The many factors that come into play when answering this question in the headline, including the gender and human rights dimension of the issue, make it hard for EU countries to approach the question in a unified way. However, some common ground regarding the definition of “sex work” and working models of legalisation has been reached over the past few decades.
Who and what is a sex worker? Why language matters.
We follow the definition of the UNAIDS Guidance Note on HIV and Sex Work, which defines sex workers as “female, male and transgender adults, over the age of 18, who receive money or goods in exchange for sexual services, either regularly or occasionally, and who may or may not self-identify as sex workers. In terms of this definition, three elements are worth highlighting:
- sex work and sex workers involve adults only;
- sex work involves consensual acts between adults; and
- acts involving deceit, fraud, coercion, force or violence do not fall under the definition of sex work.”
Dr. Elena Jeffreys, a sex worker and advocate for sex workers, highlighted in a publication of the global network of sex work projects the importance of using ’sex work’ as an inclusive umbrella term in organizing, policy-making, and service delivery efforts. In the text, she emphasized that using the right words helps everyone understand that sex work is a real job, just like any other.
Language is a powerful tool that creates and shapes realities, and the way we talk about sex work is never neutral. The words we use create meaning and influence how people understand the topic and how it is framed. Such often negative framing can lead easily to a simplistic or stereotypic depiction that overlooks the complexity of the realities sex workers represent.
Legalization, criminalization, or something in between?
In Europe, various models of sex work regulation exist, with diverse approaches taken by different countries. Germany and the Netherlands have adopted a full legalization model, where sex work is treated as a legitimate profession. This comes with the obligation for sex workers to register their profession and pay income tax, as well as other regulations, and the existence of legal rights and protections. Breaking these laws and the purchase and sale of sex outside of these rules is punishable by arrest.
On the other hand, countries like Sweden have opted for a partial decriminalization approach, where selling sex is legal, but buying sex is not. This model aims to shift legal consequences onto those purchasing sex rather than the sellers. To Michelle N Jeanis, Assistant Professor of Criminal Law at the University of Louisiana at Lafayette, this “appears to be associated with a reduction in harm in many aspects”. However, she assesses this legal approach to still bear many avenues to harm, especially when it comes to the realm of sex trafficking.
Finally, Belgium (next to New Zealand) has applied a decriminalization model that sex workers are majorly advocating for, according to organizations like the European Sex Workers’ Rights Alliance (ESWA). Here, the offer, the consumption of sex as well as the advertisement for services including sex are legal for consenting adults.
The debate over the most effective and ethical model of legalization continues to evolve across Europe. So far, most research on the topic has focused on the approaches taken towards either the legalization of sex work or its decriminalization. In a conversation with May-Len Skilbrei, Professor at the Department of Criminology and Sociology of Law at the University of Oslo, she noted that: “Policy debates are typically oriented to a handful of countries, so there is a lot of research about some countries. And then there is very little research about others”. To the researcher, this creates a bias in the existing knowledge that needs to be tackled for a better understanding of policies and their results.
According to Skilbrei, beyond legislative and policy-based approaches to prostitution, it is important to consider that how the law controls prostitution doesn’t always match up with how everyday management of prostitution markets actually happens. To the professor, a more data-based approach that takes into consideration aspects beyond “the group that is organized around the phenomenon” (e.g. sex worker organizations and their experiences) could help inform decision-making in this regard. Professor Jeanis is therefore advocating for more collaboration amongst practitioners and researchers. With this in mind, it is easy to see how looking at different models and their consequences from a more analytical and research-based standpoint could inform the way EU countries regulate the practice of sex work.
A deeper look into the Nordic model- or criminalizing buyers
The Nordic Model approach to sex work, introduced by Sweden in 1999, marked a pioneering effort to combat the commercial sex industry by criminalizing sex buyers, considering it a core strategy to eliminate the demand for such services. This model extends beyond Sweden, with Norway and Finland adopting similar approaches shortly after. Iceland, Northern Ireland, Canada, France, Ireland, and most recently, Israel. have also embraced variations of the Nordic Model, aligning with its focus on criminalizing the demand side of the sex industry.
This model acknowledges that the vast majority of buyers are men and that the vast majority of sex workers are women and girls. It recognizes prostitution as a form of violence against women and is incompatible with women’s equality. The approach incorporates public education programs discouraging the purchase of sex, as well as comprehensive exit programs, and social and economic support to assist prostituted persons in leaving the industry.
Legalization- with or without regulations
Among the countries in the EU that legalize sex work, a study of the European Parliament in 2021 differentiates between the ones that regulate it completely, partially, or not at all. The latter is a case where it’s neither prohibited nor regulated, and where prostitution finds itself in an extralegal orbit. The main difference between the ones regulating it partially is found in the way how different forms of procuring are allowed.
Looking at the first group of countries, with full legalization, we find Germany, Greece, Latvia, the Netherlands, Austria, and Hungary. In Germany, sex work has been legal since 2002, but in 2016 and 2017 two key legislative changes occurred: Firstly, a new Criminal Code provision (Article 232a c.c.) was enacted, targeting clients of trafficked and coerced sex workers. Secondly, the Prostitutes Protection Act (Prostituiertenschutzgesetz) was passed to support sex workers and combat criminal exploitation. The act includes mandatory obligations for sex workers, such as registration and compulsory counseling, enforces condom use, and introduces restrictions on the advertising of sexual services. But lately, the Chancellor Olaf Scholz made a clear statement that he might want to change this in the future.
According to the same EU Study, the second group, those who regulate sex work only partially or not at all, is the bigger one including 55,6% of the EU countries ( Bulgaria, Denmark, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, Spain, Cyprus and the Czech Republic). In the Czech Republic for example, the legalization model implies a legal prohibition of profiting from sex work (Article 189 c.c). The practice is therefore notably excluded from commercial law which, in a country with 860+ brothels nationwide and where law enforcement is often lax, usually means sex workers opt for declaring alternative professions, like waitress, just to access social insurance.
Decriminalization as a possible solution
Since June 1st 2022, Belgium is no longer considering sex work as illegal. It is the first country in Europe and after New Zealand the second country worldwide to decriminalize sex work. Different from the previously described model, sex workers who operate in these countries are allowed to declare themselves as self-employed. A bill approved in June this year now also enables them to work as employees. With this decision, more safety measures, such as the installation of safety buttons at the workplace and the need for the employer to have no criminal record are to be guaranteed. Also, contrary to the legalization alternative, sex work is not punishable by law as it would not be considered a crime even if practiced outside certain conditions.
In addition to this, sex workers practicing in Belgium need a work permit, which makes it possible for migrant workers to offer their services if they have a visa. This differs from New Zealand, where the Prostitution Reform Act (2003) is solely applicable for citizens (no visa holders) over 18 to sell sexual services, no matter if street-based or inside a brothel. The rights of sex workers in New Zealand are to be guaranteed through employment and human rights legislation. It might be worth mentioning that before the legalization, the Nordic Model was considered but rejected by parliament after consulting with sex workers and feminist voices.
Towards a European approach?
With last September’s report, the European Parliament attempted to tackle sex work in a more unified manner across EU countries. Other recent developments on the issue include the 2014 resolution, also by the European Parliament, in which EU member states were advised to adopt the Nordic model, and last August, a decision by the European Court of Human Rights to hear an appeal by sex workers against a French anti-sex work law. This last decision was well received, among others, by UN experts and the Global Network of Sex Work Projects which described the court’s announcement as a “landmark victory”.
And while, as highlighted by Skilbrei, sex work is now more than ever being discussed on a European level, the truth is that the topic’s link to criminal law makes it fall under national jurisdiction in most cases. “It’s only when issues are considered highly transnational that they can be managed in collaboration” adds the professor. To the researcher, the argument for the EU to come up with a collective hard law approach to sex work would necessarily be linked to human trafficking and its place on the European agenda.
In addition to this, “European harmonization might not be a good idea”, according to Skilbrei, as “there are major differences between countries in legal cultures, police qualifications, interaction with other laws, interaction with norms in society, and there are good reasons to believe that prosecution payment policies that are similar on paper will not be so in action”. About the dangers in talking about regulatory models that can be adopted across the board Michelle N Jeanis adds that, while possible, the adoption of one model in a different context than the one in which originated “would likely require perceptions about sex work to change and be reflected in policy, which is a whole different conversation”.
Apart from asking “How to regulate sex work?” EU countries might then need to consider if an agreement on regulation is even possible or beneficial for different contexts. Either way, researchers and international organizations tend to agree on one thing: when creating policies around the practice of sex work, the focus should be on gender equality and being able to guarantee basic human rights.
This article is part of the project "Newsroom Europe" which trains young Europeans from three EU Member States (Germany, Sweden and Spain) in critical and open-minded media reporting and on the functioning of European decision-making. The project is carried out jointly by the Europäische Akademie Berlin e.V., the National Museums of World Culture Sweden, and the Friedrich Naumann Foundation Spain, and is also co-financed by the European Union.
Project partners “Newsroom Europe”
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