Protecting the Victims of the “Victimless Crime”

By Samuel Hall for

samuel_hallAs of the last estimate conducted by the Fondation Scelles (an organization dedicated to fighting global sexual exploitation) there are approximately one million prostitutes in the United States. According to comprehensive studies on the subject, more than 70% of these prostitutes were sexually abused as a direct precursor to prostitution. 62% of them began to be prostituted before they were sixteen years old. More than 80% of them express a strong desire to leave their profession. An estimated 90% or more of them experience frequent exploitation (ranging from withholding of essential food or resources to torture to rape) at the hands of their pimps and their clients on at least a monthly basis. They are 5.9 times more likely to die by disease or violence than a member of the general population, and many more times more likely to become addicted to controlled substances. They are frequently trafficked persons, brought in from other nations and coerced into the sex trade. They are frequently disadvantaged, separated from their identifying documents and passports, threatened and extorted to avoid cooperating with police or attempting to escape.

In every jurisdiction outside of a few small counties in Nevada, every one of them will be seen as criminals in the majority of contexts due to their role as prostitutes. Despite the robust evidence that prostitutes experience exploitation above and beyond what any worker would expect from a fair contract, prostitution in the United States is seen as a choice made freely by its participants and is written off as a “victimless crime.”

This approach to the question of prostitution has been the legal paradigm within the United States for the better part of a century, but it does not need to stay unchallenged. By acknowledging that the majority of prostitutes are negatively impacted by their profession and labeling those prostitutes as the victims (and not the perpetrators) of a crime the United States could afford more resources for support and protection of prostitutes while cracking down on the supply (the pimps and traffickers) and the demand (the clients) which currently drive the market for the international sex trade. In fact, the United States would not need to struggle through the process of drafting new criminal legislation by trial and error to affect this change: a viable framework for protecting the victims of prostitution can already be found in the Swedish Kvinnofrid law’s approach to prostitution.

In 1998, Sweden passed the Kvinnofrid (or “violence against women”) law in recognition of their duty as signatories of the Palermo protocol to combat human trafficking (including sex trafficking). As a measure to protect trafficked persons from exploitation, the Kvinnofrid law declared that persons who sell sexual access to their own bodies were to be considered victims of the crime of prostitution and that persons who purchased that sexual access (clients) or facilitated the purchase for others (pimps and traffickers) were the perpetrators of the crime. Clients for prostitutes would face heavy fines and up to half a year in jail, and traffickers or pimps would face years in prison should they be convicted. Prostitutes who came forward would be afforded legal protections, access to medical care, and job training to increase their employment options. By doing this, the Swedish government hoped to reduce the damage done by prostitution to prostitutes and to make substantial progress towards eradicating the industry.

This attempt was a resounding success. In the 18 years since the introduction of the law, Sweden has been able to reduce the number of active prostitutes within its nation by 80%. Social workers report the number of prostitutes seeking emergency assistance or care has dropped steadily since the introduction of the law. The number of prostitutes interviewed for studies who described frequent abuse or exploitation was reduced by approximately 65%. Prostitutes expressed a greater willingness to work with police in pointing out traffickers, pimps, and dangerous clients. The number of clients and traffickers alike is believed to have dropped by more than 50%. Perhaps most importantly, prostitutes who took advantage of the law to leave their occupation have been able to successfully integrate into Swedish society without criminal records of any kind.

If the United States would like to protect the victims of international sex trafficking, it must first recognize those victims in whatever societal role they may enter. To enforce fully the Palermo Protocol, the United States would do well to recognize the victims of prostitution and to borrow from the Kvinnofrid law in decriminalizing them and protecting them. By doing this, attention can be focused on combatting traffickers themselves, while the trafficked victims can be assisted and protected without fear of the authorities. Prostitution is statistically far from being a victimless crime, and ignoring this reality will serve no one going forward. It’s time for the United States to let go of an old legal paradigm and adopt a more effective framework from their friends in Scandinavia.

Samuel Hall is a recent graduate of the S.J. Quinney College of Law. He has interned in the Special Victims Unit of the Salt Lake District Attorney’s Office and the Special Prosecutions Section of the Utah Attorney General’s Office. During his time at the University of Utah he availed himself of courses concerning victims’ rights, criminal process and procedure, and international efforts to deter and regulate criminal law.