing here is less a sex-work-specific issue and more just government’s ever-expanding intrusion into all people’s lives and private affairs. But that’s cold comfort to those who are targeted first as tyrants expand their reach.’
Given the place ‘decriminalisation’ rightly occupies at the very top of the sex workers rights agenda there isn’t much incentive to review its fitness for purpose and possibly update it. Its much easier to demand the criminal law be removed and be vague about the ‘fair’ regulations that should apply after decriminalisation sex work. In this case, that easy path is dangerous.