The following Parliamentary debate made it openly clear that, rather than the protection of women against abuse, the central concern was the protection of the Dutch State against, as stated by one of the members of Parliament, supposedly “uncontrollable waves of prostitutes to the Netherlands”.22 Despite significant criticisms, the bill was adopted without further amendments.23
However, one year later the prostitution bill failed in the Senate; not because of the exclusion of migrant women from the legal sex industry, but because of the clause allowing municipalities to re-instate brothel keeping as a crime on the local level. The bill on trafficking, however, was adopted – including the controversial prohibition of recruitment across the border, and despite criticisms by the Red Thread, STV, and other organisations, such as the Dutch Section of the International Committee of Jurists, which argued that the prohibition contradicted the very principle behind the abolition of the ban on brothels and would push migrant women into illegality rather than strengthening their position. The current trafficking article still contains this clause (Article 273f, para 1, sub 3, CC).
Criticism from the sex workers’ movement
In the meantime, criticism was growing among sex workers that the new provisions on prostitution and trafficking, including the envisaged licensing system, predominantly served the interest of municipalities in control and public order, rather than the interests of prostitutes, such as privacy protection and access to social security. Moreover, nothing seemed to change in the existing power relation between brothel keepers and sex workers. The licensing system exclusively aimed at introducing a strict set of rules for sex businesses. Although the proposed model licence, drafted in anticipation of the law change, contained an obligation for brothel operators to safeguard the right to self-determination of sex workers (e.g., the right to refuse clients or sexual acts, or to refuse to work without condoms), it explicitly was not the intention to promote a model in which sex workers would work as independent entrepreneurs.24 Sex workers feared that the new laws and regulations, rather than improving their position, would hinder their independence. For migrant workers, the situation looked even grimmer. Lifting the ban on brothels without an adequate regulation of the legal status of both Dutch and migrant sex workers seemed to only serve the interests of municipalities and criminal networks: both would strengthen their grip on sex workers.25
Second attempt to lift the ban on brothels
In 1997, a new bill to decriminalise brothels was submitted to Parliament without the controversial amendments of the previous one –i.e., the prohibition on the employment of non-EU sex workers and the possibility to instate local brothel bans. This time the bill passed. However, in 1995, a proposal for revision of the Migrant Workers Act (WAV) had been adopted which included a prohibition on the issuing of work permits for the sex industry. Although at the time of its adoption the Minister assured that the prohibition would only be applicable as long as the ban on brothels remained in force, at the end of the day there was no political majority for its abolition.26 So, despite the fact that non-EU migrants were considered to belong to the most vulnerable groups, they were further marginalised instead of provided better protection against violence and abuse. In the same year of the adoption of the bill, 1999, a National Rapporteur on Trafficking in Human Beings was established.
Aims of the lifting of the ban on brothels
The abolition of the ban on brothels served three major aims: to regulate and control the sex industry; to combat trafficking and other ‘undesirable’ forms of prostitution (minors, undocumented sex workers); and to ‘protect’ the position of sex workers. The assumption was that by normalising sex work and bringing it into the Dutch administrative and welfare regulatory framework, it would be easier to crack down on the illegal and criminal aspects of the prostitution sector. Businesses would become the subject of administrative law, while labour law would regulate workers’ rights and working conditions.27 The key policy instrument in the implementation was the introduction of a licensing system for sex establishments. In order to monitor the effects of the law reform, regular evaluations would be carried out.
However, by the time the bill was adopted, the dominant reason for its adoption was the wish for more instruments to control and regulate the sex industry at the cost of its original emancipatory aims, coupled with an increased emphasis on measures against trafficking. Illustrative is the change of wording from the original ‘improvement of the position’ of prostitutes to ‘protection of the position’ of prostitutes. As a result, the lifting of the ban on brothels primarily resulted in increased control of sex businesses, rather than improvements in sex workers’ social and labour position.28
The licensing system: from protection to control
The lifting of the ban on brothels made it possible to regulate the sex industry through administrative and labour law, the tax code, and health and safety regulations. In line with the traditional autonomy of municipalities in the regulation of local issues, cities were free to adopt their own regulations as long as these did not contradict national law. By 2014, the majority of municipalities had set up a licensing system, requiring brothels to meet certain standards concerning city planning, hygiene, fire safety, and management (e.g., no forced drinking, no unsafe sex, no minors, no undocumented workers, and no trafficking). If the operator violates the requirements, they can be fined or the brothel shut down. Cities vary in the kind of businesses that need a licence: some also require a licence for escort businesses, while others do not. About 24% of the (smaller) municipalities formally or de facto have a so-called zero-policy, implying that no licences at all are given for sex businesses.29
When the ban was lifted, most cities froze the number of licences to the number of brothels existing in 2000, while formally or de facto prohibiting home-based sex work. As a consequence, there is little room for innovation in the legal sector – in particular, the establishment of small brothels run by sex workers themselves.30 Furthermore, the number of licensed businesses has radically decreased since 2000. This applies in particular to window prostitution: in 1999, there were 2,096 registered windows; by 2016, this had declined to 1,272.31
In many cases, the closing of window brothels is defended as a measure against trafficking. As of December 2014, Amsterdam, for example, had closed 109 of its 476 windows, with another 100 proposed for closure. The project is legitimised by the argument that brothels are supposedly conducive to crime and fuel exploitation of sex workers. However, the assumption that prostitution equals exploitation cannot be proven, and many argue that it is rather a gentrification project “under the guise of rescuing women from the sex trade”.32 Among the sex workers of the Red Light District, the project has raised frustration and anger. When in 2015 the municipality announced the closure of another 47 windows, some 300 or more sex workers and their allies gathered to protest, carrying signs like “Don’t save us, Save our windows!”.33
At the same time, brothel keepers are increasingly made responsible for controlling the sex workers in their establishment –e.g., through passport controls and intake interviews in which they have to screen the ‘resilience’ of the sex worker concerned. Some cities introduced mandatory registration of sex workers in order to check for ‘indications of trafficking’. Other cities indirectly imposed registration by obliging brothel operators to collect all kinds of personal data of the workers in their facility, which they have to keep available for the police under penalty of fines or closure. Only a few municipalities have implemented what can be called participatory instruments: involving sex workers and brothel owners in the process of policy making.34
Furthermore, it has become increasingly difficult for sex workers to work independently without interference by a brothel operator. In the name of combating trafficking, about 40% of municipalities prohibit home-based sex work entirely. Others only allow home-based work on the condition that the sex worker does not advertise and works alone. Police controls in the unlicensed sector official
ly aim to identify minors or victims of trafficking, but in practice predominantly target home-based workers.35
Though the licensing system definitely has improved physical working conditions within brothels, sex workers find themselves increasingly under surveillance by the State, the police, and brothel keepers – at the cost of their privacy and autonomy. The monopoly position of the licensed brothels strengthened their dependence on brothel operators and increased the prices for working places, a major complaint, especially of window workers, in the 2014 evaluation. Moreover, it decreased the possibilities for women to work independently at home or in small collectives.
Trafficking in human beings
One of the aims of the law reform was to be able to better combat trafficking and prostitution of minors. The underlying idea was that by separating punishable and non-punishable forms of exploitation, the profession could be sanitised and stripped of associated criminality. The 2006 evaluation found some indications of involuntary prostitution or prostitution by minors, but to a very limited extent. Of the interviewed sex workers in the licensed sector, 8% mentioned that they had started with sex work under some form of coercion, while 5% had started before the age of 18. Significantly, controls in the licensed sector were still predominantly carried out by the police, instead of, for example, the Labour Inspectorate.36
The positive image of a more or less ‘clean’ licensed sector was shattered by a big trafficking case, the so-called Sneep case, that came to light in 2007, in which tens of victims working in the licensed sector were involved.37 The case marked a turning point in the public image of prostitution. In the public and political debate, sex work increasingly became framed as inherently linked with trafficking and organised crime – with sex workers as victims, if not of traffickers or pimps, then from force of circumstances. This was accompanied by a dispute about the number of trafficking victims in the sex sector, with estimates varying from 10–90%. In many cases, these ‘estimates’ also included ‘force’ by economic circumstances; thus going far beyond the definition of trafficking.38 Moreover, most figures lacked any sound empirical evidence. However, the result was a stark emphasis, both in the national debate and in the design and implementation of the licensing system, on measures against trafficking. The improvement of the legal position and working conditions of sex workers became increasingly overshadowed by a focus on fighting and preventing trafficking.
Notwithstanding the ‘90%’ figures, the 2014 evaluation also found no indications of any large-scale existence of trafficking or prostitution of minors.39 Of the interviewed sex workers, two-thirds thought that the majority of their colleagues worked on a voluntary basis. The average age they had started working was 28; 4% stated they had started working before the age of 18 (but not necessarily in the Netherlands, as some of the respondents came from other countries).40 These figures are in line with the findings of the research of Wagenaar et al. Only 10% of the interviewed sex workers stated that they had ever been forced to engage in prostitution, or to work under unacceptable working conditions. Moreover, most of them had managed to break free of their exploiters by themselves. The latter indicates a remarkable level of self-determination, which at least puts the image of the sex worker as victim into perspective.41
However, it is clear that trafficking and exploitation still occur, both in the licensed and unlicensed sector, as evidenced by a number of large-scale trafficking cases in recent years, involving both Dutch and foreign victims. A complicating factor in assessing the scale is the fact that some sex workers who, according to Dutch standards, are victims of exploitation, work under better conditions in the Netherlands than at home, and consequently do not consider themselves victims.
Labour position of sex workers
As an immediate effect of the law reform, a considerable number of sex workers from non-EU countries could no longer (legally) work in the Netherlands. With the extension of the EU, their place has largely been taken over by sex workers from new Member States. Moreover, the freezing of the number of licences created an artificially closed market and a large oligopoly of brothel owners who had built up their businesses in a shady culture. Further, the Government consistently refused to intervene in the labour relations between the brothel owners and sex workers, arguing that this was a matter of civil law that should be negotiated between the owners and sex workers.42
This stance was legitimised by referring to the aim of normalisation of the sex sector, coupled with a naïve belief that improvements would come naturally through a change of law. This completely ignored the reality of more than a century of social and labour law exclusion, unequal power relationships, the poor degree of organisation of sex workers and the lack of common labour agreements and powerful unions, the stigma of sex work, and the weak bargaining power of individual sex workers.43
The emergence of an oligopoly of brothel owners, and the self-removal of the State from the negotiations around the labour rights of sex workers, resulted in an almost complete lack of impact on the policy goal of protection of the position of sex workers. Moreover, the two organisations which traditionally had played an important role in defending the interests of sex workers, the Mr. A. De Graaf Foundation and the Clara Wichmann Institute, were forced to close their doors because the State revoked their funding. In 2013, the Red Thread followed, due to lack of funding. Only recently has a new sex workers’ organisation been founded: PROUD, Dutch Union of Sex Workers.
Persistent problems concern, for example, labour relations within brothels, and the lack of access of sex workers to financial services and insurance.44 Where the State has been active, it has limited itself to health and social services and, in recent years, exit programmes.
A new bill
Since 2008, the Dutch Government has been attempting to introduce a new law on the regulation of prostitution. The centre piece of the original bill was the introduction of mandatory registration of sex workers and the criminalisation of unregistered workers and their clients, along with the harmonisation and expansion of the licensing system, and the raising of the legal age for sex workers from 18 to 21. The main argument for mandatory registration was to enable the authorities to assess whether the sex worker was a victim of trafficking. The proposal, however, was highly criticised by sex workers and organisations working with sex workers, as well as by jurists, for substantive and legal reasons.45 Serious doubts were raised about the effectiveness of registration in combating trafficking as well as about its compatibility with Dutch and EU privacy protection law.46 In 2013, the bill was struck down by the Senate.
In 2014, an adapted version of the bill was submitted to Parliament, without mandatory registration but maintaining the minimum age of 21. Furthermore, in response to the increasing number of sex workers who prefer to work independently, the licensing system was expanded to include ‘professionally’ working home-based sex workers and independent escorts, while making independent work without a licence punishable. As a consequence, independent sex workers would have to meet the same requirements as brothel owners and escort agencies. In practice, this would make it virtually impossible for sex workers to work legally without interference by a brothel keeper: they would either not want to apply for a licence because of loss of privacy – application for a licence implies publication of the name and address of the applicant in the local newspaper – or would not get one because of the quota system. Moreover, in the rare case that they would obtain a licence, they would be obliged to put a sign on their door showing that they were a ‘licensed sex worker’. Due to the unanimous criticism by both sex workers and organisations working with sex workers,47 this was one of the major issues during the discussion of the bill in Parliament in June 2016 –successfully resulting in the promise of the minister of Justice to exempt independent workers from the licensing system. At the time of writing, it is unclear when the bill will be discussed in the Senate, and what the outcome will be.
Conclusions
Despite the fa
ct that the law reform had three major aims, the focus has been predominantly on regulation and control, and the suppression of trafficking. While regulation has led to standardisation of health and safety within brothels, and has provided sex workers greater protection against abusive practices, the labour and social position of sex workers has only marginally improved. A major reason is the refusal of the State to take responsibility for labour relations in the sector. Another cause is the transfer of responsibility for prostitution policies to the municipalities – resulting in a licensing system that is predominantly inspired by public order interests. Moreover, the growing dominance of the trafficking debate led to a shift from the original aim of controlling the brothel operators to controlling the workers.
The question remains whether it has helped to combat trafficking and exploitation. This is difficult to say, as figures are notoriously unreliable.48 Similarly, it is impossible to say anything about the relationship between prostitution policies and the extent of trafficking.49 While the number of reported (possible) victims has increased since 2000, this can be both an indication of successful (better identification of victims) or failing (more victims) policies – or simply the result of police and other institutions more consistently reporting signs of trafficking.
Whereas, in theory, the recognition of sex work as work opened up a whole new range of instruments to combat abusive and exploitative practices in the sex industry – labour law and labour emancipation – in practice these have hardly been used. Paradoxically, precisely the increasing focus on trafficking has led to measures that stand in the way of effectively addressing exploitative practices in the sex industry. The persistent association of sex work with trafficking has reinforced the stigma of sex work. This not only impedes sex workers in organising and claiming their rights, it also makes them more vulnerable to abusive practices. Instead of re-balancing the unequal power relationship between brothel operators and sex workers, the licensing system gave brothel owners a monopoly position and established a two-tier system in which the State controls the brothel keepers and the brothel keepers control the sex workers. Instead of facilitating independent and collective forms of working, this is hindered as much as possible. Whereas labour law has been developed as the pre-eminent instrument to protect workers against exploitation and abuse of power, its enforcement mechanisms have been almost completely side-lined. And instead of welcoming sex workers as partners in cleaning up the sector, they have become, not agents whose emancipation should be supported, but potential victims in need of control.
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