Decriminalisation
Achieving equal rights for sex workers is impossible as long as sex work is partially or fully criminalized. In Belgium, our organization achieved a major breakthrough with the decriminalization of sex work in 2022. But lots more needs to be done on the legislative level before equal rights are a truly a fact.
On March 18, 2022 at 1:30 a.m., the reform of Belgian sexual criminal law was approved. Seventy MPs voted in favour, 41 abstained and 4 voted against. This marked an end to decades of a problematic policy of tolerance that denied sex workers fundamental rights and opened the door to exploitation. On June 1, 2022, the law went into effect.
Before we go any further...
Let's make two things clear: decriminalization of sex work is not an overnight affair. Law reform did not mean that sex workers immediately had the same rights as everyone else. But criminal law reform was the first necessary step to make the fight for these rights possible.
It is also important to note that it has never been illegal in Belgium to offer or pay for sexual services. Belgium's policy was to slowly make sex work disappear, by making it impossible to perform the job in a normal and safe way by criminalizing all third parties. Those third parties are landlords, owners of rooms, bankers, lawyers, drivers, ... Employers were also criminalised, making it impossible to work legally in a brothel.
Decriminalisation of third parties
The law reform of 2022 immediately ended the criminalization of third parties. Any self-employed sex worker should no longer have trouble finding a banker, insurer, driver or accountant. In the past, these could be accused of pimping, so services to sex workers were in general always refused. The law reform makes sure that services to sex workers are no longer criminalized. But please note: if an accountant charges abnormally high fees to the sex worker for the sake of him or her being a sex worker, or if a third party demands sexual services in exchange for the delivery of services, then they are liable to prosecution.
A new labour law under construction
This does not yet solve the situation of sex workers who want to work as employees. However, the Belgian law is written in such a way that it gradually decriminalizes the sex work sector. This means that working under contract, and thus access to social security and health care, will not be possible until there is a new labour law determining the minimum working conditions under which you can employ a sex worker. This law is currently being finalised by the government, after extensive consultation with us, partner organisations, numerous experts and the labour unions.
What was it like before?
Until 2022, a policy of tolerance was in place in our country. This meant that the entire sex work sector was criminalized, except for sex workers and clients. At the same time, the existence of the sector was turned a blind eye. Everyone knows the window districts of Antwerp, Ghent and Brussels. These were completely illegal according to the letter of the law.
An open door to abuse
Sex work is a sector in which abuse, exploitation and human trafficking occur. This is also the case in other sectors, but for the sex work sector the law made it very easy to intervene in case of abuses. Every business, every lease and every contract was illegal, so prosecution was possible without having to gather very much evidence. Any brothel could be shut down immediately under the criminal law and the proprietor prosecuted for pimping. The same applied to landlords of rooms. This explains why certain voices within the Belgian judiciary vehemently opposed decriminalisation.
At the same time, the policy of tolerance amounted to discrimination against sex workers, inscribed in the law. Independent sex workers had the greatest difficulty in finding insurance or banks where they could open a mandatory professional account. At the same time, no one had a clue about how to legally employ sex workers. Some places allowed undeclared work and others registered sex workers under other statutes but under a minimum number of hours to avoid social contributions. In just about all cases, sex workers themselves had no say in how and whether they were registered.
Minimum working conditions did not exist in most places. How can you ask a sector to behave according to minimal rules if the sector itself is not allowed to exist? This situation was an open door to abuse.
Often no social rights
Another consequence was that sex workers were often not entitled to sick leave, unemployment, retirement or maternity leave. In the field, we often encountered sex workers who felt trapped in sex work: individuals who continued to work because they had no right to unemployment, sex workers who continued to work until the seventh month of pregnancy, or sex workers with no right to a pension who felt compelled to continue working long past retirement age.
Moral judgments
This policy also affected how sex workers were viewed by society. It was impossible to engage in sex work as a job without breaking the law. The law made a necessary link between crime and sex work. This reinforced society's moral judgment: sex work is bad, a threat to norms and values, whoever does it is a fallen woman. Or she is a victim of human trafficking, as anyone working in this industry must have been forced to. The law reinforced the stigma, with all the fear, shame and exclusion that entailed. Out of shame or fear, people often did not seek police or medical help in case of emergency.
No distinction between bonafide and malafide
Finally, the law made no distinction between a respectful owner and a pimp or human trafficker. Given that the law made minimal working conditions impossible, the door was wide open for exploitation. Employment under unsanitary, unsafe and unhealthy conditions were often the rule.
In short, the penal code criminalized an entire sector to allow for easy and quick intervention in case of abuse or exploitation. However, that approach increased the risk of exploitation and abuse. Labor rights are the only weapon against exploitation. But before sex workers could be granted labor rights, sex work would have to be recognized as work.
The decriminalisation law in detail
The previous sexual criminal law
The previous version of the criminal law made decriminalisation impossible due to the very broad and vague definition of the term pimping. The old Article 380 made four acts prosecutable:
Recruiting, taking away, bringing away or keeping an adult to oneself, even with consent, for the purpose of committing fornication or prostitution.
Keeping a house of fornication or prostitution.
Renting or selling rooms for the purpose of prostitution with the intention of making an abnormal profit.
Exploiting the prostitution of another.
From this follows: anyone who acts as an employer, anyone who provides services to sex workers for payment is liable to prosecution. The underlying view is the "abolitionist" view: every sex worker is a victim by definition. It is impossible for anyone to freely choose to be a sex worker, therefore the industry should not be given a chance to exist.
At the same time, there was a positive element in the legislation. Those who make abnormally high profits by renting out spaces that are dilapidated, deserve to be prosecuted.
The new sexual criminal law
The new sexual criminal law severely narrowed the definition of pimping in order to recognize sex work as work. The "abnormal benefit" from the previous version of the legislation was retained and expanded to include situations where an employer makes abnormally high profits by paying sex workers abnormally poorly or by cutting costs by employing them in unsanitary, unhealthy workplaces.
Cases in which a sex worker is charged abnormally much by an accountant or lawyer compared to that accountant's or lawyer's other clients, or cases in which they ask to be paid by the sex worker through sexual services, also count as abnormal benefits.
This is the new criminal definition of pimping:
- Organising the prostitution of another for the purpose of obtaining a benefit, except in cases provided by law.
- Promoting, inducing, encouraging or facilitating prostitution for the purpose of obtaining, directly or indirectly, an abnormal economic benefit or any other abnormal benefit
- Taking measures to prevent or make it more difficult to leave prostitution.
Prosecutability of third parties has disappeared from the law. Whoever coerces others into sex work is not mentioned in this article of the law. Coercion always results in prosecution for human trafficking, another article in the criminal law.
Finally, the organization of sex work by others "for the purpose of obtaining a benefit" remains prohibited "except in the cases provided by law." That last sentence refers to a labour law with specific labour securities to protect sex workers from labour exploitation and specific job-related risks. Starting when this labour law comes into force, fully legal contractual employment of sex workers will become possible. This will include access to social security and health care.
The sexual criminal law reform provides recognition of sex work as work. Third parties have been decriminalised and a labour law will ensure minimum working conditions, social security and access to health care.
What legislative work remains to be done?
The new labour law
Since May 2022, with our partners Espace P and Violett, we have been speaking with various political parties, ministerial cabinets, unions and experts on the new labour law. Currently, we are in the last straight line to the final bill.
Certain forms of organization
But even after the labour law vote, work remains to be done on the decriminalisation law. First, the law is very unclear regarding certain forms of organization of sex work. Namely, the law says that the "organization of the sex work of others" is prohibited unless you employ them under a contract following labor rules. So what about escort agencies or sex establishments that answer phone calls and schedule appointments for self-employed sex workers? Yet the Explanatory Memorandum, the accompanying text that explains the intent of the law, clearly states that it should no longer be a problem "if an proprietor or agency enters into a legal agreement with a sex worker freely and with consent." We will join forces to remove this discrimination from the law.
Undocumented sex workers
A third key challenge is specifically about undocumented sex workers. There are no figures on the number of undocumented persons doing sex work in our country, but what we know for sure is that they are among the most vulnerable groups within sex work. Decriminalisation has the advantage of giving sex workers access to labour protection and health care. But then they must be able to work legally in our country, which is not the case for undocumented sex workers. At the same time, everyone is covered by the new labour law, with or without a contract, with or without a residence permit.
The flip side: the end of the Belgian policy of tolerance also means the end of ambiguity in the sector. That lack of clarity had the advantage in certain places in our country that potential victims of human trafficking were visible and could be localised in the Brussels window district, for example. How will we retrieve them, now that decriminalisation has removed the legal ambiguity and it will only be possible to work under a legal status? Decriminalization must not lead to a chase down policy.
Our organisation is making this issue one of its top priorities during the 2023-2025 period, with the support of PICUM, the platform for international cooperation for undocumented migrants, and the German Robert Bosch Foundation.
FAQ about Decriminalisation
The words decriminalisation and legalisation are often confused with each other. However, the distinction is very important.
With legalisation, you can only engage in sex work under strict conditions. In the Netherlands, for example, sex work is only possible when you do it in a licensed workplace. Who gets such a permit or how many permits are issued, is determined completely arbitrarily by each municipal government. In Germany, you can only engage in sex work when you, as a sex worker, have applied for a permit from the government. During the application, you must be guided by a social worker. You have to renew your registration every two years.
We call this criminalisation through the back door. Many sex workers in the Netherlands cannot find a licensed workplace and do the work at home, for example, which is illegal and can lead to eviction. In Germany, many sex workers do not want the state to know about their activity. This information could surface later and be used against them. Working without a licence is illegal. And those who are in the country undocumented are not eligible for a licence anyway.
Those who engage in illegal activity think twice before seeking medical attention. Abuse, sexual assault or rape are difficultly or, in many cases, not reported to the police at all. Part of the industry tries to make itself invisible and disappears underground, beyond the reach of police or medical and social services. Thus, legalisation threatens sex workers' basic rights: the right to protection and the right to health.
Decriminalisation follows a different logic: to engage in sex work, one does not have to meet special conditions. Sex work is seen by the state as a profession. Not because it is a job like any other, but because sex workers should be able to be protected from the risks of the job, just as, for example, construction workers receive specific protection because of the risks on a construction site.
This protection takes the form of labour rights for sex workers. Sex workers also get access to social security: rights to annual vacation, sick leave, maternity leave, unemployment benefits and pension.
It is not easy to tell policies apart. Decriminalisation and legalisation are often confused and used interchangeably. The infamous Nordic Model, which seeks to eliminate sex work by criminalizing the client, is seen as one and the same model while every country that applies the model, applies it in a different way.
Swedish researcher and ally Petra Östergren therefore proposes a new classification. She talks about three forms of policies:
Repressive: the goal is to eliminate the industry, through criminal law and other repressive measures. This includes the Nordic Model, of which versions have been implemented in Sweden, Norway, Iceland, Ireland, Northern Ireland and Canada. In each of the countries mentioned, research has shown that the model stigmatises sex workers and exposes them to violence. Prohibitionism, the complete criminalization of sex workers, clients and third parties as it exists in the U.S. (except for some counties in Nevada), is also to be placed into this category.
Restrictive: the goal is to curb the industry extensively through strict and arbitrary regulations. You can only engage in sex work if you meet a whole number of conditions, which still criminalizes many sex workers. The Netherlands and Germany are examples of the restrictive approach.
Integrative: the goal is to integrate the sector and its workers into society. Protection is offered to sex workers in the same way it is offered to other sectors, namely through labour rights and access to social security. New Zealand was the pioneer, followed by the Australian states of New South Wales, Northern Territory and Victoria. Belgium is now following in their footsteps.
Read Petra Östergren's paper here (EN).