woensdag 20 augustus 2014

Dutch Model - Legal history

The Netherlands are a parliamentary democracy, with three layers of government. The state layer is the most powerful, and consists of a parliament and a senate, with a figurehead king. The second layer is the provincial layer, which doesn't figure in policy much apart from electing the senate. The third layer approaches the first in importance, this is the municipal layer of government.

Parliament consists of too many parties to ever allow a single party to have a majority. Coalitions are important in constructing a government. All parties are eager to imprint their identity on policy, so flagship "hobby" policies are the most important bargaining chips in negotiating a coalition. The general direction of government is therefore practically uninfluenced by election results, but what makes the press are the "hobby policies" writ large.

Elections are considered reputation competitions, and growth or shrinkage of a party "a signal from the voters." This is mirrored in the fact that most voters treat their party affiliation much like their affiliation to a soccer team, without basing their choices on the policies proposed by their party, but more along lines of "for what kind of people" the party "stands." Voter apostasy is usually because flagship policies have not been expressed.

From this it is easy to see that anyone trying to build a coalition will be drawn toward parties with niche flagship policies that can be easily satisfied, combined with lack of strength on major issues. This is where the Christian parties come in. As long as you'll back their vice and virtue agenda, they'll be the ideal coalition partner. They're not large, but mostly economically centrist, flexible and reliable. As a result nobody who wants to take part in cabinet will offend them.

The politicians of especially the more uptight Christian parties have adapted to this political reality by having one face for their electorate, preaching uptight morality, and another for the press, where they pretend their motivations are to protect children from the horrors of vice and to liberate poor fallen women from the slavery that is trafficking. The main reason for this duplicity is not to embarass political allies.

Parties that are incompatible with the Christian parties are usually far into the progressive side of the political spectrum, and will have a serious feminist slant to their agenda. Feminism is considered unassailable in Dutch society, and in politics this is an even stronger rule. The brand of feminism popular in politics is the economically neutral but morally heavy-handed kind.

As should be clear, it is hard to find any political party willing to accede to any movement that recognizes whoring as a legitimate choice. It is sometimes possible to obtain concessions by appealing to generally espoused values like personal freedom, enlightenment, privacy and self-determination, but this is done gingerly and reluctantly, mostly to look progressive to the outside world. Easy vote gathering lies in showy activity, not in laissez-faire.

Now to the municipal layer of government. Municipalities in the Netherlands are headed by a mayor and a municipal council. The council is elected, in elections generally viewed as a popularity poll for state-level politics, from mostly the same parties as are active on state level. These councils are the legislative arm of municipal government whereas the mayor and his aldermen are the executive arm. The aldermen are elected, whereas the mayor is appointed.

Mayors are usually weathered politicians, who are put on these back-burner positions as a reward for longstanding party loyalty or to bide their time after having their credibility damaged. Municipalities have no official say over national politics, but the Association of Dutch Municipalities is a strong lobby group, and the mayors of the five largest cities have disproportionate influence on national policy. There is even policy to give these municipalities more leeway in complying with national law.

The Dutch have an unshakeable faith in government and justice. It's possible to point at Calvinism and nationalist pride at being highly organized to explain this, but I won't delve deeply into this subject. Whenever crude incompetence and squalid self-enrichment schemes surface, the Dutch press downplays the structural flaws in the system of government at the basis of these embarassments.

Abuse of power and corruption is significantly more common on the municipal level. Local corruption only rarely makes the national news, and the rare cases that do mostly come out via shock blogs. Dutch mainstream press has a symbiotic relationship with politics, and cooperates fully to emphasize the dignity of the political caste. Critics are usually viewed as conspiracy nuts. Gaffes and blunders are downplayed to suggest they are unavoidable errors.

To see how all this applies to prostitution policy, we have to go back at least until 1980. This was the heyday of tolerance policy, in an era when pimps were almost extinct. During this time, personal freedom was praised more than it is now, and repressive "strong" government was not yet as popular as it is now. The then current rules and policies governing prostitution as a tolerated industry gave few instruments to municipalities to shape the business.

Especially in Rotterdam this caused some problems. Then the largest sea port in the world, with the associated demand for prostitution, it was a fertile market for the sex industry, and many workers and operators tried opening new venues to take advantage of the economical opportunities, much to the chagrin of moralists, the ill-informed, and people fearing diminishing property values.

When Rotterdam tried to force its sex industry together in less sensitive areas, like boats in old harbours, or on delapidated industrial zones, it ran afoul of the brothel prohibition law. Dutch administrative law may be mostly geared towards letting the government always have its way at the cost of years of delays, but in these rare cases of overly flagrant breach of the law, the judge can still decide against government.

This set a change in Dutch politics in motion. Before this time, the government had opposed calls from human rights groups to decriminalize prostitution, but since the prohibition laws were now an obstacle to real estate development, government opinion started to change. After much to and fro, and years of waiting for the right political circumstances, 1987 finally saw a parliamentary decision to repeal brothel prohibition.

In the proposal for this act, several reasons were put forward. First, that it would help to protect prostitutes from harm (not substantiated), second, that it would help combat coercion of prostitutes (not substantiated), and finally, that it would allow government to regulate, control and "spatially restrict" sex work (exhaustively substantiated).

Before the legal change could be signed into law, there was as much delay as opposition to the initiative could muster. The political landscape changed again, and in 1993 the new minister of Justice was a hardliner from a Christian party, who used his discretionary powers to cancel the proposal of law, setting the whole process back a decade. A second attempt was started shortly after.

It took until 2000 to complete the repeal of brothel prohibition. The act was not without controversy. There had been a sea change in Dutch politics, and for the first time in decades, a cabinet ruled without Christian parties. The act was celebrated as a step towards decriminalization and destigmatization, but it soon turned out that this was too much to expect. Apart from legitimizing the existing operators, nothing was changed.

Legitimizing the operators was a good move. No longer did they have to be gray sector businessmen, they could now operate above ground, with legitimate security and legitimate financing. Unfortunately, the municipalities immediately pounced on the opportunity to restrict prostitution by licensing only the existing shady operators and refusing new licenses. I will return to municipal policies in the next article.

With brothels now legitimate businesses, and the change in the law, which was supposedly meant to give us rights, some of us had been expecting that we would now be able to make use of the general labor and contract laws for regular people. This didn't happen. Any appeals to government to enforce labor laws were only translated into "support from the field" for special regulation about labor relations in prostitution.

In 2000 trafficking was already an international hype. The fables had not yet reached the level of absurdity that is usual now, but they were well-known, and had been used to oppose and delay legalization. As a compromise towards this opposition, a Bureau was instituted. This was the Bureau of the National Rapporteur on Human Trafficking. This independent Bureau was to keep government apprised of developments in human trafficking, as the official source of information.

There have been two Rapporteurs so far. The first a former prosecutor who already started out with a chip on her shoulder against prostitution, and the second a former prosecutor, judge, and anti-prostitution activist. The reports coming forth from this Bureau have been criticized in depth on my blog, both in their narrow sampling and in the amount of misinformation they contain.

Somehow it was considered a positive step in combating trafficking to express in law that the National Rapporteur has no accountability to anyone, her position of power is unassailable, and the only corrective action that can be taken against her is the tough process of firing a public official.

Unfortunately, the Bureau of the National Rapporteur on Human Trafficking relies entirely on sources in the ministry of Justice, and on information compiled by an NGO called CoMensha. The latter started its existence as the Foundation against Trafficking in Women, then crept over into a general prostitute rescue company, and finally was chosen and embedded in law by government to keep the official tally of human trafficking victims.

The ministry of Justice, which also incorporates police, is not a great source of information either. Police and judiciary are very badly informed about prostitution. Their concept of circumstances in the business are behind the times by 15 years inasfar as they resemble reality at all. Police and their methods deserve a lot of special attention, but that will have to wait until a later article.

Foremost among the reasons police and judiciary are ill-informed about the state of affairs in prostitution is their unwillingness to face the facts. Any police force is driven by a sense of propriety and justice, and culturally prostitution is still viewed as practically criminal, or at least shady and grubby. Having to face facts means accepting that this cultural stigma must go unsatisfied.

Secondary to this, but still of great importance, is that police are ordered to deal with societal ills, whether they exist or not. This system runs amok when the business attacked is impopular and mostly out of sight of the public, and the police officers involved are vice cops. Vice cops don't become vice cops for no reason. They usually have heavy biases and a personal agenda.

Vice police has always been a source of problems for whores. They tend to indulge in their own moralism and sexual fantasy to see things that aren't there. In the distant past, their unfounded stories would rarely come to trial because prosecutors would demand evidence, which is usually notably absent. With the push to "do more about trafficking," the prosecutors' office was stimulated to start targeted prosecution of trafficking cases.

As can be read in the Cablegate cables via WikiLeaks, in 2004 the USA threatened the Dutch government with demotion to tier 2 of the Trafficking In Persons report. The US has a large influence on Dutch politics, partially because of its interventionist politics, partially because the Dutch remember fondly having been liberated from the Nazi's by the western allies, and partly because the US government is viewed as the political world class, like junior league footballers looking up to premier league players.

In response to the American threats, the Dutch government quickly implemented everything it was ordered to. This included clauses that were incompatible with legality of prostitution. That this infringed on civil rights of prostitutes was never even mentioned in the documents accompanying the acts. Government pretended prostitutes in a healthy situation would never get involved with these laws anyway, and left it at that.

This caused many vice cops' phantasms to be prosecuted. These would founder at trial, when judges would point out inconsistencies, lack of evidence, and errors of prosecution. Occasionally there is even evidence of tampering with statements and evidence, but judges are unfortunately very reluctant to stand up to such abuses when the perpetrator is a government agent. Cases would fail, under howls of foul play by prohibitionists.

Not surprising then, that the offensive against prostitution, and indeed the stigmatization campaigns in media and government, took on a more hostile form. Not only was new legislation designed to be more repressive, and not only was state policy loosened further to allow municipalities more freedom in repression of prostitution, but a new and somewhat shocking campaign was started in the judiciary.

There is a large and well-oiled rescue industry in the Netherlands, the largest company/NGO of which, for example, turning over tens of millions of Euros annually on its rescue operations alone. They are usually portrayed as ragged bands of volunteers, rescuing angels fighting against the odds, and find much sympathy among the general public, who have no clue what's really going on in these institutions. They are viewed as spotless paragons of justice, and their sermons and lobbying pitches are broadcast reverentially as truth.

Alignment of opinion between vice police and this rescue industry had started out early. It was in the interest of the rescue industry to be referred clients by vice police, and vice police could profitably use the "expertise" of the rescue industry as added gravitas to evidence. This was officially expanded into the prosecutors' office and the judiciary, soon resulting in trafficking cases being restricted to "expert" judges who had been specially trained.

There is a rule in Dutch law stating that facts that are commonly known do not have to be proven in court. They can be assumed. Dutch judges are now made experts in trafficking by being lectured by rescue industry figureheads, allowing them to mash any trafficking case into the mold of the archetypal white slavery fable. This "training" gives them the tools to disregard evidence and use public bias as proof. I will go into this issue more deeply in my next articles.

At this juncture, the entire government apparatus divorced itself from actual facts in making policy, and devoted itself fully to myth. It actively avoids dealing with information about the results its policies are generating, and limits its attention to artificial channels, its information exclusively supplied by a teeming rescue industry. This allows it to ride the hype, please the Americans, and look like heroes to the populace.

The continual flow of "news" about trafficking in prostitution put out by the rescue industry causes a continual flow of motions and parliamentary questions concerning the "escalating problem of trafficking," which does not show any reduction, no matter how much action is taken. The solution all politicians agree on is to escalate prosecution and further limit the freedom and rights of people in the sex industry, coupled with an increase of funding and powers to the rescue industry.

Laws regarding trafficking have been broadened in scope several times, causing many more people, most of whom have no real problems, to be considered victims or traffickers. The penalties have been increased multiple times, indirectly affording police more powers in detection and prosecution. These powers are used and abused, and the result is a witch hunt. I will expand on this issue in the next article.

There have been flirtations with the Swedish model by politicians from Labor and Christian parties, which have so far not met with enough public approval to be able to proceed. There are initiatives to criminalize clients of coerced prostitutes, which sounds perfectly acceptable when you don't know what the judiciary counts as "coerced," and there is always the call to "do more against trafficking" without specifically saying what should be done. But there is one big new change close to fruition, and that is what the next article is about.

Series on the Dutch Model:
Legal history
Legal developments
Daily reality
War on sex work

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