Legalizing Prostitution: From Illicit Vice to Lawful Business (28 page)

There are both legal and illegal
workers
in the Netherlands and legal and illegal
businesses
. Workers are legal if they are Dutch citizens or come from a nation in the EU and have both a residence permit and a work permit. Only one-third of the prostitutes working in the Netherlands are Dutch, but many others are legal because of their EU status or by virtue of marriage to a Dutch citizen. Today, most foreign workers come from eastern Europe and Latin America,
³¹
and most eastern Europeans are Bulgarian, Hungarian, and Romanian (work permits were first made available to citizens of Hungary in 2004 and Bulgaria and Romania in 2007, the dates these nations entered the EU).

Since 2000, the emphasis has been on regulating and controlling
businesses
to a greater extent than controlling individual workers. Businesses are legal if they have been licensed by the government, which requires that they conform to certain rules regarding security (e.g., alarm systems), fire safety, building codes, and hygiene. Background checks are conducted on business owners who apply for a license, and the authorities conduct periodic site visits to determine if minors or illegal immigrants are present. Proprietors are not always in compliance with the regulations. A 2006 assessment found that one-third of all licensed sex businesses had been accused of some kind of violation and received a sanction in the past five years, mostly for employing workers lacking a valid work permit.
³²
Most of the sanctions consisted of
warnings; 13 percent of the places were temporarily closed and 7 percent had their licenses revoked.
³³
The conventional wisdom is that abuses are much more common in illegal businesses. The illegal sector consists of unlicensed brothels, escort operations, and other underground enterprises.

Chapter 4
noted that the process of normalizing vice can be precarious. Decriminalization can generate a popular backlash, legislation that dilutes the original law reform, or even full recriminalization if, say, an abolitionist political party gains power. Problems with implementation of the law may attract critical or sensationalized media attention and lead to calls for a return to the previous system. In addition, the vice participants themselves may resist at least some of the regulations in a newly legal system. Workers may, for instance, refuse to pay taxes or register with the authorities, and business owners may fight new fees and specific, disliked regulations. What has been the Dutch experience over a decade of legal prostitution?

Implementation of the law has been anything but smooth. The pre-2000 system of de facto regulation included informal monitoring of brothels: municipal authorities imposed some conditions on brothel owners, even though there was no formal legal basis for this arrangement.
³⁴
Some of the more sweeping regulations imposed since 2000 have generated opposition from actors in the prostitution sector. Policy analyst Hendrik Wagenaar refers to a “large, entrenched, well-organized, and well-capitalized prostitution sector” as “a powerful adversary” to government authorities seeking to impose new restrictions.
³⁵
(The organizations include the Consortium of Window Owners and two brothel-owners’ associations, the Excellent Group and the Association of Operators of Relaxation Businesses.) This sector was “accustomed to managing its own affairs” and was “unwilling to give up the prerogatives and power” that they had enjoyed for years operating in a minimally regulated system. Wagenaar describes this context as follows: “In implementing the legalization of sex establishments, a fragmented, rivalrous police and municipal apparatus faced a powerful and highly distrustful adversary that, after decades of operating outside the legal order, was unwilling to give up its lucrative practices.”
³⁶
The loose, informal regulatory system, coupled with the power of the sex industry
prior to 2000, is an important backdrop to the current system and distinguishes the Netherlands from settings where no preexisting regulations existed prior to formal legalization. However, recent years have seen a shift in the balance of power between the state and the sex industry, with the state increasingly dictating policies and the industry forced into a more subordinate, reactive role but continuing to voice opposition to new government proposals.

The same trend, of expanding government control, can be seen in the state’s relations with sex workers and their advocates. Prior to 2000, the government sponsored some supportive initiatives for workers, for example, funding the prostitutes’ rights organization Rode Draad (Red Thread) and a firm that conducted both research and advocacy related to sex workers’ interests, the de Graaf Foundation. In a 1997 interview, the director of Red Thread, Sietske Altink, told me that the organization enjoyed a fairly collaborative relationship with the government, working with it on a variety of issues related to prostitution. Altink quipped, “We are important for them to correct their policies!”
³⁷
Both organizations lost government funding after 2000, and the de Graaf Foundation closed. This does not mean that the interests of sex workers have been entirely jettisoned in recent years, but it does illustrate a growing state ascendancy in policymaking. The government does subsidize a rescue-oriented group, Scharlaken Koord (Scarlet Cord), which works to help women leave the sex industry, but it no longer actively supports sex workers’ organizations.

Extensive field research sponsored by the Dutch government found that the legal prostitution sector has been declining over time, but it is nevertheless “much more sizeable” than the illegal sector.
³⁸
Moreover, illegal actors are scarce in legal venues: in windows, sex clubs, and private brothels, illegal labor has been virtually eliminated due to inspections.
³⁹
While the aggregate number of legal
workers
is reportedly higher than that of illegals, there has been a decrease in the number of legal sex
businesses
since legalization in 2000. The number of licensed sex clubs, brothels, and escort agencies fell 17 percent from 2000 to 2006 (from about 1,325 to 1,270), declining further to approximately 1,150 in 2009.
⁴⁰
The number of window prostitution units has declined as well.

The diminishing number of legal businesses can be attributed to a combination of factors: (1) the costs involved in abiding by myriad regulations, (2) the aging-out of existing owners, who are not being replaced because younger individuals lack the capital to buy a place or balk at the lengthy review process in some cities, and (3) policies in some municipalities designed to reduce
the number of venues by buying out some owners and forcing some others out after doing an integrity investigation.
⁴¹
I explore these dynamics later in the chapter.

Part of the impetus for legislative changes at the national level comes from the small Christian Union Party, which was part of the coalition government from 2006 to 2010. This orthodox Protestant party stands opposed to prostitution and other signs of Dutch “permissiveness” but could not dictate changes within a coalition government. Instead, it worked to convince some of the secular parties that there was a need for intensified regulation of the sex sector. In the June 2010 election, two right-wing parties (the conservative People’s Party and the far-right Party for Freedom) won a huge increase in seats in Parliament, while the moderate and previously dominant Christian Democratic Party and left-wing Labor Party lost seats. This political realignment may lead to further restrictions on the sex industry in coming years.

The 2000 law delegated much of the authority for regulating prostitution to municipalities, resulting in considerable variation across jurisdictions. This decentralized model is now recognized as a problem, in that geographical differences can lead to “disparate opportunities for supervision and enforcement, which exploitative operators and human traffickers can take advantage of,” according to the government’s trafficking office.
⁴²
Recent legislation is designed to introduce some minimum standards to be followed by all municipalities that permit prostitution.

These changes include, first, a mandatory licensing requirement for every establishment where commercial sex takes place and a requirement that all legal prostitution be “location bound.”
⁴³
This is a response to mobile providers who work independently and arrange liaisons via the phone or Internet, unfettered freelance work that the government defines as a problem. A Ministry of Justice official said that independents are a “big loophole” in the current law, “a black hole where everything will fall into because people will say they work alone,” even if they do not, and will be left unregulated if not tied to some business.
⁴⁴
If independent escorts are deemed a problem, so are those escort agencies that are currently unlicensed:

The escort industry is particularly difficult to get a grip on, as it is not clearly organized geographically and thus falls outside the municipal sphere of enforcement. … Advertising and communication using websites and mobile telephone numbers have made it easier to work outside regular businesses, where it is certainly not the case that women are always independent and can decide what to do with their bodies.
⁴⁵

The police periodically check on individual escorts by arranging a hotel date where an officer posing as a client inquires about the escort’s age, residential status, and ties to third parties. However, this is not considered an efficient means of control,
⁴⁶
and recent legislation requires licensing of escort services, which must also have a physical location and landline telephone number. According to the government, these tools are needed to ensure that independent workers are not being exploited, coerced, or trafficked.

Second, a 2011 bill would raise the minimum age for sex workers from 18 to 21 and would require prostitutes to be registered and to carry an identification card that clients could check before buying sex. The bill is intended to reduce forced prostitution and trafficking. Prostitutes caught without a card would face a fine up to
€
380, and clients who visit a prostitute who does not have a card would be liable to a maximum fine of
€
7,600 or six months in jail.
⁴⁷
This requirement has been controversial and was derided in Parliament by several political parties. Most workers will not register due to fear of losing their anonymity and concern that it would adversely affect their future employability outside the sex industry. Moreover, the very idea of registration as a tool for fighting coerced prostitution is problematic, given how difficult it is to assess a worker’s circumstances at a brief registration interview. At the time of writing, the bill had not yet passed, but the requirement of carrying registration cards had been dropped due to intense lobbying against it.

The leading brothel owners’ association is skeptical of the proposal to prosecute clients who patronize illegal workers. The former head of the association told me that this “won’t work” because it will not be enforceable, but he also thought that the requirement would have some symbolic benefit: “It’s just a signal, a good sign to the clients that they have their own responsibility” to seek out legal workers.
⁴⁸
In general, the brothel owners’ association wants to see greater transparency throughout the sex industry, including licensing of all businesses,
⁴⁹
but it opposes registration of the sex workers themselves. The association’s leaders describe registration as “ridiculous” and unnecessary because, since 2009, workers in the legal sector have been registering their self-employment status with the Chamber of Commerce for tax purposes, just like any other entrepreneurs. There is thus “no need at all for a separate registration as prostitutes; the government can’t give a
reason
for this registration but feel they have to do it simply because it is
prostitution
.”
⁵⁰
And the current head of the brothel association believes that the registration requirement will affect some workers more than others:

The main reason for the new law is actually the escort agencies, because brothels are running okay, have their licenses, and can be found [by the authorities]. But the escort sector is footloose. You only need a telephone and a girl, and if you don’t like it in one place, you move to another. Registration will affect my company [an agency whose escorts are Dutch exclusively] more than companies that hire foreign girls, because the foreign girls are less bothered by having to register. They don’t have their social circles here; their friends and family are far away. But an agency with Dutch women, who want to do other careers in the future, it’s going to scare them. They are afraid to loose their privacy. My girls are very concerned; some say they are going to quit and some will work illegally on their own if they have to register.
⁵¹

The owners’ association also opposes raising the minimum age to 21, for the same reason: it will push those who are 18–20 into the illegal sector.

The brothel owners have consistently opposed creation of an employer-employee relationship in their own establishments, favoring instead “independent contractor” status for their workers, which allows the owners to avoid paying benefits to the workers. Window owners consider themselves landlords who simply rent rooms, yet they are involved in both screening and monitoring those who rent windows. When a prospective renter approaches one of the window owners I interviewed, he looks for signs that she uses drugs or is connected to some third party. He will not hire a woman who uses drugs, which has happened only a few times in his 20 years as a landlord. And, he says, “If a new girl comes [to the interview] with a guy, I don’t talk to her, and if a guy calls and says he has a girl, I don’t speak to him.” Most of the time, it is the woman’s girlfriends (who are already working in a window) who introduce her to an owner. In addition to screening applicants, he ensures that the women who rent from him comply with legal regulations. He also video-monitors the men outside his windows.
⁵²
He has 14 women working different shifts at his six windows. Other window owners engage in the same kind of screening and monitoring.