Mariona Llobet Anglí, Will the End of Prostitution Eradicate Human Trafficking? Four Fallacies in the Abolitionist Approach in:

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EuCLR, Volume 9 (2019), Issue 1, ISSN: 2191-7442, ISSN online: 2193-5505, https://doi.org/10.5771/2193-5505-2019-1-99

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Mariona Llobet Anglí* Will the End of Prostitution Eradicate Human Trafficking? Four Fallacies in the Abolitionist Approach Abstract The purpose of this paper is to illustrate the ‘war of data’ on prostitution brought on by scholars, politicians, NGOs and the media. The paper also tackles the misleading wordings and realities in place, which significantly shake the empirical and conceptual foundations of abolitionism, thereby challenging abolitionist claims. As will be shown below, the abolitionist approach is flawed by four fallacies: the statistical, the phenomenological, the deductive and the deterrence fallacy. Therefore, we can conclude that there is no empirical evidence that abolishing prostitution would eradicate, or at least decrease, human trafficking for the purposes of sexual exploitation. Keywords: prostitution, sexual exploitation, human trafficking, abolitionism. Prostitution and European criminal policy: towards an abolitionist approach The ‘world’s oldest profession’1 remains, in spite of its age, a taboo subject in part and a controversial issue in whole. Broadly,2 certain sectors basically pretend to conceal this reality, ultimately rendering it invisible to the public eye: the regulation approach3 I. * Lecturer in criminal law (UPF, Barcelona); translated by Guillermo Frutos Miranda and Javier Frutos Miranda (Frutos Miranda Traductores). 1 In reference to the 1970 Mexican film directed by Luis Alcoriza, El oficio más antiguo del mundo. 2 For a more in-depth overview of regulatory approaches to prostitution, see, among others, P. de Lora, ¿Hacernos los suecos? Prostitución y límites del estado, DOXA. Cuadernos de Filosofía del Derecho, 2007, p. 455 et seq.; M. L. Maqueda Abreu, Prostitución, feminismo y Derecho penal, 2009, passim. 3 Controlled tolerance and social separation are the core principles of the regulation model. From this standpoint, prostitution is considered as a “necessary evil [to be] acknowledged and regulated by the Government for the sake of health, morals and public order” (Maqueda Abreu, fn. 2, p. 6) (own translation). From the outset, this model, which prevailed in Europe in the mid-19th century, had two main features: “confining prostitution to certain areas and identifying prostitutes at all times” (cfr. C. Villacampa Estiarte, Políticas de criminalización de la prostitución: análisis crítico de su fundamentación y resultados, Revista de Derecho Penal y Criminología, 2012, p. 83) (own translation). Nevertheless, on grounds of public safety, the current prostitution regulations are aimed at preventing prostitution from being practiced on DOI: 10.5771/2193-5505-2019-1-99 invisibilizes prostitution by creating an ‘underground society,’4 whilst the prohibitionist approach does so by creating a ‘criminogenic group.’ In contrast, other approaches to prostitution would rather face this reality. However, the controversy on the aims to be achieved and the means to achieve them cannot be settled philosophically, and thus not legally either. Whereas the abolitionist approach seeks to eradicate all forms of prostitution –abolitionists wish to put an end to prostitution–, the decriminalization or pro-legalization approach considers that sex workers should be granted rights, mainly social rights, just as any other worker or service provider within society. Accordingly, abolitionists advocate punishing any third party that makes prostitution possible or that somehow takes advantage of it. According to the abolitionist approach, the notion of third party covers clients but, as opposed to prohibitionism, it fails to include prostitutes. The foregoing is a summarized overview on the possible legislative choices or theoretical frameworks regarding prostitution (criminalization, regulation, pro-legalization and the Nordic model).5 Nonetheless, the purpose of this paper is to show how empirical data and the phenomenological and conceptual bases of abolitionism, fostered by Europe,6 are inconsistent and seriously biased. Therefore, it is not the best approach to be implemented in any State’s domestic legal system.7 On the one hand, there is no truly reliable empirical knowledge on the origin of prostitution, i.e. on whether or not the street, i.e. they want prostitution not to be seen (cfr. C. Villacampa Estiarte, A vueltas con la prostitución callejera: ¿hemos abandonado definitivamente el prohibicionismo suave?, Estudios Penales y Criminológicos, 2015, p. 414 and 424 et seq.). 4 In this regard, L. Brussa, La prostitution, la migration et la traite des femmes: donnes historiques et faits actuels, in: Actes du Séminaire sur la lutte contre la traite des femmes et la prostitution forcée en tant que violations des droits de la personne humaine et atteinte à la dignité humaine, Council of Europe, 1991, p. 32, holds that “prostitutes constitute an underground society posing a moral, social, health and political threat.”. 5 It is worth noting that the use of ‘regulation’ and ‘legalization’ is often misleading; indeed, they are sometimes used as synonyms (see, for instance, E. F. Rothman, Should US Physicians Support the Decriminalization of Commercial Sex?, AMA Journal of Ethics, 2017, p. 113; or S. Howard, Better health for sex workers: which legal model causes least harm?, BMJ, 2018, p. 361 et. seq). Remarkably, there are also alternative classifications and designations. The Study by the European Parliament, National Legislation on Prostitution and the Trafficking in Women and Children, 2005, ID. No.: IPOL/C/FEMM/ST/2004-05, p. ix (available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2005/360488/IPOL-JOIN_ET %282005%29360488_EN.pdf; last visited: November 6, 2018), differentiates between the following models on prostitution: abolitionism, new abolitionism, prohibitionism and regulationism. Moreover, this study rates Sweden as a prohibitionist country. 6 Cfr. European Parliament resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality. 7 As pointed out by L. Chedekel, Punish pimps and clients, but not prostitutes?, 2017 (available at: https://www.futurity.org/prostitutes-laws-ethics-1350312-2/; last visited: November 6, 2018), “while there is ‘no perfect solution,’ the Nordic model, or any other policy changes, should be rigorously evaluated after being implemented.” However, based on the so-called ‘Swedish model,’ implemented in Sweden following the enactment of the 1999 Sex Purchase Act, Section 11 of Chapter 6 of the Swedish Criminal Code (Brottsbalk) provides that a person who obtains a casual sexual relation in return for payment shall be sentenced for purchase of sexual service to a fine or imprisonment for at most one year. Further information on this 100 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES it is mostly forced or involuntary, as claimed by abolitionists. On the other, there is a great deal of terminological confusion on the meaning of ‘consent’ and ‘pimp,’ thereby making it difficult to differentiate (phenomenologically speaking) between ‘forced prostitution,’ ‘exploitation,’ ‘trafficking’ and ‘sexual slavery.’ Accordingly, as shown below, the abolitionist approach is flawed by four fallacies: the statistical, the phenomenological, the deductive and the deterrence fallacy. Thus, it is worth concluding that there is no empirical evidence supporting that abolishing prostitution, by punishing clients, can eradicate or at least decrease human trafficking for the purposes of sexual exploitation.8 Abolitionism: misleading data, confusing concepts and questionable assessments Normative claims As is well-known, a major stream of radical feminism,9 in favor of the abolitionist approach,10 claims that there is no such thing as truly ‘free or voluntary prostitution,’ since engaging in prostitution always results from the subjugation of women by men II. 1. model can be found in G. Ekberg, The Swedish Law that Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings, Violence Against Women (VAW), 2004, p. 1187 et seq. This abolitionist approach has been subsequently exported to other countries: see, for instance, Norway (2009, Section 202a of the Norwegian Criminal Code provides for fines or up to 6-month imprisonment); Iceland (2009, Article 206 of the Icelandic Criminal Code provides for a fine or a 1-year imprisonment sentence); Northern Ireland (2015, Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill 26/11-15)- amending Section 64A of the Criminal Code also provides for fines or up to 6-month imprisonment); or France (2016, LOI no. 2016-444 du 13 avril 2016 visant à renforcer la lutte contre le système prostitutionnel et à accompagner les personnes prostituées (1), where Article 611-1 of the Criminal Code provides that any person who requests, accepts or obtains sexual services will be fined EUR 1,500 –Art. 131-13–). Along these lines, the abovementioned citada European Parliament resolution (2014) “considers that one way of combating the trafficking of women and under-age females for sexual exploitation and improving gender equality is the model implemented in Sweden, Iceland and Norway (the so-called Nordic model), and currently under consideration in several European countries, where the purchase of sexual services constitutes the criminal act, not the services of the prostituted persons” (point 29). Accordingly, it “[s]tresses that prostituted persons should not be criminalised and calls on all Member States to repeal repressive legislation against prostituted persons” (point 26). 8 Totally opposed to this, J. G. Raymond, Not a choice not a job. Exposing the myths about prostitution and the global sex trade, 2013, passim. 9 K. Barry, The prostitution of Sexuality, 1995, passim; A. Dworkin, Prostitution and male supremacy, Michigan Journal of Gender & Law, 1993, p. 1 et seq.; C. A. Mackinnon, Toward a Feminist Theory of the State, 1991, passim. 10 Cfr. M. Madden Dempsey, Sex Trafficking and Criminalization: in defense of feminist abolitionism, University of Pennsylvania Law Review (U. Penn), 2010, p. 1729 et seq.; K. Miriam, Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex- Trafficking, Journal of Social Philosophy, 2005, p. 13-14. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 101 EuCLR Vol. 9, 1/2019 as well as from male domination.11 Prostitution is thus considered a way of forcing male sexuality on women, a form of gender violence and a form of sexual enslavement. This perspective denies the existence of free (as in voluntary) prostitution, disregarding the possibility of freely consenting to prostitution, since allowing the commercialization of sex entails overlooking the fact that “prostitution is itself an aggression against women and it ignores the role of prostitution in the overall subordination of women in society, thus leaving women’s most basic human rights unprotected.”12 Ultimately, it can be inferred from this line of reasoning that there is no ‘right to prostitute,’ and that women’s consent to make use of their sexuality is invalid. This is due to the following reasons: women are not genuinely free to prostitute (they cannot freely consent to it), and prostitution violates human dignity (a human right that cannot be waived or legally self-denied) and undermines women’s solidarity –hence, dignity of prostituted women is no longer solely construed as an individual value; it has now turned into a collective construct–.13 Descriptive claims Furthermore, along with these normative or evaluative claims revolving around ethical prescriptions (normative-ethical judgments), and thus not subject to verification or testing, this paper provides descriptive or more empirically-oriented analyses. Underlying the abolitionist model is also a positive analysis based on reality that may be verified or tested. Abolitionists claim that prostitutes are mostly forced into prostitution since they have no other choice: many prostituted women are victims of human trafficking mafias and/or pimps or procurers,14 they have histories of childhood sexual 2. 11 In this regard, the European Parliament resolution (2014) contends that “whereas there is a difference between ‘forced’ and ‘voluntary’ prostitution, it is obvious that prostitution is a form of violence against women” (cfr. Recital X). 12 K. Barry, The Penn State Report. International Meeting of Experts on Sexual Exploitation, Violence and Prostitution, UNESCO and Coalition Against Trafficking in Women, 1992, p. 5 et seq. (available at: http://unesdoc.unesco.org/images/0009/000913/091355mb.pdf; last visited: 10-11-2016). 13 Barry (fn 12), p. 7: “By reducing women to a commodity to be bought, sold, appropriated, exchanged, or acquired, prostitution affects women as a group. It reinforces the societal equations of women to sex which reduces women to being les tan human, and contributes to sustaining women’s second class status throughout the world.”. 14 M. Farley et al., Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, in: M. Farley (ed.), Prostitution, Trafficking and Traumatic Stress, 2003, p. 36. Indeed, the average of forced prostitution is estimated to be at 84% (cfr. M. Farley/K. Franzblau/M. A. Kennedy, Online Prostitution and Trafficking, Albany Law Review (ALR), 2014, p. 1.042). This work further examines all these issues. 102 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES abuse, they report psychological symptoms15 and they are poor;16 in sum, they are particularly vulnerable.17 In addition, prostitution is extremely dangerous.18 Some of these claims have not been tested, and some others are seriously biased from an empirical, conceptual and argumentative standpoint as shown in the studies supporting them. In any event, these claims lead to the ‘presumption of involuntariness’ regarding prostitution: no one in his/her right mind would voluntarily consent to it.19 This is what Rubin20 designates as the ‘brainwashing theory,’ whereas Kulick21 calls it the ‘ugh policy’ (‘política del ahhjjj’ in Spanish), using an onomatopoeia of disgust. That is how a “fake empiricism” takes place, “where own beliefs and experiences end up superseding those of the main actors.”22 According to Pons i Antón,23 “this inference possibly results from a misapplication of empathy. Instead of putting themselves in the prostitute’s 15 In this connection, the European Parliament resolution (2014) “notes that 80-95% of prostituted persons have suffered some form of violence before entering prostitution (rape, incest, paedophilia), that 62% of them report having been raped and that 68% suffer from posttraumatic stress disorder – a percentage similar to that of torture victims” (point 17). It seems like these figures have been taken from the study conducted by Farley et al. (fn. 14), p. 42 et seq., who interviewed 854 women currently or recently in prostitution in 9 countries (Germany, Canada, Colombia, Mexico, United States, South Africa, Thailand, Turkey and Zambia). See other studies from different countries providing some alarming data on childhood violence suffered by persons who later engage in prostitution in M. Waltman, Prohibiting Sex Purchasing and Ending Trafficking. The Swedish Prostitution Law, Michigan Journal of International Law (MJCL), 2011, p. 138, note 21. 16 The European Parliament resolution (2014) also “points out that economic problems and poverty are major causes of prostitution among young women and under-age females” (point 48). 17 Along these lines, the European Parliament resolution (2014) stresses “that data show that a majority of persons in prostitution are recognised as vulnerable persons in our societies” (point 6); and “that prostituted persons are particularly vulnerable socially, economically, physically, psychologically, emotionally and in family terms, and are more at risk of violence and harm than persons engaged in any other activity” (point 13). 18 Farley et al. (fn. 14), p. 44, underlines that 64% of interviewed women in prostitution “had been threatened with a weapon, 71% had experienced physical assault, and 63% had been raped.” On the violence of customers of prostitution (‘johns’) there are also some startling figures provided by S. K. Hunter, Prostitution Is Cruelty and Abuse to Women and Children, Michigan Journal of Gender & Law (MJGL), 1993, p. 93-94; as well as by M. H. Silbert/A. M. Pines, “Occupational hazards of Street Prostitutes, Criminal Justice & Behavior, 1981, p. 397, in US cities. See also, the data supplied by Rothman, AMA 2017, p. 111, who includes additional health-related issues (sexually transmitted infections, stigma, substance misuse, posttraumatic stress disorder, suicide, and, even, consequences for children born). 19 Cfr. Maqueda Abreu (fn. 2), p. 27. 20 G. S. Rubin, Penser le sexe. Pour una théorie radicale de la politique de la sexualité, in: G. S. Rubin/J. Butler, Marché au sexe, 2001, p. 125. 21 D. Kulick, La penalización de los clientes y la política del ahhjjj en Suecia, in: R. Osborne (ed.), Trabajador@s del sexo. Derechos, migraciones y tráfico en el S. XXI, 2004, p. 233. 22 Maqueda Abreu (fn. 2), p. 27 (own translation). 23 I. M. Pons i Antón, Más allá de los moralismos: prostitución y ciencias sociales, in: R. Osborne (ed.), Trabajador@s del sexo. Derechos, migraciones y tráfico en el S. XXI, 2004, p. 116 (own translation). Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 103 EuCLR Vol. 9, 1/2019 position, vicariously experiencing her beliefs, specialists and scholars put themselves in the shoes of the actual beliefs.” The controversial percentage: “between 80% and 95%” In spite of these claims, having regard to the relevant empirical studies, it can be noted that the 80%-95% international range provided by Barry24 as the percentage of ‘forced prostitution’ stems from the following aspects: firstly, from an all-embracing understanding of ‘pimping,’ encompassing both coercive and non-coercive pimping (that is, procuring or pandering with or without violence, intimidation or abuse). Secondly, it usually does not only cover ‘coercive’ and ‘abusive prostitution’ (i.e. forms of prostitution taking place as a result of coercion by a third party), but also ‘prostitution forced by the circumstances.’ In the latter case, even in the absence of any pimp (‘third-party broker’), it is considered that the ‘victim’ has ‘no choice but’ to engage in prostitution. In other words, ‘involuntary prostitution’ or ‘forced prostitution’ encompasses both the cases where the lack of freedom results from third-party coercion or abuse (a true coercive pimp) and those where there is an apparently free decision not driven by anyone, yet triggered by adverse circumstances. Thirdly, a series of outcomes obtained from small samples are often extrapolated to broad samples. Finally, it is worth adding that insufficient and barely scientific sources are sometimes cited. Moreover, media usually publish statistics supplied by governmental and non-governmental groups seeking to put an end to prostitution and they present them as true. These statistics tend to be significantly skewed and inconsistent.25 There are newspaper articles including claims and overstatements that fuel moral panic.26 These news stories are based on figures on prostitution provided by associations portraying sex workers as victims or by care centers focusing on the most disadvantaged prostitutes, as well as by abolitionism advocates.27 Let’s examine this in an orderly fashion. In 1995,28 Barry made the following claim: “In all the world regions, estimates from organizations addressing the exploitation of women in prostitution, including some a) 24 Barry (fn. 9), p. 198. One of the many Pinterest entries is actually titled “Prostitution- Fighting for the 95% who Don’t Choose It” (https://www.pinterest.co.uk/EWLonPinterest/pros titution-fighting-for-the-95-who-dont-choose-i/; last visited February 9, 2018). 25 The article published on The Washington Post on March 27, 2014 is very remarkable: “Lies, damned lies and sex work statistics” (https://www.washingtonpost.com/news/the-watch/wp /2014/03/27/lies-damned-lies-and-sex-work-statistics/?utm_term=.935977ac2505; last visited February 9, 2018). The author, M. McNeill, underlines that the statistical methods used to obtain figures regarding sexual workers are unreliable, although the results thereof are accepted by the media without critically assessing these methods. 26 McNeill, ibidem. 27 Cfr. O. A. Álvarez Varcárcel, Contratos sexuales, conflictos feministas: análisis de los discursos del debate parlamentario sobre prostitución en el estado español, 2015, p. 245 and 248; Maqueda Abreu (fn. 2), p. 28, note 121; Pons i Antón (fn 23), p. 117. 28 Although there were prior works showing similar figures (K. Barry, Female Sexual Slavery, 1979, p. 130; Hunter, MJGL 1993, p. 101; R. Prus/S. Irini, Hookers, Rounders, and Desk Clerks: The Social Organization of the Hotel Community, 1980, p. 11). 104 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES prostitution groups, show that 80% to 95% of all prostitution is pimp controlled.”29 Many authors subsequently echoed this percentage range.30 Similarly, there were academic papers and studies supporting these figures,31 and according to these works, the average of forced prostitution was equal to 84%.32 However, O’Connell Davidson33 is critical of the overarching understanding of ‘pimping’ used by Barry, encompassing both coercive and non-coercive pimping and, within the latter notion, including intimate partners of prostituted women. Barry defines ‘pimp’ as any third party making profit from prostitution, including intimate partners, regardless if women are actually coerced into prostitution by a third party.34 In Barry’s view, “this all-encompassing definition of ‘pimping’” unsurprisingly leads to assert that the vast majority of all prostitution worldwide (between 80% and 95%) is ‘pimp controlled.’ However, this assertion “renders that estimate quite meaningless.” Most certainly, “if all adult significant others are to be defined as pimps, it is neither surprising nor helpful to be told that the vast majority of prostitutes are ‘pimped.’”35 Nonetheless, in the words of O’Connell Davidson,36 “the percentage of prostitutes who are pimped are not reliable unless they are based upon a clearly formulated definition of pimping which has been consistently employed in data collection around the world.” Consequently, “since this kind of research has not been undertaken to date, no one is in a position to play the numbers game in relation to the issue of pimping.” Currently, “on the basis of the kind of research that has been done (…) all that can be said 29 Barry (fn. 9), p. 198. 30 R. Brannon, Trafficked Women, Used in Prostitution, Are Not ‘Sex-Workers’, Panel on Sex Trafficking, International Masculinities Conference, New York, March 6, 2015 (http://nomas .org/trafficked-women-prostitution-sex-workers/; last visited: December 2, 2018); Farley/ Franzblau/Kennedy, ALR 2014, p. 1042, note 14; J. Faugier/M. Sargeant, Boyfriends, ‘Pimps’ and Clients, in: G. Scambler/A. Scambler (eds.), Rethinking Prostitution: Purchasing Sex in the 1990s, 1997, p. 121. 31 J. B. Helfgott, Criminal Behavior: Theories, Typologies, and Criminal Justice, 2008, p. 301; Faugier/Sargeant (fn 30), p. 121 et seq.; Scelles Foundation, Sexual Exploitation: Prostitution and Organized Crime, 2012, p. 173 (available at: http://www.fondationscelles.org/pdf/rappo rt_mondial/sexual_exploitation_prostitution_Fondation_Scelles.pdf); L. Brown, Sex Slaves: The Trafficking of Women in Asia, 2000, p. 66. 32 Farley/Franzblau/Kennedy, ALR 2014, p. 1.042. 33 J. O’Connell Davidson, Prostitution, Power and Freedom, 1998, p. 45. 34 Barry (fn. 9), p. 218, is against amending pieces of legislation that punish boyfriends and husbands living off ‘immoral gains,’ even if they do not actively encourage or arrange prostitution, based on the following argument: “all prostitution is sexual exploitation, and so every relationship that sustains it is abusive: with a costumer, with a pimp or ‘my man,’ or with a boyfriend or husband. While degrees of abuse and ranges of affection may vary in these relationships, the all promote, aid, and encourage the sexual exploitation of women through prostitution.”. 35 Other scholars provide a narrower definition of ‘pimp,’ as any person “who controls the actions and lives off the proceeds of one or more women who work the streets” (C. Williamson/T. Cluse-Tolar, Pimp-controlled prostitution: Still an Integral Part of Street Life, Violence Against Women (VAW), 2002, p. 1074). 36 O’Connell Davidson (fn 33), p. 45. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 105 EuCLR Vol. 9, 1/2019 with certainty is that some prostitutes are subject to the control of pimps and some work independently.”37 In this vein, the above-mentioned study conducted by Farley et al.38 fails to mention what percentage of the 854 interviewed women in nine countries were coerced into prostitution by third parties. In this regard, the study’s authors acknowledge that “there are little research data available.” However, they contend that “agencies serving prostituted women observe that a majority of prostitution is pimp controlled,” with no further reference.39 Hence, as stated above, the very organizations supporting the most disadvantaged prostitutes only base their estimates on the domain they know, thereby victimizing all prostituted women. Nevertheless, the percentage of sex workers that do not ask for these associations’ assistance remains unknown, so we are unable to obtain global data. Furthermore, along the lines of the extensive definition of pimping endorsed by a significant number of scholars, Farley et al.’s study includes both coercive and noncoercive pimping within the scope of this notion: “A pimp is the man or woman who procures the prostitute, promotes, and sells her, and profits from prostitution. By this definition, pimps are not only the men on the Street, pimps are also strip club owners, bar owners, disc jockeys, taxi drivers, concierges, motel managers, etc.”.40 Thus, admittedly there are no reliable data on voluntary prostitution, but we must trust the estimates of those organizations assisting prostituted women. Additionally, an all-encompassing definition of pimping is applied, covering non-coercive pimping and thus overstating the percentage of ‘forced prostitution’ with no supporting data. Nonetheless, in spite of these claims, as highlighted by Madden Dempsey,41 the empirical evidence does not provide sufficient grounds to establish the percentage of forced prostitution (along the lines of O’Connell Davidson). The evidence does show that there are many involuntary prostitution cases, not only in rare cases, as claimed by Wolfenden in 1957. In her work, Madden Dempsey rightly criticizes the conclusions drawn by Wolfenden, who claimed that prostitution was almost entirely free. As highlighted by Madden Dempsey, significant empirical evidence disproves this percentage, yet the evidence does not allow to conclude the opposite, i.e. that prostitution is mostly involuntary. That percentage actually remains unknown, but radical conclusions are not advisable. In a nutshell: we lack an accurate percentage of forced prostitution, but it is definitely far from 0% (as contended by Wolfenden in the 1950s). However, a percentage at the other end of the spectrum, i.e. asserting that forced prostitution exceeds 80% of cases, is also ill-founded. Particularly when this percentage stems both from an 37 O’Connell Davidson (fn 33), p. 45. 38 Farley et al. (fn. 14), p. 33 et seq. 39 Farley et al. (fn. 14), 2003, p. 36. 40 Farley et al. (fn. 14), 2003, p. 66. 41 M. Madden Dempsey, Rethinking Wolfenden: prostitute-use, criminal law, and remote harm, Criminal Law Review, 2005, p. 446-447. Also in U. Penn, 2010, p. 1731, note 3, literally says: “I do not believe that all prostitution is pimped.”. 106 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES overarching understanding of ‘pimping’ and from a narrow definition of consent, constrained by the adverse circumstances of those who engage in prostitution. In addition, as stated above, numerous studies are based on samples confined to small areas or limited to specific types and realities of prostitution, and/or they are methodologically flawed (or they even fail to provide a methodology altogether). Farley/Franzblau/Kennedy42 refer to 84% “as an estimate of those who were under thirdparty control, pimped, or trafficked,” using “either whole number estimates or whole numbers based on the midpoint of a given estimated range” provided by various studies. Notwithstanding the foregoing, most of those scholarly works can be criticized: 1. A New York pimp (¡!) “estimated that 70% of women working [there] as prostitutes are being compelled to do so by pimps who use beatings and drugs and most importantly the threat of jail, to keep their girls in line.”43 Thus, the scientific basis of such a claim should be called into question. Furthermore, other studies carried out in the United States, although on street prostitution, provide very different figures. Dalla44 holds that, in spite of the widespread image of pimp-controlled street prostitution, less than 50% of the sample (17 out of 43 interviewed women from Midwest cities in the US) acknowledged they were subjugated. In fact, Williamson/Cluse-Tolar45 stress “the steady increase in independent prostitution,”46 and, regarding street prostitution, they offer similar figures: a study conducted in 1990 by the Council for Prostitution Alternatives Program (Portland, Oregon) found that almost 50% of the sampled women were involved with pimps. Also, according to the 2001 Californian project by Mary Magdelene, that percentage was equal to 42% –although it cites a study with higher figures–.47 This paper is by no means claiming that prostitution, not even street prostitution, is mostly voluntary. We are simply stating that there are figures that greatly differ from the aforesaid 80%-95% of forced prostitution overall. 2. A study conducted in 2012 by the Scelles Foundation48 stated that approximately 90% of prostituted persons in Spain were victims of human trafficking. However, 42 Farley/Franzblau/Kennedy, ALR 2014, p. 1.042, note 14. 43 It is cited as follows: “Prostitution—Legalize or Decriminalize?, DAVIS2013.COM (July 30, 2012), http://davis2013.com/prostitution-legalize-or-decriminalize/.”. 44 R. L. Dalla, Night Moves: a Qualitative Investigation of Street-Level Sex Work, Psychology of Women Quarterly (PWQ), 2002, p. 66. 45 Williamson/Cluse-Tolar, VAW 2002, p. 1.075. 46 Cfr., also, R. B. Flowers, The prostitution of women and girls, 1998, passim; and, J. Miller, Your life is on the line every night you’re on the streets: Victimization and the resistance among street prostitutes, Humanity & Society (H&S), 1993, p. 422 et seq. 47 In this vein, E. Giobbe, A comparison of pimps and batterers, Michigan Journal of Gender & Law, 1993, p. 33 et seq., held that 53% of sampled women had entered into prostitution through a pimp, and that over 80% of them were involved with pimps at some point. 48 Scelles Foundation (fn 31), p. 268 et seq. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 107 EuCLR Vol. 9, 1/2019 in 2006, the Spanish Government concluded the following: “There are no sufficiently rigorous studies or research accurately providing the number of persons that engage in prostitution; who is freely consenting to it; how many have entered the country illegally using human trafficking networks in order to subsequently engage in prostitution by themselves, or how many have been abused or coerced into prostitution (human trafficking victims).”49 Ever since, 95% has been stubbornly put forward as the percentage of forced prostitution, but the truth is that this figure arises from a method as little scientific as the ‘word of mouth.’50 The same Scelles Foundation study51 concluded that 50%-90% of prostitutes in Amsterdam’s Red Light District were human trafficking victims; there is a considerable difference between those two percentages. It could be inferred that this range cannot be narrowed, and thus the only assertive claim we could make is that coercive prostitution in Amsterdam’s Red Light District exceeds 50%, which greatly differs from the midpoint (70%) and from the aforesaid 84%. 3. Reference is also made to Irish data in the following terms: “Ruhama estimated that 80% of women in prostitution were under third-party control,” the source being an email from Sarah Benson, Ruhama’s CEO, to Melissa Farley sent on April 10, 2014. On the one hand, Ruhama is a Dublin-based NGO working with women affected by prostitution, including victims of trafficking for the purposes of sexual exploitation.52 Thus, non-coerced sex workers are not the main users of this NGO. On the other hand, an email provides no scientific foundation at all. 4. In this connection, it has been asserted that, in Germany, SOLWODI “estimated that 80% of women in prostitution are placed ‘under strong pressure’ and have no alternatives. This pressure may come from a partner or even their family, who send them abroad to work and send money back.”53 Yet again, SOLWODI is a German association assisting women who have been victims of trafficking for sexual purposes.54 Further data referred to Germany are provided by Paulus. According to him, 95% to 99% of women in prostitution in Germany have pimps, but he includes no reference whatsoever besides the following claim: “This conclusion is supported by largely consistent criminal intelligence, according to 49 Available at: http://www.colectivohetaira.org/web/documentos/251-tratamiento-de-la-prost itucion-en-los-medios-de-comunicacion.html (last visited October 11, 2016) (own translation). Cfr. also, Álvarez Varcárcel (fn 27), p. 245. 50 Cfr. M. Llobet Anglí, ¿Prostitución?: ni sí ni no, sino todo lo contrario. Sesgos empíricos, contradicciones de lege lata y desaciertos de lege ferenda, Revista Electrónica de Ciencia Penal y Criminología, 2007, p. 15 et seq. 51 Scelles Foundation (fn 31), p. 210 et seq. 52 Cfr. http://www.ruhama.ie/. 53 Citing: Eur. Consult. Ass., Prostitution, Trafficking and Modern Slavery in Europe, Doc. no. 13446, 2014, p. 12. 54 Cfr. https://www.solwodi.de/99.0.html?&L=1; last visited: March 7, 2018. 108 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES which 95-99% of the women working in the German milieu are under the control of others.”55 5. Finally, in Asia,56 some data show that 86% of Nepalese women sent to Indian brothels were not aware that they had to engage in prostitution when they left their homes; the same percentage of women rescued by the police in Phnom Penh brothels had been deceived or sold to engage in prostitution. In this regard, the following is worth noting, however: on the one hand, prostitution is practiced in confined spaces, under third-party control, but there are many other forms of prostitution. On the other, the first sample includes women sent to brothels, providing the percentage of women who went there knowingly and those who did not. As a result, it shows the rate of women that were deceived into prostitution. However, this percentage says nothing about the percentage of forced prostitution within prostitution as a whole. Farley/Franzblau/Kennedy also obtain the 84% average from the following works. Some studies in the US report that 80%-90% of those in prostitution have pimps.57 In Europe, the same 2012 study conducted by the Scelles Foundation58 also estimated that 80% of prostituted persons in Italy were human trafficking victims, whereas in Bulgaria this percentage was 95%. Also according to this study, 90% of road prostitution in Poland was controlled by organized criminal groups. b) In the absence of direct verification, let’s resort to an irrebuttable presumption (iuris et de iure), even if there is evidence to the contrary Notwithstanding the foregoing, even accepting that we lack accurate percentages of forced prostitution (which have thus not been obtained by direct evidence), we can presume this percentage beyond reasonable doubt based on the following data: poverty, immigration, childhood sexual abuse and the dangers of prostitution, both in terms of violence of pimps and ‘johns’ against prostitutes, as well as in terms of the psychological symptoms reported by women in prostitution. Being a poor immigrant who 55 M. Paulus, Out of Control. On liberties and criminal developments in the redlight districts of the Federal Republic of Germany, Prostitution Resources, May 6, 2014 (available at: https: //ressourcesprostitution.wordpress.com/2014/05/06/m-paulus-out-of-control-on-liberties-a nd-criminal-developments-in-the-redlight-districts-of-the-federal-republic-of-germany/; last visited: March 7, 2018). Also with regard to Germany, there are figures provided by Barbara Yondorf, a policy analyst who estimated that the percentage of pimp-controlled prostitutes in the country ranged between 80% and 95% (apparently the source is Barry’s 1979 book cited above fn 28, p. 130). 56 Brown (fn 31), p. 66 and 89. 57 Faugier/Sargeant (fn 30), p. 119; Helfgott (fn 31), p. 301. Another study showed that more than 80% of prostituted women in hotels were pimp controlled (Prus/Irini (fn 28), p. 11). 58 Scelles Foundation (fn 31), p. 170 et seq., 61 et seq., and 232 et seq., respectively (Italy, Bulgaria and Poland). Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 109 EuCLR Vol. 9, 1/2019 has suffered sexual abuse as a child turns you into a vulnerable person, and agreeing to practise such a dangerous profession is ample proof of being in need. Although many persons in prostitution are poor female immigrants, this is also the case with other jobs such as housekeeping or elderly care,59 and they are not considered forced or compulsory labor (obviously banned by any Human Rights treaty60). From these data, one could only infer that persons generally prefer certain jobs over others, prostitution not being a popular profession for people with other career opportunities (as is the case with education and training, where some options have greater demand than supply and vice versa). Consequently, although prostitution would be the last choice for a major part of the population, some people engage in prostitution driven by their circumstances, yet not forced by third parties. Furthermore, danger is not inherent to prostitution but is, rather, circumstantial. If prostitution was practiced in controlled regulated locations, the violence related thereto would possibly decrease,61 as well as any posttraumatic stress disorders arising from violent situations, not from prostitution itself. The pro-legalization model actually advocates this control and regulation. Additionally, inferring that only vulnerable persons choose dangerous jobs is counterfactual. There are other strong incentives to practice hazardous jobs, particularly greater economic gains. Thus, given the alternatives (housekeeping, caring for the sick and elderly, cleaning, etc.) available to underprivileged and/or immigrant women, maybe greater remuneration could make up for the prostitution-related risks. As asserted by Juliano,62 “within this context, prostitution could be considered just as another choice (...) although frowned upon and with better pay.” Along these lines, there are studies63 highlighting that persons choosing 59 According to data from the 2015 American Community Survey (ACS), “the greatest numbers of low-wage immigrant women workers are maids and housekeepers, cashiers, and personal care aides.” In conclusion, “maids and housekeepers account for the largest number of immigrant women workers” (available at: https://www.americanimmigrationcouncil.org/res earch/impact-immigrant-women-americas-labor-force; last visited: September 25, 2018). 60 Art. 4(2) of the European Convention of Human Rights: “No one shall be required to perform forced or compulsory labour”; or Art. 6(2) of the American Convention on Human Rights: “No one shall be required to perform forced or compulsory labor”. 61 Different jobs show startling figures on violence in street prostitution. Miller (H&S 1993, p. 422 et seq.) interviewed 16 street prostitutes with the following results: 93.8% had experienced sexual assaults; 43.8% had been forced or coerced into sexual activity with men who had previously identified themselves as policemen; 75% had been raped by one or more scam artists or clients, and more than half had been robbed. This is why this activity has been rated as inherently dangerous (Dalla, PWQ 2002, p. 65) and the said violence as endemic (M. O’Neill, Prostitute women now, in: G. Scambler/A. Scambler, (eds.), Rethinking Prostitution: Purchasing Sex in the 1990s, 1997, p. 3 et seq.). See also the data provided by Rothman, AMA 2017, p. 11, amplified for ‘street’ sellers as compared to ‘indoor’ sellers. About which legal model causes least harm see Howard, BMJ, 2018, p. 361 et. seq. 62 D. Juliano, La prostitución: el espejo oscuro, 2002, p. 190 (own translation). 63 J. Phoenix, Prostitute identities. Men, money and violence, The British Journal of Criminology, 2000, p. 40 et seq.; Informe ESCODE (G. Malgesini coord.), Impacto de una posible normalización profesional de la prostitución en la viabilidad y sostenibilidad futura del sistema de pensiones de protección social, 2006, p. 19 (available at: http://www.seg-social.es/pr di00/groups/public/documents/binario/51873.pdf; last visited: November 8, 2016). 110 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES prostitution as a job seek a higher economic status and a self-determined life that would otherwise be impossible to achieve. In fact, American football players are likely to suffer an injury called Chronic Traumatic Encephalopathy (CTE).64 However, nobody claims that they are ‘coerced’ into playing football arguing that no one in his/her right mind would voluntarily choose such a dangerous profession. As opposed to prostitutes, football players have a high social status. However, the reasons for people to choose one job or another fall within the scope of individual autonomy, and these reasons can thus offset greater risks entailed by the job. Finally, it is worth reiterating that those studies showing a high rate of scars stemming from prostitution fail to provide the percentage of women who were coerced into prostitution. The abovementioned study conducted by Farley et al. found that 68% of the 854 interviewed prostitutes met criteria for a diagnosis of posttraumatic stress disorder (PTSD). The severity of these PTSD symptoms was in the same or in a higher range than those of Vietnam veterans, battered women or torture victims.65 However, as mentioned before, the study draws its conclusions without stating the percentage of women who engaged in prostitution voluntarily. Self-evidently, a person forced into prostitution will most likely suffer PTSD (in fact, 68% seems like a low percentage, which can suggest that those women who do not suffer PTSD are not affected by this disorder precisely because they are not coerced into prostitution). Consequently, it would now be necessary to prove how many women voluntarily in prostitution suffer these psychological after-effects, in order to evidence the evils inherent to prostitution thereby showing that nobody would choose such a dangerous profession if he/she had alternatives. Nonetheless, on this major issue it is worth noting that some studies show that 45% of prostitutes acknowledge they do have choices to leave prostitution, whereas 55% claim there are no appropriate alternatives to get out of prostitution. Put simply, almost half apparently do have a choice, so there can be no talk about prostitution forced by the circumstances. However, there are, of course, all sorts of studies making alternative claims. According to the survey conducted by Farley et al., 89% of interviewed women wanted to get out of prostitution but they were unable to. Yet again, let’s keep in mind that we do not know how many sampled women were forced into prostitution, or how many engaged in prostitution due to the lack of alternatives.66 64 B. Omalu et al., Chronic Traumatic Encephalopathy in a National Football League Player, Neurosurgery, 2005, p. 128 et seq. 65 Farley et al. (fn. 14), p. 44. 66 Farley et al. (fn. 14), p. 56. As stated above, the study had previously acknowledged that the percentage of pimp-controlled prostitution remains unknown. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 111 EuCLR Vol. 9, 1/2019 c) More presumptions. From ‘vulnerability’ to ‘trafficking’ –and even up to ‘slavery’– The aforesaid vulnerability allows to infer a close connection between ‘trafficking’ and ‘prostitution.’ These ties convey that prostitution is practically a synonym for both pimping (i.e. forced prostitution) and trafficking. Indeed, the UN has made the following assertion: “For the most part, prostitution as actually practised in the world usually dos satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or and abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and live within ‘the life’ is rarely on marked by empowerment or adequate options,”67 which has also led to a close connection between prostitution and slavery: “[I]f purchasers can buy persons and pimps can sell them for sex, but the persons themselves want to escape and cannot, (as explicitly reported by eighty-nine percent of 785 persons in nine countries) then according to the Slavery Convention, these persons appear to be in a ‘status or condition (…) over whom any or all of the powers attaching to the right of ownership are exercised,” and who are exploited due to their lack of alternatives.68 Note that, regarding prostitution, vulnerability –meaning the absence of life choices tied to poverty and immigration- entails, per se, that prostitutes are victims of human trafficking –or enslaved–, since ‘trafficking’ implies making a profit from the vulnerability of others, even if the profit is not unreasonable. Thus, given that most prostitutes are vulnerable, almost all of them are also victims of trafficking if anyone makes a profit from their sex work. This circular reasoning has been embraced by abolitionists and EU provisions.69 The European Parliament resolution of 26 February 2014 “stresses that there are several links between prostitution and trafficking, and recognises that prostitution – both globally and across Europe –feeds the trafficking of vulnerable women” (point 3).70 However, immediately thereafter (point 4) this resolution acknowledges “that the 67 Report of the Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, especially Women and Children. Integration of the Human Rights of Women and the Gender Perspective. Commission on Human Rights. Economic and Social Council. United Nations. 20 February 2006. E/CN.4/2006/62, p. 9, point 42 (available at: http://lastra dainternational.org/lsidocs/8%20Report%20of%20the%20Special%20Rapporteur%20(UN HCR).pdf). 68 Waltman, MJCL 2011, p. 145. 69 J. Mª Tamarit Sumalla, Regular la prostitución: razones y retos, Hermes: pentsamendu eta historia aldizkaria = revista de pensamiento e historia, 2007, p. 11. 70 In addition, the same point “stresses that, as shown by data from the Commission, a majority of victims (62%) are trafficked for sexual exploitation.” Hence, it remains unclear whether the word ‘victim’ included therein refers to ‘victims of trafficking’ or ‘victims of prostitution.’ Thus, it is doubtful whether 62% is the percentage of human trafficking victims for sexual exploitation purposes (or for other purposes, such as labor exploitation), or whether it is the percentage of prostitution victims which are also victims of trafficking. Nonetheless, a previous European Commission study evidences that such percentage refers to trafficking 112 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES lack of reliable, accurate and comparable data among countries, owing mainly to the illegal and often invisible nature of prostitution and trafficking, keeps the prostitution market opaque and hinders political decision-making, which means that all figures are based solely on estimates.” In fact, the European Parliament itself concluded in 2005 that “a final evaluation of the legislative models on prostitution in the European Union in terms of their impact on the number of victims should be based on more reliable and comparable empirical statistics (especially on victims) and on a wider set of data referred to other factors/variables.”71 In spite of the fact that these studies are yet to be carried out, in its 2014 resolution the European Parliament recommends the abolitionist model with no empirical basis whatsoever. It is worth noting that a previous UN study published in 2010 said that one of every seven prostituted women (approximately 15%) are victims of human trafficking.72 Hence, the United Nations itself has proven wrong the following claim: “[P]rostitution as actually practised in the world usually does satisfy the elements of trafficking.” In spite of this, the 2006 conclusion is stubbornly put forward in lieu of the 2010 results, although it is not provided by an official body as prominent as the European Parliament. It is actually really hard to establish the numbers regarding human trafficking for the purposes of sexual exploitation; statistics are either non-existent or scarce and contradictory. Moreover, the claim that there is such a close link between prostitution and trafficking is furthered by the broad wording of the crimes of trafficking in persons for sexual exploitation provided in several international instruments,73 regarding both criminal behaviors and the meaning of ‘sexual exploitation’ purposes. victims (cfr. the European Commission press release dated April 15, 2013 under the heading “Trafficking in human beings: more victims in the EU but Member states are slow to respond” (available at: http://europa.eu/rapid/press-release_IP-13-322_en.htm; last visited: February 19, 2018). 71 Cfr. its cited study: National Legislation on Prostitution and the Trafficking in Women and Children, p. xi-xii. 72 Cfr. the Report titled: “Trafficking in Persons to Europe for sexual exploitation” performed by the United Nations Office on Drugs and Crime (UNODC), 2010; available at: https://w ww.unodc.org/documents/publications/TiP_Europe_EN_LORES.pdf; last visited: October 10, 2016. It is worth noting that there is a subsequent report prepared in 2014 on human trafficking (Global Report on Trafficking in Persons, also drafted by the UNODC; available at: https://www.unodc.org/documents/data-and-analysis/glotip/GLOTIP14_ExSum_english.p df, last visited: February 19, 2018). However, it does not show the percentage of prostituted persons that have also been victims of trafficking. 73 See Art. 2 of Directive 2011/36/EU of the European Parliament and of the Council, of 5 April 2011, on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. Cfr, also, Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings done at Warsaw on May 16, 2005. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 113 EuCLR Vol. 9, 1/2019 d) From the statistical and phenomenological fallacies to the deductive fallacy: the end of prostitution will eradicate human trafficking Regardless of figures, departing from the statistical fallacy (the average of forced prostitution approximately amounts to 84%), the abolitionist approach not only reaches the phenomenological fallacy, according to which prostitution and trafficking are completely intermingled, but also the deductive fallacy: the only way to eradicate human trafficking is to put an end to prostitution. Assuming that most prostitute women are vulnerable (since they tend to be poor immigrants who have experienced violent events) as well as that such lack of alternatives prevents a valid consent to prostitution –regardless if they are forced by a third party- (step 1: statistical fallacy), encouraging prostitution in any way for profit, even provided that the prostituted person has consented to it and there is no economic abuse, does not only amount to coercive pimping, but also to human trafficking for purposes of sexual exploitation (step 2: phenomenological fallacy). Therefore, in order to end a crime as serious as human trafficking, prostitution needs to be eradicated (step 3: deductive fallacy). How? By punishing anyone making a profit from prostitution as well as the end customer –not the prostitute, since her being victimized provides grounds to end prostitution; it would be contradictory that the offender and the victim in a prostitution-related crime were the same person. This takes us to the last fallacy, which could be designated as the deterrence fallacy. Waltman’s abolitionist reasoning expresses the foregoing arguments:74 “By recognizing the clear link between prostitution and trafficking –that the reality of prostitution ‘usually does satisfy the elements of trafficking’ (as U.N. 2006 Trafficking Report says) it becomes evident that in order for trafficking to end, prostitution must end as well.” However, please note that no statistics are provided neither regarding such a link, beyond the reference made to the United Nations report which, as shown above, is not based on empirical studies,75 nor regarding the effectiveness of punishing the end customer for the prevention of such behaviors. e) The deterrence fallacy Certainly, there are no uncontested studies showing that punishing the end customer of prostitution effectively ends this reality, and the same applies to human trafficking for the purposes of sexual exploitation (since they are the same thing).76 Certain sec- 74 Waltman, MJCL 2011, p. 146. 75 Citing the Report of the Special Rapporteur on the Human Rights (2006) –see fn 67–. 76 Cfr. the figures provided by Waltman, MJCL 2011, p. 146 et seq., according to which prostitution in Sweden has significantly decreased since the implementation of the abolitionist model. Conversely, J. Bindel/L. Kelly, A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden, Child and 114 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES tors insist that implementing the abolitionist model has: i) invisibilized sex work;77 ii) Women Abuse Studies Unit, London Metropolitan University, 2003, p. 72 et seq. (available at: http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.642.7774&rep=rep1&type=pd f; last visited: October 5, 2018); and Ekberg, VAW 2004, p. 1193, consider there has been a significant decrease in street prostitution, and a decrease in Sweden’s attractiveness to traffickers. They are also optimistic when they consider that punishing clients has preventive effects on prostitution: R. Durchslag/S. Goswami, Deconstructing the Demand for Prostitution: Preliminary Insights from Interviews with Chicago Men Who Purchase Sex, Chicago Alliance Against Sexual Exploitation, May 2008, p. 3 (available at: https://www.issuelab.org/ resources/1190/1190.pdf; last visited October 5, 2018), who stress that 83% of interviewees said jail time has consequences that would serve as deterrents; and J. Macleod et al., Challenging Men’s Demand for Prostitution in Scotland. A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution, 2008, p. 27 (available at: http://www.pro stitutionresearch.com/ChallengingDemandScotland.pdf; last visited October 5, 2018), showing that the answer to the question “What Would Deter Men in Scotland from Buying Sex,” is “having to spend time in jail” for 79% of respondents (please note that both cases refer to a specific criminal law measure, the strictest one, but not to criminal law per se. Let’s recall, however, that they do not actually go to jail (cfr. the newspaper article titled “No jail time for Sweden’s sex buyers: report” (2013): “In late 2011, Justice Minister Beatrice Ask raised the red flag about the lenient sentencing doled out in Swedish courts to Swedes convicted of buying sex. In July 2012, the law was rewritten, allowing courts to send offenders to jail for a maximum of one year, rather than the six months behind bars that had previously been the strictest sentencing available to the Swedish justice system. Yet the rewrite has had little effect, noted Johan Linander, Centre Party MP and vice-chairman of Riksdag Committee on Justice (Justitieutskottet). ‘The courts make limited use of the range of sentencing available to them,’ Linander told The Local.” Available at: https://www.thelocal.se/2 0130527/48160; last visited: October 29, 2018). Finally, S.-Y Cho/A. Dreher/E. Neumayer, Does Legalized Prostitution Increase Human Trafficking?, World Development, 2013, p. 67; and N. K. Marinova/P. James, The Tragedy of Human Trafficking: Competing Theories and European Evidence, Foreign Policy Analysis, July, 2012, p. 231, conclude that “on average, countries where prostitution is legal experience larger reported human trafficking inflows” and that “legalization leads to an increase in trafficking,” respectively. Along these lines, N. Jakobsson/A. Kotsadam, The law and economics of international sex slavery: prostitution laws and trafficking for sexual exploitation, European Journal of Law and Economics, 2013, p. 87 et seq., hold that “case studies of two countries (Norway and Sweden) that have criminalized buying sex support the possibility of a causal link from harsher prostitution laws to reduced trafficking,” i.e. that “the results suggest that criminalizing procuring, or going further and criminalizing buying and/or selling sex, may reduce the amount of trafficking to a country.” Nevertheless, they do acknowledge that “the data do not allow us to infer robust causal inference.” Other authors are not as optimistic regarding the preventive effects of punishing clients and its impact on reducing prostitution (and trafficking): see Kulick (fn 21), p. 224 et seq.; J. M. Tamarit Sumalla/N. Torres Rosell/M. J. Guardiola Lago, ¿Es posible una política criminal europea sobre prostitución?, Revista de Derecho y proceso penal (RDPP), 2006, p. 205 et seq.; J. H. Eriksson, Lo que falla en el modelo sueco, in: E. Acién/J. L. Solana (eds.), Los retos de la prostitución. Estigmatización, derechos y respeto, 2008, p. 187-188; L. Lim, El sector del sexo: la contribución económica de una industria, in: R. Osborne (ed.), Trabajador@s del sexo. Derechos, migraciones y tráfico en el S. XXI, 2004, p. 64; and, particularly, Canadian HIVA/IDS Legal Network, Sex work law reform in Canada: considering problems with the Nordic model, Briefing Paper, January 2013, p. 2 (available at: http://www.sexworkeurope.org/sites/default/files/userfiles/files/Hands%20Off_Worksheet %206.pdf; last visited: November 6, 2018), concluding the following: “Despite its stated intentions, the Swedish model is not effective at reducing prostitution.” See, also, Madden Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 115 EuCLR Vol. 9, 1/2019 it has made it difficult to prosecute these crimes, since clients fear punishment and thus are unwilling to cooperate;78 and iii) it has led to a displacement effect,79 amongst other critical remarks.80 Ultimately, Swedish authorities have made the following claim: “The empirical studies that have been carried out sometimes have a limited sample, and different procedures, methods and purposes have been used. As a result, there is reason to construe the results carefully.”81 Dempsey, U. Penn 2010, p. 1174, who concedes that solely punishing clients does not necessarily further protect prostitutes, and, specially, I. Vanwesenbeeck, Sex Work Criminalization Is Barking Up the Wrong Tree, Archives of Sexual Behaviour, 2017, pp. 1631-1640, who concludes that “sex work criminalization is barking up the wrong tree because it is fighting sex instead of crime and it is not offering any solution for the structural conditions that sex work”. 77 Kulick (fn 21), p. 227; Eriksson (fn 76), p. 187. Although Swedish legislation on street prostitution has been effective, this does not entail that it has successfully put an end to prostitution, but rather that prostitution is now practiced “inside a hotel, restaurant, nightclub or private apartment” (D. Heim/N. Monfort, Vigilar y castigar: las nuevas propuestas de políticas públicas para la prostitución en Europa. Análisis de los modelos de Suecia y los Países Bajos, Nueva Doctrina Penal, 2005, p. 785 (own translation); along these lines, J. Halley et. al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, Harvard Journal of Law & Gender, 2006, p. 396-398. Cfr., also, Madden Dempsey, U. Penn 2010, p. 1173-1174. In fact, two of the works cited in the previous note: Bindel/Kelly (fn 76), p. 72 et seq.; and Ekberg, VAW 2004, p. 1193, only address the decrease in street prostitution. 78 Eriksson (fn 76), p. 188; Tamarit Sumalla/Torres Rosell/Guardiola Lago, RDPP 2006, p. 205-206. On this issue, the Report of the expert group of trafficking in human being (2004) stresses that in over 22% of the cases, detecting human trafficking cases can be achieved thanks to clients and other citizens. 79 A. Di Nicola, who coordinated the Study on National Legislation on Prostitution and the Trafficking in Women and Children, prepared in 2005 for the European Parliament, underlines the ‘displacement effect’ from Sweden to Denmark and Norway in this case: “Prostitutes stemming from human trafficking were forced to move to other countries, so that the number of trafficking victims did not change, but rather their destination varied” (cfr. his appearance on July 13, 2006 in the Agreement of the Joint Committee (2007), p. 223) (own translation). Accordingly, Waltman, MJCL 2011, p. 147, should take the ‘displacement effect’ into account when concluding that Norway had eight times more prostitutes than Sweden upon comparing prostitution statistics from 2007 in Norway (when prostitution was legal) and Sweden. 80 See the critical remarks made by J. O’Connell Davidson, ‘Sleeping with the Enemy’? Some problems with Feminist Abolitionist Calls to Penalise those who Buy Commercial Sex, Social Policy and Society, 2003, p. 62; and by T. Sanders/R. Campbell, Why Hate Men who Pay for Sex? Exploring the Shift to ‘Tackling Demand’ in the UK, in V. E. Munro/M. Della Giusta (eds.), Demanding Sex: Critical Reflections on the Regulation of Prostitution, 2008, p. 163-164. 81 Cfr. SOU 2010:34 (available at: http://www.turnofftheredlight.ie/wp-content/uploads/2011/ 02/Swedish-evaluation-summary.pdf; last visited: November 11, 2016). On all the official studies and results, cfr. S. Dodillet/P. Östergren, The Swedish Sex Purchase Act: claimed success and documented effects, paper presented at International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges, March 3-4, 2011, The Hague, The Netherlands. Finally, it is worth highlighting the statement made by Anders Oljelund, Ambassador for International Cooperation against Trafficking in Human Beings at 116 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES Furthermore, it would be necessary to determine whether the decrease occurs regarding prostitution, trafficking, or both. Although abolitionists equate both realities, one could imagine that prostitution would decrease whilst trafficking would remain at a constant level in spite of criminalizing clients. Put differently, voluntary prostitution could decrease and forced prostitution could remain equal. Finally, concerning drug trafficking, a domain that could be compared to prostitution, criminalizing personal drug use in the US has clearly failed at ending the illicit drug market and drug use.82 Recap and summarized axiological critique In sum, abolitionists contend that prostitution is a form of slavery in patriarchal societies. Therefore, prostitution cannot be proven to be free, and thus no one can freely consent to engage in prostitution (i.e. their consent is defective). The bottom line for abolitionists is that there is no such thing as a right to prostitute. Alongside this normative-ethical judgment there is a positive or empirical one: almost all prostitutes are forced into prostitution, they are poor and they suffer post-traumatic disorders. Only a small percentage –ridiculously minimized to 5%–, is accepted as an exception to the all-encompassing claims that all prostitution is forced prostitution. However, such ‘gender traitors’83 do not deserve to exercise their right to prostitution, since pursuant to an evaluative judgment it has been concluded that there is no such right because it would violate human dignity, construed as an individual and collective value: “[I]t amounts to dehumanizing women individually and discriminating against them as a group.”84 However, this paper seriously challenges the empirical foundations of the abolitionist approach, i.e. that between 80% and 95% of prostitution is forced prostitution and closely linked to human trafficking, and thus we do not share the demands of aboli- III. the the Swedish Ministry of Foreign Affairs. The response to whether the Swedish Act has been successful at preventing prostitution is that it is hard to know, since it is difficult to provide numerical evidence (cfr. A. Oljelund, La explotación sexual. Una visión sueca, in: Actas del Congreso Internacional de Derechos Humanos y Prostitución Employment and Citizen Services Department and Directorate for Equal Opportunities of the Madrid City Council, 2006, p. 66. 82 See the report prepared by Human Rights Watch titled “Every 25 Seconds. The Human Toll of Criminalizing Drug Use in the United States,” October 12, 2016 (available at: https://ww w.hrw.org/report/2016/10/12/every-25-seconds/human-toll-criminalizing-drug-use-unitedstates; last visited: November 10, 2016), highlighting that every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, and that although on any given day at least 137,000 men and women are behind bars in the United States for drug possession, drug use has not decreased and drug overdoses have quadrupled since 1999. 83 Cfr. R. Osborne, El sujeto indeseado: las prostitutas como traidoras de género, in C. Briz/C. Garaizábal (coords.), La prostitución a debate. Por los derechos de las prostitutas, 2007, p. 41. 84 Cfr. Maqueda Abreu (fn. 2), p. 29; and Barry (fn 12), p. 7 (own translation). Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 117 EuCLR Vol. 9, 1/2019 tionism: punishing ‘johns,’ thereby ending both prostitution and trafficking –which is also questionable. We neither agree with the ideological grounds underlying abolitionism. First, if there was statistical evidence (i) that most women are forced into prostitution by third parties and/or are trafficking victims, and (ii) that punishing all clients would decrease sexual exploitation affecting many people, I would be willing to accept that voluntary prostitution (that small percentage ranging between 5% and 15%) be sacrificed for the greater good on grounds of solidarity85. If exercising my freedom has such a significant impact on essential third-party legal interests, there is reason for me to refrain from practicing prostitution.86 Nevertheless, there is no material evidence of either (i) or (ii),87 nor there is proof that one is more likely than the other (preponderance of the evidence). As stated above, the number of women that engage in prostitution, whether voluntarily or involuntarily, is far from being ascertainable. There are only figures and estimations, which are partial and biased depending on the author’s ideological stance. Thus, although we cannot assert that prostitution is mostly voluntary, there is reasonable doubt that there is an overwhelming percentage of forced prostitution. These doubts prevent abolitionist public policies from being well-founded. Furthermore, the European Parliament resolution (2014) “stresses that more analysis and statistical evidence is needed to judge which model is the most effective way of combating the trafficking of women and under-age females for purposes of sexual exploitation” (point 51). Accordingly, up until the ‘Swedish model’ is proven more effective than any other to end forced prostitution and human trafficking for sexual exploitation, this model can only be advocated for on the basis of principle, entailing an understanding of the free exercise of female sexuality as well as of gender subjugation with which I disagree.88 From an evaluative standpoint, even accepting an approach to public ethics 85 About this solidarity duty see Madden Dempsey, U. Penn 2010, p. 1746 et seq. 86 On this, see W. Frisch, Derecho penal y solidaridad. A la vez, sobre el estado de necesidad y la omisión del deber de socorro, InDret, 2016, p. 1 et seq.; also M. Pawlik, El delito, ¿lesión de un bien jurídico?, InDret, 2016, p. 10 et seq., when addressing the grounds for liability for encouragement. 87 On whether abolitionism successfully ends human trafficking, see M. L. Maqueda Abreu, La trata de mujeres para explotación sexual, in: R. Serra Cristóbal (coord.), Prostitución y trata. Marco jurídico y régimen de derechos, 2007, p. 300 (own translation), stating that “experience shows quite the opposite. In a predominantly abolitionist international environment, women trafficking for sexual purposes continues to increase.”. 88 For instance, as pointed out by J. Vartabedian, Tengo mucho placer para enseñarte: sobre travestis brasileñas trabajadoras del sexo y la gestión pública de la prostitución en Barcelona, Quaderns-e de l’Institut Català d’Antropologia, 2013, p. 90, “most transvestites are not ashamed of practicing prostitution (...). Conversely, they feel empowered by this profession” (own translation). This conclusion has also been stressed by recent studies (D. Kulick, Travesti. Sex, Gender and Culture among Brazilian Transgendered, 1998, passim; M. Benedetti, Toda feita: o corpo e o gênero das travesties, 2005, passim; K. Vogel, The Mother, the Daughter and the Cow: Venezuelan ‘Transformistas’ Migration to Europe, Mobilities, 2009, p. 367 et seq.; L. Pelúcio, ‘Sin papeles’ pero con glamour. Migración de travestis brasileñas a España 118 Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? ARTICLES that places human dignity as a limit to individual freedom, I consider that female sexual self-determination prevents the commodification of human beings –and particularly of women- as opposed to what happens regarding, for instance, dwarf-tossing.89 A free exercise of sexuality allows women to do as they please, without considering they are being instrumentalized and thereby negating their condition as an end in itself.90 (Reflexiones iniciales), Vibrant – Virtual Brazilian Anthropology, 2009, p. 170 et seq.). Also, regarding female non-transsexual prostitution, see C. Corso/S. Landi, Retrato de intensos colores, Madrid, 2000, p. 137-138, who underline the power shown by some prostitutes when negotiating the price with clients. 89 UN Human Rights Committee. Manuel Wackenheim v. France, Communication No. 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (available at: http://hrlibrary.umn.edu/hrco mmittee/spanish/854-1999.html; last visited: November 11, 2016). 90 Cfr. C. Dorn Garrido, La dignidad de la persona: límite a la autonomía individual, Revista de Derecho, 2011, p. 71 et seq. Accordingly, as pointed out by M. L. Maqueda Abreu, Hacia una justicia de los derechos, Diario La Ley, 2010, “speaking of voluntary prostitution (…), why should we understand that selling sex services undermines the dignity of whoever freely decides to sell these services?” (own translation). A. Masferrer disagrees in Taking Human Dignity more Humanely: A Historical Contribution to the Ethical Foundations of the Constitutional Democracy, in: A. Masferrer/E. García-Sánchez (eds.), Human Dignity of the Vulnerable in the Age of Rights: Interdisciplinary Perspectives, 2016, p. 221 et. seq. Mariona Llobet Anglí · Will the End of Prostitution Eradicate Human Trafficking? 119 EuCLR Vol. 9, 1/2019

Abstract

The purpose of this paper is to illustrate the ‘war of data’ on prostitution brought on by scholars, politicians, NGOs and the media. The paper also tackles the misleading wordings and realities in place, which significantly shake the empirical and conceptual foundations of abolitionism, thereby challenging abolitionist claims. As will be shown below, the abolitionist approach is flawed by four fallacies: the statistical, the phenomenological, the deductive and the deterrence fallacy. Therefore, we can conclude that there is no empirical evidence that abolishing prostitution would eradicate, or at least decrease, human trafficking for the purposes of sexual exploitation.

References

Abstract

The European Criminal Law Review (EuCLR) is a journal dedicated to the development of European Criminal Law and the cooperation in criminal matters within the European Union. In these areas the Lisbon Treaty has supposedly brought about the most important changes and also the greatest challenges for the future.

It is the journal’s ambition to provide a primary forum for comprehensive discussion and critical analysis of all questions arising in relation to European Criminal Law. It will include articles and relevant material on topics such as

- the harmonisation of national criminal law in consideration of European legal instruments,

- the implementation of the principle of mutual recognition in the area of cooperation in criminal matters and the development towards the creation of a European Public Prosecutor,

- the emergence of a balanced European Criminal Policy based on fundamental rights, freedom and democracy with particular reference to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.