6 – Issues with the Nordic Model

In the wake of the Supreme Court’s unanimous decision that Canada’s current prostitution laws are unconstitutional, the time has come to find a new legal approach. There are two different approaches that are at the forefront of this conversation. One approach is regulated legalization, whereby prostitution (among consenting adults) remains legal but is regulated by the government in such a way as to minimize its harms, much like our existing approach to other adult indulgences like alcohol, pornography and cigarettes. The other approach, which is receiving a lot of press coverage, is called the Nordic model. This is an approach that was originally introduced in Sweden in 1999 and which has since been adopted in Norway and Iceland as well. Complying with the Nordic model means it will be illegal to buy sex but entirely legal to sell it. To put it another way, sex work is completely decriminalized for sex workers, but fully criminalized for their clients. From the viewpoint of the Nordic model, prostitution is a crime in which the client is the perpetrator and the sex worker is the victim. One of the most vocal groups arguing for Canada to take on the Nordic model is the Women’s Coalition for the Abolition of Prostitution (WCAP). Proponents of the Nordic model often tout it as championing gender and economic equality, pointing to the typical and overwhelmingly common scenario of a male client and female sex worker, whereby a wealthier man is paying a less wealthy woman for sex. This model seeks to criminalize and prevent this kind of transaction without persecuting the sex worker, who is viewed as a desperate victim of circumstance.

The proponents of the Nordic model typically hail it as a progressive new approach that will resolve most of the issues with Canada’s current approach to prostitution. However, there are a wide range of problems with their arguments and evidence behind the claims that the Nordic model is the silver bullet to the sex trade’s ills.

In the primary document that is available as a link on the WCAP website about the Nordic model, and in the arguments by the WCAP before the Supreme Court, the focus is on the evils of human trafficking and other particularly horrific forms of prostitution such as underage prostitution and abusive pimps. The Nordic model, it is argued, is the way to combat these evils. However, while it is true that we should be focusing on the most horrific forms of prostitution, the argument that the Nordic model is a solution to these issues is tenuous at best. Human trafficking, sexual exploitation of minors and other forms of abuse are illegal under our current laws and will remain illegal even once the laws struck down in the Supreme Court are removed from the criminal code, or even if prostitution is fully legalized. The Nordic model does nothing truly special to combat these horrors and, in fact, could arguably make the worst forms of prostitution even harder to combat.

Even though it doesn’t criminalize sex workers themselves, by criminalizing clients, the Nordic model still forces sex workers to go underground, and in hiding from the police, in order to meet their clients’ needs. As the Johns risk arrest for engaging in prostitution, they require anonymity and secrecy and this deeply colours the way in which sex workers have to ply their trade. If they want to make any money, sex workers will need to go where the work is and stay under the police’s radar. In the information age, a sex worker or escort agency, whose clients are arrested, is going to lose business fast. By making it illegal to buy sex under any circumstances, the Nordic model goes even further than the current Canadian model, which only criminalizes surrounding acts like communication, brothels and living off the avails. By criminalizing prostitution in a wider sense, the Nordic model forces a more diverse range of sex work to go underground. The more sex work hides from the police, the less the police know about the activity and the harder it becomes to tell the difference between the most horrific forms of prostitution and the relatively more benign forms. This makes it harder for the police to crack down on activities such as human trafficking and underage prostitution. Less police awareness also makes sex work less safe for both the sex workers and the Johns.

There is also the issue of where the police focus their efforts. If the police are going after people for hiring an adult sex worker who chooses to go into that line of work, they are not concentrating their efforts on stopping people from sexually abusing 12 year olds. Even if you believe that people should be criminals simply for hiring other willing adults for sex, surely the offender that goes after minors should be the top priority. Similarly, if the police are focusing their attention on escort services that employ willing adult sex workers, that is time and funding that could be spent going after those engaging in human trafficking and sexual slavery. With those buying sex from willing adults being criminalized, the police and court system will have less time and resources to properly target the truly horrendous forms of prostitution.

In the case of the most vulnerable and victimized sex workers, such as underage and/or trafficked women, the pimps use strategies to ensure that the prostitutes do not go to the police. These strategies can include threats, imprisonment and isolation. Often in the case of trafficked women, threats are made against family members in the women’s country of origin, outside of the protective reach of police in the country where the prostitution is taking place. Because these victimized women cannot or will not go to the police, it is very difficult for police to find out about these operations and shut them down. Typically, similar attempts are made to hide the abusive nature of these operations from clients as well, trying to make it seem to the clients that the victims are willing, adult participants.

However, by being in direct contact with the victims, the clients have the best chance to determine that human trafficking, exploitation of minors, or other forms of abuse are happening. At least in our current model, a client who went into a transaction expecting a willing adult, but realized that something was wrong, could go to the police and tell them about the situation without fear of reprisals. In the Nordic model, any attempt to buy sex – even from a willing adult is criminalized, and clients will fear coming forward to the police, removing one of the already very few tools that the police have to find and shut down human trafficking or underage prostitution operations.

Furthermore, it can be argued that, under the Nordic model, sex buyers are already committing a crime simply by the act of buying sex, and, therefore, they have less to lose by committing further crimes like rape, assault, robbery, sex with minors or even murder. There would be a greater tendency for clients to escalate their crime to cover their activities if they think that a sex worker is likely to go to the police. Ultimately this means that while sex workers are not criminalized, the detrimental effects of well intentioned laws could end up drastically decreasing their personal security

A lot of fairly dramatic claims are made about the successes of the Nordic model, including the claim that introduction of these laws was responsible for a 50% reduction in street prostitution in Sweden. Most of these are based on the findings of the 2010 Skarhed report. However, more recent scholarly articles such as an Issue Paper from the Center for Human Rights and Humanitarian Law at the American University Washington College of Law have been critical of these claims. The Skarhed report was inherently biased toward the law, with a mandate from the start to ensure that the buying of sex remain criminalized, and the bulk of the English-language reporting on its claims came only from the brief English summary (the bulk of the paper was originally only available in Swedish). Later scholarly analysis of the Skarhed report and other Swedish research by the Center for Human Rights and Humanitarian Law found that “a close examination of government reports and other research reveals that Sweden’s claims of success are not supported by any reliable evidence”1. Despite a lot of fantastic claims made on the basis of a summary of a biased government report, there is no scientific basis for belief that the introduction of the N,ordic model in Sweden reduced the number of sex buyers, reduced the number of sex workers or reduced the incidence of human trafficking. While it does does seem that the incidence of street prostitution in Sweden has gone down since 1999, this is more readily explained as part of a global trend where prostitution has been moving from the streets to the internet during this period. There is no reason to believe that the new laws in Sweden were responsible for the drop in street prostitution, nor that it represented a real decrease in prostitution rather than simply a move from one prostitution strategy to another.

Meanwhile, the Center for Human Rights and Humanitarian Law points out that, similar to the situation with the Canadian laws recently struck down, there have been findings of an increase in the risk of violence toward Swedish sex workers since the law was introduced. There have also been fewer clients coming forward to testify in human trafficking and abuse cases, more stigma and police harassment toward sex workers and negative health outcomes among Swedish sex workers since the Nordic model was introduced there. These findings have been conspicuously absent from Sweden’s official government reports, and as a result, from most international reporting on the Swedish model. Despite some relatively successful government propaganda convincing people otherwise, Sweden’s legal approach to prostitution is as deeply problematic and riddled with flaws as the Canadian laws that are were recently struck down as unconstitutional – if not more so. Simply put, the Nordic model has made sex work less safe in Sweden.

It’s also important to note that Sweden and the other countries adopting the Nordic model do not have a document similar to the Canadian Charter of Rights and Freedoms, under which Canada’s current prostitution laws were challenged and defeated. By forcing prostitution underground and out of the eyes of the police, the Nordic approach arguably subjects sex workers to essentially the same, or even more extreme, dangers and harms as our current Canadian legal regime that was recently struck down in the Supreme Court. Therefore, the Nordic model could be constitutionally challenged on the same basis as our present Canadian laws. What’s constitutional in Sweden is not necessarily constitutional in Canada. Even if the Nordic model were adopted in Canada, those laws would almost certainly be struck down in turn. The Supreme court was quite adamant that while parliament is free to regulate prostitution, it is not acceptable under the charter to sacrifice the safety of individual sex workers in the effort to abolish or reduce the incidence of sex work.

When one first hears about the Nordic model, it initially feels very emotionally satisfying on a number of levels. It feels good that it goes after the Johns who are seen as perpetrators rather than the sex workers who are seen as the victims. The goal of abolishing prostitution is an aim that, in theory, most Canadians can support and feel good about on an emotional level. As understandable and emotionally desirable as it is to have a goal of trying to end, or at least reduce, the incidence of prostitution, the Nordic model really only remains emotionally satisfying if you ignore the fact that any reduction in the amount of prostitution is accomplished at the cost of seriously compromising the safety of sex workers. Once we realize that it puts sex workers in far greater danger of rape,  assault, and murder, it becomes clear that the emotional satisfaction that the Nordic Model provides is unfortunately only skin deep.

To summarize, there are a number of issues standing in the way of it being an effective solution to the challenges posed by prostitution in Canada. The proponents of this model talk a lot about the horrors of human trafficking and underage prostitution and keep pushing these emotional buttons, but the Nordic model does not meaningfully address these problems. By continuing to push prostitution underground and out of the sight of the police and by making it impossible for clients to come forward without facing recrimination, the Nordic model would arguably make the most horrific forms of prostitution even more difficult to police. By not resolving the harms that have lead to the Supreme Court’s rejection of our current laws, the Nordic model could be considered a step back and could potentially make sex work even less safe then the current laws, which have been deemed unconstitutional.  As such, it is not a meaningful alternative to the recently struck Canadian laws and would likely just lead to another battle in the courts.

The Supreme Court of Canada has made it clear that laws which harm or endanger individual sex workers in the pursuit of minimization of prostitution are not acceptable under our constitution. What we need in Canada is a new legal approach to prostitution that meaningfully addresses the sex worker safety issues, which triggered the recent Supreme Court decision, and ideally gives the police more tools to seek out human trafficking, underage prostitution and other horrific abuses by not pushing prostitution underground and out of their sight. Regulated legalization of prostitution, similar to our approach to alcohol, cigarettes and pornography, will not lead to legal challenges or harm and endanger citizens in ways that make the Nordic model not viable here in Canada.

  1. Jordan (2012), The Swedish Law to Criminalize Clients: A Failed Experiment in Social Engineering, p 5 []

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