What does decriminalisation of sex work mean?
Foreword:
We hope that this booklet can inform sex workers and the public about the legal reform of sex work. It is also our hope that it can facilitate further discussion and generate concern regarding this issue. You are welcome to call our 24-hour hotline to share your views with us.
How do they view the decriminalisation of sex work?
How does the Hong Kong Law regulate sex work?
According to the Hong Kong Law, it is not illegal for an individual to sell or buy sexual services. Being a sex worker or a sex worker’s client does not break any criminal law. For example, it is not illegal for a Hong Kong resident whose condition of stay is not restricted, aged 16 years old or above, to provide sexual services to another individual in a private premise, and this is what people usually consider to be a “one woman apartment”.
In principle, it is not illegal for a self-employed sex worker to work individually in an apartment. However, there are still a number of legal provisions surrounding this framework. For instance, sex workers’ landlords may evict them because it is illegal to rent out a place for sex work (“Tenant etc. permitting premises or vessel to be used for prostitution”). Sex workers cannot hire another person to assist them (“Living on earnings of prostitution of others”), promote their services (“Prohibition of signs advertising prostitution”), or manage, rent out or co-operate a work place (“Keeping a vice establishment”) etc.
Due to the legal definition of a “vice establishment,” sex workers are forced to work alone in a single apartment and put their personal safety at risk.
As for sex workers who work on the streets, they may be charged for “Soliciting for an immoral purpose.”
The difference between decriminalisation and legalisation
First of all, let us clarify the two concepts about the legal reform of sex work – decriminalisation and legalisation.
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Decriminalisation |
Legalisation |
Rationales
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Sex work is work. It is a commercial activity. As long as there is no deception, coercion, forced labour or child labour involved, it should be regulated like any other business. |
Sex work is different from other commercial activities. Extra regulation should be developed and enforced for sex work in particular. |
Policies |
E.g. Remove all legal provisions that criminalize sex work. Regulate sex work like any other commercial activities by existing labour laws and commercial laws. |
E.g. Enforce extra and particular regulations, like zoning (red light districts), licensing (brothels and sex workers), compulsory HIV/STI screenings, etc. |
Q & A
Once it is legalized or decriminalized, will there be a lot more sex workers? Will it be a bad influence for society?
To date, there is no proof to support whether the number of sex workers will increase or decrease after decriminalisation or legalisation. What is more important is that a sexual service transaction is a consensual choice between two adults. Different from other crimes, it harms no one and, thus, should not be criminalized.
Decriminalisation of sex work can make the work environment of sex workers more safe and fair, promoting social harmony and mutual respect. For instance, in Thailand, many citizens support sex workers’ right to have equal protection by the labour law. To them, sex workers should have the same right, like all workers, to form unions and fight for reasonable wages as well as healthy and secure work environments.
Why is legal reform needed?
The existing laws do not respond to the difficulties and problems faced by sex workers. On the contrary, they create them. The existing laws target everything (and everyone) surrounding individual sex workers. Discrimination against sex workers and the sex industry is somehow legitimated. The laws make it difficult for sex workers to work in reasonable environments and have created obstacles for them to deal with issues like personal safety, exploitation, unfair payment, stress, and additional discrimination against single-parents and new immigrants.
Do we need red-light district(s) in Hong Kong?
A more thorough and comprehensive discussion is needed among sex workers, their clients, and within the industry and society as a whole. However, zoning by-laws may reinforce discrimination against sex work. Everyone should be free to choose to engage in any occupation. It is not justified to set particular limitation for sex work. Decriminalisation of sex work does not imply zero regulation. What it means is that sex work, like other businesses, is regulated under the existing commercial laws and labour laws.
Legalisation of sex work in Hong Kong (19th century)
During the 19th century, sex work was legalized. The Hong Kong Government regulated sex work by zoning and licensing brothels. The policy was cancelled and re-introduced. From the 1930s on, brothels and prostitution were completely prohibited.
In 1845, the police began to charge sex workers a ”prostitutes’ donation” which was used to support the operation of an STI clinic. After deducting the cost, the income went to the police. In 1847, William Caine, Head of the Police Force, refused to explain the account. The British Government, therefore, ordered to have the policy cancelled and stopped charging the “prostitutes’ donation”.
In 1857, the Hong Kong Government set up the “Venereal Diseases Ordinance”. According to the ordinance, brothels were required to apply for a license and pay the government HK$4 a month. Sex workers working in brothels had to receive compulsory check-ups. In 1873, the Governor Sir Kennedy introduced the “Protection of Women and Children Ordinance”. Once again, brothels were prohibited.
In 1879, the Government re-introduced the licensing system. Licensed brothels were allowed in particular areas like Mong Kok, Shek Tong Tsui, Wan Chai etc. Once again, the policy was cancelled in 1932. Since then, brothels have never been prohibited.
Sex work-related laws in neighbouring districts
Mainland China:
Prostitution – illegal. Buying sexual service – illegal.
Running a brothel – illegal. Pimping – illegal.
- A person above 14 years of age is prohibited from buying or selling sexual services (meaning voluntarily selling sexual services for interest). The government department may fine, warn, arrest, order “detained education’ or “labour education”.
- If one is not voluntarily selling sexual services, those who force her/him to do so are criminal responsible for forcing, coercing or seducing.
- Those who are involved in buying or selling sexual services are required to receive compulsory STI screenings, as they may have broken the law related to “transmitting sexual transmitted diseases”. They or their family must pay for these screenings.
- If an individual knows that his/her premises are being used for prostitution and does not take any action, he/she may be fined and his/her business license may be invalidated.
Macau:
- It is not illegal for a person to sell sexual services.
- According to Sect. 163 and 164 of the Macau criminal law, it is illegal for one person to facilitate or assist another to sell sexual services and make a profit from doing so.
- The Macau law on organized crime has the same regulation on prostitution.
Singapore: close to legalisation
Prostitution – legal. Running a brothel – legal. Pimping – illegal.
- Sex work is legal but pimping is illegal.
- The government allows brothels to operate in certain particular districts. Sex workers must receive compulsory STI screenings.
- There are 6 red light districts and about 400 brothels. Each brothel can employ 10-20 sex workers.
Countries and regions where sex work is decriminalized or legalized
Sex work is regulated in various ways in different countries and regions. In practice, there is no absolute decriminalisation or legalisation.
Close to decriminalisation
New Zealand: close to decriminalisation
Prostitution – legal. Running a brothel – legal. Pimping – legal.
- From 2003 on, a New Zealand citizen aged 18 or above can apply for a brothel license. A brothel is regulated by the government according to related labour laws, commercial laws and public health regulation.
- It is illegal to hire or to buy sexual services from a sex worker who is under 18.
- Self-employed sex workers (up to 4 persons) can co-operate a small brothel without applying for a license. A license, however, is required if there are more than 4 sex workers in a small brothel.
- It is not illegal for a sex worker to make contact with her/his client on the streets.
Australia (New South Wales); close to decriminalisation
Prostitution – legal. Running a brothel – legal. Pimping – legal.
- It is legal to run and operate a brothel. It has to be approved by the Local Council.
- The operation of a brothel is regulated by commercial laws, labour laws and tax system, like any other commercial activities.
- Advertisements for sexual services are prohibited in areas close to residential areas, schools, churches and hospitals.
- Sex workers can work individually in a premise.
Close to legalisation
Australia (Victoria): Close to legalisation
Prostitution – legal. Running a brothel – legal. Pimping – legal.
- A brothel has to be licensed. Those recently set up are limited to a size of no more than 6 rooms. Those set up before 1994 are of a larger scale.
- A self-employed sex worker can co-work with another person and run a small brothel. It has to be licensed and he/she has to have the landlord’s approval.
- A company that arranges escort services has to be licensed.
- A sex worker who provides private escort services has to register.
- Street sex work is prohibited.
The Netherlands: close to legalisation
Prostitution – legal. Running a brothel – legal. Pimping – legal.
- From 2000, a person aged 18 or above can legally work as a sex worker. A sex worker can only provide sexual services to another person who is 16 or above. A sex worker has to register and pay tax.
- Street sex workers can only work in particular districts.
- Brothels are licensed. The locations and settings are restricted. The police regularly inspect brothels.
- Child sex work and forced sex work are illegal.
Mixed
Sweden:
Prostitution – not illegal. Running a brothel – illegal. Pimping – illegal.
- It is illegal for a client, on the street or in a premise, to purchase or to be willing to purchase sexual services. However, there is no law targeting loitering or soliciting.
- Sex work is considered to be male exploitation against female and children.
- The government subsidizes social service agencies to provide services and assist sex workers to leave the sex industry.
U.K.:
Prostitution – legal. Running a brothel – illegal. Pimping – illegal.
- It is not illegal for an adult to work independently as a sex worker.
- Running, managing, or assisting to manage a premise in which more than one person works as a sex worker is illegal. Advertising for sexual services or causing another person to work as a sex worker is illegal.
- A stripper cannot expose her/his genitals.
Canada:
Prostitution – legal. Running a brothel – illegal. Pimping – illegal.
- Sexual service transactions between two adults are not illegal, but they must be kept private.
- Street sex work is illegal. It is also illegal to make contact with a person, to promote sexual service and to bring him/her to a brothel.
- Both assisting a person to buy sexual services and buying sexual services through a third party are illegal.
- Living on earnings of prostitution of others is illegal.
AFRO’s position
On account of personal safety of sex workers, we urge the Hong Kong Government to amended related laws:
- To allow at least two sex workers to operate in a single premise (decriminalize “two-woman apartments”.
- To omit the legal provision “Soliciting for an immoral purpose” which specifically targets street sex workers.
We believe the legal reform would facilitate sex workers in providing each other with mutual help and support, so as to successfully prevent crimes against sex workers.
We also believe that an individual voluntarily providing sexual services to another individual should be recognized as legal. In the future, the government should conduct a review on all sex work-related laws and study the feasibility of allowing more than two sex workers to work in a single premise, aiming at improving the working environment of sex workers and protecting their personal safety.
Decriminalisation of sex work implies decriminalisation of sex workers. Only on such occasion can they stay away from violence and possible coercion and their rights and safety be protected. Sex work has to be recognized as work rather than a criminal offence, and be regulated by commercial laws and labour laws like any other commercial behaviours.
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