Political Science

In 1999, Sweden passed a law criminalizing the purchase of sex and decriminalizing the prostituted person. The law was part of an omnibus bill against violence against women, recognizing prostitution as related to such violence. This article analyzes the reasons for the Swedish law and documents the law's impact, concluding that the law has significantly reduced the occurrence of prostitution in Sweden compared to neighboring countries. In addition, it addresses some important remaining obstacles to the law's effective implementation and responds to various common critiques of (and misinformation about) the law and its effects. Finally, this article argues that, in order to realize the law's full potential to support escape from prostitution, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the tricks/johns for the harm to which they have contributed.

Why are democracies unresponsive to well-documented injuries in the production and by the consumption of pornography? Legal challenges to pornography in Canada and the United States in which sexual subordination, not moral notions of “obscenity,” were the driving rationale, show democracies inadequately recognizing gender-specific harms. Changes in Canadian obscenity doctrines to account for harm and inequality, in contrast with the U.S. reign of “free speech,” did not deliver a corresponding change on the ground. Developments in democratic theory, international law, and the particular U.S.—Canadian legal trajectory, and consideration of the void of institutions articulating the interests of those victimized in and by pornography, suggest the need to adopt empowering civil remedies.

Until recently, Canada criminalized anyone who lived "wholly or in part on the avails of prostitution of another person,” and anyone who kept, controlled, or knowingly permitted a “bawdy-house” for prostitution. The Supreme Court of Canada found that these laws prevented brothel management, escort agencies, bodyguards, or drivers from enhancing the safety and well-being of prostituted persons in indoor locations. This article assesses the evidence relied on by courts to strike down the laws, finding that evidence was misrepresented and misevaluated, thus did not support their decision. Empirical evidence shows that prostitution is an unequal practice of sexual and economic exploitation to which prostituted people generally lack real or acceptable alternatives. Pimps and brothel-owners in general make their situations worse, not better. The two invalidated provisions facilitate prosecution of pimps and other third party profiteers more effectively than existing trafficking laws. By invalidating these provisions, Canada will expose prostituted people to predators while protecting their exploiters. Their decisions overturn previous precedents that shielded prostituted people from abusive pimps, and violate Canada’s commitment to promote equality among historically disadvantaged people, such as those in prostitution. Charter principles of substantive equality call for retaining laws that put exploiters — pimps and brothel-owners — out of business, while invalidating any fines or criminal laws imposed on prostituted persons, measures that preclude their opportunities and exit. Civil damages actions on behalf of prostituted people and effective criminal laws against purchase of people for sex would also promote their substantive equality.

The Swedish prostitution law from 1999, now followed by Norway and Iceland, criminalized the purchaser and decriminalized the prostituted person. This is analyzed as a cogent state response under international trafficking law, particularly to the obligations set forth in the United Nation’s Trafficking Protocol from 2000. The Protocol states that a person is regarded a trafficking victim when, e.g., a third party abuses her “position of vulnerability” in order to exploit her. International jurisprudence and social evidence strongly suggest that prostitution, as practiced in the world, usually satisfies this definition. Further, the Protocol urges states to reduce the demand for prostitution and to protect and assist victims, for instance by adopting laws deterring purchasers of sex, and by supporting those exploited in prostitution. Policy makers, such as the U.S. Department of State, are criticized for taking an inadequate position in face of the growing evidence from the Swedish law's impact.

The article shows that Sweden has significantly reduced the occurrence of trafficking in Sweden compared to neighboring countries. It also scrutinizes some misinformation of the law's impact, showing for instance that claims alleging a more dangerous situation for those still in prostitution after 1999 were unfounded. In addition, the article addresses remaining obstacles to the law's effective implementation, arguing that in order to realize the law's full potential to support escape from trafficking, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the purchasers for the harm to which they have contributed, and for the violation of the prostituted persons' equality and dignity - a position now recognized by the government to some extent by clarifying amendments made in 2011.

The philosophical, political, and legal impact of Catharine MacKinnon's groundbreaking work Toward a Feminist Theory of the State (1989) is discussed, specifically the merging of consciousness-raising of subordinated groups with critically informed scholarship, producing a problem-driven approach engaging in informed policy-making. As a comprehensive political theory of the relationship between male dominance and the state, one of Toward's central features was to draw from consciousness-raising as a feminist research method to further ground its approach to equality, particularly in its prescription for substantive equality laws. The article illustrates how such central concepts have influenced real changes in the world, specifically using legal challenges to pornography and prostitution as examples.

Parts I and II demonstrates how Toward departed from conventional epistemologies, in part explaining its revolutionary appeal to students, practitioners, and scholars. Part III continues the analysis by using real world applications of its approach to pornography and prostitution, beginning with the anti-pornography civil rights ordinances drafted by Catharine A. MacKinnon and writer Andrea Dworkin in 1983, six years before the publication of Toward a Feminist Theory of the State. Part III illustrates how the ordinances mobilized MacKinnon’s same cutting-edge approach to advancing women’s legal substantive equality about which she later theorized. A similar approach was instrumental in grounding a substantive equality prostitution law, proposed by MacKinnon in a public speech in Stockholm, Sweden, November 2, 1990, situating that law within her broader approach to equality. The Swedish national umbrella organization for women’s shelters, ROKS, lobbied for the law and rallied other actors to support it, precipitating its passing in Parliament in 1998, with the law taking effect in 1999. Similar laws have now been adopted by many more countries (attesting to MacKinnon’s extraordinary influence as a legal and social theorist), although not until ten years or more after Sweden’s law, which makes Sweden’s unique data availability a “revelatory case.” Part III concludes by analyzing its comparative impact in terms of reducing sexual exploitation and abuse and offering an exit for people in prostitution, thus promoting substantive equality.

Pornography production exploits social disadvantages, often while using prostituted people who have endured poverty, childhood sexual abuse, race and/or sex discrimination. Over time, consumers become more sexually aggressive, adopt more attitudes supporting gender-based violence, and buy more sex than non-consumers. This study finds that challenges to pornography’s harms will be more successful in democracies that better recognize substantive equality, and where the harmed groups’ perspectives and interests are centered in law. Civil rights appear more responsive and remedial than state-implemented criminal laws, with similar implications for other problems disproportionately affecting disadvantaged populations.

, studying legal challenges to pornography and prostitution that effectively challenge them as practices violating equality and other human rights in democratic systems. He focuses on judicial and legislative politics in Canada, Sweden, and the United States. Waltman's father was brought up in Toronto, moving to Sweden as an adult. The author initially engaged in analyzing the Bedford decisions after being asked to state an opinion about them by Canadians who were making a documentary film on prostitution. Making progress in his analysis, he realized that it was necessary to write a full-length article to properly assess the evidence, arguments, and potential impact of the decisions. At the end of the process, he came to believe that the country and province he had admired for its commitment to social equality risked becoming a magnet and haven for traffickers and pimps if the Bedford ruling in the Court of Appeals for Ontario was allowed to stand. As a final decision was handed down in the Supreme Court of Canada on December 20, 2013, these fears have been significantly strengthened. The result of his analysis is presented in this Article. * The author expresses particular gratitude for the helpful comments and suggestions by Professor Catharine A. MacKinnon. Without the request for an interview by Michelle Brook, this article might not have been written. Parts of the article were circulated as an early working paper issued by the Department of Political Science, Stockholm University, in 2012. Any translations are the author's, if not stated otherwise.

Close case readings focusing on the ICC support the theory that legal prostitution be recognized as a crime against humanity. Extensive social science research documents the coercion and damage attendant and endemic to the sex industry. Countries following the Swedish (now “Nordic/Equality”) prostitution model law, which penalizes buyers and third parties while supporting prostituted persons to escape, have decreased prostitution’s incidence, while countries in which prostitution is legalized have seen trafficking and other violative abuses metastasize.

This article analyzes in depth the prospect of holding authoritative actors accountable for legalized prostitution under the international legal rubric of crimes against humanity. It documents that legalized and fully decriminalized prostitution release a tsunami of crimes against humanity for which these policies guarantee domestic impunity. Empirical evidence marshaled shows that legal prostitution exponentially increases “widespread” and “systematic attacks” against prostituted persons, including “rape, enforced prostitution, enslavement, human trafficking, sexual slavery,” and other atrocities enumerated under international law and the Rome Statute of the International Criminal Court (ICC).