Volume 12 - Issue 62
/ February 2023
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DOI: https://doi.org/10.34069/AI/2023.62.02.16
How to Cite:
Baranenko, D., Kosiuta, M., Vynnyk, A., Lashchuk, N., & Rodionova, T. (2023). The question of digital prostitution’s
criminalization and decriminalization: International-legal experience. Amazonia Investiga, 12(62), 175-181.
https://doi.org/10.34069/AI/2023.62.02.16
The question of digital prostitution’s criminalization and
decriminalization: International-legal experience
Шодо питання криміналізації та декриміналізації цифрової проституції:
міжнародно-правовий досвід
Received: February 10, 2023 Accepted: March 26, 2023
Written by:
Dmytro Baranenko1
https://orcid.org/0000-0002-9626-9607
Mykhailo Kosiuta2
https://orcid.org/0000-0002-6741-9207
Anna Vynnyk3
https://orcid.org/0000-0001-8141-531X
Nataliya Lashchuk4
https://orcid.org/0000-0001-9723-9824
Taisa Rodionova5
https://orcid.org/0000-0002-7039-5285
Abstract
Regulation of the digital sex industry is a topic of
debate at both national and international levels.
While there is an increasing interest in
decriminalizing sex work, digital prostitution
remains illegal in many countries. Therefore, it is
crucial to analyze the international experience of
criminalizing and decriminalizing digital
prostitution, and to pay attention to the
problematic issues that arise during this process.
The objective of the study is to explore the
international experience of criminalizing and
decriminalizing digital prostitution, while the
subject of the study is the social relations that
emerge during this process. The research
methodology employs various methods,
including philosophical, logical, special-legal,
system analysis, and formal-dogmatic methods.
The research concludes that different countries
treat the criminalization and decriminalization of
digital prostitution differently. Sex workers in
this industry advocate for decriminalization as it
1
Doctor of Legal Sciences, Associate Professor, Head of the Department of Theory and History of State and Law of Admiral Makarov
National University of Shipbuilding (Ukraine).
2
Doctor of Legal Science, Professor of Department of Judicial, Law Enforcement and Bar Organization of National University «Odesa
Law Academy», Ukraine.
3
Ph. D., Associate Professor of the Department of Criminal Law and Criminology of Faculty 1 of the Institute for the Training of
Specialists for National Police Units of the Lviv State University of Internal Affairs, Ukraine.
4
Ph. D., Associate Professor, Head of the Department of Criminal-Legal Disciplines of the Institute of Law of the Lviv State
University of Internal Affairs, Ukraine.
5
Ph.D., Associate Professor, of the Department of Criminal Law, Criminal Procedure and Forensics of Odesa I.I. Mechnikov National
University, Ukraine.
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puts power directly in their hands and eliminates
legal barriers. Countries that have decriminalized
digital prostitution believe that sex work is
legitimate work and should be treated with
respect. However, countries have different
models of criminalizing prostitution, including
the legalization of digital prostitution with
criminal liability for deviations from established
state rules.
Keywords: crime, criminal code, online
prostitution, sex workers, criminal liability.
Introduction
The use of information technologies brings about
changes in people's lives each year, leading to the
emergence and transformation of various
phenomena. One of these phenomena that has
been affected by the digital transformation and
the new opportunities for communication on the
Internet is prostitution, which has given rise to
the existence of digital prostitution.
Different countries have varying attitudes
towards regulating the provision of sexual
services and the distribution of intimate images
for a fee on the Internet. However, recognizing
prostitution as a legal activity did not follow an
evolutionary process starting with a complete
ban and ending with legalization. Calls for
legalizing and taxing prostitution were already
present thousands of years ago in different parts
of the world. For instance, prostitution "for
religious reasons" was legally permitted in
temples in the Middle East and Mediterranean
regions, and ancient Sumerian texts included
prostitution as a common occupation.
Researchers have observed similar practices
among the Aztecs, while the Incas regulated
prostitution through government officials, and
Greek heterosexuals had to pay taxes on it. In
Ancient Rome, prostitution was legal, registered,
and widely practiced. In the East, Japanese
brothels were popular among Asians and
Western travelers, and West Indian trading
companies were involved in the trade of Japanese
women for prostitution. Even in Muslim
societies, prostitution was formally banned, but
legal harems were created, which effectively
legalized the sexual slavery of women.
The way in which society views the legalization
and decriminalization of prostitution varies, with
some countries opting to protect women from
sexual exploitation and violence instead of
upholding liberal values and free choice.
Although prostitution is illegal in most countries,
including Ukraine, the ban is often just a
formality. The Ukrainian Constitution
(Law 254k/96-VR, 1996) prioritize the
protection of a person's life, health, dignity, and
sexual freedom. Furthermore, in Ukraine, both
prostitution and pimping are subject to criminal
and administrative liability as stipulated by
Article 303 of the Criminal Code (Law 2341-III,
2001) and Article 181-1 of the Code of Ukraine
on Administrative Offenses (Law 8073–Х,
1984).
However, there are differing opinions within the
public regarding the legalization and taxation of
prostitution, and the criminalization of
prostitution with more severe punishment. To
understand the role of digital media in ensuring
the rights of women and men in the sex trade, it
is important to analyze the existing definitions of
digital prostitution and the various approaches to
its regulation internationally. This will aid in
better understanding the impact of prostitution on
modern society.
As there is no agreement on the definition of
prostitution at the international level, it is useful
to look at individual states' policies on the matter.
Generally, four main political models for
prostitution are recognized: full criminalization,
full decriminalization, partial decriminalization,
and legalization. However, many states have not
yet decided on which model to adopt, making it
Baranenko, D., Kosiuta, M., Vynnyk, A., Lashchuk, N., Rodionova, T. / Volume 12 - Issue 62: 175-181 / February, 2023
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crucial to examine the potential benefits and
drawbacks of criminalization and
decriminalization. Additionally, the regulation of
digital prostitution is still largely unexplored.
Therefore, it is necessary to study the
international legal experience of criminalizing
and decriminalizing digital prostitution, as well
as identify key trends in regulating this issue.
Theoretical Framework or Literature Review
Researchers from both domestic and foreign
backgrounds have studied the international legal
approaches to criminalizing and decriminalizing
digital prostitution. Zaitseva (2018) examined
the Swedish model of combating prostitution and
concluded that it represents a third way beyond
the traditional dilemma of "forbid/allow,"
emphasizing a systemic approach to reducing
prostitution and human trafficking while
supporting women. The author argues that the
Swedish model is effective in achieving its goals.
Mykhaylyn and Radutny (2020) researched the
issue of legalizing prostitution and pimping as a
legal and social problem. They suggest that
engaging in prostitution and related activities
does not pose a threat to society or harm public
interest. They also argue that legalizing
prostitution would have several advantages, such
as increasing state revenue through taxation,
improving the welfare of prostitutes, reducing the
spread of venereal diseases, and decreasing
corruption in law enforcement agencies.
Onishko (2020) conducted an analysis of the
legal, social, and historical aspects of legalizing
sexual services. Savinova (2012) focused on the
general provisions of criminal law and the
development of the information society in
Ukraine. Armstrong (2016) examined the
changes in the relationship between police and
street sex workers in New Zealand after sex work
was decriminalized in 2003. Azzopardi (2021)
wrote an article discussing the legalization of
prostitution in Malta and the social problems it
may or may not solve. Jong B. (2021) analyzed
the different models of legalization of
prostitution that could be implemented in Malta.
Koenig B., Murphy A., Johnston S., Pearson J.,
Knight R., Gilbert M., Shannon K., and Krusi K.
(2022) analyzed the regulation of digital
prostitution and the need to decriminalize sex
work while promoting it as a form of work,
developing standards for online sex work
platforms, and prioritizing the safety of sex
workers.
Alexander (2010) conducted a study on human
rights in the context of sex work. Mgbako C.,
Bass K., Bundra E., Mehak Jamil, Jere Keys, and
Lauren Melkus (2017) examined the
decriminalization of sex work in South Africa,
while Machat S., Shannon K., Braschel M.,
Moreheart S., and Shira M. Goldenberg (2019)
analyzed the effects of criminalizing prostitution
in Canada. The authors found that
criminalization may not improve working
conditions and safety for sex workers, and may
even lead to negative consequences such as
further shadow activities. Samuel Lee Petra
Persson (2022) emphasized the need for optimal
regulation of sexual service markets and
highlighted the possibility of a prostitution
market with both voluntary and forced
participants. The author argued that
criminalization harms voluntary service
providers, while decriminalization may promote
human trafficking. Lucy Platt, Pippa Grenfell,
Rebecca Meiksin, Jocelyn Elmes,
Susan G. Sherman, Teela Sanders,
Peninah Mwangi, and Anna-Louise Crago
(2018) focused on health issues faced by women
engaged in sex work.
Melanie C. Basil (2015) argues that while it may
not be safe to say that prostitution should be
legalized in the United States, it is safe to say that
the current political model is ineffective. The
author points out the flaws in the current system
of regulating prostitution in the US, including the
social stigma attached to those labeled as
"criminals" due to their forced labor in illegal
conditions, as well as the reduction in identifying
potential victims of human trafficking as a result
of criminalizing prostitution.
Yvette Tan (2022) examined Singapore's
legislation on regulating digital prostitution, and
the issue of digital prostitution was also explored.
Davis B. (2022) analyzed the features of digital
prostitution through the functioning of the
OnlyFans platform. The literature reviewed
highlights that prostitution's criminalization and
decriminalization have been extensively studied
by scholars, both nationally and internationally.
However, there is a lack of research on the
international legal experience of criminalizing or
decriminalizing digital prostitution, indicating
the need for further investigation into this issue.
Methodology
By utilizing a variety of techniques for
understanding legal concepts, it has become
feasible to examine the international legal
experience concerning the criminalization and
decriminalization of digital prostitution. The
study of digital prostitution is based on
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philosophical methodologies, which serve as
methodological principles for knowledge and
methodological functions in understanding
particular subjects. Philosophical categories,
which are integral components of scientific
knowledge, are used in this study. The utilization
of dialectical knowledge principles, such as
comprehensiveness, concreteness, objectivity,
complete knowledge, bifurcation of the one, and
understanding of its contradictory aspects,
enabled the comprehension of the nuances of
criminalization and decriminalization of digital
prostitution. Furthermore, it facilitated the
discovery of the contents of legalization and
decriminalization models in various countries.
The investigation of the cause-and-effect
relationship between legislative changes and
social changes related to the criminalization and
decriminalization of digital prostitution was
made possible through the application of logical
methodologies, such as analysis, synthesis,
induction, deduction, analogy, and movement
from abstract to concrete and vice versa. These
logical techniques were utilized throughout the
entire process of analyzing the subject matter. In
particular, logical methods were of significant
importance in formulating the concepts of
"digital prostitution," "criminalization,"
"decriminalization," and "legalization,"
identifying the characteristics of these
phenomena, and examining their operations in
specific countries. Furthermore, logical
techniques facilitated the analysis of normative
legal acts, comparison between them, and
identification of the common features connecting
them.
Throughout the research, a concrete historical
method was employed, which enabled a better
understanding of the essence and underlying
reasons for the enactment of legislation in
various countries. Analyzing a state's history can
provide valuable insights into the state's present
role and functions, aiding in understanding its
past. Simultaneously, understanding both past
and present trends can help identify the direction
of the state's and its legislation's future
development. The identification of general
properties was given special attention to
particular historical events that reflected unique
factors that influenced the formation of specific
legal norms. Every society has its unique culture,
historical experience, traditions, and worldview,
which can affect the development of legal norms.
Specific historical methods helped to reveal the
dynamics of legislative development concerning
criminalization and decriminalization of
prostitution (including digital) across different
countries, highlight the features of the periods
influencing these phenomena, and identify the
legislative changes' distinctive features.
System analysis methodologies were used to
comprehend the structure and components of
different countries' legal systems. In particular,
these methods helped clarify the connection
between the legal system and the
criminalization/decriminalization of digital
prostitution.
The formal-dogmatic method was applied to
analyze the external forms of law expression and
interpret legal norms. This was necessary to
understand the guiding principles underlying the
adoption of legislative acts and norms of both
international and national law. This method
facilitated the identification of certain patterns in
the formation, functioning, and development of
criminalization and decriminalization legislation
concerning digital prostitution in various
countries worldwide.
Results and Discussion
The emergence of digital platforms that facilitate
the sharing of sexual content has revolutionized
the traditional concept of prostitution and
enabled individuals to earn money without
physical interaction by using such platforms.
One prominent example of such a platform is
OnlyFans. This platform operates as a
subscription-based service where content
creators upload exclusive content, and
subscribers pay to view it. In 2021, OnlyFans
introduced new terms of service that prohibited
users from posting sexually explicit content. This
move was justified as necessary to comply with
the requirements of banking partners and
payment service providers and to ensure the
long-term operation of the platform. However,
due to the low risk associated with such content,
these rules were eventually reversed. The
practice of posting content on OnlyFans for
financial gain, known as digital prostitution, is
treated differently in various countries. While
such services are not legally prohibited in most
countries where OnlyFans operates, those who
post such content still face stigma and legal
consequences depending on the nature of the
content and the legal regulations in each country.
The content posted on OnlyFans can be
categorized into three types: erotic, sexual, and
pornographic (Sex workers alliance Ireland,
2021). All three types are allowed on the
platform, but their legality varies by country.
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Customers who pay to access such content
currently face no legal repercussions.
The legislation of various countries regarding the
criminalization and decriminalization of
prostitution is an important topic to consider.
In June 2003, New Zealand decriminalized
prostitution, which resulted in better working
conditions for sex workers, improved access to
health services and justice, and increased
confidence and well-being.
The Swedish model, which criminalizes pimps
and clients but not prostituted persons, is aimed
at combating demand for prostitution. This
model is focused on customers/buyers as the
main reason for the existence of prostitution and
recognizes pimping and mediation in human
trafficking as crimes. The shift from perceptions
of voluntary prostitution to the reality of poor
women and girls being forced into prostitution
due to poverty, blackmail, threats, or
hopelessness has led to the punishment of clients
with fines or imprisonment (up to 6 months in
Sweden) in order to address demand.
Currently, prostitution is illegal in Malta, but the
implementation of the Northern model of
decriminalization is being discussed. This model
would decriminalize sex workers and criminalize
their clients and traffickers, while services like
pimping and running brothels would remain
illegal. On the other hand, there is also a debate
about adopting the Finnish model, which
distinguishes between voluntary sex work and
those working under the guidance of a pimp,
minors, or victims of human trafficking.
In Canada, the purchase of sexual services is
illegal under the Protection of Communities and
Exploited Persons Act (PCEPA), but selling
sexual services is legal. South Africa is currently
discussing the possibility of decriminalizing
prostitution, while in Singapore, the production,
transmission, and distribution of obscene
material is widely considered to go against
Singapore's moral standards and norms.
The UN Convention on Combating Trafficking
in Human Beings and the Exploitation of
Prostitution by Third Parties (United Nations,
1949) highlights that prostitution and its
associated issues pose a threat to the dignity and
well-being of individuals, families, and society
as a whole. This definition is included in the
Convention on the Elimination of All Forms of
Discrimination Against Women (United Nations,
1979).
The international community recognizes that
prostitution and human trafficking are harmful
and that the prostituted person is the victim. Even
if some individuals claim to enjoy selling their
bodies, it does not justify the violence and
systemic inequality faced by those engaged in
prostitution.
The development of policies aimed at reducing
human rights violations in the sex industry
demonstrates a shared goal among states to
combat sex trafficking and avoid human rights
abuses.
Therefore, international legal experience shows
that various approaches to the legalization or
decriminalization of prostitution are primarily
focused on protecting human rights and bringing
people engaged in prostitution out of the
shadows.
Conclusions
After studying the international legal experience
of criminalization and decriminalization of
digital prostitution, the following conclusions
can be drawn:
Digital transformation has enabled the use of
digital resources for engaging in prostitution
through the placement of relevant content on
special platforms, which may result in legal
liability in many countries depending on the type
of content.
The legalization (decriminalization) of sex work,
including on the internet, is being discussed in
many countries, with some considering it to
enhance the safety of sex workers and increase
revenue through taxation. However, the illegal
nature of such activities may prevent tax
payment.
The regulation of such activities is based on the
analysis of prerequisites, key factors of
interaction between the state and society, and the
main threats for persons involved in such
activities. The Swedish and Finnish models, as
well as the experiences of other countries like
New Zealand, Singapore, and Canada, provide
examples of successful regulation of prostitution.
The main goal of criminalization and
decriminalization of prostitution, including
digital prostitution, is to ensure the rights of
persons involved in such activities and combat
the sex trade and pimping.
Further research is needed to explore the
possibilities of legal regulation of information
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platforms where pornographic content is posted
and the establishment of restrictions for persons
carrying out activities on such platforms.
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