Sexkopslagen in the States: An American Version of the Nordic Model to Address Sex Trafficking in the United States.

AuthorHartjen, Olivia

TABLE OF CONTENTS I. INTRODUCTION 244 II. BACKGROUND 247 A. The Legal History Behind Prostitution & Sex Trafficking 247 1. The Relationship Between Prostitution and Sex Trafficking 247 2. The Netherlands, Sweden, and the United States: A Varying Global Perspective 248 B. The Netherlands 249 C. Sweden 252 D. The United States 254 III. ANALYSIS 259 A. How effective is each country's legal scheme? 259 B. The Netherlands: The Results of Full Decriminalization 260 C. Sweden: A Nordic Model with Room for Heightened Protections and Provisions 262 D. The United States: Problems with the TVPA and Holding Traffickers Accountable 266 IV. SOLUTION 271 A. Proposed Changes to US Sex Trafficking Policy 271 B. States Should Adopt the Nordic Model to Protect Victims of Trafficking and Decrease Demand for Commercial Sex 272 C. States Should Legislate Stricter Penalties for Pimps and Sex Purchasers 273 D. State Laws Should Appropriate Increased Funds for Victim Services and Law Enforcement Education 276 E. Congress Should Criminalize Extraterritorial Sexual Exploitation of Adults 278 F. A New American Model: Strengths and Weaknesses 279 V. CONCLUSION 282 I. INTRODUCTION

Prostitution, facetiously named the "world's oldest profession," has a storied history in the United States. (1) The most common image of prostitution in the United States is that of Julia Roberts as an escort shopping on Rodeo Drive amidst an adored love story involving her and one of her clients, or "Johns." (2) Although television and film conveys a glamorized, Hollywood-manufactured image of prostitution, commercial sex has existed as a stigmatized area of social regulation since America's founding, treated by society and the government as a grave ill eroding America's conscience. (3) However, in many other countries, the Pretty Woman story is told quite differently. The Dutch city of Amsterdam, for example, has the infamous "Red Light District," where windows of women soliciting sexual services line the city's famed canals, personifying the childhood image of a doll in a plastic-paned box. Somewhere between the American and Dutch formulations of the sex industry lies Sweden, the birthplace of the "Nordic Model," which criminalizes the purchase, rather than the solicitation, of sex in order to decrease demand for commercial sex and to promote social norms against sex buying. (4)

As the United States continues to combat sex trafficking, the conversation naturally shifts to prostitution due to the difficulty in identifying victims participating in prostitution-related activities. (5) However, not all prostitution activity meets the federal definition of "sex trafficking," highlighting how trafficking constitutes just one element of a multitude of complicated issues woven throughout the commercial sex industry. Feminists, sex workers, and human rights activists alike have increasingly promoted arguments in favor of decriminalizing prostitution and regulating the commercial sex industry to promote individuals' ability to engage in sex work free of criminal charges and stigmatization. (6)

Countries around the world have addressed prostitution and sex trafficking in various unique, innovative ways. The Netherlands pioneered the decriminalization of prostitution, making it a rich source of data covering an extended period of time. (7) Additionally, Sweden was the first country to both develop and implement the innovative Nordic Model, an influential advancement in the discussion of prostitution and sex trafficking on the demand side of commercial sex transactions. (8) Finally, the salience of the prostitution-legalization discussion in the United States fosters a unique opportunity to propose viable, attainable solutions that could further the goals of deterring participation in the largely exploitative sex industry while simultaneously aiding efforts to combat sex trafficking. (9)

For the United States to address the criminal treatment of those engaged in prostitution, new state and federal legislation is necessary to deter involvement in the sex industry and facilitate law enforcement efforts to protect those vulnerable to sex trafficking. The criminal treatment of prostitution needs adjustment at the state and federal level to criminalize perpetrators rather than victims. Additionally, new legislation needs to elevate criminal punishments for those who facilitate commercial sex transactions in ways that do not currently amount to prosecutable conduct under US sex trafficking legislation, namely the Trafficking Victims Protection Act (TVPA).

This Note explores the history of and analyzes the legal structures addressing prostitution in the Netherlands, Sweden, and the United States for comparative purposes to serve as influences for more effective trafficking legislation and policy in the United States. Countries criminalize commercial sex acts differently, and those various systems serve as helpful guideposts, and cautions, for rehauling the US system.

The history of the development of laws regarding prostitution in the Netherlands, Sweden, and the United States helps explain the normative goals underlying various commercial sex systems. The effects of those national systems cover the gamut of behavior, including successes and failures at protecting those involved in the commercial sex industry, disincentivizing participation in prostitution, and discouraging organized criminal activity, namely sex trafficking.

Finally, this Note will propose legislative solutions for the United States consisting of the state-level criminalization of the purchase, but not selling, of sex, increased funding for victims services and law enforcement training, and stronger penalties for convicted Johns (sex buyers). Additionally, stricter pimping prohibitions and a federal criminal statute aimed at deterring participation in the commercial sex industry will further facilitate efforts to combat sex trafficking.

  1. BACKGROUND

    1. The Legal History Behind Prostitution & Sex Trafficking

      1. The Relationship Between Prostitution and Sex Trafficking

        How a country fights sex trafficking directly relates to prostitution because of the relationship between prostitution and trafficking. (10) Although many academics, and people generally, view prostitution as inherently harmful, (11) the relationship between prostitution and sex trafficking remains highly debated. (12) One proposed link stems from basic economic principles: the supply of people for commercial sex directly relates to the demand for commercial sex, and if exploiters can make a lucrative living off these kinds of transactions, they are incentivized to use whatever means necessary to meet demand, including force, fraud, or coercion. (13) Since the prostitution industry includes both those who may be deemed willing participants and involuntary victims, the expansion of prostitution increases the rates of trafficking. (14)

        Additionally, the relationship between prostitution and sex trafficking is further defined by the prevalence of controversy surrounding the identification of trafficking victims and whether anyone in the prostitution industry participates voluntarily. (15) Sweden's Nordic Model, which criminalizes the purchase but not the sale of a commercial sex act, is based on "a recognition that prostitution is inherently harmful and therefore, a human rights abuse." (16) By contrast, Amnesty International, a large human rights organization, recently published its opinion that all forms of commercial sex should be decriminalized to protect sex workers' rights, implying that some engaged in prostitution choose to participate without coercion. (17) The various countries analyzed in this Note implemented policies with differing views on the relationship between prostitution and sex trafficking, which paved the way for different normative policy goals. Additionally, various terms are used throughout these countries' regulations with intentional meanings. "Those engaged in prostitution" is used in place of "prostitutes" where possible to encompass all viewpoints on those who perform commercial sex acts, whether viewed as voluntary participants or exploited victims of sex trafficking. "Vulnerable victims" identifies individuals "particularly susceptible to... criminal conduct," (18) and includes those engaged in prostitution who possess certain characteristics, namely poverty, addiction, and histories of trauma or abuse. (19) Finally, "Johns" refers to individuals who purchase sex in a commercial transaction, or sex buyers. (20)

      2. The Netherlands, Sweden, and the United States: A Varying Global Perspective

        The Netherlands, Sweden, and the United States provide helpful comparison points on different systems because they represent various stances on prostitution regulation and normative policy goals. Each country possesses unique catalysts for their particular prostitution and trafficking laws, policy reasons undergirding those laws, and enforcement of the laws, whose effects vary greatly. This Part will outline the major prostitution and sex trafficking statutes for each country, providing a basis for further discussion of the laws' effects.

    2. The Netherlands

      The Netherlands has historically served as a leader in the decriminalization of the commercial sex industry, despite recent proposals to ban prostitution in its major cities. (21) The Netherlands lifted its ban on brothels in 2000, which made the operation of a prostitution business legal unless otherwise restricted by municipal rules through a General Municipal By-law. (22) Additionally, the Netherlands passed legislative Article 250a, which "makes all forms of exploitation in prostitution punishable." (23) Although municipalities can pursue localized licensing policies for sex businesses, (24) municipalities cannot outright ban prostitution in their jurisdictions. (25) As a result of the legalization of brothels, various municipalities, including Amsterdam, saw...

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