Designing Prostitution Policy

Intention and Reality in Regulating the Sex Trade

Wagenaar, Hendrik, Amesberger, Helga, Hendrik Wagenaar, Helga Amesberger, Sietske Altink

• Publisher: Policy Press
• Year: 2017
• Print ISBN:
  9781447324249
• Edition: 1
• eBook ISBN:
  9781447335191
• Topic: Social Sciences
• Subtopic: Public Policy
• Index: Social Sciences

Available Open Access under CC-BY-NC licence.

While the debate on regulating prostitution usually focuses on national policy, it is local policy measures that have the most impact on the ground. This book is the first to offer a detailed analysis of the design and implementation of prostitution policy at the local level and carefully situates local policy practices in national policy making and transnational trends in labour migration and exploitation.

Based on detailed comparative research in Austria and the Netherlands, and bringing in experiences in countries such as New Zealand and Sweden, it analyses the policy instruments employed by local administrators to control prostitution and sex workers. Bridging the gap between theory and policy, emphasizing the multilevel nature of prostitution policy, while also highlighting more effective policies on prostitution, migration and labour exploitation, this unique book fills a gap in the literature on this contentious and important social issue.

THREE

The local governance of prostitution: regulatory drift and implementation capture

In this and the next chapter we discuss the formulation and implementation of prostitution policy in the two countries of study. To arrive at our stated goal of establishing a more comprehensively theorised understanding of prostitution policy, we link our empirical material to insights from policy theory in these chapters. Given our repeated assertion that local policymaking or policy implementation is paramount in shaping the outcomes of prostitution policy, we will first describe the implementation trajectory of the Dutch and Viennese reforms in the regulation of prostitution. To prepare for our analysis of implementation practices we will begin with introducing three key analytic concepts from the policy literature: policy implementation, policy design and policy instruments. We conclude this chapter by formulating the wider lessons of our analysis about implementing prostitution policy. In Chapter Four we turn to the formulation of prostitution policy.

Policy implementation as policy formulation with different means

National laws reflect the moral ambitions of the polity and/or ruling elite with regard to a particular social issue. The moral dimension of law is particularly pronounced when it comes to issues of morality politics such as prostitution. For example, at the introduction of the Norwegian Sex Purchase Act (2009) that criminalises clients, the Minister of Children, Equality and Social Inclusion, Audun Lysbakken, declared: “The law is one of the most powerful tools a society has to define its values and create attitudes” (cited in Jahnsen and Skilbrei, in press). But if law wants to go beyond a purely symbolic function, its ambitions require translation into action. This raises a host of normative, political, administrative and practical questions. Add to this the observation that prostitution policy can best be seen as a policy subsystem or policy network, with a large number of actors involved, from government, public administration and civil society (we return to this in Chapter Four), all of whom are engaged in a diversity of practices, and it is clear that the implementation of such a contested measure as the legalisation of the sex trade is an unpredictable, contingent, if not downright messy, affair.

This is not the place to reiterate 50 years of implementation research in the discipline of policy studies.³⁶ Our perspective on policy implementation is that it requires distinct activities to translate policy intention into action, but that it is generally unhelpful to put too much weight on a strict distinction between policy formulation and implementation. Many of the same dynamics (such as national discourse), as well as actors (national government agencies, NGOs, pundits, stakeholders) that are involved in the policy formulation phase, are also involved in the translation of law into a workable practical-administrative processes. Furthermore, in one of those recursive moments that characterise the field of prostitution policy, the translation of laws into action is often influenced and guided by judicial decision. For example, the decisions by the Supreme Court and the Higher Administrative Court in Austria, like the Sittenwidrigkeits clause, have shaped the direction of prostitution policies, sometimes binding, for decades. The point is not that (supreme) courts interpret the law – this is part of their constitutional mandate – but the example shows that the Supreme Court decision, by shaping the practical-administrative process, has contributed to a repressive turn in a policy that at the time tolerated prostitution. Besides the negative effects of the verdict on sex workers’ rights³⁷ the Sittenwidrigkeits clause reinforced the stigmatisation of sex workers. The conclusion is that policy implementation and formulation are overlaid and intersecting configurations of practice, made up of overlapping competences, meanings and materialities, and often involving the same actors. In that sense policy implementation is part of ‘an ongoing process of policy making’ (Hupe et al, 2014).

In early, so-called top-down, implementation theory, the law was seen as a set of instructions, or even less realistic, binding commands, issued by central government actors to lower-level administrators (Hogwood and Gunn, 1984). Subsequent research into the actual activities of administrators showed that a law could more fruitfully be seen as a general suggestion or admonition to point activities of practical translation in a particular direction. One could say that the passing of a law triggers this process of translating law by the book into these practical-administrative processes. But what does this imply? First of all, different actors will interpret the practical implications, or even the goals of the law, in different ways. The interpretation of multiple and often conflicting values is an important part of the work of policy implementation. For example, in both the Netherlands and Vienna regulatory reform of prostitution has expressed a number of values, varying from containing and fighting trafficking to improving sex workers’ labour rights. In both locations, justice officials as well as municipal actors have attached much more significance to the control of what they see as unlawful or immoral behaviour than improving the rights of sex workers. This is not coincidental. In the Netherlands, the repeal of the ban on brothels met a local policy space in which the regulation of prostitution was framed as, and organised to attain, the containment of its expansion and the control of its most egregious side effects. But what was it that the new law (or in this case, the repeal of a law) had changed exactly? First of all, the repeal introduced an important new meaning into the local practice configuration. The commercial exploitation of prostitution was no longer a crime but, in legal terms at least, it aspired to be a regular business. But stating that prostitution is a regular business and actually believing it are not the same. Policy actors did not change their opinion of brothels owners or sex workers. As a police manager in the city of The Hague characterised brothel owners at the time: “It’s a different world. These are rogues. In a frank moment they will say: ‘We’re only in it for the money.’” He added: “We already knew in ’98 that we had to work towards a legalization of the sector. I know, these are the same boys and girls, but according to the law it is now a legal business sector” (cited in Wagenaar, 2006, pp 210-12). The aspiration expressed in the repeal, to transform the prostitution sector into a regular small business sector, was no longer in alignment, however, with the other elements of policy practice, such as the urge to contain and control prostitution, and the administrative routines that had developed over the years to bring that about. Local policy makers did indeed try to introduce new policy approaches that reflected the new situation. Brothel owners in The Hague were invited to participate in a deliberative forum to hammer out the details of a licensing system for brothels, although the pervasiveness of the stigma of prostitution did not change the habit of excluding sex workers from such forums. In hindsight, however, one has to conclude that this new approach was grafted onto an older practice of containing prostitution and overcoming the fragmentation of services within the city. In fact, the licensing system with its attendant requirement to monitor sex facilities, although it was the cornerstone of the legalisation of brothels, was in fact subjugated to the overriding goals of containment and control. In terms of practice theory, extant local policy at the time of the repeal consisted of an elaborate configuration of elements of a policy practice, in which the repeal introduced new symbolic and material elements that triggered an unpredictable process of alignment between those elements.

In contrast to the Dutch repeal of the ban on brothels, the new Viennese Prostitution Act (WPG) did not introduce a new meaning into the local practice orientation. Despite the attempt by the government to involve sex workers and other citizens – albeit only marginally – in the policy formulation process and the establishment of a steering group that oversaw the practical realisation of the law, the local practice configuration remained unchanged. Rather, the introduction of a licensing procedure for sex facilities as one of the main pillars of the WPG and its mastering was in alignment with long-standing traditions of control and containment of prostitution under the guise of improving working conditions, reducing exploitation and confining trafficking. The police successfully maintained its long-lasting dominance, including its defining power regarding the nature of the problem. In terms of practice this means that a reconfiguration of policy practice requires a fundamental reorientation of policy in terms of meanings and required competences, whereas the mere addition of a policy goal like the improvement of sex workers’ situation does not evoke the necessity of other or new practical-administrative strategies and might get lost in the course of implementation and application. This leads us to our next issue.

Our second point is an extension of the first. Laws need to be translated into procedures and regulations that suggest how members of the target groups are expected to behave, and how relationships between government agencies and target groups, or between citizens and the state, are organised. In our later discussion of policy instruments, we unpack this statement, but here we want to make a different point. A new law and the procedures and regulations it spawns will have to be fitted into a dense landscape of existing procedures, practices and processes, both formal and informal. A considerable part of that work is technical and requires detailed, hands-on knowledge of hundreds if not thousands of rules, procedures and regulations. Another part is a deep, practical knowledge of the policy domain at hand, to ensure the workability and acceptability of the regulations. And, third, all this work has to fit local circumstances. While that fit with the regulatory environment, the policy domain and local circumstances is far from perfect, administrators usually try to design rules that do not conflict too much with existing regulation and practices and that promise a desired outcome in the real world. It is for these reasons that administrators at lower, provincial or municipal, levels of government do most of that work.

The work of policy translation does not start from scratch. Every legal-administrative system has routine, tried-and-tested procedures for handling new laws. While designing new regulation calls for a lot of creativity, much of the work is mundane and mechanistic. The work of policy implementation is always a fortuitous alliance between the habitual and the imaginative. For example, policy implementation requires that funding must be allocated to specific agencies and programmes, that personnel is hired or assigned, and that rules are formulated and procedures developed (Howlett and Ramesh, 2003, p 185). In most countries this work has been delegated to a professional administrative bureaucracy – or rather bureaucracies, as agencies at all levels and in different societal sectors have been authorised with designing policy implementation. In most countries this task extends to NGOs, charities and businesses (when public service delivery is contracted out). Civil and administrative law regulates the relationship between political decision makers and public administration. A variety of statutes designate which administrative level is assigned with the implementation of a policy, which agency is assigned which task, what type of regulation needs to be followed, how agencies and administrators deal with social organisations and citizens, and how appeal to administrative decisions is organised. The result is a densely interconnected, complex policy field.

For example, the Austrian constitution and additional treaties codify the competences of the federal state and the Länder. Based on these, the competence for prostitution policy is assigned to the Länder and its implementation to districts and communities. Some Länder (such as Oberösterreich) have developed specific prostitution laws, while others regulate prostitution within the Police Act. According to the new Sexual Service Act in Oberösterreich, for example, the municipalities are responsible for licensing sex facilities. Larger cities did not have a problem with this, but smaller ones shied away from this task, fearing conflicts in the community. Moreover, in small towns, mayors, caught up in morality politics, feared that they would be blamed for the authorisation of a sex facility and that adherence to the law would imperil their chances of re-election. Therefore, many small municipalities transferred this obligation back to the district. But, whereas in Oberösterreich the responsibility of licensing remained with the municipality or the district, Vienna has entrusted this task to the police. When the Dutch parliament legalised brothels, it delegated the implementation of the task to municipalities. This decision was guided by the mixture of municipal autonomy and co-governance that characterises the role of municipalities in the ‘decentralised unitary state’ that is the Netherlands (Andeweg and Irwin, 2002). Prostitution policy is traditionally an area for co-governance in which central government enjoins broad guidelines, ‘allowing local government considerable leeway in their implementation’ (Andeweg and Irwin, 2002, p 166). The task of coordinating the dozens of municipalities with a prostitution scene was entrusted to the Association of Dutch Municipalities (Vereniging van Nederlandse Gemeenten, or VNG), an umbrella organisation that represents municipalities in its relation with central government. Anticipating the decision to legalise the sex trade, the VNG had designed a model for a licensing system for sex facilities, the key regulatory instrument prescribed by statute that would take the place of the regulated toleration system.

Yet the contingent nature of the practical work of fitting new regulation into existing regulation and making it work in the real world should not be underestimated. It requires a refitting and coordination of organisational routines, it exposes weaknesses in the organisation that require repair, it reveals contradictions in practical goals and in the immediate interests of different actors, it can pit one agency against another, it requires securing commitment from competing stakeholders, and it throws up unexpected negative unintended consequences (Wagenaar et al, 2010). To navigate these different challenges, to make this kind of administrative work possible in the first place, requires remarkable amounts of practical judgment and administrative discretion from the administrators involved (Wagenaar, 2004). Administrative discretion can take many forms, ranging from regrettable and unwarranted deviations from the law to the necessary situated judgement that makes effective local decision making possible in the first place (Kagan, 1978; Vinzant and Crothers, 1998). Examples of the first are the refusal of German states to implement the federal decision to legalise sex facilities (Pates, 2012), and the decision of the city of Stockholm not to provide harm reduction services to sex workers as it would facilitate prostitution (Ola Florin, personal communication). Another is the aforementioned refusal of the authorities in Vorarlberg to license sex facilities. An example of the second is the decision of the policy coordinator in The Hague in 2001 to create a platform of municipal regulators and local brothel owners to design a working licensing system (Wagenaar, 2006). Lower-level rule making, as we will see, can become a laboratory for new policy experiments, or for the introduction of wholly new policy aspirations. However, we should never lose sight of the fact that all these activities are embedded in the everyday mundane practices of allocating funding, formulating rules, hiring and assigning personnel, providing information and holding meetings. All these dispersed activities aggregate into to what Brodkin calls ‘an indirect politics of administrative practice’ (2007, p 2). Differently put, this ‘secondary policy formation’, in many cases with far-reaching consequences for the actors involved, takes place at a very workaday organisational level, by (mostly) non-elected officials, at some remove from political accountability processes.

Contemporary implementation theorists urge us to look beyond the so-called deficit model (Hupe et al, 2014). The original top-down approach assumed that lower-level administrators adhered to the instructions from central government. Richard Elmore describes this approach to analysing policy implementation as follows: ‘It begins at the top of the process, with as clear as possible a statement of the policy maker’s intent, and proceeds with a sequence of increasingly more specific steps to define what is expected of implementers at each level’ (Elmore, 1980, p 602). When a policy fell short of its goals or failed altogether this was by implication ascribed to a failure or unwillingness of administrators – in other words to a deficit in the implementation process. Subsequent research showed that this image was empirically wrong (Hjern and Porter, 1981) and conceptually muddled (Elmore, 1980, p 603; Hogwood and Gunn, 1984, p 198). However its underlying logic and normative injunction of centralised control has always held a seductive sway over elected officials and policy analysts. We know that implementation is not hierarchy in action, but we feel that in a better world it should be. As our analysis so far shows policy implementation is only loosely coupled to political intent. Methodologically this leads to advice that the analyst’s focus should be on ‘micro-practices’ and different and unexpected outputs, without too much normative frontloading of the analysis towards attaining policy goals.

However merely recording the activities of lower-level administrators might be empirically right, it also feels reductionist and morally empty. Loosely coupled is not the same as uncoupled. Implicit in the very idea of policy implementation is a notion of an ‘end state or policy achievement’ and an associated moral understanding, the moral ambition that is enunciated in the law. It is the responsibility of elected officials, administrators and professionals to realise that end state (Lane, 1987, p 528). Differently put, the understanding that policy implementation is in reality a complex set of discretionary actions by local actors does not mean that we, policy actors and analysts alike, should lose sight of a normative ‘glue’ that holds the policy process together. Lane makes a helpful distinction between the responsibility and the trust side of the implementation process. The first refers to an accountability norm that puts certain constraints on the implementation process. Differently put, no matter how interactive, improvisational and discretionary the implementation process is, we are always justified to enquire to what extent objectives have been accomplished, and what outcomes mean in light of the law’s intentions (Lane, 1987, p 542). Even when the outcomes have little to do with the implementation process, we still ascribe them to the failure or success of a policy. For example, opponents of legalisation in the Netherlands insist that the law has failed because of the incidence of widespread trafficking and coercion in the licensed prostitution sector. Although the numbers on which this assessment is based are dubious, the impulse to evaluate a policy in terms of an accomplishment is both valid and inevitable.

The trust aspect of policy implementation refers to the public power entrusted to politicians, administrators and professionals in a democratic system to put pol...

Table of contents

• Coverpage
• Title page
• Copyright
• Contents
• Acknowledgements
• one Introduction
• two Challenges of prostitution policy
• three The local governance of prostitution: regulatory drift and implementation capture
• four The national governance of prostitution: political rationality and the politics of discourse
• five Understanding the policy field: migration, prostitution, trafficking and exploitation
• six Prostitution policy beyond trafficking: collaborative governance in prostitution
• seven Summary and conclusion
• Appendix: research design and methodology