Drafters should, at a minimum, include prostitution as one of the forms of sexual exploitation outlined in the law criminalizing sex trafficking.
Drafters should also carefully review the laws on prostitution to determine whether such laws need to be reformed. The existence of the sex industry and the demand for the sale of women and children for sex creates the conditions that allow for traffickers to operate. Legislation should reflect an understanding of the interconnectedness of sex trafficking and prostitution.
In some countries, the recognition of the interconnectedness of sex trafficking and prostitution takes the form of laws which specifically use the word “prostitution” and/or place the sex trafficking law in the same section of the criminal code as the prostitution-related offences. In other countries, sex trafficking is defined as having the purpose of sexual exploitation, of which prostitution is one form.
Countries around the world have taken one of four approaches to prostitution laws: prohibition, regulation, abolition, and decriminalization. The prohibitionist approach is characterized by criminalization of all prostitution-related activities: soliciting, procuring, pimping, and brothel keeping. The regulation approach is characterized by the legalization and regulation of the sex industry. The abolitionist approach is characterized by the treatment of women and children used in prostitution as victims in need of services and the treatment of the buyers and traffickers as perpetrators. In this scheme, those who sell sex acts are decriminalized, whereas those who buy others for sex are criminalized. Studies of countries that have attempted a decriminalization approach with the goal of regulating the industry and/or attempting to support women have shown that these methods have not been successful. For example, in parts of Germany, Australia and the Netherlands, where governments have supported a legalization scheme, there has been an expansion of the sex industry. Further, women in these areas still report high levels of violence perpetrated by buyers. Under a legalization scheme, enforcement can also suffer because efforts are spent regulating the legal aspects of the sex industry rather than law enforcement focusing on the perpetrators and the illegal aspects. (See: Tackling the Demand that Fosters Human Trafficking: Final Report, USAID, 2011)
Illustrative Examples:
- In the United Kingdom, the definitions of prostitution and sex trafficking are linked. For example, the offences of:
- “Causing or inciting prostitution for gain” involves “intentionally caus[ing] or incit[ing] another person to become a prostitute in any part of the world, and [doing] so for or in the expectation of gain for himself or a third person;”
- “Controlling prostitution for gain” involves the “[intentional control of] any of the activities of another person relating to that person’s prostitution.”
- Sex trafficking is committed when a person intentionally arranges or facilitates another person’s arrival, departure, or travel within the United Kingdom and
- “he intends to do anything which if done will involve the commission of a relevant offence (such as those mentioned above) or
- he believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world,
- which if done will involve the commission of a relevant offence.”
(See: United Kingdom Sexual Offences Act of 2003, Part I (52), Part I, (53) Part I (57), (58), (59))
- In Germany, the definitions of prostitution and sex trafficking are also linked. Section 232 of the German Criminal Codes states that:
(1) Whoever, for his own material benefit, exerts influence on another person, with knowledge of a coercive situation, to induce the person to take up or continue in prostitution, shall be punished with imprisonment for not more than five years or a fine. Whoever, for his own material benefit, exerts influence on another person, with knowledge of the helplessness associated with the person's stay in a foreign country, to get the person to engage in sexual acts, which the person commits on or in front of a third person or allows to be committed on the person by the third person, shall be similarly punished.
(2) Whoever exerts influence:
1. on another person with knowledge of the helplessness associated with the person's stay in a foreign country; or
2. on a person under twenty-one years of age,
to induce the person to take up or continue prostitution or to get the person to take it up or continue it, shall be punished with imprisonment from six months to ten years.
(3) In cases under subsection (2) an attempt shall be punishable.
(See German Criminal Code, Section 232)
- In Sweden, the definition of human trafficking is linked with sexual exploitation. For example, the offence of human trafficking is defined as:
“the use of unlawful coercion or deception, exploiting someone’s vulnerable situation or by some other such improper means recruits, transports, accommodates, receives or implements some other such measure with a person, and thereby assumes control over the person, with the aim that the person should be:
o subjected to an offence under Chapter 6, Section 1, 2, 3, 4, 5 or 6, exploited for causal sexual relations or in another way exploited for sexual purposes,
o exploited in war service or compulsory work or other such compulsory condition,
o exploited for the removal of organs, or
o exploited in another way in a situation that involves a distressful situation for the vulnerable person.
(See: Swedish Penal Code, Chapter 4, Section 1a)