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Lifting the Ban: The “Oldest Profession” Becomes the Newest Market Sector

 

As a vegetarian, I do not eat meat, but I think butchers should have the right to labor protection. -Marieke van Doorninck

Introduction

On 1 October 2000, the Netherlands’ ban on brothels, in place since 1911, was lifted.  The lifting of the brothel ban was accompanied by six aims for the policy change. The Ministry of Justice promulgated these six aims as: 1. the control and regulation of operations within the prostitution sector; 2. the intensification of the fight against exploiting forced prostitution; 3. the protection of minors from sexual abuse; 4. the protection of the position of prostitutes; 5. the disentanglement of prostitution from marginal crime; and 6. the reduction of prostitution by illegal aliens. Whether or not the government has achieved all of these aims, in part or in full, is up for debate.  However, there have been numerous advances in the protection of sex workers, the normalization of the work, and the reduction of prostitution-related crimes (such as human trafficking and the exploitation of minors).  

In this report we will focus on whether or not the decriminalization of prostitution has had the effect of improving the human rights conditions of legal sex workers in Amsterdam. Among the estimated 25,000 women in the Dutch sex industry, an unknown number of illegal sex workers remain. The legal work force is comprised of those sex industry workers who have submitted to the administrative regulations of the government.  The recondite world of illegal prostitution does not easily lend itself to empirical research or governmental regulation, so it is our desire to focus our efforts on the more transparent legal sector of the market in order to examine the areas where real human rights advances are being made.    

History 

Over the past century, the Dutch society has had a love/hate relationship with the exploitation of prostitution. There were periods during which the policy regarding exploitation of prostitution was toleration, and there were periods of strict legal prohibition and crackdown. Prostitution in itself was never prohibited in Holland. In 1811, when Holland was under French rule, the government legalized brothels: In order to prevent the spread of venereal disease, brothels were placed under intensive surveillance and prostitutes were required to check in with a doctor every two weeks.  

At the end of the 19th and beginning of the 20th century, Calvinist advocates against the exploitation of women prostitutes dominated the public debate. These abolitionist campaigners argued that the government could not and should not tolerate these “immoral” practices. They believed that the Dutch ought “to lead a modest and austere lifestyle.”  Furthermore, they held the belief that the government ought not to tolerate the commodification of women because of their belief that commodification stimulates human trafficking, exploitation, and abuse. On 20 May 1911, a ban on brothels began with the intent not to punish prostitutes but to punish their exploiters. However, prostitution remained legal, as it had been since the early 19th century.   

Like most laws against prostitution, the law proved ineffective at preventing sex industry activities. By placing most prostitution in the sphere of illegality, the law had the effect of proliferating criminal activities related to the sex industry. Human trafficking, forced prostitution, the prostitution of minors, and the power of organized crime began to increase because prostitutes no longer enjoyed the protections that come with working in a legal industry. Over this time, the Netherlands developed a disjointed culture of underground prostitution (and exploitation) activity.

On 1 July 1997, the Minister of Justice declared a need to develop a new law for prostitution that would legalize the prostitution sector. This was implemented in October 2000 by lifting the prohibition in the Penal Code (Article 250a) and by giving local governments the possibility to implement a system in which brothel owners, under strict conditions, could get a license to run a brothel (Article 115a Local Government Act (Gemeentewet)).  It was determined that prostitution should be treated as would any other legal market sector.  Furthermore, it was hoped that the government thus could develop policy instruments to combat human trafficking, child abuse, and organized crime.  

Article 250a.

The lifting of the brothel ban was accompanied by a strengthening of punishments for those who engage in illegal prostitution-related activities. Article 250a. of the Dutch Penal Code has five provisions to punish: 1. brothel owners and accomplices who force people into prostitution; 2. those who traffic people for the purpose of forced prostitution; 3. those who induce minors into prostitution; 4. those who (either as a client or pimp) hire prostitutes who are forced into the act; 5. those who (either as a client or pimp) hire minors for sex acts.

One of the desired legal effects of this article is the clarification of the distinction between legal and illegal prostitution. Legal prostitution is fundamentally characterized by voluntary acts of consensual sexual activities between or among adults. At the same time, the intention of the law was to combat and punish the exploitation of involuntary prostitutes and minors. Positively, the pragmatic aim of making the sex industry more transparent empowers law enforcement to apply legal protections to sex workers and to gain relevant information for the investigation and prosecution of human trafficking. Now sex workers and owners of legal brothels are able to report violations of the law to police without fear that they themselves will be subject to criminal prosecution. Along with increasing protections for sex workers, Article 250a also made them employed persons. In joining the Dutch work force, sex workers became responsible for paying taxes and reporting income.

A Note on Methodology

It is difficult to get statistics about the sex industry. According to estimates in the Transnational Aids/STD Prevention Among Migrant Prostitutes’ Final Report (September 2000/February 2002), when the ban on brothels was lifted, there were 25,000 prostitutes in the Netherlands. 90% of them are women, 5% men, and another 5% transgender. 45% of them work in sex clubs, 20% in the windows, 15% in escort service, 5% on the street, 5% at home, and 10% in other forms of prostitution such as bars, hotels, and discotheques.

In our research we investigated the effects of lifting the ban on brothels. Specifically, we have focused our efforts on the effects of the lifting of the brothel ban and Article 250a. of the Dutch penal code on the human rights position of sex workers in the Netherlands. After the lifting of the ban on brothels, this law was evaluated in 2002 by the Scientific Research and Documentation Centre of the Ministry of Justice. This evaluation report was discussed in Parliament in November 2003 and was followed in July 2004 by a “Plan of Action” from the Dutch government with 70 recommendations for the improvement of the implementation of Article 250a Penal Code and Article 115a Local Government Act. These recommendations were formulated through the collaborative efforts of numerous participants and coordinating bodies of the government lead by the Monitor Group of the Ministry of Justice. This “Plan of Action” is expected to be discussed in the Parliament in the autumn of 2004. The second evaluation of the law will take place in 2005.

Some Major Positive Effects of the Decriminalization and Legalization For Sex Workers

The prostitution sector is becoming more transparent because of the increased regulation and access to the everyday workings of the sex industry. Civil servants (mostly from the police) are visiting brothels more regularly for oversight, and the police have more access to relevant information. With such transparency, criminal activity and abuse can be detected earlier and prevented more easily. According to Petra Timmerman of the Prostitute Information Center located in Amsterdam’s Red Light District, “When something is illegitimate, you cannot move forward in addressing the structural problems.”

The importance of transparency should not be underestimated. The lifting of the brothel ban has enabled sex workers to report when their rights have been violated or the law has been broken, whereas, in the past, there was a fear that law enforcement might prosecute them for related crimes. Sex workers can now maintain their bodily integrity by refusing to have sex if for any reason they do not want to engage in sex acts. They can report when they have been raped or assaulted by clients. The mechanisms of the courts are now used to seek restitution when a client refuses to pay for services rendered. Prostitutes can even seek out small business loans for the creation of brothels.

In general, working conditions are beginning to improve. There is a licensing policy for brothels, so city governments are able to determine regulations. Health inspectors are able, now, to ensure that workers are operating in sanitary and safe conditions.  However, “Clean sheets and a proper toilet are the beginning. In terms of labor rights, though, there is much to do,” asserted Marieke van Doorninck, Chief Policy Analyst for the Mr. A. de Graaf Foundation, Institute for Prostitute Studies, the hub for the academic study of prostitution in the Netherlands.

Brothel-owners and prostitutes have officially begun to organize themselves. The Associations of Sexclub Owners (VER, SOR and Excellent Group) and the Foundation of the Red Thread (a trade union for prostitutes) are among the other interest groups in the National Prostitution Discussion Group (LPO), chaired by the Mr. A. de Graaf Foundation. The LPO is a platform to discuss different opinions, interests, policy components, and perceptions, and it aspires to create collective statements about prostitution policy.   According to Andy Clijnk, Senior Policy Advisor for the Ministry of Justice, because of the participation of these organizations and the LPO, the government is given partners with neccesary and valuable expertise in an ongoing dialogue on prostitution policymaking in a way that could not take place during the brothel ban. 

The increased professionalism of the sex industry is having the effect of underscoring the reality that prostitution is work, and the culture of illegality surrounding the Dutch sex industry has begun to erode. Evolving standards of decency within the industry are beginning to reinforce that sex workers have labor rights. It is clear, though, that much of this change has to take place by means of financial incentives.  

The threat to brothel owners of heavy financial loss from losing a license or being shut down is a large financial incentive for owners to ensure that the operations of their clubs or brothels are in compliance with the law. “The brothel owner is the key element.  The only thing he understands is his wallet. He has a lot to gain through regulating his brothel and making sure that things are good,” asserted Rob Coster, the Dutch police’s National Project Manager on Prostitution and Trafficking in Human Beings, in a recent interview. He also said there are even brothel owners who have girls waiting to turn 18 before they are able to work. Those who do not conform to the rules risk prosecution.

Some Major Negative Effects of the Decriminalization and Legalization For Sex Workers

“Changing a law does not immediately improve people’s lives.  It is a step to recognize that people have the right to improve their own lives and provides one of the mechanisms to do just that.”  -Petra Timmerman 

In practice, regulation, decriminalization, labor rights, and fair treatment of sex workers function worse than in theory. For example, the channels for complaints or punishments have not yet been fully developed. There is a need for the government to fully enforce its move to lift the ban on brothels, and in order to do this there needs to be greater coordination of agencies involved in the various facets of regulation--agencies like the Tax Bureau, the police, and the public prosecutors’ service. This includes the Ministry of Justice, the Ministry of Social Affairs and Employment, and the Ministry of Home Affairs--but first the local governments have to fulfill their responsibilities.  

In economic terms, the decriminalization of brothels has had a peculiar effect. Since no explanatory economic study has been undertaken since the lifting of the brothel ban, the origins of these economic peculiarities are not fully understood. Even though sex workers have seen an increase in their costs due to taxes, prices have not gone up. Many prostitutes tried to raise their prices from fifty guilders to fifty euros, but because clients refused to pay, there has only been a marginal increase in prices, despite Euro-inflation. The higher price has slightly decreased demand for services. The cost to rent windows increased, which is economically incongruous with the simultaneous shortage of workers. Most local governments have only decided to issue licenses to existent brothels, so they are stymieing the market. This serves as a disincentive for innovation and investment. Because many owners were forced to make capital improvements in order to come up to code (e.g., fire and health regulations), many owners sold their businesses, and a slight consolidation of the industry has taken place. The increased monopolization of the industry by big brothel owners makes autonomous work more difficult. For many sex workers, the lifting of the brothel ban has significantly hurt their bottom line because of the increase in their costs and stagnation/relative decline of revenue. In some cases it has made prostitution an unaffordable option because of the simultaneous occurrence of stagnant income, increased costs, and decreased innovation.  

In legal terms, many sex workers have not yet claimed their rights, in part because of the nature of sex work,. Many have no interest in being politicized or in claiming rights.  The stigma associated with the profession keeps many women from employing the legal apparatus for protection because they want to maintain their anonymity. Additionally, most insurance companies and loan officers have been resistant to the normalization of prostitution as a profession. These problems are compounded by the myriad languages spoken by prostitutes in the Netherlands; the language barrier makes it difficult for agencies to disseminate information that would inform women of their rights.

According to Marianne Jonker, president of the Red Thread (the Dutch trade union for prostitutes), so far, there are more measurements used for regulating and controlling prostitution than there are for improving the working and labor conditions of prostitutes. All market sectors are filled with governmental regulations so that the rights of stakeholders, employees, clients, and shareholders can be assured that their investments in the industry are being protected. Several complications, however, place prostitution in a different position than other service sectors. The determination of the employer/employee relationship, the bodily integrity of sex workers, and the transitory nature of the work are among the major complications that have arisen.

The relationship between boss and employee is sometimes blurred. Within the sex industry, a cultural consensus has not yet been reached on the time at which the physical integrity of the sex worker can or should be breached. Owners and bosses can order an employee to show up to work, to wear a specific outfit, or to behave with a certain demeanor, but they cannot legally order someone to perform a sex act because of the right to physical integrity. To prohibit the manager of a business from controlling the services of the business makes traditional business structures seem inapplicable.  Indeed, Marieke van Doorninck may be right that “it may be impossible to establish a clear employer/employee relationship.” But a prostitute can only claim employee benefits if there is a clear distinction between employer and employee.  

Many workers see prostitution as a temporary employment option. Many sex workers see prostitution as a way to earn some quick money, so some prefer the work to be tax less and illegal.  Thus they willingly accept the risks associated with operating illegally. Prostitutes do not necessarily think of prostitution as a career choice, so it is difficult to get them to mobilize politically. Furthermore, sex workers feel that the sex industry has a negative image in society, so many want to avoid the stigma of the job by remaining anonymous. Many even lead double lives in order to prevent their friends and family from discovering their job. In this way they want to make a distinction between working life and private life. The lifting of the brothel ban has not alleviated this reality, which makes normalizing the market sector difficult. “It could, however, help to humanize prostitution, which is a first step in combating the stigma,” according to Petra Timmerman.

The full legalization of prostitution and the establishment of a regulated market sector are procedural and not instant, so the interplay of the various processes must be made clear. According to Andy Clijnk, at least three things need to take place: regulation, maintenance of the law, and social and economic acceptance. Only after these procedures are improved can there be a shift to the complimentary characteristics of a developed market, like emancipation, collective bargaining agreements, and healthy competition.  

Policy Recommendations

There are many types of policy changes that need to take place in order to ensure the full legal protection of sex workers and to create a viable market sector.  These changes range from legal property protections for temporary tenants in the windows to the inter-agency coordination of various ministries. Three main policy changes ought to take place:

1. Administrative organizations, like the Tax Service, the Employment Agency (UWV/Gak), and the Labor Inspection Agency (Arbeidsinspectie) need to support and facilitate sex workers’ emancipation and the implementation of the legalization. They can achieve this through increased coordination and full participation in the inter-agency coordination already in place.  By sharing information among themselves and by providing information to prostitutes and brothel owners, the position of the prostitutes will be improved.  

2. On the national level, the ministries, particularly the Ministry of Social Affairs and Employment, the Ministry of Internal Affairs, and the Ministry of Justice, need to ensure that they nurture this newly legalized industry by keeping prostitution on the legal and political agenda.  They must commit to fully establishing the national infrastructure needed for this sector of the economy to thrive.  They must also coordinate efforts and share information.  The national government should better monitor international factors that contribute to human trafficking and exploitation and possibly implement economic programs to cut off many of the social progenitors of trafficked prostitution.   

3. At the “grassroots” level, there is a need to ensure that sex workers are not driven back into the illegal circuit.  If prostitution costs continue to rise as prices stagnate, then there will surely be a move to criminality.  Rent price controls need to be given to properties that are rented for less than one year.  Regulations need to be in place to protect the privacy of sex workers, so that they can be certain that they can claim rights without risking stigmatization. Most importantly, though, sex workers will need to claim the rights that they already have.  Only when a culture of legalized sex work is in place can the industry develop as a whole, especially in terms of the employer/employee relationship.   

Conclusion

The decriminalization of brothels and the creation of prostitution as a viable market sector has humanized prostitution and reinforced the need for labor rights.  Since legalizing the sex industry is not equivalent to encouraging or endorsing prostitution, the government must not be afraid to place the necessary resources in place to facilitate the empowerment of prostitutes.  The core interest of all parties is to prevent exploitation and to prevent forced prostitution, but this requires diligence and commitment beyond current levels.  There is little doubt that the human rights position of the sex workers in the Netherlands has improved, but more can and should be done to further uplift the position of the Dutch sex workers.

“It's a slow process, but I do think it's moving and that the situation for prostitutes is improving.” –Marieke van Doorninck

 

References

 

Interviews

*We would like to thank our interviewees for their kind contributions.  In addition to their interviews, they were invaluable in the editing of this paper.  It is customary to acknowledge that any factual errors in the paper are entirely our fault.

Marieke van Doorninck, Chief Policy Analyst, Institute of Prostitute Studies, 23 June 2004

Petra Timmerman, Prostitution Information Center, 24 June 2004

Marianne Jonker, President, the Foundation of the Red Thread, 25 June 2004

Andy Clijnk, Senior Policy Advisor, Ministry of Justice, 27 June 2004

Rob Coster, National Coordinator on Prostitution and Trafficking in Human 

Beings, Police Haaglanden, 28 June 2004

Source List

Daalder, A. Het Bordeelverbod Opgeheven: Prostitutie 2000-2001. Research and Documentation Center Report for the Ministry of Justice. 2002.  Available at http://www.ministerievanjustitie.nl/b_organ/wodc/publicaties/overige/pdf/ob200.pdf 

Reijnen, Judith. “Mijn pooier betaalt BTW voor mij: hoe kan dat?: De prostitutie als legale bedrijfstak.” Novum: Maandblad der Faculteit der Rechtsgeleerdheid van Universiteit Leiden. March 2004.

Gillan, Audrey. “Dutch Make Oldest Profession Just a Job.” The Guardian. 30 October 1999.

“Dutch Parliament Ends Ban on Brothels.” Radio Netherlands Wereldomroep.  2 December 1998. 

Majoor, Mariska. “De Belastingdienst: ‘Leuker kunnen we het echt niet maken’,” de Rode Lantaarn. March/May 2003

Majoor, Mariska, When Sex Becomes Work, Prostitute Information Center, April 2002

www.nrc.nl/W2/Lab/Profiel/Prostitutie/25000.html 

Murphy, Clare. “Making Sex Pay.” BBC News Online. http://news.bbc.co.uk/2/hi/europe/3068827.stm 

Radio Netherlands Worldomroep, “Dutch Parliament Ends Ban on Brothels, 2 December 1998, found at  http://www.rnw.nl/holland/html/brothels981202.html

Transnational Aids/STD Prevention Among Migrant Prostitutes’ Final Report (September 2000/ February 2002)

Van Doorninck, Marieke. “Prostitution Policy in the Netherlands.” Report of the Institute for Prostitute Studies. Available at http://www.mrgraaf.nl/prostitutionframe.htm 

Van Doorninck, Marieke, Institute for Prostitute Studies Website, http://www.mrgraaf.nl/indexe.htm  

Van Doorninck, Marieke, Margot Jongedijk. In het leven, vier eeuwen prostitutie in Nederland. 1997

The text of Article 250a. of the Dutch Penal Code is available at http://www.mrgraaf.nl/prostitutionframe.htm

 

 

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