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‘Some of the questions about prostitution cannot be resolved by research because they are fundamental questions about the kind of society one wishes to see, how one understands gender equality and what it means to sell sex.

....most approaches to prostitution lack a coherent philosophical underpinning .......The most coherent approach in terms of philosophy and implementation is that adopted by Sweden, and interestingly it is the only one where no one who sells sex is subject to the criminal law.’

The 2003 Review by Julie Bindel and Liz Kelly from London Metropolitan University commissioned by the Scottish Government ’ Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden’ sums up some of the key issues which need to be tackled by the Tasmanian community and Government in the lead up to the Tasmanian Government’s review into decriminalisation of prostitution in Tasmania.

One of the problems associated with the debate on prostitution here and in most other jurisdictions is the highly polarised nature of the debate.

Like many controversies in Tasmania this has impeded the development of a strong philosophical understanding of the broad context of the issues in question.

In the Introduction of the Bindel and Kelly Review they describe this problem very simply….

‘Some of the questions about prostitution cannot be resolved by research, since they are fundamental questions about the kind of society one wishes to see, how one understands gender equality and what it means to sell sex.’

The Review concludes….

‘What emerged strongly from this review even with the limitations of time and resources, is that most approaches to prostitution lack a coherent philosophical underpinning, from which specific short and long term aims could be drawn out and evaluated.  Virtually no evaluation of overall approach has been undertaken, and until recently very little was done on localised experiments and pilots.  As a consequence, much discussion and debate reverts to rhetoric and anecdote, rather than being informed by a strong evidence base.  We acknowledge that the evidence base is, to date, still weak, but the little that does exist does not commend a legalisation approach.  Anyone contemplating such a move has to accept that it means an expansion of the sex industry - both the legal and illegal sectors - and does nothing to address the key issue of street prostitution.  There is probably more room for development in regulatory regimes than is currently the case, but for this to emerge law and policy needs to focus on sex businesses and customers rather than targeting women.  To be more innovative and effective regulatory approaches need a stronger underpinning, in which the potential harms and costs of prostitution - to those within it - and to local communities - are acknowledged and addressed.  In this way the rationale, and targets, for regulation would be more transparent .  They also need a coherent basket of measures, linked to a sense of desired outcomes, rather than patchy, re-active and unsustained measures that tend to be associated with this model. The most coherent approach in terms of philosophy and implementation is that adopted by Sweden, and interestingly it is the only one where no one who sells sex is subject to the criminal law.’

Max Waltman’s essay published in the Michigan Journal of International Law (Vol.33.133 Fall 2011) on the Swedish model laws on prostitution also provides recent research outcomes both from within Sweden and internationally.

Interestingly the Swedish legislation has made very effective impacts on cross jurisdictional trafficking in women and children which is a significant problem in Europe, South East Asia and increasingly in Australia.

Max Waltman’s essay provides useful background to the development of the Swedish model and its successes:

Sigma Huda, the UN Special Rapporteur on Trafficking (2004-2008) said in her report that prostitution is a form of trafficking. (UN Doc.E/CN.4/2006/62 Feb 20. 2006)....

‘For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking.  It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve at the very least, an abuse of power and or an abuse of vulnerability. 

Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty.  Put simply, the road to prostitution and life within ‘the life’ is rarely one marked by empowerment or adequate options.’

Max Waltman has placed prostitution in the broad context within which it operates and has ‘situated prostitution and the new law in the context of sex inequality, rather than - as has been common around the world - among crimes against morality, decency or the public order.’

The research cited exposes some devastating consequences for the majority of sex workers…

‘Regarding traumatic experiences, a nine country study by Melissa Farley and others found that sixty eight percent of 840 prostituted persons met the clinical criteria for post traumatic stress disorder (PTSD), symptoms at levels equal to or higher than the levels of symptoms found in the treatment seeking Vietnam Veterans, battered women seeking shelter, or refugees fleeing from state organised torture, regardless of whether prostitution was legalised or criminalised, and regardless of whether prostitution took place indoors, in brothels, or in the streets, or in developing as opposed to fully industrialised countries.’

He goes on to make the links between prostitution and trafficking an issue cutting more deeply into the social fabric in Europe and South East Asia than in Australia to date…

‘From the perspective of international jurisdictions, the Swedish law’s effects are notable.

Studies suggest that with legislation comes an increased demand for more prostituted persons. Indeed, legalisation appears to be associated with a culture in which prostitution and sexual coercion are more normalised.

Moreover, to meet the increased demand for prostitute, there is often an increase in cross jurisdictional trafficking.’

In summarising Waltman quoted the UN Rapporteur on Trafficking who said

‘State parties that maintain legalised prostitution industries have a heavy responsibility to ensure that….(they) are not simply perpetuating widespread and systemic trafficking.’

The Bindel/Kelly Review and Max Waltman’s paper provides some important information which the community need to access to enable a more informed and much needed community debate on the prostitution legislation debate.

Bindel and Kelly’s three fundamental questions in addition to legal options and their advantages or disadvantages will provide useful contributions to inform the necessary discussions. This is not an issue that should be rushed through Parliament without thorough community consultation and informed discussion.

Last week I wrote to Attorney General and Minister for Justice, Brian Wightman and requested that he ask the Tasmanian Law Reform Institute to produce a Report on the broad context of the issues and the current legal frameworks that exist internationally and that this report be made publicly available so that the community can make more informed decisions on the issues regarding prostitution. I explained to Mr Wightman that considering ‘the high level of community outrage over recent cases of child sexual abuse, child prostitution, failed prosecutions, sentencing, problems with the legal system in maximising safe working conditions for sex workers and in light of the major failure of Government Departments to adequately cope with the crisis in child protection, it is important for the Attorney General to be encouraging of the widest possible debate on the decriminalisation legislation issue in its broadest context’.

• For several of Waltman’s papers this is the link to Waltman’s homepage:

http://www.statsvet.su.se/homepages/max_waltman.htm

or for the paper referenced in Michigan Journal of Law:

http://students.law.umich.edu/mjil/

Also link to and attached the excellent report commissioned by the Scottish Government from the London University on review of prostitution laws:

http://www.glasgow.gov.uk/nr/rdonlyres/c19e010b…/0/mainreport.pdf