Sårbarhet och/eller autonomi till (av)kriminaliseringens försvar – Om sårbarhetens roll i Sveriges rättsliga hantering av prostitution

Sammanfattning: The crime of purchase of sexual services has been criminalized in Sweden since 1999. The introduction of the ban was part of the work against men's violence against women. The law has subsequently undergone a series of changes, most recently a toughening of the penalty in August 2022. In December 2022, the Norwegian government published a public inquiry in which a proposal for the decriminalization of the purchase of sex was presented. In Norway, where, inspired by the Swedish model, the purchasing of sex has been criminalized since 2009, the issue of decriminalization is now being raised in order to protect the individual's autonomy. The purpose of my essay is to investigate what role vulnerability plays in the legal handling of prostitution. The liberal idea of the autonomous individual is widely accepted as one of the fundamental concepts of criminal law. As an alternative to autonomy, vulnerability theories have been presented. Through a vulnerability perspective, attention is drawn to people's different conditions, hierarchies and power structures, which could lead to inequality and oppression. This requires a form of contextualizing where surrounding circumstances are taken into account, which can make people more or less vulnerable, for example due to gender structures. State intervention should therefore be organized with a focus on vulnerability, as opposed to the exclusive liberal perspective of the individual’s autonomy and protection from external influence. The vulnerability theories thus form the essay's tool of analysis. Using discourse analysis, I examine the role of vulnerability in relation to criminalization under criminal law as a concept, and on the other hand on an application level in relation to the legal subject. With a comparative analysis, I also examine the differences between Swedish and Norwegian law in the legal handling of prostitution, in order to more clearly show how vulnerability is significant in Swedish law. One result of my analysis is that the identified discourses can be categorized into vulnerability and autonomy perspectives. The result of the analysis is further that vulnerability and autonomy constitute two different starting points for when and how criminalization should be used. I note that a consideration of vulnerability is in line with the radical feminist idea of prostitution as an expression of men's violence against women. As an effect, vulnerability is noticed in several places in policy documents in Swedish law. However, there are examples of how vulnerability is overlooked even in Swedish law. Through my comparison with Norwegian law, I find that vulnerability has a significantly smaller, almost non-existent role in Norwegian law regarding prostitution. Instead, in accordance with classical-liberal theory, autonomy is the starting point in the discussion of the legal handling of prostitution, which is a cornerstone of the 2022 decriminalization proposal. The autonomous perspective thus represents a more skeptical approach to criminalization, while the vulnerability perspective is more in line with the justification of criminalization based on a contextualizing approach. One risk of overlooking the vulnerability is that prostitution is regarded to a greater extent as a business transaction between equal parties, and that exploitation is not noticed.