A Response to
Prohibition Against Purchase of Sexual Service:
An Evaluation 1999-2008 (SOU 2010:49)
The Report by the Inquiry on Evaluation of the Prohibition Against Purchase of Sexual Service, Statens offentliga utredningar [SOU] 2010:49 Förbud mot köp av sexuell tjänst: En utvärdering 1999-2008 [Prohibition Of Purchase of Sexual Service, An Evaluation 1999-2008] (“The Report”), comprehensively documents and analyzes Sweden’s decade of experience with the Sex Purchase Law (Lagen (1998:408) om förbud mot köp av sexuella tjänster [Act prohibiting the Purchase of Sexual Services]; Brottsbalken [BrB] 6 kap. 11 § [Criminal Code] [2005]) (“the law”).
Affirming that the law originated to promote gender equality (SOU 2010:49, 55, 99), The Report shows that the law has substantially reduced prostitution (108) and trafficking in Sweden (131, 145), by deterring traffickers and pimps (122-23, 227) as well as johns. Fears and rumors that prostitution would be driven underground, or that conditions for or violence against prostituted people would get worse, have demonstrably not been realized (127-28, 151-52). Courts have tried and fined sufficient numbers of johns to have a normative as well as penal impact (202; Table 6.2; 204, Table 6.4). The prosecution of buyers is also believed to help make prosecution of pimps and traffickers more effective (223). The Swedish people largely support the law (124).
These findings show that the Swedish model for ending prostitution – decriminalizing the victims and strongly criminalizing perpetrators, including buyers – an approach that now leads the world in this field, is beneficial, accepted, and working as intended (225-30).
Welcome steps recommended to enhance the law’s effectiveness include increasing penalties (237 et seq, Section 7.2.3), establishing a Center on Prostitution & Human Trafficking for research and to centralize policy development (233 et seq, Section 7.2.2), covering offenses abroad (Section 7.2.6), and permitting courts to award prostituted persons damages as injured parties (247, 251, Section 7.2.4).
Center on Prostitution and Human Trafficking
In addition to its stated mandates (236), The Center on Prostitution and
Human Trafficking should collect and analyze information on the harms
and injuries inflicted on prostituted people by prostitution, including
in pornography, a reality well established 1.
that calls for further depth and specificity, individual and cultural.
Such information would help support expertise on the damages claims The
Report says prostituted persons can seek (250-51) and help specify adequate
relief. The Center should also study prostituting men, information on
whom is inadequate. The use of prostituted people in pornography should
also be researched for “a comprehensive picture of the situation
in Sweden over time” (234) under the Government Action Plan’s
focus on “a multi-sector approach” (235).
The Report correctly rejects a fixed division between two grades of severity (246) in favor of a list of aggravating circumstances going to penal value (240). In addition to age, sex should be considered a vulnerable situation. 2. In addition to focus on psychological dimensions of support of prostituted people, remedial programs and social services could develop policy for addressing their material needs, including job training and educational voids, to enable them to support themselves in a manner of their own choosing.
Prostituted Person as Injured Party
Perceptively, The Report notes that Sweden’s interest in prohibiting
the purchase of sex is dual: both to eliminate the inequality of those
exploited in prostitution and in so doing to protect the public order
as a whole.
On the Inquiry’s reading, the Supreme Court’s affirmance of a lower court ruling stating that the law “is primarily to be seen as a crime against public order,” see NJA 2001, 527, 532 (Ct. App.), need not mean that it is exclusively such. Indeed, no court has held that the purchase of sex cannot also and at the same time be regarded as a crime against the person purchased – conceivably in each case. The Report accordingly found no legal obstacle to prostituted persons claiming damage awards against sex purchasers under the Sex Purchase Law as it stands (SOU 2010:49, 250-251). 3.
The Report does not completely resolve the legal question whether everyone who is bought in prostitution is exploited in prostitution, hence an injured party for legal purposes (76) although it correctly concludes that the law “is more of a crime against a person than a crime against the public order, even if its background has elements of both” (81). In the context of the background and application of the Sex Purchase Law, as well as gender discrimination analysis and well known research on the effects of prostitution on prostituted people, the conclusion that prostitution is a human rights violation, as such per se damaging to the purchased person and hence to society as a whole, is amply supported.
In discussing the question of injury, The Report (250) seems implicitly
of two minds as to the nature of the harm against which the law is directed.
As legislated against, there is no ambiguity. Sex purchase is a crime
against the humanity, equality, and dignity of the purchased person and
hence Swedish society. It is not a crime against the morality of the purchased
person or anyone else. It is thus not a crime because it is an “offense”
in the sense of being offensive. The injury under the law is not that
the purchased person felt offended in the moral sense, but that being
bought for sex is objectively damaging to the person in the social empirical
sense. Persons in society other than those directly purchased may feel
as much or more offended by other persons being bought and sold for sex
without thereby incurring any claim for damages under the act. Anyone
who individually did not experience being damaged by being purchased for
sex would presumably not seek an award of damages, although a prosecution
for sex purchase could still be brought if evidence existed.
As The Report clearly saw, in prostitution, “the distinction between
voluntary and non-voluntary prostitution becomes . . . not relevant”
(59; see also 249). Presumably prostitution is damaging to persons involuntarily
prostituted, who apparently, relevantly, are all persons in prostitution.
No one purchased for sex is equal to their purchaser in the act. No amount
of money can or does pay for what is taken. Being purchased for sex is
being used as a social inferior because of that status. As a real world
matter, being bought for sex is demonstrably injurious to the person being
bought. 4. Gender discrimination is certainly
damaging to society, but that has never meant that the individuals directly
discriminated against are regarded as not damaged. Indeed, how prostitution
harms the social order if no person in the society is harmed by it is
elusive. 5.
If it is legally possible for the Sex Purchase Law as it stands to recognize that each person purchased for sex is thereby injured, as The Report finds, then it is possible for them all to be recognized as injured by virtue of being purchased for sex per se. Whether or not a person purchased, or attempted to be purchased for sex has standing to be considered an injured party is thus not essentially a matter for case-by-case determination, contrary to The Report’s view (see Section 7.2.4). However, how much damage is done – the quantity of injury to each person in each situation – is properly a matter for case-by-case determination. The question of injury to a party is thus not properly an issue of liability but of damages. Such an approach, apart from being correct in reality, on principle, and in policy, is also far more readily administrable than adjudicating whether each prostituted person is harmed at all.
Arguably, this analysis is consistent as well with the essence of the position underlying the Scania and Blekinge Court of Appeals’ decision that considered the law to be “primarily” addressing harm to the social order in the process of raising a sentence, including for attempts – a decision affirmed by the Supreme Court. NJA 2001, 527, 532 (HovR). There, the Court appeared to take the view that, whatever the woman’s particular situation, and however far the transaction proceeded, attempting to purchase a person for sex is always a negative social act. That the Court chose to locate the offence of attempt mainly in the public order was its way of elevating, emphasizing, and universalizing the harm, not eliminating it. Simply put, the prostituted person is not the only one affected by attempted purchase of that person for sex; through this person, if the act is unpunished, or inadequately punished, the whole society is affected, whether the individual in this instance is especially damaged or actually bought or only attempted to be bought. Hence the Supreme Court’s affirmation of the opinion “that there are no reasons to consider the punishment level for attempts to diverge in a reductive direction compared to an accomplished crime.” NJA 2001, 527, 532 (HovR).
In this light, the institution of prostitution, as crystallized in the act of purchase of a person for sex under Swedish law, is always damaging. This is why society has an interest in penalizing attempts: because they outrage equality and human status, and also presumably because they look to execution. In a sense, the purchased person stands in for the society as a whole being harmed. Certainly she is harmed by the act more than anyone else in society, as The Report clearly sees (SOU 2010:49, 250). 6. Just as punishing attempts is crucial for prevention, redressing them, as well as completed acts of sex purchase, through damage awards can go a long way towards cure. Again, the proper question for courts is quantifying the damage in each specific instance, not determining whether any damage is done.
Further, if the victim of the sex purchase is considered the injured party, the police and the prosecutor may be more inclined to deal with these cases effectively and in a timely manner, before the statute of limitations expires (See SOU 2010:49, 181).
Crime Victim Compensation should accordingly be available to prostituted persons. For over thirty years, from the Prostitution Inquiry of 1977 to the Women’s Sanctuary Bill (Kvinnofridspropositionen) to the 2005 Amendments to the Sex Purchase law, Sweden has seen through the antiquated lie that buying a person for sex is a victimless crime.
Taking this approach would also eliminate the remaining, now superseded, possibility that a purchased person, if a witness only, could still be regarded as having committed a criminal or delinquent act (see, e.g., SOU 2010:49, 221, discussing an “old matter” from 1957 by the Parliamentary Ombudsman regarding a “dishonorable act”). No prostituted person, by virtue of being in prostitution, should be regarded as criminal, delinquent, or dishonorable. Clarifying this will improve the effectiveness of prosecuting procuring cases (see 222) as well as harmonize the treatment of these persons across Swedish law.
Pornography
Without citation, The Report states, in the context of striptease, “Like
the Swedish prohibition, the Norwegian prohibition does not either include
acts that entail production of pornographic movies.” (138) In fact,
no authority, legislative or judicial, renders the making of pornography
exempt under the Sex Purchase Law. When visual pornography is made, sex
is typically purchased to make it. The gender equality rationale for the
Sex Purchase Law supports covering the purchase of sex when pornography
is made of it no less than when it is not. The exploitation and victimization
of the women and children, the inequalities of the persons, acts, and
context, and the damaging effects on society and its equality are the
same. 7. The people involved are also the
same, as are the acts. How an act that is unequal and exploitive when
not photographed is made equal and powerful when a picture is taken of
it is inexplicable. In fact, the photograph enhances the harm to the prostituted
person, who is then forever visibly being sexually violated and sold in
public as and for sex.
An exemption for sex purchased to make pornography mocks and undermines the Sex Purchase Law. A pornography loophole would irrationally give a defense to any purchaser who photographs his sexual use of a prostituted person with his cell phone, or any brothel that takes pictures through its installed cameras. All a brothel would have to do to legally stay in business is install cameras in all the rooms and sell the footage. The law is already clear that it is immaterial if the sex is paid for by a person other than the one having the sex. This context for the purchase of sex – that, in the perspective of the Sex Purchase Law, is all making pornography is – should be addressed case by case, not precluded by an ipse dixit that lacks authority or principle. Like the law of rape, this law itself of course addresses only acts of sex purchased to make pornography, not the resulting materials.
Equal Protection of the Law
The fact that actors in the legal system did not identify the lack of
equal protection of existing law for people in prostitution as a problem
in the Inquiry process does not mean that current law provides them equality
in law enforcement, charging, or conviction for crimes against them. 8.
Sex purchase crimes are often “forgotten about” until they
expire (181). This, together with the low priority observed for prosecuting
sex purchase (217), may, if unremedied, prove to be a basis for litigation
on behalf of prostituted persons under the Swedish Constitution’s
equality provisions (Regeringsformen [RF] 1 kap. 2:1 & 9 §§,
2 kap. 12-13 §§ [Constitution; Instrument of Government], available
at
http://www.riksdagen.se/webbnav/index.aspx?nid=3925).
Respectfully submitted,
Emma
Member of PRIS (Prostituted Persons’ Revenge In Society)
Sweden
Melissa Farley
PhD, Executive Director
Prostitution Research & Education
San Francisco
Ruchira Gupta
Founder-President
Apne Aap Worldwide
India
Carina Hägg
MP (s) International Spokesperson
S-kvinnor (Social Democrat’s Women’s Federation)
Sweden
Ebon Kram
Former Chair of National Organization for Women’s and Girls’
Shelters (ROKS)
Lecturer
Sweden
Ewa Larsson
Social Scientist
Former MP and Chair for The Green Party’s Women’s Federation
Sweden
Catharine A. MacKinnon
Professor of Law
University of Michigan, Harvard University
Special Gender Adviser to the Prosecutor, International Criminal Court,
The Hague (*)
Norma Ramos
Executive Director
Coalition Against Trafficking in Women (CATW)
New York City, Nairobi, London
Nozizwe Madlala-Routledge
Executive Director
Embrace Dignity
Cape Town, South Africa
Gudrun Schyman,
former Party Leader and MP
former spokesperson and founder of Feminist Initiative (F!)
Sweden
Sidsel
Member of PRIS (Prostituted Persons’ Revenge In Society)
Sweden
Max Waltman
PhD Candidate
Dept. of Political Science, Stockholm University
Sweden
(*) Affiliations for identification purposes only.
Noter:
1. Selections from among this strong
body of research are Melissa Farley et al., “Prostitution and Trafficking
in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder,”
in Prostitution, Trafficking and Traumatic Stress, ed. M. Farley (Binghamton,
NY: Haworth Maltreatment & Trauma Press, 2003), 33-74; Hyunjung Choi
et al., “Posttraumatic Stress Disorder (PTSD) and Disorders of Extreme
Stress (DESNOS) Symptoms Following Prostitution and Childhood Abuse,”
Violence Against Women 15, no. 8 (2009): 933-51; John J. Potterat et al.
“Mortality in a Long-term Open Cohort of Prostitute Women.”
Am. J. Epidemiol. 159, no. 8 (2004): 778-85; Attorney General’s
Commission on Pornography, “The Use of Performers in Commercial
Pornography,” in Final Report, 2 vols. (Washington, DC: U.S. Dept.
of Justice, 1986), 837-900, available at
http://www.communitydefense.org/lawlibrary/agreport.html.
Also available as “The Use of Performers in Commercial Pornography,”
Final report of the Attorney General's Commission on Pornography, ed.
Michael J. McManus (Nashville, Tenn.: Rutledge Hill Press, 1986), ch.
17; pp. 224-45; Christopher N. Kendall, Gay Male Pornography: An Issue
of Sex Discrimination (Vancouver, Can.: Univ. of BC Press, 2004); Mimi
H. Silbert and Ayala M. Pines, “Occupation Hazards of Street Prostitutes,”
Criminal Justice and Behavior 8, no. 4 (1981): 395-99; Mimi H. Silbert
and Ayala M. Pines, “Sexual Child Abuse as an Antecedent to Prostitution,”
Child Abuse and Neglect 5 (1981): 407-10; Mimi H. Silbert and Ayala M.
Pines, “Pornography and Sexual Abuse of Women,” Sex Roles
10, no. 11/12 (1984): 857-68.
2. Mental disorder (psykiskt sjuk), an aggravating circumstance, includes Post Traumatic Stress Disorder (PTSD), see American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), revised 4th ed. (Wash., DC: Am. Psychiatric Press, 2000), 467-468; Am. Psychiatric Ass’n, Diagnostiska kriterier enligt DSM-IV-TR, trans. J. Herlofson & M. Landquist (Danderyd, Swed.: Pilgrim Press, 2002), 160-62, a response to extreme abuse that is very common among prostituted persons. See Farley et al., “Prostitution and Trafficking in Nine Countries,” supra note Fel: Det gick inte att hitta referenskällan esp. at 44-48; Hyunjung Choi et al., supra note Fel: Det gick inte att hitta referenskällan at 933-51.
3. If this issue were fully resolved legislatively, the law might state, “It is a crime to purchase a person for sex.” The Report properly found no change necessary for prostituted people to seek and prove damages.
4. For only some of the social science documentation, see footnote Fel: Det gick inte att hitta referenskällan supra.
5. As The Report notes, “Nor is the offence of such misdemeanor character that could support the conclusion that there is no injured party” (250).
6. “Anyone who has been exploited by someone who has purchased a sexual service occupies a special position compared with others who felt violated by the crime” (250; citation omitted).
7. For some evidence, see Melissa Farley, “’Renting an Organ for ten Minutes’: What Tricks Tell Us about Prostitution, Pornography, and Trafficking,” in Pornography: Driving the Demand in International Sex Trafficking, ed. David E Guinn and Julie DiCaro (Los Angeles: Captive Daughters Media / DePaul Univ. Int’l Human Rights Law Institute, 2007), 146, 422 n298 (finding that among prostituted persons surveyed in nine countries, 49% (n = 802) reporting being used in pornography were diagnosed with statistically “significantly more severe symptoms” of posttraumatic stress disorder (PTSD) than those who did not report being used in pornography; Pearson r = 126, p = .001, n = 749).
8. Petitioners et al., Förslag
till regeringens utredning av sexköpslagen / Suggestions to the Government’s
Review of the Sex Purchase Act (Sweden) (2010) (officially received by
gov’t commissioner March 17, 2010), available at
http://www.statsvet.su.se/homepages/max_waltman.htm.