31 ICAT, Preventing Trafficking in Persons by Addressing Demand (ICAT paper series – Issue 2, Inter-Agency Coordination Group against Trafficking in Persons, September 2014), p. 4.
32 Sutela, H., “Ulkomaalaistaustaiset työelämässä”, in Nieminen, T., Sutela, H., and Hannula, U. (eds.), Ulkomaista syntyperää olevien työ ja hyvinvointi Suomessa 2014 (Helsinki: Tilastokeskus, 2015), pp. 83−109.
33 Ollus, N. and Alvesalo-Kuusi, A., “From Cherry-picking to Control: Migrant Labour and Its Exploitation in Finnish Governmental Policies” (2012) 99(3) Nordisk Tidsskrift for Kriminalvidenskab 376–398.
34 Sutela, H., “Ulkomaalaistaustaiset työelämässä”, in Nieminen, T., Sutela, H., and Hannula, U. (eds.), Ulkomaista syntyperää olevien työ ja hyvinvointi Suomessa 2014 (Helsinki: Tilastokeskus, 2015)., pp. 83−109.
35 Salmio, T., Kylmän sodan loppuminen ja EU-jäsenyys muuttivat Suomen maahanmuuttopolitiikkaa (Turku: Siirtolaisuusinstituutti, 2000), www.migrationinstitute.fi.
36 Ollus, N. and Alvesalo-Kuusi, A., “From Cherry-picking to Control: Migrant Labour and Its Exploitation in Finnish Governmental Policies” (2012) 99(3) Nordisk Tidsskrift for Kriminalvidenskab 376–398.
37 Ibid.
38 OECD, OECD Economic Surveys FINLAND. January 2016 OVERVIEW (2016), www.oecd.org/eco/surveys/Overview-OECD-Finland-2016.pdf.
39 Jutila, M., “Narrowing of Public Responsibility in Finland 1990–2010” (2011) 45(2) Social Policy & Administration 194–205.
40 Lillie, N. and Greer, I., “Industrial Relations, Migration, and Neoliberal Policies: The Case of the European Construction Sector” (2007) 35(4) Politics & Society 551–581.
41 Ylhäinen, M., Työoikeus ja prekaari yhteiskunta (FORUM IURIS, 2015).
42 Ollus, N., “Forced Flexibility and Exploitation: Experiences of Migrant Workers in the Cleaning Industry” (2016) 6(1) Nordic Journal of Working Life Studies 25–45.
43 In order to meet the required minimum income level, low-skilled migrants usually need to work at least full-time in order to be able to renew their work permit after one year.
44 Könönen, J., “Palvelualan työnantajat ja joustavat ulkomaalaiset työntekijät. Maahanmuuttohallinnon merkitys prekaarin työvoiman tuottamisessa” (2011) 19(1) Janus 52–67; Abbasian, S. and Hellgren, C., “Working Conditions for Female and Immigrant Cleaners in Stockholm County. An Intersectional Approach” (2012) 2(3) Nordic Journal of Working Life Studies 161–181; Ollus, N., “Forced Flexibility and Exploitation: Experiences of Migrant Workers in the Cleaning Industry” (2016) 6(1) Nordic Journal of Working Life Studies 25–45.
45 Partly because the workers recruited from third countries need to apply for a work permit before they can start working in Finland ([37]: 41–42).
46 Ollus, N., Jokinen, A., and Joutsen, M. (eds.), Exploitation of Migrant Workers in Finland, Sweden, Estonia and Lithuania: Uncovering the Links Between Recruitment, Irregular Employment Practices and Labour Trafficking (HEUNI Publication Series No. 75, Helsinki: HEUNI, 2013); Jokinen, A., Ollus, N., and Viuhko, M., “Work on Any Terms: Trafficking for Forced Labour and Exploitation of Migrant Workers in Finland”, in Jokinen, A., Ollus, N., and Aromaa, K. (eds.), Trafficking for Forced Labour and Labour Exploitation in Finland, Poland and Estonia (HEUNI Reports 68, Helsinki: HEUNI, 2011), pp. 31−164.
47 Stronger Together, Tackling Hidden Labour Exploitation: A Toolkit for Employers and Labour Providers (2013). Unpublished Briefing Paper.
48 Sorrentino, L. and Jokinen, A., Guidelines to Prevent Abusive Recruitment, Exploitative Employment and Trafficking of Migrant Workers in the Baltic Sea Region (HEUNI Publication Series No. 78, Helsinki: HEUNI, 2014), p. 62.
49 Verité, Fair Hiring Toolkit (2011), www.verite.org/helpwanted/toolkit (accessed 29 May 2016).
50 Stronger Together, Tackling Hidden Labour Exploitation: A Toolkit for Employers and Labour Providers (2013). Unpublished Briefing Paper.
51 IHRB, Fees and IDs: Tackling Recruitment Fees and Confiscation of Workers’ Passports (London: Institute for Human Rights and Business, 2013).
52 Ollus, N. and Jokinen, A., “‘We’ve Got People Lined Up Behind the Door’: Placing the Trafficking and Exploitation of Migrant Workers in Context in the Restaurant and Cleaning Sectors in Finland”, in Ollus, N., Jokinen, A., and Joutsen, M. (eds.), Exploitation of Migrant Workers in Finland, Sweden, Estonia and Lithuania: Uncovering the Links Between Recruitment, Irregular Employment Practices and Labour Trafficking (HEUNI Publication Series No. 75, Helsinki: HEUNI, 2013), pp. 31–170; Jokinen, A., Ollus, N., and Viuhko, M., “Work on Any Terms: Trafficking for Forced Labour and Exploitation of Migrant Workers in Finland”, in Jokinen, A., Ollus, N., and Aromaa, K. (eds.), Trafficking for Forced Labour and Labour Exploitation in Finland, Poland and Estonia (HEUNI Reports 68, Helsinki: HEUNI, 2011), pp. 31−164.
53 Jokinen, A., Ollus, N., and Viuhko, M., “Work on Any Terms: Trafficking for Forced Labour and Exploitation of Migrant Workers in Finland”, in Jokinen, A., Ollus, N., and Aromaa, K. (eds.), Trafficking for Forced Labour and Labour Exploitation in Finland, Poland and Estonia (HEUNI Reports 68, Helsinki: HEUNI, 2011), pp. 31−164.
54 For more information on such policies, see IHRB, The Dhaka Principles for Migration With Dignity (London: Institute for Human Rights and Business, 2012); Sorrentino, L. and Jokinen, A., Guidelines to Prevent Abusive Recruitment, Exploitative Employment and Trafficking of Migrant Workers in the Baltic Sea Region (HEUNI Publication Series No. 78, Helsinki: HEUNI, 2014), pp. 24–26.
55 Scott, S., Craig, G., and Geddes, A., Experiences of Forced Labour in the UK Food Industry (York: Joseph Rowntree Foundation, 2012).
56 Brennan, D., “Thoughts on Finding and Assisting Individuals in Forced Labor in the USA” (2010) 13(2) Sexualities 139–152, 140.
57 Anderson, B., “Migration, Immigration Controls and the Fashioning of Precarious Workers” (2010) 24(2) Work, Employment & Society 300–317; Ollus, N., “Forced Flexibility and Exploitation: Experiences of Migrant Workers in the Cleaning Industry” (2016) 6(1) Nordic Journal of Working Life Studies 25–45.
58 FRA, Severe Labour Exploitation: Workers Moving Within or Into the European Union. States’ Obligations and Victims’ Rights (European Union Agency for Fundamental Rights, 2015), p. 66; Europol, SOCTA 2013, EU Serious and Organised Crime Threat Assessment (The Hague: Europol, 2013), p. 12.
59 Brunovskis, A. and Surtees, R., Reframing Trafficking Prevention: Lessons From a “Positive Deviance” Approach (FAFO-report 2015:21. FAFO & Nexus Institute, 2015), p. 13.
60 FRA, Severe Labour Exploitation: Workers Moving Within or Into the European Union. States’ Obligations and Victims’ Rights (European Union Agency for Fundamental Rights, 2015).
61 Shamir, H., “A Labor Paradigm for Human Trafficking” (2012) 60 University of California Law Review 76–136, 106.
62 Haynes, D.F., “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers” (2009) 23(1) Notre Dame Journal of Legal Ethics and Public Policy 1–71, 64–65.
63 Sorrentino, L. and Jokinen, A., Guidelines to Prevent Abusive Recruitment, Exploitative Employment and Trafficking of Migrant Workers in the Baltic Sea Region (HEUNI Publication Series No. 78, Helsinki: HEUNI, 2014), p. 30.
64 Ibid., 29–30.
65 Ibid., 62.
66 ICAT, Preventing Trafficking in Persons by Addressing Demand (ICAT paper series – Issue 2, Inter-Agency Coordination Group against Trafficking in Persons, September 2014), p. 4.
67 Haynes, D.F., “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers” (2009) 23(1) Notre Dame Journal of Legal Ethics and Public Policy 1–71, 62.
38
Fifteen years lifting of the ban on brothels
The struggle of policy makers between sex workers as agents or victims
Marjan Wijers
The lifting of the ban on brothels
On 1 October 2000, the Netherlands decriminalised the
sex industry by lifting the general ban on brothels in the Criminal Code (CC). Since then, the Dutch Penal Code no longer treats organising the prostitution of adult persons as a crime – provided it is done with the consent of the sex worker. It is legal to operate a sex business when it takes place on a consensual basis and involves persons above 18 years of age.1 There was no new national prostitution law: regulation of the sex industry was left to the municipalities through the introduction of local licensing systems.
At the same time, ‘undesirable forms of prostitution’, such as the exploitation of involuntary prostitution and of minors, became more strictly penalised.2 Article 273f of the Criminal Code (CC) prohibits any use of coercion, (threat of) violence, deceit or abuse of authority in regard to both conditions of recruitment and work, as well as profiting from the prostitution of another person under the aforementioned conditions. It is not relevant whether the victim worked in prostitution before, knew (s)he would do so, or wants to continue to do so under free conditions. The recruitment and exploitation of minors is punishable irrespective of coercion or consent, as is the recruitment for prostitution across borders. In addition, clients of 16-or 17-year-old prostitutes became punishable. Clients of prostitutes younger than 16 years were already punishable, as was sexual intercourse with a minor between the age of 12 and 16.
Political and public debate
At the end of the twentieth century, the Dutch sex industry had developed into an openly manifested and tolerated but still illegal industry. Although officially prohibited since the late 1970s, brothel and window owners were not prosecuted as long as no (evident) violence, abuse, or minors were involved, and public order was not disrupted. In practice, this policy of ‘regulated tolerance’3 meant that sex club or window brothel owners could practically do as they pleased, as long as they did not cause trouble. As their (illegal) business officially did not exist, compliance with the rules that applied to other entrepreneurs was not necessary; nor did labour law restrict their power over the workers. As sex work was not considered to be work, migrant sex workers did not need a work permit. In practice, their presence was tolerated as long as the police knew where they were and no (evident) coercion was involved.4
At the same time, the expansion of the sex industry, and the emergence of heroin prostitution in the 1970s, not only led to a radical change in the prostitution market, but also changed the public debate on prostitution. Moreover, the demographic profile of sex workers started to change considerably with the increase of female labour migrants in the 1980s.5 This meant that local administrators increasingly felt the need for more instruments to regulate the sex sector. For many municipalities, in particular the big cities, the removal of the ban on brothels became imperative.6
This development coincided with the second feminist wave, which put violence against women on the political agenda. Dutch feminists started to question the division between ‘good’ women who deserved protection and ‘bad’ ones who could be abused with impunity. By challenging the whore stigma as an instrument to control female sexuality and mobility, they made prostitutes’ rights central to all women’s rights.7 Sex worker activists and feminists argued that the principle of self-determination should also apply to prostitution, and that the right of women to have control over their own bodies should also give them the right to sell sex.8 Significantly, in the 1980s it was the Ministry of Social Affairs and Employment, specifically the Department of Emancipation Affairs (DCE), rather than the Ministry of Justice, that was charged to study and propose legal changes to guarantee the rights of sex workers – thus understanding sex work as a social and labour issue.
In 1984, the Ministry of Social Affairs officially stated in a Parliamentary Letter that, on the basis of the right to physical and psychological integrity and the right to self-determination, women should have the freedom to choose prostitution as a profession. Not prostitution as such, but violence and coercion needed to be combated. Moreover, the State should strive to improve the position of prostitutes and abolish their stigmatisation.9
A year later the Red Thread, the Dutch prostitutes’ rights organisation, was founded, campaigning for the recognition of sex work as work and for protection by labour law. Next to the Red Thread, a solidarity group was formed of feminist non-sex workers, the Pink Thread.10 In February 1985, the First World Whores’ Congress took place in Amsterdam. Delegates launched the International Committee for Prostitutes’ Rights and produced the World Charter for Prostitutes’ Rights.11
At the same time, women’s groups and third world solidarity groups drew attention to the exploitation of migrant prostitutes who were working under slavery-like conditions and called for harsher penalties for trafficking in women.12 Following the 1982 Kijkduin study conference on sexual violence against women, in which trafficking was one of the issues discussed in the working group on prostitution, the 1984 Parliamentary Letter on violence against women defined trafficking as a form of sexual violence.13 An official investigation was initiated by the Ministry of Social Affairs to determine the nature, global scale, and channels through which women were trafficked to the Netherlands;14 and in 1987, the Foundation against Trafficking in Women (STV) was founded, financed by the Ministry of Social Affairs.
This debate was the cradle for the Dutch approach towards prostitution: a sharp division between voluntary and involuntary prostitution – between consent and coercion. If a woman or man considers prostitution an option to earn a living, she or he should be able to work under proper conditions and should have the same rights and the same protection against violence and abuse as any worker has. If a woman or man is forced into prostitution or faces violence, abuse, or deceit in the course of her or his work, the law should protect her or him.15
Pro-rights and anti-violence
Though in the beginning some tension existed between the prostitutes’ rights movement and anti-trafficking campaigners, both movements acknowledged the legitimacy of each other’s point of departure. As explained by one of the founders of the Foundation against Trafficking in Women (STV) who, together with Nena, a Filipina who was fighting to bring her traffickers to justice, attended the second International Prostitutes’ Congress held in Brussels in October 1986:
We wanted to emphasize that the right to work must imply the existence of a real choice, including the choice to refuse to work, so that campaigns to combat trafficking and to win recognition for the rights of prostitutes as sex workers and as persons should go hand in hand.16
Also, within the newly founded International Committee for Prostitutes’ Rights, migrant sex workers became more central to the discussion, as victims and agents. As remarked by Pheterson with far-sighted vision:17
We have begun to recognise that first of all a majority of prostitutes around the world are migrants. We have also begun to recognise the inadequacy of politics that view native prostitutes as self-determining agents and view migrant prostitutes as helpless victims.
And:
We recognise historical tensions between pro-rights and anti-violence (specifically anti-trafficking) perspectives. Fortunately, in the Netherlands the diverse groups have viewed that heritage of tension critically and have made a concerted effort to be deliberate and consistent in our cooperation.
Later, the Red Thread and the Foundation against Trafficking in Women jointly campaigned for the abolition of the ban on brothels in order to secure the rights of sex workers – recognising anti-violence and pro-rights as two sides of the same coin.
The first attempt to lift the ban on brothels
The first bill to lift the general ban on brothels (Article 250 bis, CC) was submitted to Parliament in 1987. In addition to regulation of the sex industry, the improvement of the position of prostitutes was one of the major aims. In 1989, a bill to sharpen the trafficking provision and increase the penalty (Article 250 ter, CC) followed. However, when in spring 1992 the latter reached Parliament for plenary discussion, the Minister of Justice used the trafficking bill t
o introduce two major changes to the prostitution bill, which by then had already been adopted by Parliament and was ready for plenary discussion in the Senate.
First, to accommodate more conservative towns, city councils got the power to re-introduce brothel keeping as a criminal offence on a local level. Second, a new brothel ban was introduced; but now exclusively for non-EU women. In addition, a new sub-article was inserted in the trafficking bill, which criminalised any recruitment for prostitution across borders, irrespective of coercion or consent. In practice, the two new sub-paragraphs would ban non-EU women from working in the legal prostitution sector. Whereas ‘exploitation of prostitution’ and ‘trafficking’ in regard to Dutch women was only punishable in the case of coercion, deceit or abuse, in regard to non-EU women this would no longer be relevant.18
This was justified by the argument of the Minister of Justice that prostitutes from Third World countries would not possess “the mental ripeness to oversee the consequences of one’s actions and make independent decisions”.19 They were considered to be victims by definition. Other arguments included the obligations of the Netherlands under the 1933 Trafficking Convention20 and the difficulties in some cases of proving coercion or deceit. Similar arguments were given for the proposed ban on the employment of non-EU women. The aim of the prohibition was, according to the Minister, the protection of women from developing countries, as risks were high that they were victims of trafficking. Moreover, it was argued, it would not be acceptable if the State would have to develop a policy for granting work permits to prostitutes.21
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