A Crime or not a Crime?Tuesday 13/03/2018

By Carol Shi

Should Buyers of Sex Services Be Criminalized?

First Things First: Is Prostitution Bad?

To justify imposing some sort of sanction on purchasers of sex services, we must first acknowledge the dire dangers of prostitution. Prostitution is not merely ‘paid consent for sex’. People in financially vulnerable positions consent to being paid below the minimum wage, or to selling their organs to live. People consent to many things, especially if money is involved, in order to survive. Moreover, the health and safety concerns in prostitution are beyond comprehension – this includes sexual harassment, physical and emotional abuse, rape, and rape without a condom.[1] In the words of a prostitute, ‘What rape is to others is normal to us.’[2] Prostitutes have one of the highest HIV rates of any population studied, with rates as high as 93%.[3] Passing legislation to clamp down on this industry is absolutely crucial. The legalization of prostitution has proven to fail in achieving protection, freedom, or equality – the world is too cruel to allow that. The only way forward is enacting legislation to diminish the demand by penalizing purchasers.

The Knesset’s Dilemma

For the past 8 years, Israel’s government has been in the talks to adopt the ‘Nordic model’ criminalizing the purchaser but not the seller. However, Committee discussions have deviated to adopt a ‘soft’ criminal approach, which is to impose administrative penalties on purchasers, instead of criminalizing them.

An administrative approach looks like this: A man is caught purchasing sex services from a male prostitute. The purchaser is first given a warning. Ignoring this warning and choosing to indulge in another momentary craving, he is caught a second time. This time, he is handed out a fine and is required to attend mandatory workshops on gender equality and how a body is not a commodity. He reluctantly pays the fine, a third of his monthly income in a top financial consulting firm in Tel Aviv. He attends the workshops while thinking of what to watch on Netflix when he goes home. Considering how the fine was insignificant in comparison to his high paying job, he decides to take a risk and try again. He doesn’t get caught. Perfect. He goes again, to his favorite male prostitute whose name he doesn’t even know. He’s caught a third time. Now, not only is he fined half of his monthly income, he’s given a criminal penalty. After four counts of purchasing prostitutes within the two months, he’s finally criminalized. This is what we call ‘scaled criminalization’,[4] while still falling underneath the administrative approach.

Would a criminal penalty on first count have deterred this man in the first place? The answer is likely yes. Criminalization is arguably the strongest deterrence for several key reasons.

The Rule of Law – What is it?

First, criminalization is most effective for countries that uphold the rule of law. The rule of law is that every person must be held accountable to the law, no matter how powerful or influential they are. This includes lawmakers, politicians, and judges. So, when an individual or governmental body contravenes the law, their actions will be assessed by the courts.

How is the rule of law relevant to deterring purchasers of sex services? Here’s how. Israel is a democratic state, and a core element of democracy is to uphold the rule of law.[5] In studies conducted on purchasers of sex services, countries with a stronger level of democracy, such as the United States and the United Kingdom, had a stronger reaction of deterrence to criminal penalties. Israel is ranked 29^th in the world, and first in the Middle East in democracy. Thus, it is safe to say that prospective purchasers will certainly be deterred in Israel when criminal sanctions are imposed.

Shame Sucks

Second, there is a strong social stigma associated with criminal convictions. An administrative fine that can be easily paid off, leaving no criminal record or reputation taint. However, because a criminal conviction is ‘harder’ to receive, it more strongly implies guilt – hence, the social stigma.

People fear the social stigma of having a criminal offence being made known to family and friends. [6] In an interview article on Marie Claire, a client of an escort said, ‘Of course, my wife doesn’t know about any of this – if she ever found out she would leave me immediately. I couldn’t bear to lose her. Occasionally, I have nightmares about my teenage sons discovering what I do, which would probably be worse than my wife finding out. No one in the house would ever speak to me again.’[7]

Shame destroys reputation, which is particularly important for middle to upper-middle class men, who value reputation as it provides them with employment opportunities.[8] Shame also influences beliefs, as it affects what one would think is ‘harmless behavior’ to what is reserved for ‘bad types’.[9] Hence, those who consider themselves with decent morals, do not wish to associate themselves with the ‘bad types’. Thus, the shame element of criminalization is one of the highest form of deterrence, which an administrative penalty does not offer.

A Guilty Mind

Third, purchasers are very aware of the harms prostitutes face. A study was conducted on purchasers of sex services in Lebanon. A 21 year-old buyer, a student, stated that ‘of course’ no woman is happy to be a prostitute. He also expressed awareness of pimping and the mistreatment of women.[10] 80% of the buyers surveyed were aware of the poor socio-economic background of women who enter prostitution,[11] implying that they are aware of the vulnerable states of prostitutes. 82% of the buyers understood that women were under the control of a pimp, and 73% even had direct interaction with the pimp.[12] 61% were aware of the exploitative conditions the women were subject to in prostitution.[13] A 30 year-old buyer, again, married with children, stated ‘For some of them, circumstances force them … They talk a lot, but you don’t want to listen.’[14] Such indifference despite the awareness of the circumstances of vulnerable women should be more harshly punished than simply with administrative sanctions.

The Sex Trafficking Epidemic

Finally, criminalization is a stronger stance to abolishing sex trafficking. The fact is that the male demand for prostitution constitutes the root cause for the trafficking of persons.[15] Both prostitution and sex trafficking would not exist without men’s demand for sex services.[16] Essentially, if there is no demand, there will be no supply.

Forced labor and sex trafficking has been a prominent issue in Israel over the past decade. Recently, there has been an increase of women from Eastern Europe who came to Israel with a tourist visa to serve in the sex industry.[17] In the beginning of 2017, 72 women from Ukraine and Georgia were caught attempting to illegally enter Israel for prostitution purposes.[18] Typically, criminals contact women in Russia or Ukraine online, luring them to arrive in Israel to work as sex workers, promising them large sums of money.[19] However, even if an individual initially consents to participating in prostitution, this is completely eradicated if they are subsequently trapped in service through psychological manipulation or physical force, and becomes a victim of sex trafficking.[20] Thus, there is a pressing need to curb sex trafficking in Israel.

The theory that prostitution laws are related to tackling sex trafficking is not new. The economics behind it is simple: demand plays a vital role. Administrative sanctions reduce demand, but criminalization aims to nullify it. According to the Swedish National Criminal Police, the harsh penalties of the criminalization have been an obstacle to human traffickers and organized criminal groups.[21] Thus, criminalization of the purchase of sexual services destroys the incentive for criminal organizations to establish themselves, which will more effectively diminish sex trafficking in Israel.

Looking Ahead

Allow me to conclude with a final illustration: The purchase of sex services is now criminalized. A man with previous prostitute-buying habits decides he has a familiar urge today. As he strolls along a dark and dingy part of Tel Aviv where he used to visit regularly during surges of similar desire. He thinks about the new law recently imposed, and sees himself standing before a court, facing criminal charges. But what are the chances of him actually being caught and bring brought to court? He remembers, he lives in Israel, not Syria. He winces at the resource and time consuming aspects of being taken to court. Curse this upright democratic system that holds individuals accountable when contravening the law! Still, his urges are pressing and he catches a familiar face smirking at him from a corner. He advances towards this young girl, grinning at the thought of what he could do to her. He stops in his steps, considering how this young girl is likely only in this industry due to financially precarious reasons and is likely to be under the manipulation of a pimp. This young girl may or may not be have been trafficked. She may or may not be underage. But his urges call him, so he shrugs his thoughts off and continues towards this young girl. He begins conversation and reaches for his wallet. He pauses. He thinks about how if he is brought to court and faced with criminal charges, what will his family and colleagues say? What will his boss say? What will his high school friends talk about at their annual reunion? His girlfriend will certainly leave him. Word in the banking industry spreads quickly. He’ll have trouble getting a recommendation for job opportunities. This isn’t something he could pay and walk off from. This charge will taint him. He puts his wallet back in his pocket, apologizes to the young girl, and walks away.

[1] Silbert, H. Pines, A. Y. and Lynch, T. (1970). Substance Abuse and Prostitution. Journal of Psychoactive Drugs, 14, pp. 193-7.

[2] Farley, M. Lynne, J. and Cotton A. J. (2005). Prostitution in Vancouver: Violence and the Colonization of the First Nations Women. Transcult Psychiatry, 42(2), pp. 242-271.

[3] Ward, H. and Day, S. (2006). What Happens to Women Who Sell Sex? Report of a Unique Occupational Cohort. Sexually Transmitted Infections, 82(5), pp. 413-417.

[4] Haaretz. 2018. Israeli gov’t committee opts for ‘soft criminalization’ of prostitute clients – Israel News – Haaretz.com . [ONLINE] Available at: https://www.haaretz.com/israel-news/israeli-gov-t-committee-opts-for-soft-criminalization-of-prostitute-clients-1.5729971. [Accessed 15 March 2018].

[5] H.C. 910/86 Ressler v. Minister of Defence, [32].

[6] Government Offices of Sweden (2010). Evaluation of the Prohibition of the Purchase of Sexual Services. Swedish Parliament, p. 38.

[7] Thompson, A. (2016). Why Do Men Pay for Sex?. Marie Claire UK. [online] Available at: http://www.marieclaire.co.uk/reports/sex-workers-11125 [Accessed 15 Mar. 2018].

[8] Tang, X. (2013) Shame: A Different Criminal Law Proposal for Bullies. Cleveland State Law Review, 61(3), pp. 649-663.

[9] Ibid.

[10] KAFA (enough) Violence and Exploitation (2014). Exploring the Demand for Prostitution: What Male Buyers Say About Their Motives, Practices, and Perception. Ghada Jabbour, pp. 25.

[11] Ibid.

[12] Ibid, pp. 26.

[13] Ibid, pp. 27.

[14] Ibid, pp. 26.

[15] MacKinnon, C. A. (2011). Trafficking, Prostitution, and Inequality. Harvard Civil Rights – Civil Liberties Law Review, 46(2), pp. 271-309.

[16] Joy Ngozi Ezeilo, Report of the Special Rapporteur on trafficking in persons, especially women and children, A/HRC/23/48, United Nations, 18 March 2013.

[17] Hotline for Refugees and Migrants (2015). Trafficking in Persons in Israel. Tel Aviv, pp. 6.

[18] Yaron, L. (2017). Number of Women Brought to Israel for Prostitution on the Rise – and the Police Are Struggling to Deal With It. Haaretz. [online] Available at: http://www.haaretz.com/misc/haaretzcomsmartphoneapp/.premium-women-brought-to-israel-for-prostitution-on-increase-1.5481624 [Accessed 15 Mar. 2018].

[19] Ibid.

[20] U.S. Department of State (2017). Trafficking in Persons Report, pp. 17.

[21] Government Offices of Sweden (2010). Evaluation of the Prohibition of the Purchase of Sexual Services. Swedish Parliament, pp. 37.