Back in 2020, the government came forward with a prostitution law reform seeking to decriminalise sex work within a legal framework. The result was that widespread controversy was let loose among various sectors, such that, lately, amendments are being considered to ensure that proposals put forward through public consultation match the local context.
The management of prostitution is a very relevant and sensitive issue in our country as well as elsewhere. Deciding which model of prostitution to adopt, among the possible ones, whether to legalise and regulate, criminalise or make the market legal but unregulated, is a political decision that brings with it consequences and is based on a variety of perspectives and choices, be they ethical, moral or religious. Across the global spectrum of countries, at one extreme, prostitution is considered a profession (sex work) and is, therefore, legal and regulated, while at the other extreme, it is criminalised.
At the moment, Malta adopts a prohibitionist type of legislative typology on prostitution. Many legal frameworks for prostitution have been passionately debated in recent months. But how do the proposed models differ from the current legal status of prostitution in our country? What are their possible ramifications? And why is it so difficult to reach a consensus?
Prostitution is often described as the world's oldest profession. Yet many will not even recognise it as a profession, arguing instead that it is a form of female exploitation or that it normalises violence against women. Ideological debates like these make it difficult to legislate sex work.
Sex work has the potential to provoke multiple social issues that intersect, from poverty and social inequality to the rights of women and minority groups. In such a complex field, legislation that can seem reasonable and straightforward in theory can have unexpected consequences in practise, for instance, for the safety of sex workers. With this in mind, it is crucial to make clear distinctions between different legal frameworks and to examine closely their possible repercussions. First, though, one thing needs to be made clear. Legalisation and decriminalisation are often confused with one another, merged into one or otherwise misunderstood. But the distinction between these two terms is critical.
Under a legalisation framework, prostitution will be legal only under particular state-specified conditions and regulations. The sex-work industry would, therefore, be controlled extensively by the government. Sex-work-specific regulations would be put in place, which may include measures such as the registration and licencing of sex workers. An example of a country where prostitution is legalised is the Netherlands, where prostitution is regulated and subject to income tax.
On the other hand, decriminalisation involves stripping away all prostitution-specific legislation, either to forbid or to regulate it, although the sex-work industry and everyone involved in it must still abide by the laws of the land. The idea behind decriminalisation is to allow sex workers to manage their industry and design their own regulations.
Locally, we have some prostitution-related activities that are banned by law, including brothel-keeping, pimping, kerb-crawling, pandering and soliciting or buying sex in a public place. It is the legislation surrounding these banned activities that has attracted the most criticism, in particular the criminalisation of brothel-keeping. Normally, a brothel is defined as a property where more than one person sells sex. This means that prostitutes are technically committing a crime if they decide to work together indoors, something that many sex workers choose to do to ensure their safety. Paradoxically, a law intended to protect sex workers from being exploited might endanger them.
Many have floated the idea of Malta opting to adopt the Nordic model. Also known as the Swedish model or the sex-buyer law, the Nordic model aims to end the demand for and, therefore, eliminate prostitution. As its name suggests, this system has been adopted by many Nordic countries, including Sweden, Norway and Iceland, alongside others such as France, Ireland and Northern Ireland. Under the Nordic model, selling sex is not illegal, but buying sex, along with many other activities related to prostitution, is a criminal offence.
Full decriminalisation would entail removing all prostitution-related laws, both those that make prostitution illegal and those regarding prostitution-related activities. Decriminalisation would aim to allow sex workers to take control of their industry and eliminate any form of exploitation that may exist within it. Yet, we should never see decriminalisation alone as a sort of magic bullet because, once it renders prostitution completely legal, it encourages a trade that normalises sexual violence against women and girls.
Perhaps we should continue building on an integrative approach that removes transactional sex between consenting adults from the penal code and recognises prostitution as sex work. Is it not time to continue to advocate for adopting integrative policies for their beneficial effects on sex workers' well-being? These include better protection for sex workers from violence by creating conditions in which they feel safe to cooperate with police if needed, recognising sex work as work, including all implications for health insurance and social security and providing viable options to switch professions without fear if they choose to do so. This is particularly important to mitigate all forms of exploitation that might occur.
We must seriously consider adopting similar recommendations to help prevent violence and the spread of sexual diseases and, most importantly, to give agency to sex workers in their daily interactions with clients, police and society at large by decreasing stigma.
Prostitution is a profession where many different issues, including class, gender, race, sexuality and the very concept of work itself, clash. Each of the different legislative models outlined above prioritises different causes, whether it be women's rights or the physical safety of sex workers, and trying to satisfy them all appears to be an impossible task. With this in mind, it is highly unlikely that in the coming years a consensus will be reached regarding the status of sex work in Malta, and the debate is likely to continue.
Dr Mark Said is a lawyer