The Netherlands is famous for its liberal take on law and order. It has formed a reputation of tolerance for some of the most taboo aspects of social life: hired sex and recreational drugs. But when compared to the harsher policies of other jurisdictions – like Sweden’s ban on prostitution, for example – Dutch policies do not seem to be taken seriously in the international arena.
This paper aims to suggest that the prostitution law in the Netherlands should be reconsidered as an effective tool to reduce the inflow of human trafficking. Feminist critique has typically aligned itself with the Swedish model. This paper calls for a readjustment on prevailing feminist ideals.
1. Two competing prostitution policies
1.1 The Swedish model
In Sweden, prostitution is prohibited. The Swedish position is special, as only clients, and not prostitutes, are prosecuted. This was introduced after a feminist movement in the 1980’s and is based on the belief that prostitution is exploitative. It was argued to be a patriarchal tool of oppression being used by men to control women as a class (Ekberg, 2004, p. 1191). This approach is based on the victimisation principle. Since prostituted women are ‘exploited’, the State should encourage and assist – rather than punish – these women to seek help and set up a new, prostitution-free life (Ekberg, 2004, p. 1192).
1.2 The Netherlands model
By contrast, the Netherlands is based on a regulation model. In 2000, the Netherlands became the first European country to legalise prostitution. The prostitution policy views ‘sex work as part of society that has to be accepted’ (Outshoorn, 2001, p. 476). Prostitution is considered to be a legitimate profession whereby prostitutes are entitled to the same rights and respect as any other worker. As Ekberg (2004 p. 1188) puts it, ‘What previously was viewed as a severe form of sexual exploitation is now a woman’s right to do what she wants with her body and a way to sexual liberation and self-determination.’
1.3 Two different starting points on the trafficking-prostitution nexus
The Swedish model views prostitution and human trafficking as interlinked. Since ‘no woman would prostitute herself voluntarily or by free will’ (Outshoorn, 2005), prostitution and trafficking are viewed as two equal evils. In this light, the prohibition of prostitution is logical, in the fear that trafficking would eagerly lurk behind.
On the other hand, the Netherlands position views the relationship between prostitution and trafficking as disconnect: ‘Women can be victims of trafficking, but not all women sex workers crossing borders are victims of forced prostitution’. In the final parliamentary debate leading up to the bill’s passage, the Minister of Justice Korthals said this disconnect is attractive because it makes prostitution ‘healthy, safe, and transparent, stripped of criminal side-issues’ (Handelingen Eerste Kamer (HEK), 1999-2000, 25437, EK 1 (5-10-1999), p. 10).
2. Why the Netherlands model is more attractive
At first glance, the Swedish model appears effective at putting an end to trafficking. Like any profitable market, traffickers will only sell persons for sexual exploitation when the market conditions render it profitable to do so. In an illegal market, many factors can make the market non-lucrative for procurers and traffickers. According to Ekberg (2004, p. 1201), these difficulties include:
1. In a hidden market, prostituted/trafficked women must be escorted to the buyer to avoid detection. This is unattractive because it gives more time to fewer buyers, meaning there is less revenue for procurers.
2. Swedish men who want to contract sexual services have a serious fear of being arrested and prosecuted. Therefore, they demand absolute discretion from procurers and traffickers, which can make the arrangement more difficult.
3. In order to avoid detection, pimps and traffickers operate in more than one location, which changes frequently. This makes operating the business very expensive.
More importantly, these factors only function as a deterrent on a national scale, and do little to address the problem on a global scale. As Ekberg (2004, p. 1201) points out, ‘traffickers are choosing other destination countries (like Norway and Denmark), where their business is more profitable and not hampered by similar laws’. This means that the issue of trafficking is simply being shifted to another jurisdiction, rather than being confronted on a global scale.
The legalisation of prostitution in the Netherlands has been criticised for increasing the demand of trafficking (see Hughes, 2000, p. 651; Farley, 2009, p. 313; Jakobsson and Kotsadam 2010). The view here is that if prostitution is legalised, the sex industry (and trafficking, especially) in that region increases. However, the preferred view is that legalisation actually reduces the inflow of trafficking because it increases the supply of local prostitutes. Cho et al (2013) call this a ‘substitution effect’ away from illegally trafficked prostitutes to legally residing ones. This trend is logical, since ‘under conditions of illegality, [there are] difficulties in recruiting individuals willing to voluntarily work in such an illegal market’ (Cho et al, 2013, p. 9). At the same time, the supply of trafficked women decreases because sex businesses would want to take advantage of the legality of prostitution, rather than remain in a difficult illegal market. In this way, trafficking is undesirable because ‘it endangers their newly achieved legal status’ (Cho et al, 2013, p. 9).
In earlier abolitionist movements, such as the alcohol movement, prohibition did not necessarily lead to a significant decrease in consumption. Instead, it led to increased violence, the establishment of black market cartels, and, in the case of drugs, lower quality of the drugs supplied. By the same token, Sweden’s prohibition on prostitution does not necessarily mean that it has put trafficking to an end. Since there is no official data on prostitution (due to its illegality), it is likely that it has transferred to invisible places. This is because, as Nadelmann (1990, p. 516) puts it, ‘like ... other vice activities, prostitution is peculiarly resistant to criminal justice measures’. In this way, the prohibitionist model is criticised for keeping its vices underground.
Moreover, the victimisation principle underpinning the Swedish model has been challenged by a post-colonial critique. Agustin (2002), for example, argues that the prohibitionist movement, based on Western views of feminism, is side-tracked. It is too obsessed with viewing prostituted women as women who need to be ‘saved’. The Swedish feminist model has viewed prostituted women as either too oppressed to speak for themselves or too dominated to express true ‘free’ choice. Yet, in reality, many women working in the sex industry are not victimised. As Agustin (2002, p. 112) points out, ‘many young women from the developing countries are in fact travellers, working their way around the world, and sometimes that work involves sex work’. Therefore, to prostituted women, the prohibitionist legislation can be seen as an attack on their status as prostitutes. In this way, the Swedish model is not helping oppressed women. It is simply using the fear of trafficking as a means to oppress prostituted women.
From the outside, the Swedish model is recognised as taking the issue of globalised crime more seriously. However, on a deeper analysis, the conflation of the voluntary and involuntary players of the sex industry makes the divide between prostitution and trafficking less clear.
In my opinion, the feminist (Western) views on prostitution laws need to be reconsidered. Currently, the prevailing view is that the ban on prostitution reduces the inflow of trafficking. This paper has suggested the opposite: the legalisation of prostitution can be strategically used to tackle the issue of human trafficking. To do so, the dominant feminist view on the (anti-)prostitution must be reconsidered.