Law enforcement, intellectuals, politicians, and activists all over the United States—last month, even President Obama—are discussing legal approaches toward the related scourges of human trafficking and prostitution. Recognizing that prostitution is a form of sex inequality related to gender-based violence, the Swedish approach criminalizes the purchaser, while decriminalizing the prostituted person, and has dramatically reduced prostitution and human trafficking since 1999. The law has also been adopted in Norway and Iceland. Particularly with the amendment Sweden made in 2011 that enables prostituted persons to claim damages directly from purchasers for violating their equality and dignity, it would fit well as a civil rights law in America. Nonetheless, some critics keep citing inaccurate and biased data, saying the law would not work in the U.S.

For instance, in the New York Times’ Sunday Review section, September 23, 2012, freelance journalist Noy Thrupkaew argues that the Swedish law harms prostituted persons “more than it helps them.” While recognizing Sweden’s intentions to fight exploitation, she claims “it hasn’t panned out as planned.” However, her assessment contains fundamental errors and misinformation about Sweden. Moreover, she does not consider the overwhelming evidence suggesting that prostitution generally is not a genuine “choice” among acceptable alternatives, nor that legalization increase sexual exploitation rather than alleviating its harms. If anything, her position grants men a right to buy another person for sex.

Thrupkaew cites an unfounded rumor that has circulated among proponents of legal brothels, saying that prostitution did not drop in Sweden since their law’s inception due to an alleged increase in “underground” prostitution. Another such rumor was that prostitution became more dangerous with the new law. Both claims originate primarily from an unpublished online piece in English where the Swedish author does not mention, as she did in her book published in Swedish, that her sample of less than 20 women was deliberately composed of persons who said they mainly had a positive view about prostitution because, she thought, so many voices were negative toward prostitution when the law was passed. Nonetheless, claims emanating from this biased study have been promulgated among academics, activists, and others who do not read Swedish, and who do not know how the results were obtained.

Swedish government agencies who interviewed key informants and prostituted persons found no evidence of a more dangerous situation because the law was passed; some prostituted persons even say they’ve been “empowered” by the law, as it gives them leverage when dealing with tricks and others.

Moreover, prostituted persons have to be visible in order to “meet the demand”; thus, “underground prostitution” is rather an oxymoron. When hidden from the streets, the extent of prostitution can be approximated via, inter alia, the number of online or paper advertisements or observations from bars, casinos, strip clubs, and from reports by outreach workers and law enforcement. In 2008, a group of Nordic researchers published a comparison of the number of prostituted people accordingly, showing that Sweden’s prostitution was roughly ten times lower per capita than Denmark’s and Norway’s were (Norway copied Swedish law in 2009).

While the number of prostituted people increased in other countries since the 1990s, the opposite happened in Sweden; estimations in the 1990s of 2,500 to 3,000 females came down to a mere 600 in 2008. Saying that “underground prostitution” accounts for this decrease, as well as the tenfold per capita difference, is ludicrous. Moreover, several anonymous surveys suggest that the number of tricks has gone down significantly in Sweden since the law was passed. Not surprisingly, international traffickers have even been wiretapped while complaining how difficult a “market” Sweden has become.

Thrupkaew argues that conditions in prostitution range from “upscale to exploitative, from freely chosen to forced.” However, her concept of “choice” is not consistent with the reality, as over 40 years of research has confirmed time and again, that most persons enter prostitution after having been sexually abused and neglected as children, and when they enter, often under age 18, they are further subject to multiple disadvantages such as systemic poverty, racism, homelessness, and sexism.

If “freely chosen” means being able to choose “real or acceptable alternatives” to prostitution—the essential distinction from sex trafficking, according to international law—the fact that 89% of 854 prostituted persons in nine countries, United States included, wanted to escape it, but were unable to, suggests that choice is the privilege of a tiny minority. Among the 854 prostituted persons, whom were sampled both indoors and outdoors, two-thirds met clinical criteria for posttraumatic stress disorder (PTSD) equal to that of treatment-seeking Vietnam veterans and torture victims. A Korean study on females formerly prostituted in brothels made similar findings in 2009, even controlling for prior childhood abuse. In Switzerland, where prostitution is legal, a 2010 study found that the “burden of sex work” causes severe mental disorders, with no general differences between indoor or outdoor prostitution.

International trafficking law urges states to reduce the demand for prostitution, and to protect and assist victims. This is contrary to what making prostitution legal does. Government reports and research in many jurisdictions find that legalization/decriminalization increases prostitution, without addressing the increased demand for unsafe and dangerous sex. In London, U.K., where apartment prostitution is permitted when monitored by a “maid” sitting outside, a study implied such de facto brothels increased the exploitation and unsafe sex, without necessarily reducing abuse. This is to be expected, as prostitution is intrinsically unequal; third parties are there for the profits, tricks think they have an almost absolute right to buy sex, and prostituted persons’ situations provide little leverage.

In 2011, the Swedish law was amended to clarify that prostituted persons may claim civil damages directly from tricks, for having violated their equality and dignity. This position further supports grants of social welfare assistance to prostituted people as crime victims, and offers real choices for the exploited (not to mention deterring the tricks). If America is particularly known for something (apart from jazz, radical feminism, and an admittedly small public welfare system), it is the recognition that people who are legally entitled to compensation will have their “day in court.” Hence, contrary to the suggestions by Thrupkaew, the amended Swedish civil rights law would work exceptionally well in the United States.

Max Waltman is a PhD Candidate at the Department of Political Science, Stockholm University, who’s published several research articles on the legal challenges to sexual exploitation in Canada, Sweden, and the United States, and in the popular press, such as the New York Times and Toronto Star.

The sources of Data for this piece are generally cited in the following of Waltman’s publications:

“Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law.” 33 Michigan Journal of International Law 133, 133-57 (2011). WWW (SSRN) (also available on Westlaw/LexisNexis/Heinonline); in Korean (translated): WWW.

“Sweden’s Prohibition of Purchase of Sex: The Law’s Reasons, Impact, and Potential.” Women’s Studies International Forum 34, no. 5 (2011): 449–74. WWW (ScienceDirect); WWW (free; author’s revised version).

“Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, & Substantive Equality in Bedford v. Canada.” (Stockholm University Dept. of Political Science Working Paper No. 2012:1). WWW (SSRN).

Some additional more recent sources:

Kotsadam, Andreas, and Niklas Jakobsson. “Shame on you, John! Laws, stigmatization, and the demand for sex.” European Journal of Law & Economics (June 2012). Advance online publication. DOI 10.1007/s10657-012-9339-y.

MacKinnon, Catharine A. “Trafficking, Prostitution, and Inequality” 46 Harvard Civil Rights-Civil Liberties Law Review 271, 271-310 (2011). WWW.

Rössler, Wulf, and U. Koch, C. Lauber, A-K Hass, M. Altwegg, V. Ajdacic-Gross, and K. Landolt. “The Mental Health of Female Sex Workers.” Acta Psychiatrica Scandinavica 122 (2010): 143-152.