The following is the summary of consultation questions published by the Scottish government, with Human Rights Watch’s responses.
Question 1. Do you agree or disagree that the Scottish Government's approach to tackling prostitution, as outlined in this section, is sufficient to prevent violence against women and girls?
Sex workers are often exposed to high levels of violence and other abuse or harm, but this is usually because they are working in a criminalized environment. Research by Human Rights Watch and others indicates that decriminalization can help reduce crime, including sexual violence, against sex workers.
Based on our research on sex work around the world, including in Cambodia, China, South Africa, Tanzania, and the United States, Human Rights Watch supports full decriminalization of consensual adult sex work. We oppose models like the one currently in place in Scotland that criminalize buying sex and activities such as publicly soliciting or loitering for the purposes of selling sex and “brothel keeping” because our research—and other credible research—demonstrates that this approach does not protect sex workers from violence and undermines sex worker’s rights that are protected under international law.
Criminalization - including systems such as the one in place in Scotland that criminalizes some but not all activities related to the sale and purchase of sex – makes sex workers vulnerable to abuse and exploitation by law enforcement officials. Human Rights Watch has documented that, in criminalized environments, police officers sometimes harass and assault sex workers, extort bribes, or even rape them including through coercion using the threat of arrest.
Human Rights Watch has consistently found in research across various countries that criminalization makes sex workers more vulnerable to violence, including rape, assault, and murder, by attackers who see sex workers as easy targets because they are stigmatized and unlikely to receive help from the police. Criminalization may also force sex workers to work in unsafe locations to avoid the police.
Criminalization undermines sex workers’ ability to take steps to protect themselves and each other. When loitering and soliciting are crimes, sex workers rush to find customers covertly with less time to assess safety. Prohibitions on “brothel-keeping” make it harder for sex workers to share quarters and protect each other.
Criminalization also makes it harder for sex workers to seek justice for crimes committed against them. Sex workers in South Africa, for example, said they did not report armed robbery or rape to the police. They said that they were afraid of being arrested because their work is illegal and that their experience with police is of being harassed or profiled and arrested or laughed at or not taken seriously. Even when they report crimes, sex workers may not be willing to testify in court against their assailants and rapists for fear of facing sanctions or further abuse because of their work and status. When a sex worker is the victim of a crime, including sexual violence, the police should promptly investigate and refer suspects for prosecution.
Question 2. What are your observations as to the impact of the coronavirus outbreak on women involved in prostitution in Scotland?
Human Rights Watch has not conducted research on this topic in Scotland.
Question 3. Which of the policy approaches (or aspects of these) outlined in Table 3.1 do you believe is most effective in preventing violence against women and girls?
Human Rights Watch’s findings, from our research, and based on our expertise in international human rights law, is that the most effective approach in preventing violence against women and girls is one not included in Table 3.1, which we would describe as decriminalization, where neither selling or buying sex, nor activities related to either including soliciting, loitering and brothel keeping, are criminalized.
Human Rights Watch supports full decriminalization rather than approaches that decriminalize the sale of sex but not the purchase of sex (often referred to as “the Nordic model”) because research shows that full decriminalization is a more effective approach to protecting sex workers’ rights. Sex workers themselves usually want full decriminalization.
The Nordic model appeals to some politicians as a compromise that allows them to condemn buyers of sex but not people they see as being forced to sell sex. But the Nordic model has substantial negative impacts on people who sell sex to earn a living. Because its goal is to end sex work, it makes it harder for sex workers to find safe places to work, unionize, work together and support and protect one another, advocate for their rights, or even open a bank account for their business. It stigmatizes and marginalizes sex workers and leaves them vulnerable to violence and abuse by police as their work and their clients are still criminalized.
The Scottish government documents regarding this consultation discuss the need to prevent human trafficking. Human Rights Watch has also conducted extensive research on human trafficking and works to end human trafficking. Sex work is the consensual exchange of sex between adults. Human trafficking is a separate issue—it is a serious human rights abuse and a crime and should always be investigated and prosecuted.
Laws that clearly distinguish between sex work and the crime of human trafficking help protect both sex workers and crime victims. Sex workers may be in a position to have important information about crimes such as human trafficking, but unless the work they themselves do is not treated as criminal, they are unlikely to feel safe reporting this information to the police.
Criminalizing adult, voluntary, and consensual sex – including the commercial exchange of sexual services – is incompatible with the human right to personal autonomy and privacy. In short – a government should not be telling consenting adults who they can have sexual relations with and on what terms.
Question 4. What measures would help to shift the attitudes of men relating to the purchase of sex? Do you have any examples of good practice either in a domestic or an international context?
A more important goal, and one that addresses the root causes of gender-based violence, is shifting structures and attitudes that perpetuate gender inequity. Human Rights Watch would encourage the Scottish government to examine how forms of gender inequity such as the gender pay gap, inadequate support for caregivers, gendered approaches to caregiving, gender discrimination in the workplace, and lack of services for people at risk of or experiencing gender-based violence (especially people facing intersectional forms of discrimination on the basis of nationality, immigration status, ethnicity, etc) may be undermining efforts by the government to tackle gender-based violence.
Question 5. Taking into account the above, how can the education system help to raise awareness and promote positive attitudes and behaviors amongst young people in relation to consent and healthy relationships?
The education system has a crucial role to play in helping to promote positive attitudes and behaviors among young people in relation to consent and healthy relationships, by providing comprehensive sexuality education. The Scottish Government should ensure that all children receive mandatory comprehensive sexuality education, from an early age, in age appropriate ways.
Question 6. How can the different needs of women involved in prostitution (in terms of their health and wellbeing) be better recognized in the provision of mainstream support?
Sex workers often encounter barriers to accessing mainstream services due to stigma or because they have acquired a criminal record due to activities related to sex work being criminalized and are then barred from services due to having a criminal record. Full decriminalization of sex work helps to remove stigma and end the collateral consequences of arrest and conviction that often block people who are engaged in sex work or have previously engaged in sex work from accessing mainstream services.
In interviews with sex workers, our researchers have repeatedly heard that sex workers want a safe place to work and the ability to organize and support each other openly. Full decriminalization would support these aspirations as well as sex workers being able to speak and campaign openly for better and tailored services and support each other. Some sex workers have emphasized that although health and social services are always welcome, a more urgent priority is that governments stop harassing them and criminalizing their work. Sex workers are often also members of vulnerable populations such as migrants, trans people and young people who may have poor relationships with their families or little education. Scotland should provide quality and non-discriminatory support such as housing, education and other services for these populations and in a way that actively encourages rather than discourages sex workers from participating fully. Again, we believe full decriminalization is a key step towards reducing stigma, fear of government and government services as well as recognizing sex workers as workers and human beings with equal dignity to everyone else, rather than people involved with a criminal activity.
Question 7. In your opinion, drawing on any international or domestic examples, what programmes or initiatives best supports women to safely exit prostitution?
People engaged in voluntary sex work may come from backgrounds of poverty or marginalization and face discrimination and inequality, including in their access to the job market. With this in mind, Human Rights Watch supports measures to improve the human rights situation for sex workers, including research and access to education, financial support, job training and placement, housing, social services, and information. Human Rights Watch also encourages efforts to address discrimination based on gender, sexual orientation, gender identity, race, ethnicity, or immigration status affecting sex workers.
We agree that well-funded targeted assistance for anyone looking to looking to leave sex work can be valuable. However, we believe these programs will not be effective in an environment whether sex workers continue to face criminalization and the collateral consequences of criminalization, including stigma, on their ability to access mainstream benefits and services and other forms of employment.
Decriminalization also supports better health outcomes. UNAIDS, public health experts, sex worker organizations, and other human rights organizations have found that criminalization of sex work has a negative effect on sex workers’ right to health. In one example, Human Rights Watch found in a 2012 report, “Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities,” that police and prosecutors used a sex worker’s possession of condoms as evidence to support prostitution charges. The practice left sex workers reluctant to carry condoms for fear of arrest, forcing them to engage in sex without protection and putting them at heightened risk of contracting HIV and other sexually transmitted diseases.
Criminalization also has a negative effect on other human rights. In countries that ban or place extensive restrictions on sex work, sex workers are less likely to be able to organize as workers, advocate for their rights, or to work together to support and protect themselves.
Decriminalizing sex work maximizes sex workers’ legal protection and their ability to exercise other key rights, including to justice and health care. Legal recognition of sex workers and their occupation maximizes their protection, dignity, and equality. This is an important step toward destigmatizing sex work.
Governments should fully decriminalize sex work and ensure that sex workers do not face discrimination in law or practice. They should also strengthen services for sex workers and ensure that they have safe working conditions and access to public benefits and social safety nets.
Moreover, any regulations and controls on sex workers and their activities need to be nondiscriminatory and otherwise comply with international human rights law. For example, restrictions that would prevent those engaged in sex work from organizing collectively, or working in a safe environment, are not legitimate restrictions.
Question 8. Support services are primarily focused within four of Scotland's main cities - Aberdeen, Dundee, Edinburgh and Glasgow - how can the needs of women throughout Scotland who are engaged in prostitution be met, noting that prostitution is not solely an urban issue?
Human Rights Watch has not conducted research on this topic.
Question 9. If there are any further comments you would like to make, which have not been addressed in the questions above, please use the space below to provide more detail.