Undermining of the Rule of Law? Increasing Lack of Consensus on Sex Work Governance in the EU

Dr Thomas Joyce

Thomas is an Assistant Professor of Criminology and Criminal Law at Tilburg University. Thomas’s primary research focus is on illegal markets; he completed his PhD in Criminology at the Università Cattolica del Sacro Cuore in Milan, where his research focused on darknet drug markets. He is currently studying the legal implications of the illegal commercial sex market. He also has significant experience in developing projects and proposals for the European Union, having previously worked as a researcher at the criminological research institute Transcrime, including as Head of Proposal Coordination.

The Legal Status of Sex Work

Though the harmonisation of substantive criminal law has long been seen as an important goal for addressing crimes with a cross-border dimension, including human trafficking, smuggling, and sexual exploitation, its application has been criticised as being ineffective. Relatedly, the legal status of sex work remains a contentious issue; a lack of consensus amongst European Member States (MS) is well established. In 22 MS states, private, indoor sex work is not criminalised (Austria, Belgium, Bulgaria, Cyprus, Czechia, Denmark, Estonia, Finland, Germany, Greece, Hungary, Italy, Latvia, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain). In the remaining 5 MS states, sanctions are imposed, typically upon the clients of such services (Croatia and Lithuania apply administrative sanctions to different degrees; Sweden, France, and Ireland all impose criminal penalties on clients). Approaches to public, indoor sex work enlarge this fissure, with brothels operating legally (formally or in practice) in 7 unique states, while they remain prohibited elsewhere (Austria, Belgium, Czechia, Germany, Greece, the Netherlands, Slovakia).

Dividing the legal ideology governing sex work into two ideological camps, on the one hand, we have the Benelux model, which is relatively permissive in its approach, implementing different variations of legalisation. On the other hand, we have the Nordic model, which is more repressive, seeking to criminalise clients and other parties to the transaction in an effort to reduce demand. Interestingly, both sides attest to having the same motivations: preventing exploitation, reducing human trafficking, furthering equality between the genders, and protecting women from violence. However, this does not seem to avoid almost diametrically opposed views on how to achieve such aims; Belgium and Sweden have both recently introduced radically different laws that delve further into legalisation and criminalisation, respectively. Rather than taking a particular ideological stance or analysing the content of either law, this commentary seeks to illuminate how this legal asymmetry, in itself, undermines the rule of law.

Belgium’s New Law

Over the past few years, Belgium has been taking steps to legalise and regulate sex work, first through the decriminalisation of sex work in mid-2022, and second through the installation of labour rights for sex workers in late-2024. This latter provision marks an expansion of the special-license model of legalisation long in action in parts of Belgium, which, though regarded by many as safer and more economically stable for sex workers than modes of criminalisation, has been criticised for its limited extension of sex worker rights as an imposition of undue and repressive control.

The new law allows for sex workers to be hired by approved employers under formal contracts, giving them access to substantive labour and social security rights. In addition, particular rights that relate primarily to sex work, such as consent, right of refusal to work, wage protection, holiday time, public exposure, damages upon contract termination, and the freedom to leave employment at any time, have also been specified by the law. Extensive formal rules governing the approval conditions for employers, primarily designed to protect the rights of sex workers, are also provided. Though now subject to a constitutional challenge from a coalition of civil society, the law has been widely praised by sex worker rights organisations, such as the Union des Travailleuses et Travailleurs du Sexe en Belgique, Espace P, and Human Rights Watch, as an important step forward in the furtherance of sex worker rights.

Sweden’s New Law

Having pioneered the end-demand model of governing sex work – whereby sex workers are decriminalised, but penalties are imposed upon clients, managers, brothel keepers, and landlords that facilitate sexual services – Sweden made a further foray into novel legal territory on July 1st 2025, by expanding this model to digitally provided sexual acts. Despite the contested nature of the original law, the legislation, which amends Section 6.11 of the Swedish Criminal Code, was reportedly motivated by its predecessors’ success and the importance of fighting human trafficking and prostitution. The law imposes criminal penalties on individuals who are deemed to promote, materially profit from, or facilitate the provision of online sexual acts such as webcam performances, sexual video-chats, and personalised sexual videos, criminalising the managers, co-workers, partners, housemates, and landlords of digital sex workers. This law has been strongly opposed by sex worker organisations such as the European Sex Workers Rights Alliance, Red Umbrella Sweden, and Human Rights Watch, as exposing digital sex workers to undue risks and precarity.

Increasing Lack of Consensus

Comparing the two approaches, it becomes clear that Belgium is moving towards a model of legalisation, which aims to legitimise sex work, whereas Sweden is adopting a model of criminalisation, which seeks to restrict it. Similar divisions have emerged before, as seen with the introduction of the Benelux model and the establishment of red-light districts in cities like Antwerp and Amsterdam, in contrast to the Nordic model, which criminalises managers, brothel keepers, landlords, and clients. This divergence is unlikely to remain confined to these countries, as other EU states are expected to adopt comparable approaches shaped by their own ideological positions.

Legal Asymmetry in the Age of Harmonisation

The harmonisation of substantive criminal law in the EU has long proven challenging. While there are selected areas – such as terrorism and organised crime – in which progress has been made to ensure a degree of symmetry between Member States, the general attitude towards harmonisation has been one of forbearance. Rather than the formal harmonisation of law, the primary focus has been on implementing directives that encourage minimal changes to facilitate the basic mutual recognition of laws between states. Though the expectation that standards of human rights be horizontal across all MSs, and the broad universality of many criminal offences (murder, rape, assault, etc.) create a degree of symmetry amongst mala in se offences across the EU, this dynamic becomes radically complicated amongst mala prohibita offences that may lack a naturally occurring consensus.

Generally speaking, the criminal law justifies the criminalisation of mala in se offences based on the principle of harmfulness – preventing harm to others – and mala prohibita offences based on the principle of wrongfulness – preventing moral wrongs. Though the scope and extent of harmfulness have long been contested, it is widely apparent that sex work can result in significant harm. Nevertheless, at its most fundamental, sex work, as an act perpetrated by a sex worker, does not inherently result in harm to another individual. Relatedly, the criminalisation of other parties to the act – those who house sex workers, or avail of their services – does not necessitate harm. In all cases, it is the transaction of a material benefit that makes the sexual act a criminal one; otherwise, it is simply sex. While human trafficking, pimping, and sexual exploitation can be readily justified as harmful, these are ultimately separate offences, governed by their own legal regulations – related to, but not necessary for, commercial sexual activity. We can thus firmly posit sex work as a mala prohibita offence, justified through the principle of wrongfulness, making it a moral, rather than an inherent, wrong. Though, of course, wrongfulness as a principle does not preclude the prevention of harm, its primary focus is one of censure. The law’s function is symbolic: it sends the message that sex work is misogynistic and amoral, seeking to discourage the practice through criminalisation and the threat of punishment implicit therein.

On a national level, the censure of sex work functions accordingly: Sweden’s law makes a clear statement that the provision of digital sexual acts should be strongly discouraged. However, within an increasingly federal EU in which citizens may identify, at least to some degree, as European, the lack of harmonisation creates a contradiction of legal messaging: Sweden states that sex work is a legal wrong, but Belgium states that sex work is not a legal wrong. As such, while the harmonisation of substantive criminal law typically refers to the details of how laws are recognised and implemented, here the issue of harmonisation reveals a broader philosophical debate of whether sex work is actually a legal wrong or not.

Although the status as a criminal charge, sentencing guidelines, and procedural rules may differ regarding the various substantive criminal offences within the EU, their broad classification as wrongs does not – from murder to petty drug offences, the criminalisation of most offences is universal across the EU. Sex work presents a keen exception to this rule. From a perspective of criminal law theory, it should not be prohibited if its censorious function cannot be achieved. As it currently seems unlikely that increasing federation of the EU will be matched by growing harmonisation for substantive criminal law in this area, the strength of wrongfulness as a justifying principle for the criminalisation of sex work will only continue to weaken as time goes by. This creates an interesting legal effect, whereby states that move towards legalisation not only increase the legitimacy of sex work in their own country, but they also undermine the repression of sex work in their neighbours’ countries.

Legal asymmetries cause significant problems. Interestingly, both ideological camps argue this point, but for opposite reasons. From the Nordic perspective, legalisation facilitates organised crime profiteering by allowing criminals to hide behind legal structures and to capitalise on the regulations of a legitimate market. In contrast, from the Benelux perspective, criminalisation facilitates organised crime profiteering by creating and maintaining the existence of an inherently criminal black market. Regardless, the difference between state laws is critical to both perspectives, as having neighbours with different approaches causes crime displacement effects by encouraging pimps and traffickers to migrate their attention from one particular market to another, creating disproportionate sex-work adjacent criminality between countries. Policing is similarly affected: data sharing, cooperation, investigation, and arrest are all complicated by a lack of double criminality. Not to mention the base truth that legal asymmetry creates a situation in which people can freely engage in activities in a neighbouring country that, were they at home, would be considered a criminal offence.

Sex Work Governance Disparity: Undermining the Rule of Law

As is typical of policy debates regarding crimes criminalised purely based on wrongfulness, the focus of discussions on sex work governance tends to be based on the conduct itself, rather than on the criminal law. Nevertheless, the criminal law has distinct dynamics of its own – philosophies, societal effects, principles – which need to be taken into account when formulating and applying laws. The increasing lack of consensus amongst European Member States on the governance of sex work is problematic, aside from the content of the different laws, in Sweden, Belgium, and elsewhere. Such asymmetries can lead to a failure of censure and create significant opportunities for cross-border criminal activity.

We may no longer purport isolationism. EU Member States are deeply intertwined, and their laws need to reflect this dynamic. This does not necessarily imply an argument for moving in one particular direction, but rather argues that moving in different legal directions undermines the rule of law.

The Human Rights in Context Blog is a platform that provides an academic space for discussion for those interested in human rights, democracy, and the rule of law. We are always interested in well-written and thoughtful comments and analyses on topical events or developments. Scholars from all disciplines, students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges are welcome to participate in the discussions. We warmly invite those interested in writing a post to send us an e-mail explaining briefly the relevance of the topic and your background as an expert. We will get back to you as quickly as we can. All contributors post in their individual capacity, and their opinions do not necessarily reflect the official position of Human Rights in Context, or any organisation with which the author is affiliated.