B Explanatory memorandum
by Mr Fourat Ben Chikha, rapporteur
1 Introduction
1. Sex work and the situation
of people who practice it are complex topics at the intersection
of multiple and often conflicting issues, including the rights to
personal autonomy and to privacy, as well as public health and labour.
They are also politically sensitive topics, as different and conflicting
approaches divide policy makers and legislators.
2. This report deals with sex work from a human rights perspective,
and it puts the rights of sex workers at the centre of its analysis
and recommendations. It generally uses the terms “sex work” and
“sex workers” as opposed to prostitute and prostitution, as the
latter are considered by many, particularly by sex workers themselves,
as stigmatising and demeaning, and as such contributing to social
exclusion.
Note The expression “sex work”
does not have negative moral connotations and is the most widely
used by human rights organisations and experts in Europe and beyond.
3. The term “sex worker” is used to refer to adults who sell
sex or exchange it for goods or services, regularly or occasionally.
While women are the vast majority of this group, which makes sex
work particularly relevant to women’s rights and gender equality,
sex workers come from all walks of life, genders, gender identities
and sexual orientations. The motivations leading people to practice
sex work vary, ranging from a temporary arrangement for instrumental
purposes to a more stable way of earning one’s living, and so does the
degree of organisation of this activity.
4. Relevant experts, including the groups of experts within the
Council of Europe, find that sex work often intersects with human
rights violations and criminal offences including violence against
women, forced prostitution and trafficking in human beings for purposes
of sexual exploitation. These forms of criminality, often perpetrated
across international borders, must be addressed effectively. Their
prevention, prosecution and, ultimately, eradication should be a
top priority for public authorities in Council of Europe member
States and beyond. They should, however, not be conflated with sex
work in general, as they are different realities, conceptually and
in practice, in spite of their possible connections.
5. The first steps in the preparation of this report were carried
out by Margreet De Boer (the Netherlands, SOC), who co-ordinated
the preliminary research, took the initiative to hold a hearing
with civil society organisations and carried out a fact-finding
visit to Belgium in June 2023. I share my predecessor’s human rights-based
approach, taking the rights and the freedom of the people involved
as a starting point and main priority. This approach is consistent
with the principles underlying the action of the Council of Europe
and its Parliamentary Assembly. It is also the best way to strike
a balance between the issues at stake.
6. Sex work has wide ramifications and a potential impact on
people’s life conditions, and it has become a highly topical subject
among human rights actors and institutions. In addition to academic
research, a large number of reports, recommendations, position and
policy papers about it have been issued in the last few years. Most
of them highlight the need to prevent and counter discrimination
against sex workers, and to defend their dignity by countering stigmatisation
and acknowledging their agency and self-determination.
7. Sex workers face a variety of challenges and forms of discrimination.
These include social stigma leading to social exclusion, physical
and mental health issues, also as a consequence of psychological
and physical violence and unhealthy working conditions. They face
difficulties in access to housing, employment, education and financial
services, such as bank accounts and loans. Such discriminatory treatment
hinders their human rights, makes it difficult for those who wish
to leave this occupation to do so, and renders sex workers more
vulnerable to trafficking.
8. Legislation and policies on sex work vary across Council of
Europe member States, ranging from a prohibitionist approach, criminalising
both the sale and the purchase of sexual services, to a regulatory approach
which regulates prostitution (prohibiting specific aspects, such
as pimping), to the Swedish or Nordic approach, which aims to abolish
prostitution by sanctioning those who pay for sex services. The
debate on the advantages and disadvantages of each approach is on-going,
which requires reliable information to assess their respective impact.
In addition, moral and religious convictions play a role in the
choice of one over the other. The aim of this report is to defend
and promote the rights of sex workers, irrespective of the regulations in
force. Therefore, its main focus will be on the impact of legislation
and policies on the rights and life conditions of sex workers. It
will avoid insofar as possible the moral or religious aspects of
this debate.
9. In preparation for this report, in addition to desk research,
exchanges were held with representatives of sex workers in Europe,
as well as other human rights organisations. Former rapporteur Margreet
De Boer also attended several relevant side-events at the 67th edition
of the Commission on the Status of Women at the United Nations headquarters
in New York in March 2023, to discuss with some of the experts and
other participants. I deem it particularly important to listen to
persons involved in sex work and the organisations representing
them. When discussing the situation of individuals or groups and
how to protect their rights, the people concerned should always
have their say. Sex workers do not often have this opportunity,
which is unfair and should be corrected.
10. A hearing held in Paris on 24 March 2023 with the participation
of representatives of the European Sex Workers’ Rights Alliance
(ESWA), Amnesty International and Doctors of the World (Médecins du Monde) provided valuable
input, both in terms of information on the challenges faced by sex
workers in Council of Europe member States, and of recommendations
on how to address them. With the experts’ help, we learnt more about
the obstacles faced by sex workers (some of whom may be victims
of trafficking for sexual exploitation), which prevent them from
enjoying their human rights – or in other words – from living a
normal life. This remains relevant, irrespective of whether these
persons currently work in prostitution, want to leave this activity,
or have ceased it. Subsequently, a hearing was held on 25 June 2024,
with presentations of projects providing support to sex workers,
namely the Jasmine Project (France) and Ugly Mugs Netherlands, and
the participation of a representative of the Coalition for the Abolition
of Prostitution (CAP) network.
2 Sex work, violence against women and
trafficking in human beings: international human rights standards
in the Council of Europe system
11. The Council of Europe conducts
both standard-setting and monitoring activities and is very active, among
other things, in the areas of countering violence against women
and trafficking in human beings, respectively through the Convention
on Preventing and Combating Violence against Women and Domestic violence,
Note and the
Convention on Action against Trafficking in Human Beings.
Note In this chapter, I would like to discuss
certain aspects of these conventions and of the relevant monitoring
activities that apply to sex work. The work of the Council’s Gender
Equality Commission is also worth mentioning in this context.
12. As sex workers are subjected to high levels of violence in
Europe, including physical, sexual, and psychological violence,
the Group of Experts on Action against Violence against Women and
Domestic Violence (GREVIO), part of the monitoring system of the
Istanbul Convention, discussed at its 19th meeting the topic of
women in prostitution. In delineating the scope of application of
the Convention, the Group of experts noted that this does not define
prostitution as a form of violence against women. Instead, the legal document
focuses on the support and protection to be provided to women and
girls who engage in prostitution, in connection with any instances
of gender-based violence they may experience. The GREVIO also agreed that
prostitution should be considered as an important risk factor for
violence against women. Therefore, evaluation procedures should
systematically address the situation of women in prostitution, including
the specific risk of multiple and intersectional discrimination
to which they are exposed, and their challenges in accessing general
and specialist support services.
13. Restrictive policies on sex work/prostitution are often justified
by their proponents by the need to combat trafficking in human beings,
in particular by discouraging the demand for sex work, which is
considered to foster exploitation. Trafficking in human beings and
many related practices are severe violations of human rights and countering
this scourge should indeed be a top priority for legislators and
policy makers. Sex work and trafficking in human beings are, however,
distinct phenomena.
14. The Council of Europe Convention on Action against Trafficking
in Human Beings, which aims to address trafficking in human beings
with respect to human rights, defines trafficking as consisting
of three elements, commonly referred to as the “action” (such as
recruitment of a victim), “means” (any form of manipulation of the
will of the victim to make eventual exploitation possible) and ‘(exploitative)
purpose’ (for instance, trafficking for the purpose of sexual exploitation
or forced labour), which is in line with the internationally accepted
definition of trafficking brought by the UN Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and
Children (“Palermo Protocol”) in 2000.
15. Article 4 of the Convention contains a list of exploitative
purposes, including “the exploitation of the prostitution of others
or other forms of sexual exploitation”. There is however no international
legal definition of the “exploitation of the prostitution of others
or other forms of sexual exploitation”, leaving this to the discretion of
individual States.
16. Article 6 of the Convention indicates measures that States
Parties should implement to “discourage the demand that fosters
all forms of exploitation of persons”, which include research, awareness-raising, information
campaigns, and preventive measures (such as educational programmes
on gender equality).
17. The Group of Experts on Action against Trafficking in Human
Beings (GRETA) which monitors the implementation of the Convention
by the Parties, stresses in its reports that, while States Parties
have thus far focused their action on sexual exploitation and discouraging
demand for sexual services only, all forms of exploitation should
be covered by the measures recommended by the Convention. In this
context, it is worth underlining that sex work and sexual exploitation
are different phenomena, although in some instances they may be
interconnected. Therefore, discouraging the demand for sex services
does not automatically reduce sexual exploitation. GRETA regularly
recommends conducting research to assess the effects of legislation
that penalises the purchase of sexual services in reducing the demand
for services provided by victims of trafficking. In addition, in
relation to sexual exploitation, GRETA recommends implementing measures
that “should be balanced and not lead to the criminalisation of
victims of trafficking”.
18. According to Article 19 of the Convention, a State Party “shall
consider adopting such legislative and other measures as may be
necessary to establish as criminal offences under its internal law,
the use of services which are the object of exploitation as referred
to in Article 4 paragraph a of this Convention, with the knowledge that
the person is a victim of trafficking in human beings.” In its monitoring
of States Parties, GRETA has repeatedly commented that criminalising
the purchase of sexual services is not required by Article 19 as
such, or other provisions of the Convention targeting demand. The
crime policy approach adopted by the Convention is limited to the
criminal offence of trafficking in persons, and related positive
obligations of prevention and criminalisation.
19. In
Resolution 1983
(2014) “Prostitution, trafficking and modern slavery in Europe”,
the Assembly dealt with sex work mainly in view of its link to trafficking
in human beings, while acknowledging that the two phenomena are
distinct, and called on member States to step up their efforts to
counter this scourge. While looking with interest at the Swedish
model based on criminalising the purchase of sexual services, the Assembly
noted that different cultural sensitivities made it difficult to
propose a single model of prostitution regulations that would fit
all member States. The Assembly believed, however, “that human rights
should be the main criteria in designing and implementing policies
on prostitution and trafficking”. The text also stated that, irrespective
of the model chosen, legislators and law-enforcement officials should
be aware of their responsibility to ensure that sex workers “may
carry out their activity in dignified conditions, free from coercion and
exploitation”. Importantly, it added that “in all cases, the authorities
should refrain from considering prostitution regulations as a substitute
for comprehensive action aimed specifically at human trafficking,
based on a sound legal and policy framework and implemented effectively”.
Ten years later, these prescriptions remain relevant.
20. The European Court of Human Rights case S.M. v.
Croatia (no. 60561/14) of 25 June 2020 concerning a Croatian
woman’s complaint of human trafficking and forced prostitution cements
the liberal understanding that prostitution can be consensual and
is not by default exploitation.
21. In November 2022, the Council of Europe Gender Equality Commission
published a
“Study
on the impact of Covid-19 on women’s access to justice”. The study notes that “[d]eeply rooted gender stereotypes related
to women’s sexuality and morality, combined with gaps in legislation
and its implementation, render sex workers subject to frequent criminal
sanctions even in countries where prostitution is legalised”. The
study further raises concerns about the treatment of sex workers
throughout the criminal justice chain. According to this report,
“[s]ex workers are among the most precarious of informal workers,
in part due to the criminalisation of various aspects of their work,
such as on clients and brothels, which often results in their being
unjustly criminalised. They are also exposed to very high rates
of workplace violence”.
22. In February 2024, the then Council of Europe Commissioner
for Human Rights, Dunja Mijatović, published a “human rights comment”
on “Protecting the human rights of sex workers”,
Note raising
serious human rights concerns about the lived realities of sex workers
across Europe, due to “high levels of violence and inadequate protection
from law enforcement and the justice system; stigma; and multiple
layers of discrimination”. The Commissioner called on Council of
Europe member States to adopt a human rights-based approach to sex
work, ensuring “sex workers’ protection from violence and abuse,
their equal access to health and other social rights, as well as
their rights to private life and to participate in public and political
life”. She also recalled that “member States should take action
to ensure that everyone can enjoy access to an adequate standard
of living, health and education, to safe and non-exploitative work
environments, as well as to guarantee equal access to social protection
and to the full range of other social rights”. Based on exchanges with
representatives of sex workers from across Europe and referring
to the position of various non-governmental and intergovernmental
organisations, the Commissioner called for full decriminalisation
of sex work: as the comment states, “[a] human rights based approach
also means that consensual sexual relations between adults for remuneration
should not be criminalised. Criminalisation and the enforcement
of punitive provisions against sex workers, clients or third parties
has significantly reduced sex workers’ access to rights and essential
services and has led sex workers to live and work in a clandestine
manner and in isolation, in fear of the justice system”.
23. In July 2024 the European Court of Human Rights, in its Chamber
judgment in the case of
M.A. and Others
v. FranceNote, held that the provisions
in French criminal law enshrining the offence of purchasing sexual relations
were not in breach of Article 8 of the European Convention on Human
Rights (ETS No. 5). The Court noted that “the problems linked to
prostitution raised very sensitive moral and ethical questions,
giving rise to different, often conflicting, views, and that there
was still no general consensus among the member States of the Council
of Europe, or even within the various international organisations
examining the issue, on how best to approach prostitution.” The
Court, while concluding that France had not overstepped its margin
of appreciation, crucially emphasised that national authorities
have a duty to keep the approach they adopt in this area under constant
review, especially when this was based on a general and absolute
prohibition of the purchase of sexual acts.
3 Challenges
facing sex workers in Europe
24. Sex workers are both a vulnerable
and relatively invisible group. They face a range of challenges,
and the protection of their rights does not seem to be among the
priorities of legislators and policy makers in most Council of Europe
member States. As previously indicated, I made a point of collecting
information not only through desk research but also by exchanging
with civil society organisations, including those working specifically
on the rights of people engaged in sex work, and organisations led
by sex workers themselves. The representatives I met confirmed that
they were rarely given the opportunity to be heard by the authorities.
25. Sex workers are disproportionately affected by various forms
of violence in connection with their activity, as confirmed by numerous
academic studies
Note and by surveys conducted by civil society
organisations. Clients are most often the perpetrators of violence,
including physical and sexual violence as well as robbery. A 2019 report
of the Platform for International Co-operation on Undocumented Migrants
(PICUM) explains that migrant sex workers are even more vulnerable
to violence than nationals, mainly due to their precarious legal
status, making them less likely to report crimes.
Note This increases
the perpetrators’ level of impunity.
26. At the hearing of the Committee on Equality and Non-Discrimination
of 24 March 2023, Monica Costa Riba of Amnesty International reported
on a survey carried out in Ireland and published in 2022. Most of
the sex workers interviewed stated that they had experienced various
forms of violence, including physical attacks and threats, sexual
violence, robberies, stalking, verbal abuse, and harassment, also
online. This is the result of a context of structural violence,
which comprises intersecting economic and social inequalities and discrimination,
based on grounds which include race, gender, gender identity, disability,
drug use, homelessness, and migration status. According to Amnesty
International, social stigma, harmful policing practices and a harmful
legal and policy framework also contribute to undermining the safety
of sex workers. The study also indicates that sex workers often
mentioned in their interviews that they had been forced to engage
in more risky behaviour as a result of client criminalisation. This
included visiting locations determined only by their clients, which
could be unknown secluded areas with less opportunity to call for
help, and negotiating with clients quickly, with insufficient time
to assess risks or to screen out potentially dangerous persons.
27. At the same hearing, Sabrina Sanchez, General Director of
the European Sex Workers’ Rights Alliance (ESWA) mentioned the forms
of discrimination that sex workers and, particularly, those who
are trans women face, which include difficult access to housing
and employment. Her personal experience as a transgender woman with
a foreign background (she moved to Europe from Mexico) confirmed
these challenges. She had started doing sex work for lack of a work
permit and identity papers reflecting her gender, and because her university
degree in communication was not recognised in Europe, which made
it difficult to obtain employment in other domains.
28. This aspect of Ms Sanchez’ testimony seems to confirm that
in some cases engaging in sex work is neither strictly speaking
forced, nor a completely free choice, particularly for migrants.
The aforementioned PICUM report explains that “motivations for engaging
in sex work are multiple and complex. The causes lie beyond the
narrow frame of male demand for paid sex. These include unequal
access to education, healthcare, housing and social support; the
normalisation of casual, low paid and precarious employment; discriminatory immigration
policies which increase the vulnerability of certain migrants; as
well as the choices made by many sex workers, without other external
pressures or coercion, to take up an alternative form of work due
to financial incentive and independence”.
29. At the hearing held on 27 June 2024, Ms Héma Sibi, a representative
of the Coalition for the Abolition of Prostitution, highlighted
that sex work is practiced disproportionately by people from vulnerable
groups, such as low-income women and girls, migrants, persons from
ethnic or religious minorities or from oppressed castes. In Europe,
personal testimonies collected by CAP show that sex workers face
high levels of dehumanisation, including in the form of hypersexualisation
and fetishisation of people of extra-European descent, which undermine
their dignity and pave the way for discrimination.
30. Referring to research carried out by her organisation on sex
buyers’ perception of sex workers, Ms Sibi highlighted the use of
dehumanising language (“fresh meat”), derogatory terms and widespread
racist stereotyping, with black women described as “aggressive”
and “dominant” and Asian women as “petite”, ”submissive” and “docile”.
These findings confirm that sex workers are vulnerable to multiple
and intersectional forms of discrimination that need to be addressed
effectively.
4 The
debate on abolitionism versus decriminalisation of sex work
31. While the aim of this report
is to defend and promote the human rights of sex workers irrespective
of the type of legislation and policies enforced in a given country,
it is useful to present the main terms of the debate between abolitionism,
notably in the form of criminalisation of the purchase of sex services
(Swedish or Nordic model), and decriminalisation.
32. Originally designed in Sweden as a gender equality policy,
based on the concept of prostitution as a form of exploitation of
women’s bodies by men, this approach was later reinterpreted and
presented as intended to counter trafficking in human beings. The
Swedish approach was hailed by part of the feminist movement and many
anti-trafficking officials, and several countries introduced legislation
based on this model, first in the Nordic region (Norway and Iceland),
then beyond (Northern Ireland, Ireland and France).
33. The Swedish model is part of the political debate in other
countries, thanks to the vocal support of some civil society organisations,
such as the CAP and the European Women’s Lobby (EWL), both consulted
in the preparation of this report. EWL, an umbrella organisation,
is a major actor in women’s rights advocacy in Europe. It is worth
noting that its largest member organisation, the Deutscher Frauenrat
(National Council of German Women’s Organisations) opposes the Swedish
approach and supports full decriminalisation of sex work. In 2019,
the Deutscher Frauenrat and several other German organisations
Note adopted jointly a policy paper,
which opens with the words: “Studies and experience show that criminalising
sex work does not protect prostitutes from coercion, but leads to
more health risks, violence and precarious living conditions”.
34. Criticism of the Swedish model is widespread and increasing
and comes from a variety of sources. One of the main arguments against
abolitionism, often based on information collected from sex workers,
in some cases also from law enforcement officers, is that criminalisation
drives prostitution underground, making sex workers invisible and
more vulnerable. Additional side effects of criminalisation include
more difficult access to healthcare and other services for sex workers.
Critical voices consider that the criminalisation of one aspect
of the sex trade is reflected on the entire activity.
35. Niina Vuolajärvi, a researcher at the London School of Economics,
published in 2022 a policy brief entitled “Criminalising the Sex
Buyer: Experiences from the Nordic Region”,
Note which examines the effects of criminalisation
of sex buying on sex workers, especially on their vulnerability
to violence and exploitation, and how it intersects with immigration
policies and their enforcement. The brief notes some inconsistencies
in Nordic legislations: in particular, while sex work in itself
is not directly criminalised, it is
de
facto sanctioned through the enforcement of fiscal, third-party
and immigration policies. For instance, in Sweden and Finland, sex
work is grounds for deportation or denial of entry for non-EU migrants.
The text highlights a range of negative effects of abolitionist
policies, including increased stigma faced by sex workers and harassment
by the police often based on ethnic profiling, which seem to defeat
the purpose of the Swedish approach.
36. One of the most important criticism of abolitionist policies
comes from the United Nations Working Group on discrimination against
women and girls, which released a landmark report
Note in
October 2023 calling for the full decriminalisation of voluntary
adult sex work globally. The report, based among other sources on
interviews with sex workers from various regions of the world, states
that the dominant, polarised discussions about sex work do not reflect
its complexity and the different experiences of persons involved
in sex work. It adds that “These divisive debates have not led to
reducing discrimination, violence and other human rights abuses
that sex workers face and are counterproductive” and that “the Working
Group recognises that sex work is a way of earning money for some
people and is concerned by the discrimination and human rights violations
people who engage in this activity face”. The Working group has
consistently advocated for the decriminalisation of sex work: the
2023 report is the seventh time it does so, as highlighted by the
Human Rights Watch researcher Erin Kilbride,
Note after
a report on gendered discrimination in health (2016), on women deprived
of liberty (2019), on women’s rights in the world of work (2020),
and on poverty (2023), as well as two interventions on behalf of criminalised
sex workers in Nigeria and South Africa.
37. A wide review of existing research on policies about sex work
was carried out in 2022 by the University of Uppsala, which identified
over 3 000 publications and analysed more than 350.
Note The
review concluded that “there is an unmet need for studies addressing
the lived experiences of sex workers under the Swedish Model”. I
consider this conclusion to be particularly important. If the aim
of the abolitionist approach is to protect human dignity and to
counter the scourge of trafficking in human beings, at the cost
of limiting bodily autonomy and self-determination, it is crucial
to evaluate whether it actually achieves its goals. In the absence
of reliable indications, legislators and policy makers should be
cautious in adopting any regulation introducing criminal sanctions
in this area.
38. The indications collected from civil society at the hearing
of 24 March 2023 in Paris were very critical of the Swedish model.
The European Sex Workers’ Rights Alliance (ESWA), which has gathered
information on the situation and needs of sex workers for almost
20 years, believes that the criminalisation of any of the parties involved
in sex work is highly detrimental to all. ESWA states that this
empowers ill-intentioned actors, including within law enforcement
agencies, and prevents victims of abuse and trafficking from accessing
justice effectively. Indeed, the first recommendation that ESWA
addresses to authorities is to oppose legislation and policies that
criminalise or penalise, directly or in practice, the consensual
exchange of sexual services between adults for remuneration, including
the criminalisation of clients and third parties.
39. Amnesty International welcomes the measures taken in New Zealand
and, more recently, in Belgium, where sex work has been fully decriminalised
as a result of relentless campaigns conducted by sex worker-led organisations.
A review commissioned by the New Zealand Ministry of Justice found
that sex workers were now more willing to disclose their occupation
to healthcare workers and to protect themselves from sexually transmitted
infections, including by carrying condoms, which may be incriminating
in a different legal context. They were also more able to refuse
particular or violent clients and to negotiate safer sex. Amnesty International
considers that narratives that conflate human trafficking (and exploitation)
with sex work put sex workers at further risk.
40. Doctors of the World carries out harm-reduction programmes
with sex workers in France, Russia and in several non-European countries.
The organisation finds that, whatever the context of their intervention
and the persons involved (sex workers who performed their activity
freely or victims of exploitation, migrants, LGBTI people, or people
in extreme poverty), any form of direct or indirect penalisation
of sex work hinders access to health and rights for the people concerned.
They believe that criminalisation, whether direct or indirect, leads sex
workers to hide and exposes them to precarity, thereby undermining
prevention and care strategies. Even the criminalisation of pimping
has apparent negative side-effects, as it increases the risks of
violence, since sharing a workspace, which would increase safety,
is often viewed as an element of pimping and criminalised as such.
In addition, testimonies collected from sex workers in France by
Doctors of the World indicate that penalising clients put sex workers’
health and safety at risk by making clients scarce, thus reducing
the bargaining power of sex workers and making it difficult to refuse
certain clients or practices.
41. A systematic review of studies on the impact of prostitution
policies on sex workers, published in May 2023, shows the impact
of legislation on the health, safety and living and working conditions
of sex workers across the European Union. According to this review,
“evidence demonstrates that criminalisation and regulation of any
form of sex work had negative consequences on sex workers who live
in the EU in terms of healthcare, prevalence and risk of contracting
HIV and sexually transmitted infection, stigmatisation and discrimination,
physical and sexual victimisation, and marginalisation due to marked
social inequalities, for both nationals and migrants from outside
the EU”. In terms of policy implications, the study concludes that
“the evidence available makes a strong case for removing any criminal
laws and other forms of sanctioning sex workers, clients, and third
parties, which are prevalent in the EU, and for decriminalisation”.
Note
42. International organisations such as the World Health Organisation,
UNAIDS, United Nations Development Programme (UNDP), United Nations
Population Fund (UNFPA) or the International Labour Organization
(ILO) are also increasingly critical of all forms of criminalisation
of consensual sex between consenting adults for payment and are
calling for full decriminalisation of sex work. In 2023, the International Commission
of Jurists, composed of 60 eminent judges and lawyers from all regions
of the world, in its 8 March Principles
Note deplored the continued
use and, in some cases, the new proliferation of criminal laws proscribing conduct
associated with consensual adult sex, and that these laws have led
to human rights violations, such as engendering and perpetuating
stigma, harmful gender stereotypes and discrimination. Principle
17 on Sex work states that the “exchange of sexual services between
consenting adults for money, goods or services may not be criminalised”.
43. In addition to the non-governmental organisations that took
part in the March 2023 hearing with the Committee on Equality and
Non-Discrimination, Human Rights Watch has taken a clear stance
for full decriminalisation,
Note motivated by human
rights, safety and health concerns. The International Planned Parenthood
Federation, whose European Network regularly co-operates with our
committee in matters of sexual and reproductive health and rights,
also adopted a policy paper on sex work in 2022
Note, reaffirming that “the
human rights of all people, including sex workers, must be respected
and fulfilled” and that “all human rights are indivisible and interdependent”.
The paper refers to human rights that are relevant to sex work,
such as the right to bodily autonomy and integrity, as well as sexual
and reproductive health and rights. IPPF “supports the recognition
of sex work as work and supports sex workers and sex worker-led
organisations in advocating for the recognition of sex work as work”.
IPPF’s document strongly condemns forced labour and human trafficking,
and supports sex workers in distinguishing between sex work and
such violations.
44. In September 2023, the European Parliament adopted a resolution
entitled “Regulation of prostitution in the EU: its cross-border
implications and impact on gender equality and women’s rights”,
which calls on member States to criminalise the purchase of sexual
services.
Note The text was adopted by a minority
of voting MEPs (234 votes in favour, 175 against and 122 abstentions).
At committee level, a minority opinion was signed by some members.
The minority opinion states that “the terms used in this report,
namely “prostitution”, “women in prostitution”, denote value judgements,
carry connotations of criminality and immorality, and stigmatise
a marginalised community; people who sell sexual services prefer
the term “sex workers” because the use of “prostitute” contributes
to their exclusion from society, including access to health, legal
and social services”. It adds that the criminalisation of any element
of sex work often compromises the safety of people selling sex.
Unfortunately, the controversial choice to support the Nordic model
has radically weakened a text that originated from well-founded
concerns about the scourges of human trafficking for sexual exploitation, forced
prostitution, and the discrimination faced by sex workers.
45. Non-binding texts, such as resolutions, are more powerful
and influential when they are adopted by a large majority of voters
across the political spectrum. This is usually the case with Parliamentary
Assembly texts, which are solidly anchored in the Council of Europe
human rights protection system, revolving around the European Convention
on Human Rights, the European Court with its case law, and numerous
treaties. The text I propose as rapporteur to the Assembly for adoption
is, I believe, grounded in widely shared human rights principles,
calling on Council of Europe member States’ authorities to protect
the human rights of sex workers and to prevent and counter the discrimination
they face, irrespective of the underlying approach of the legislation
and policies on sex work. A text adopted consensually or by a wide
margin will have a stronger impact on member States’ legislation
and policies, which would be appropriate given the extent and prevalence of
the discrimination and violence that sex workers face.
5 Decriminalisation
of sex work: the case of Belgium
46. On 7 and 8 June 2023, Ms Margreet
De Boer, former rapporteur for this report, conducted a fact-finding visit
to my country, Belgium. The main aim of the visit was to learn more
about the situation of sex workers there, particularly after the
introduction, in 2022, of legislation decriminalising sex work entirely.
I will present here the main findings of this visit and some conclusions
that may be drawn from it.
47. The visit was an opportunity to meet a wide range of actors,
from the Minister of Interior to fellow parliamentarians, law enforcement
officers, and a large number of civil society organisations representing
sex workers or defending their rights.
48. Belgium introduced a significant reform of its legislation
on sex work in 2022, making it the first country in Europe to fully
decriminalise sex work. This new law represents a substantial shift
in policy, aiming to enhance the rights and safety of sex workers
by removing the legal penalties associated directly or indirectly with
their activity and recognising it as a legitimate profession. In
the past, while prostitution itself was not considered illegal,
providing any kind of service related to it was criminally sanctioned.
In view of the wide and vague definition, any professional service
provided to sex workers, such as accommodation, bookkeeping or fiscal
consulting, could potentially be considered as a criminal offence.
Pimping was criminally sanctioned only insofar as it provided “abnormally
high gains”, which, however, were not clearly defined.
49. The law enforcement officers consulted during the fact-finding
visit to Belgium highlighted positive and negative aspects of the
reform. Mr Jean-François Bellot (investigator specialised in trafficking
in human beings) believed that the changes in criminal law “had
provided sex workers with the reassuring legal framework they needed”.
The legal uncertainty of previous regulations was indeed problematic.
As an investigator with 12 years of experience in the fight against
trafficking in human beings for the purpose of sexual exploitation, Mr Bellot
highlighted some potential shortcomings of the current legal framework.
He considered it impossible to dissociate sex workers entirely from
trafficking in human beings. Whereas not all sex workers are victims
of human trafficking or procuring, “very many of them, too many”
are. Considering sex work as a profession similar to any other,
and requiring sex workers to acquire a professional status, may
push some of them, in particular undocumented foreign persons who
were often victims of trafficking, to disappear underground, out of
reach of the social services and law enforcement officers they may
need.
50. Police commissioner Karin Minnen highlighted several positive
aspects of the new legislation, such as the fact that pimping and
other activities related to sex work were considered as exploitation
and criminalised when they concerned people under 18 years of age.
This made it easier to prosecute cases of exploitation based on
the “lover boy” model, with girls pushed to practice sex work by
a manipulative partner. Very often, victims were not ready to report
the offence as they were not even aware of the perpetrators’ criminal
intent. At the time of the visit, it was difficult to fully assess
the impact of the reform, as regulations needed for its enforcement
(royal decrees) were yet to be adopted.
51. A round table with numerous civil society organisations was
an important part of the visit. The organisations active in the
assistance and support to sex workers and in countering trafficking
in human beings included Samilia, Myria, Isala, Pag-Asa and Cavaria.
Other participants included Alias, an NGO working with male and
transgender sex workers, and Utsopi, a network run by sex workers
themselves. Their representatives generally welcomed the reform
and some of them had campaigned for a long time to achieve it. They
believed that decriminalisation would create a safer environment
for sex workers. It was often underlined that some pieces of legislation
were still needed to complete the reform. While decriminalisation
was achieved, the idea of sex work as an ordinary profession could
not be put in practice without defining the professional status
of sex workers, particularly those employed by other subjects.
52. Minister for Justice Vincent Van Quickenborne presented the
situation to Ms De Boer as a work in progress, as the reform was
complete regarding independent sex work, but legislation on employed
sex work was under preparation. The forthcoming labour law would
set forth specific rights to protect employed sex workers and guarantee
adequate work conditions. The entire reform process had included
wide consultations with sex workers organisations, which he recommended
as the right way to go about designing legislation and policies
in this area. It was important to listen to sex workers and their
organisations. He believed that there was no contradiction between
respecting the rights of sex workers and countering trafficking
in human beings, and legalisation of sex work would not hinder the
fight against trafficking, which remained a top priority. Minister Quickenborne
believed that Belgium’s reform was the outcome of a non-ideological
process, and recommended de-ideologising the debate.
53. One year later, the situation has evolved in the sense indicated
by the Minister. In May 2024, the Belgian Parliament approved by
a large majority a labour law applying to sex workers under contract.
While self-employed sex work was already recognised, thanks to this
recent law sex workers will also be able to work under an employment
contract, and to gain access to social security, including pension,
unemployment allowances, health insurance, family benefits, annual
vacation and maternity leave. The new law sets limits to employment
(for instance, students cannot engage in a sex work contract, nor
can this be stipulated in the form of interim job). Importantly,
the labour law introduces five specific rights for sex workers,
namely the right to refuse a client, to refuse a sexual act, to
interrupt a sexual act at any time, to perform a sexual act in the
manner that they wish, and to refuse to sit behind a window or to
advertise. Other provisions regulate the termination of a contract.
The legislative reform of sex work is now complete, and the next
step is implementation.
54. The case of Belgium is extremely interesting and will certainly
be monitored closely in the coming years. It is important to ascertain
how decriminalisation will impact, on one hand, the situation and
life conditions of sex workers, and, on the other hand, the fight
against trafficking in human beings. The process leading to the reform
is a positive example. It was not based on a debate on whether sex
work is morally acceptable, or whether people have the right to
purchase sexual services or not. Instead, priority was given to
the rights and life conditions of sex workers. Moreover, Belgium’s
legislation on sex work appears today to create a consistent framework,
as decriminalisation was followed by the adoption of civil and labour
legislation. This reduces the risk of creating grey zones where
criminality thrives. Other legal systems, while presenting sex work
as an ordinary occupation on paper, have fallen short of creating
the conditions for it to be practiced legally.
6 Harm
reduction and protection of human rights: providing support and
assistance to sex workers
55. The aforementioned
Resolution 1983 (2014) “Prostitution, trafficking and modern slavery in Europe”, while
cautiously supporting the abolitionist approach, did not present
criminalisation of clients as a panacea, and it underlined that
it needed to be accompanied by measures aimed to improve the situation
and protect the rights of sex workers, such as establishing counselling
centres providing sex workers with legal and health assistance,
irrespective of their legal or migrant status; and setting up “exit
programmes” for those who wished to give up prostitution, based
on a holistic approach including mental health and healthcare services,
housing support, education and training, and employment services.
These recommendations are still valid, but many of them remain to
be enforced.
56. Support and assistance to sex workers are generally a weak
point of public policies on sex work. Organisations representing
sex workers and other civil society organisations advocate for more
assistance to be provided. Some of these organisations carry out
support activities themselves, based on what can be considered as
a harm reduction approach. At the hearing of 25 June 2024, Ms PG
Macioti, manager of Doctors of the World’s Jasmine Project, explained
that her organisation was not in favor of or against sex work, but
it aimed to protect the health of sex workers and public health.
In France, they had supported over 4 000 sex workers in 2023, with
harm reduction activities such as facilitating access to quality
healthcare, providing testing for HIV and various sexually transmitted
diseases, birth control, and psychosocial counselling to support victims
of violence. In addition, they carried out advocacy to counter the
causes of lack of access to healthcare and justice. Social stigma,
discrimination in access to healthcare, and criminalisation laws,
were immediate causes. Exit programmes for those who wish to leave
sex work are provided by the authorities, but they remain inadequate,
with a monthly payment of merely 340 euros.
57. The Ugly Mugs project, conducted in the Netherlands, provides
support to sex workers who are victims of violence and aims to increase
their willingness to report it to the police. It also provides information
on health and safety and offers an online platform accessible anonymously.
The project has created and launched a smartphone application that
makes it possible for sex workers to receive alerts about dangers
in their area and to report violence.
58. “Harm reduction” policies and all measures aiming to counter
discrimination faced by sex workers may and should be implemented
irrespective of the legislative approach chosen with respect to
sex work. Even some abolitionist organisations provide assistance
and support to sex workers, as explained by the representative of
CAP at the hearing of 25 June 2024, even though they do not consider
harm reduction sufficient and believe that it should not be the
ultimate aim.
59. In France, where public policies aim to eradicate sex work,
the non-governmental organisation Amicale du Nid carries out a wide
range of activities with sex workers, whom it considers as victims
of the “prostitution system”. Part of these activities are conducted
in co-operation with the authorities, in the framework of the implementation
of the national anti-prostitution strategy. They include providing
psychological, legal and social support to sex workers, including
in administrative matters, providing shelters, professional workshops.
60. The Amicale du Nid is among the organisations authorised to
assist those who wish to leave sex work thanks to the “exit strategy”
(parcours de sortie) introduced
by the law of 2016. Authorised by the Prefecture, the programme
lasts 6 months, renewable several times, for an overall maximum
period of 24 month, and provides a temporary residence permit, accommodation,
a monthly payment of about 340 euros, and support with social and
professional integration. Between 2017 and 2024, 1747 people have
had access to this programme. While considering all sex workers
as victims of forced prostitution is not an unanimously agreed opinion,
exit programmes should be made available in Council of Europe member
States and beyond, irrespective of policies on sex work. They would
benefit both victims of forced prostitution and sex workers who wish
to leave this activity, who often face considerable difficulties
in access to employment, for reasons including social stigma and
health issues.
61. The UN Special Rapporteur on the right to health, Ms Tlaleng
Mofokeng, a South African physician with longstanding experience
in gender equality and advocacy for universal access to healthcare,
writes that “Sex workers have human rights, and their comprehensive
health needs include HIV prevention or treatment, but also screening
for reproductive cancers, screening for other sexually transmitted
infections, trauma counselling, contraceptives, and safe abortion
care need. Yet, sex workers still face barriers in accessing healthcare
services, including HIV prevention and treatment as well as legal
remedies.”
Note I can only
echo the words of Ms Mofokeng and reiterate that, from a human rights
and non-discrimination perspective, it is vital to ensure that sex
workers have access to the healthcare services mentioned, as needed,
and on an equal footing with the rest of society.
62. Sex workers, as previously indicated, are at high risk of
being targeted by violence. Like anyone else, they are entitled
to protection from violence and abuse, including gender-based violence.
The right to freedom from gender-based violence is not conditional
on women’s abiding by traditional gender roles or to a modest behaviour.
It is therefore important to remove the existing obstacles to sex
workers’ access to justice in this area, provide adequate reporting
channels, and ensure that law enforcement officers are trained and
instructed not to discriminate against sex workers.
7 Conclusions
63. The activities conducted in
preparation of this report, both by my predecessor, Ms Margreet
De Boer, and by myself, including meetings with a wide range of
experts, human rights advocates and representatives of sex workers,
as well as public authorities and law enforcement officers, confirm
that sex workers are part of our society, deserve respect, and are
entitled to the same human rights as everyone else, irrespective
of cultural, moral and political views on sex work. On the other
hand, they are a vulnerable group and as such face considerable
challenges and discrimination, including of the intersectional type,
and are at particularly high risk of violence and abuse.
64. Legislators and policy makers must therefore act to protect
the human rights of sex workers and address the discrimination they
face. This goal must be co-ordinated with the important priority
of countering trafficking in human beings, a scourge that is often
adjacent to sex work, as sexual exploitation, including forced prostitution,
is one of the main purposes of trafficking. These two phenomena,
however, should not be conflated.
65. Nor should the different approaches to sex work in the legislation
and policies of Council of Europe member States hinder the efforts
to protect sex workers’ human rights. The sheer number of voices
drawing attention to the harmful effects of the criminalisation
of sex work, including when it applies only to clients directly and
calling for decriminalisation cannot be ignored. From the Council
of Europe Commissioner for Human Rights to UN agencies and Special
Procedures, from major international human rights organisations
to NGOs active in sexual and reproductive rights, and, perhaps most
importantly, the organisations representing sex workers themselves,
there is agreement that criminalising a segment of this activity
indirectly sanctions all those involved. They highlight the harmful
consequences of criminalisation, indicating that it leads to higher
risk of violence and stigmatisation, and more difficult access to
justice, among other things. I have found the arguments of these
voices convincing, and consistent with a human rights-based approach.
66. The innovative experience of my own country, Belgium, which
introduced a reform of sex work based not only on full decriminalisation
of sex work but also on consistent labour and administrative regulations, induces
me also to join those who call for decriminalisation.
67. At the same time, it is important to underline that sex workers
are entitled to human rights irrespective of whether the legislation
and policies on sex work enforced in a given country are based on
decriminalisation, or of criminalisation of clients. While they
have a margin of appreciation in the choice of regulations on sex work,
Council of Europe member States have an obligation to protects the
human rights of sex workers. The considerations I expressed in this
report and the indications contained in the draft resolution stemming
from it are therefore addressed to all Council of Europe member
States.
