The Legalization of Prostitution by State Parties is a Violation of International Law
Women and girls are so commodified as products for sale that you can access a "consumer guide" to buy women on the web. The men "consider themselves connoisseurs of fine women," like fine wine or fine chocolates. These users of women wanted a way to complain if their "products" didn’t meet the mark. Because the men might post a bad review, the women are forced to do as the men want.
The sites represent the ultimate commodification of women, who are impersonally rated by anonymous men in much the same way they would judge a sports car or a racehorse. Some find it demeaning, but most acknowledge that it’s a fast, easy way to build a reliable client base. Robyn Few, a former prostitute who lobbies to decriminalize prostitution as executive director of the Sex Workers Outreach Project in San Francisco, said that on a personal level, "I hate it" that women are "being reviewed and rated like some subhuman."
In Britain, confusing reports say one in three or two in three people support legalizing prostitution. In 2006, the UK announced that it was changing the definition of what constitutes a brothel from one person selling sex to up to three. The response to the British suggestion has been varied. The Conservative party wants to look at the underlying causes. The Liberal Democrats want to have managed zones so professionals can work with prostitutes. Often however the most successful persons to work with prostituted women are not "professionals" but former prostituted women. The English Collective of Prostitutes admits serious problems in that when a woman does report violence or rape, she is not taken seriously and often faces character assassination or even prosecution. The priority should be protection. The Association of Chief Police Officers suggests focusing on exploitation and listening to the victims. The Children’s Society says to look at the abuse of teens and not to punish them.
Likewise in Canada, the politico’s lined up on opposite sides. The Conservative MP said that to legalize prostitution in Canada would be to overlook the research and the report from the Maxim Institute think tank that found, "Decriminalization of prostitution not only fails to deliver, it contributes to worsening the problems inherent in the sex industry." The Liberal side responded that government should not penalize women for trying to feed their families. This is a noble sentiment that the Swedish law recognizes by penalizing the buyer not the woman. The MP raises the worn out banner of moralizing to attack those who oppose legalization but there is no moralizing in the research -- just facts. She claims she has read the report but it doesn’t convince her.
Another view about prostitution in Canada is from Vendredi who argues that decriminalization would result in buying women as today we buy cigarettes. It would increase prostitution and not increase safety for the women.
A society where fullequality between the sexes exists cannot at the same time support the idea that women are commodities that can be bought, sold, and sexually exploited. In Sweden, prostitution is officially acknowledged as violence against women and a tool of oppression. The root cause is identified as men’s demand for the use of women for sexual exploitation. "Legalization of prostitution means that the state imposes regulations with which they can control one class of women as prostituted". "Prostitution requires a devalued class of women … Prostitution is colonization of women …" When violence is directed at half the world’s population -- women -- it undermines the entire structure of human rights. Legalization is approval of that violence, of that control, of that devaluation, of that colonization. Prostitution is not individual discrimination, exploitation or abuse by an individual man, but a structure reflecting and maintaining inequality between men and women.
Prostitution is Violence Against Women
The violence against prostituted women is equivalent to and in many cases greater than the violence experienced by victims of torture who have been recognized as such under international law. Torture is not only conduct against the law; it is conduct that challenges the very existence of the law because it violates all the necessities of good governance including the consent of the governed. It attacks the legitimacy of the State, provokes social conflict, and undermines peace. It is the practice of social control taken to its violent extreme. To suggest that prostitution of women is torture is not a new idea. Catherine MacKinnon said just that in 1993. In fact women are bought and sold precisely to be humiliated and degraded -- a goal of torture. In a study covering five countries, researchers found an extensive array of violence against prostituted women and the consequences did not differ among countries. More violence occurred in street prostitution than in brothels but the incidence of Post Traumatic Stress Disorder (PTSD) did not change. The level of PTSD was higher in prostituted women than in people seeking refugee from state-organized violence. The psychological damage stems from the act itself and no amount of "improvement" to the conditions of prostitution will eliminate the harm.
When asked if legalizing would make it safer, large majorities of prostituted women said no because prostitution itself embodies physical and sexual assault. Virtually all of the women surveyed (92%) wanted to leave prostitution. Their lives consisted of being hunted, dominated, assaulted, and battered while facing sexual harassment, economic slavery, discrimination, racism, classism and bodily invasions - the equivalent of torture. Three women who worked in a brothel in the U.S. said their lives were unbearable. According to one survivor, prostitution is paid rape. In Thailand, the Empower group is a collective of prostituted women. Even they say, "We have 2000 members who are sex workers and none of them sees this as a real profession. But most of them have a very limited education and are either forced into prostitution by poverty and ignorance or lack of other opportunities."
The study describes some of the actual physical acts women are forced to endure: pinching, verbal abuse, squeezing her breasts, ejaculating on her face, beating, black eyes, pulling hair, beaten on the head, cut with knives, burned with cigarettes, and gang raped. This reality differs little from a complaint filed in Canada in which the victim alleged the pimp controlled her movements, took her money, told her he owned her forever, made her strip, threatened her, burned her with a cigarette, told her he would cut off her arms, legs and tongue and poke out her eardrums, kill her mother and brother, and made her lick his anus. These are very similar acts described by victims of torture especially in the international tribunals in Rwanda and in the former Yugoslavia.
In addition to the physical violence, the study describes the psychological damage. The women suffer from depression, lethal suicidality, mood disorders, anxiety disorders, dissociative disorders and chemical dependence. This is not news as Norwegian researchers found the same thing in 1986. Violence against prostituted women in the study ranged from a low of 40% to a high of 94% in more than a dozen countries around the world. Two-thirds of the women in the study had symptoms of PTSD that rivaled those of refugees from state-organized torture. Traumatic brain injury similar to that found in other torture victims results in significant health problems. Many of the chronic symptoms are similar to the long-term consequences of torture.
This reality is the same worldwide. Women in Korea report they were beaten, raped, humiliated and threatened to "season" them and break down their resistance. Once in prostitution, they endured routine beatings, humiliation, threats, sexual harassment and rape to keep them in line. In the long term, the victim of prostitution suffers psychological trauma similar to torture victims - flashbacks, depression, suicidal tendencies, insomnia, stress, and anxiety. A 1985 Canadian report found that prostituted women had a mortality rate 40 times higher than the national average. Homicide is a frequent cause of death. A recent Canadian study found that a high rate of poverty and housing instability was related to a high rate of prostitution. If women’s wages can be kept low, they are forced to sell their own exploitation to survive. Of the women, mostly First Nations, 82% had a history of childhood abuse, 90% were physically assaulted in prostitution, 67% said that pornography was made of them, 75% had injuries such as stabbing, beating, and broken bones, 50% had head injuries, 88% suffered verbal abuse and 95% wanted to leave prostitution. In August 2005, Greece police arrested one man and issued warrants for four others for torturing Nigerian women to force them to work as prostitutes. The estimated 30 women had burns inflicted with an iron and boiling water. The average life span for a woman after entering prostitution is four years. No population of women had a higher death rate due to murder, which accounts for 50% of the deaths.
A study in Indonesia, the Philippines, Thailand, Venezuela and the United States found much the same. Violence against women was endemic in prostitution with rates of repeated violence ranging from almost 70% to 100%. In Indonesia, the violence included use of belts, wooden sticks, fists, hands, rape, isolation, working through the night even if ill and use of law enforcement or military to protect the brothels. In the Philippines, the women were to do what they were told, were guarded and could not leave, 60-70% reported repeated violence such as objects thrown, hit with whip and objects, kicked, hands tied with barbed wire, burned, slapped, tossed off a stage, dragged, pinched, biting nipples, tied up, use of guns, truncheons, batons and knives, forced to use methamphetamines and cocaine, being fed only once or twice a day to keep them thin, and punishment by detention and lock up in a padlocked room naked and cold for a week without the ability to communicate with anyone. In Thailand, their names were changed, they were denied money and documents confiscated; they had no control over the choice of client, pace of work or nature of activity; they were raped, drugged and gang raped. One woman said, "She is the shared property of any male who can pay a price for sex and for her body." In Latin America and Venezuela, the women suffered from money withheld, they were pushed, hit with objects, punched, isolated, had guns and knives used on them, had their movements controlled, and were forced to have sex with law enforcement and immigration officials. In the U.S., 84-100% of the women surveyed reported physical violence including being beaten, hit, burned with cigarettes, chased, choked, crushed, dragged, hit with objects including shoes and a liquor bottle, punched, pinched including breasts, scratched, shoved, smacked, strangled with a bandana, stripped, thrown out of a car, twisted, hair pulled, urinated on, sodomized, objects inserted into the vagina and anus, bestiality, filmed, money withheld, weapons used such as sticks, knives and guns, and forcible injections of drugs. In spite of all the physical torture, what they reported hating most was being broken physically and spiritually.
Prostituted women in the United States reported their injuries as bruises, mouth and teeth injuries, vaginal bleeding, other bleeding, internal pain, head injuries and broken bones. Most women reported higher rates of injury for other woman than for themselves. Even those brothels that had so called "safety policies" did not protect women from harm from both customers and pimps and their friends.
In the U.S. sample, one half the women from the Newly Independent States (NIS) thought they would be killed in the brothel in spite of alleged monitoring and "bouncers". When asked if they thought prostitution should be legalized, 96% of Filipino women said no, 50% of Venezuelans said no and 21% had no response, 56% of NIS women said no and the rest had no opinion or did not know, and 85% of U.S. women said no. As shown in Australia, the normalization of prostitution results in more demand and more bizarre and brutal exploitation. They are now marketing women’s pregnancy and breast milk as sellable items in Victoria. A teacher who was moonlighting as a prostituted woman at night could not be terminated from her job nor could a male teacher who frequents a brothel. If it’s legal, then even those in charge of educating our children cannot be prohibited from it. Allegedly in Germany and New Zealand, women fear that they will be denied unemployment if they don’t "consent" to work as a prostitute.
Notably, even in countries that have legalized prostitution in a misguided effort to reduce its harms, rates of assault and rape against prostituted persons remain extremely high. Survivors of the prostitution industry report that the trauma associated with physical danger is matched by the trauma associated with constant sexual degradation, with having one’s body sold as a commodity.
Many survivors have reported that, in order to cope with the psychological degradation of prostitution, they developed a dissociation response-a sense of splitting off a part of the self, of "leav[ing] my body," of going "someplace else mentally." The aftermath of this coping mechanism is the high incidence of dissociative disorders diagnosed in individuals emerging from prostitution.
The health effects of prostitution are wide-ranging and severe and commonly include tuberculosis, sexually transmitted diseases, frequent viral illness, vaginal infections, backaches, pelvic pain, substance abuse, sleeplessness, depression, headaches, eating disorders, cervical cancer, hepatitis, broken bones, brain injury resulting from head trauma, anxiety disorders, dissociative disorders, infertility, and early mortality. HIV/AIDS infection is rampant among prostituted persons and is a leading cause of death.
The harms of prostitution are so profoundly linked to gender, class, and racial inequality as to make the prostitution industry one of the world’s most extreme systems of discrimination. Its victims are overwhelmingly female and overwhelmingly poor. They are made vulnerable by the disadvantaged status of women in many regions, by the childhood sexual abuse for which girls are disproportionately targeted, and by the desperation induced by poverty. Once in prostitution, their status falls even lower and their life prospects are more sharply curtailed. Trafficking and sex tourism have contributed to the already-strong role of racial and ethnic discrimination in prostitution, with men from richer industrialized countries purchasing women from developing or impoverished regions. Among prostituted women, it is often undocumented women trafficked from poor countries who suffer the worst exposure to the most harmful and unsafe practices within prostitution. Prostitution is both cause and effect of cruel and entrenched inequalities.
Acceptance of prostitution justifies violence against women. The men who engage in it have more discriminatory attitudes against women and are more accepting of prostitution and rape myths as well as more violent themselves. A thriving sex industry increases child prostitution and other sex crimes and has a negative effect on how women are regarded by men.
Violence is a criminal act - "consent" is no defense
Some people try to make a distinction between "voluntary" and "forced" prostitution. However, violence is often the precursor to women entering into any prostitution. Pimps and customers use the same methods as other abusers: denial, economic abuse, isolation, verbal abuse, threats and intimidation, physical and sexual assault, and captivity. The only difference between this and a recognized crime is that money is paid. But a criminal cannot avoid prosecution because he paid the victim or the victim allegedly "consented". A criminal act is so defined as against societal norms in general as well as the specific victim in particular. No amount of alleged victim "consent" can overturn the general societal norm that represents the baseline of acceptable behavior.
"The State is normally deemed to have a ‘duty of protection’ in relation to fundamental rights protected by the various international instruments such as European Convention on Human Rights and the various Protocols thereto. Criminal law is one of the most efficient tools to ensure such protection of fundamental rights" and should be used to protect women from the inhuman and degrading treatment and physical and mental harm they endure. They cannot "consent" to such harm as it involves basic societal values that are internationally protected.
Consent must be informed consent with available options. Without knowledge of the reality of prostitution, women cannot make an informed judgment about their willingness to enter into the arrangement. The lack of available options is more often the reality. Most prostituted women were sexually abused within the family. The average age of entry into prostitution is 14. At 14 a girl is not able to drive a car or sign a contract yet somehow she is adult enough to give consent to enter into violent sex acts.
Homelessness is the impetus for many women to enter prostitution. Poverty stricken Central American women desperately fleeing to the U.S. are often forced into prostitution when smugglers steal their money and border authorities deport them back to Mexico. Victims are subjected to repeated violence and once she understands that she cannot escape, then it is claimed she has "consented". Even law enforcement officers and social service providers know that women do not enter prostitution voluntarily.
The Special Rapporteur of the UN on Trafficking pointed out in her 2005 report that the issue of demand remained a salient point. She also made specific findings about the irrelevance of "consent":
The irrelevance of consent
37. As a matter of legal interpretation, article 3 (b) of the Protocol significantly widens the scope and meaning of trafficking. Thus, any recitation of the Protocol definition must include mention of article 3 (b) in order to convey the agreed-upon scope and meaning of trafficking.
38. As noted above, it is logically impossible under the Protocol definition to have a case of adult trafficking in which one or more of the means set forth in subparagraph (a) have not been used. At least one of the means set forth in subparagraph (a) must be used, or else the act in question does not count as an act of trafficking.
39. In other words, the second clause of article 3 (b) ("where any of the means set forth in subparagraph (a) have been used") will be satisfied in 100 per cent of adult trafficking cases, because it is a logical prerequisite to establishing that a case of adult trafficking has occurred.
40. It should now be clear that the second clause of article 3 (b) is referential to the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. It does not limit the universe of cases in which consent is deemed irrelevant. Simply put, the victim’s consent to the intended exploitation set forth in subparagraph (a) is irrelevant in all trafficking cases under the Protocol definition.
42. For the most part, prostitution asactually practised in the worldusually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and life within "the life" is rarely one marked by empowerment or adequate options.
43. Thus, State parties with legalized prostitution industries have a heavy responsibility to ensure that the conditions which actually pertain to the practice of prostitution within their borders are free from the illicit means delineated in subparagraph (a) of the Protocol definition, so as to ensure that their legalized prostitution regimes are not simply perpetuating widespread and systematic trafficking. As current conditions throughout the world attest, States parties that maintain legalized prostitution are far from satisfying this obligation.
Legalization Does not Eliminate Violence in Prostitution
Legalization has been adopted by some countries and is being considered by others as a purported solution to the problems of prostitution. Legalization does not stop the harms of prostitution. Research has shown that legalization does not protect women or eliminate the violence against them. Dutch women do not think legalization has helped them nor do women in Colombia, Germany, Mexico, South Africa, Washington, D.C, or Zambia. Some women in the U.S. and New Zealand actually felt safer on the streets where they could reject customers and write down license plate numbers. German women do not register under the prostitution laws because they don’t want to be labeled as a "prostitute" for the rest of their lives and because they feared that the zoned areas were more dangerous. Protesting to a pimp about mistreatment can result in more violence or firing. A Scotland police officer noted that women have less control in brothels because the owners control what they do and with whom and thus they are exposed to even more violence.
In a study in Cambodia, they found that though prostitution is not criminalized in Cambodia, most women were abused and suffered considerably from some form of violence by customers. Almost all the women said their "decision" to be a prostituted woman was motivated by extreme poverty and the lack of any other opportunity. Still most felt low self-esteem and social discrimination.
Likewise, research in the U.K. found that almost two-thirds of prostitutes said their main reason was to fund a drug habit and most came from poor homes and entered prostitution before the age of 18 after abuse at home.
The European countries that have experienced the biggest increases in numbers are those where there are elements of legalisation, namely Germany, the Netherlands, Denmark and Italy; in the Australian state of Victoria, often cited by campaigners for legalisation, the number of prostitutes is said to have doubled between 1994 and 2002. (Australia and the Netherlands also have the world's highest number of sex tourists per capita, supporting the proposition that legalisation normalises the act of buying sex.) There is evidence, too, that legalisation acts as a "pull factor" for traffickers; in 2003 Amsterdam city council decided to close down its street tolerance zone, the mayor declaring that "it appeared impossible to create a safe and controllable zone for women that was not open to abuse by organised crime".
No amount of legalization can change the fact that sexual violence and physical assault are the norm for women in prostitution resulting in long term physical and psychological harm no matter if the assault was "legal" or illegal. In fact, even those advocating for prostitution admit the violence. Sex Workers Education and Advocacy Taskforce (SWEAT) distribute safety tips on how to check for knives, handcuffs, rope or weapons. A brothel owner in the Netherlands admits that pillows in a room are murder weapons. The Australian Occupation and Safety Codes recommend self-defense training and classes in hostage negotiation skills. Clearly the State knows that prostitution means violence for women. There are other jobs that are known to be dangerous - mining, oil drilling, construction - and recommendations are also made on how to avoid injury. But the anticipated injuries are not crimes as they are in prostitution. Law enforcement does make recommendations about how to avoid criminal acts too, but those recommendations never include to deliberately place yourself in the line of fire as they do in prostitution.
Extensive documentation in the CEDAW Committee Shadow Report, 2005, from Australia shows that legalization does not mean that parties in prostitution will stop engaging in unprotected sex nor does it protect the women from violence. Australia's state of New South Wales decriminalized prostitution in 1995. A report by the think-tank Maxim Institute states: "Decriminalization of prostitution not only fails to deliver, it contributes to worsening the problems inherent in the sex industry." It points to the 3,700 children working Australia's streets and says the majority works in Victoria, where prostitution was legalized, and New South Wales, where it was decriminalized. The report also said the rate of gonorrhea has "soared" since Australia's laws changed and drugs "saturate" 85 per cent of the industry.
Prostitution was decriminalized in New Zealand in 2003. A July 2005 report by Manukau city council said the nuisance factor escalated and street workers quadrupled despite bylaws regulating the location of brothels. "It was widely expected that the outcome of legalizing prostitution would be that sex trade workers would generally operate from safe, regulated and legal brothels. In Manukau, that has not been the case," says the report. New Zealand police meanwhile say organized crime groups are involved in many aspects of prostitution.
The intimate connection between prostitution and trafficking
While there is a great global outcry against trafficking, the majority of trafficking would not exist if prostitution did not exist. Why are most women trafficked but for prostitution? Even the Netherlands government admits the two cannot be separated nor can trafficking be controlled while prostitution is legal. While this paper is not about trafficking, the two cannot be separated. Since the average life span for a prostituted woman is four years, a supply of fresh meat must be available. If there were no profit to selling women, the criminals would not bother. If they did not need more and more women for prostitution, there would be no "market". Legalization leads to expansion. The International Organization of Migration attributes the rise in trafficking to the rise of prostitution in Europe. In the Netherlands, the sex industry increased by 25% after legalization. No research shows that legalizing prostitution decreases illegal prostitution. In fact, following legalization in Victoria, Australia, the number of legal brothels doubled and illegal brothels went up to 300%. The U.S. Department of State recognized that legalized prostitution makes anti-trafficking work more difficult.
The clear relationship between trafficking in women for purposes of prostitution is made clear in the Shadow Report for the CEDAW Committee in Australia.
It is estimated that AUD1 million is earned from trafficked women weekly. One indication of the significance of trafficking in the supply of women to the brothels of Melbourne in the state of Victoria is that 25 per cent of the women in the legal brothels of the city were born in Thailand. Thailand has been the main source country for trafficking into prostitution in Australia. It is likely that all of these women will have been in debt bondage even if conditions for some of them have now changed.
International jurisprudence defines sexual violence as a crime
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons
States that legalize prostitution are violating several international conventions. Article 9 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children requires that States take legislative action to discourage exploitation and acts that lead to trafficking. By legalizing prostitution, States are doing the exact opposite. Women are specifically being exploited and we know that prostitution is the driving force behind increased sex trafficking.
Convention on the Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of all Forms of Discrimination Against Women states clearly in Article Six that States must eliminate the exploitation of prostitution. When a State legalizes prostitution and collects taxes on the abuse of women, what else can it be called but exploitation? Equality before the law and the dignity of the individual is a norm in every human rights document. How can those norms be squared with the legalization of prostitution that gives carte blanche to the torture of women and the sale of women and their body parts as commodities in the market place? Surely no one can argue that this promotes the equality or dignity of women.
CEDAW General Recommendation 19 declares that violence against women constitutes gender discrimination. According to Recommendation 19, gender-based violence includes physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. It may cause breaches of specific provisions of the Convention, regardless of whether those provisions expressly mention violence. The extensive proof of the violence against women in prostitution clearly violates this Recommendation.
Specific sections in Recommendation 19 say that State Parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act. State Parties shall ensure that laws against abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Effective measures shall be taken to overcome attitudes and practices on gender-based violence. It also acknowledges that specific preventive and punitive measures are necessary to overcome trafficking and sexual exploitation. State Parties shall take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including effective legal measures, preventive and protective measures.
The Vienna Declaration
The Vienna Declaration, in article 1, uses the term ‘violence against women’ as defined as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." The Declaration declares that gender-based violence and exploitation, including international trafficking, must be eliminated. States should prohibit degrading practices such as trafficking in women and exploitation of prostitution and protect victims and persons in potentially exploitable situations. The Declaration is not legally binding but sets standards for interpretation.
The Slavery Conventions
The conditions of prostituted women are akin to slavery and are banned under the Slavery Convention of 1926 and 1956. There is no doubt that "powers attaching to the right of ownership" are exercised in prostitution. Women are bought and sold, traded and shipped like merchandise, like cattle. The voices of many survivors have told us this as well as the known existence of actual "slave markets" where women are literally put on the auction block. The consumer guide to prostitutes is another example of the ultimate commodification of women who are rated and graded as high or low quality flesh by men who consider themselves connoisseurs.
Under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956, the definition was expanded to debt bondage (Article 1(a)), and any institution where woman, without a right to refuse, is promised or given in marriage in payment or consideration of money or services, the husband can transfer her, or she is inherited on death (Article 1(c)) or a young child is sold by its parents (Article 1(d). Conveying slaves between countries, or trafficked women is prohibited (Article 3) and the definition was updated.
In addition, the International Labor Organization also prohibits the conditions under which prostituted women are held. The voices of the women are clear. They are held in slavery. They are being traded as slaves. One cannot legalize slavery.
The Convention Against Torture
The prohibition against torture is one of the most fundamental aspects of human rights law. It is an assault on the persons identify, respect and dignity. It often involves isolation, removal of clothing, assaulting sexual organs, depriving the victim of sleep, inflicting psychological and physical pain, and rape. Many of the exact crimes prostituted women report on a routine basis.
Rogalla suggests looking at individual instances of torture as a social process happening over time. That process involves ongoing indignities and ill treatment leading to psychological damage, isolation and the invisibility of the victim. That is exactly what has happened to the victims of prostitution. Sexual violence is a means of exercising power and domination over the victim to gain control, degrade and humiliate primarily women by men. Thus discrimination and gender equality is implicated. We have long known that rape has more to do with violence than with sex. Rape is gender-based torture used to intimidate and humiliate women and strip women of their integrity and sense of self. The trauma extends far beyond the attack itself including emotional torment, psychological damage, physical injuries, disease, social ostracism and other consequences that devastate the lives of women.
Torture attacks the essential physical and psychological integrity of a human being. The court in Furundzija stated that among the possible purposes of torture under humanitarian law we must include that of humiliating the victim. They analogized humiliation to intimidation, which is explicitly named. If humiliation is included in humanitarian law, certainly it must be included in human rights law as well.
The International Criminal Court
The International Criminal Court Statute defines crimes against humanity to include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity … when committed as part of a widespread or systemic attack directed against a civilian population, with knowledge of the attack … Article 7(1)(g). International jurisprudence has moved to recognize rape and other sexual offenses toward women for what they are - crimes.
The ad hoc tribunals
The East Timor Regulations promulgated by the United Nations Transitional Administration include sexual offenses as a serious crime (1.3(e)). As crimes against humanity, it includes rape, sexual slavery, enforced prostitution and other forms of sexual violence of comparable style (5.l(g)). Torture is defined as the infliction of severe pain or suffering either physical or mental in custody or under the control of the abuser (5.2(d)).
In 1998, the Rwanda Tribunal defined rape as a form of genocide and the Yugoslavia Tribunal defined rape as a form of torture in Celebici and Furundzija. The statutes of both tribunals list rape among the crimes against humanity and through jurisprudence of both, rape and other forms of sexual and gender violence have been recognized as genocide, torture and other inhumane acts.
The acts of the defendants at the International Criminal Tribunal for the Former Yugoslavia were very similar to the acts done to prostituted women daily as found in the studies cited in this paper. Soldiers rubbed a knife against her inner thigh and lower stomach, threatened to put a knife into her vagina, badly beat one victim, beat the women on the feet with a baton, and forced them to have oral and vaginal intercourse as well as lick his penis. Victims were forced to stand naked, their children were threatened, and they were locked in a room with only a small blanket. The court found that the victim experienced severe physical and mental suffering.
The court held that under international human rights law, the prohibition on inhuman and degrading treatment and torture is a peremptory norm or jus cogens. A State cannot use any excuse to justify those acts, including that it is legalized prostitution. The fact that inhuman and degrading treatment and torture is jus cogens prevents any State from passing any legislative, administrative or judicial act authorizing the acts. States are obligated to prevent the acts and must take measures to end any such behavior that is occurring. Any legislation allowing it must be repealed. Instead, States are passing legislation allowing it in the form of prostitution. Thus the laws passed by the United States, Australia, New Zealand, the Netherlands and Germany legalizing prostitution are in violation of international law.
Further, the State has an obligation to other States as well. The facts show that legalized prostitution drives sex trafficking. Therefore, States owe an obligation to other States to prevent sex trafficking by ending prostitution. The Convention against Torture was not intended to leave persons without redress because their State was incapable or disinclined to protect them. The victim is protected regardless of their character or their own actions, even the torturer himself.
In another case of the ICTY, the victims also described the types of acts they were subjected to which included oral and vaginal rape, beating, threats to cut her throat, the apartment was locked, there was no access to the outside world, the men had knives, rifles and pistols, and the women had to obey every command including cleaning and serving food and drink. They were stripped and ordered to dance and they were sold. One woman felt like she was his property. These acts are identical to the lives described by prostituted women. The tribunal found that such acts "no doubt constituting serious violations of common Article 3, entail criminal responsibility under customary international law." The tribunal went further than the tribunal in Furundzija and discussed the issue of factors other than coercion or force or threat of force that would render sex non-consensual or non-voluntary on the part of the victim. The court found that the basic underlying legal principle was that sexual penetration is rape if it is not truly voluntary or consensual on the part of the victim, which goes beyond only looking at force but also looking at sexual autonomy. Sexual autonomy is violated whenever the person has not freely agreed to it or is otherwise not a voluntary participant. Prostituted women continually say they have no ability to control who the clients are or what acts they must perform and in fact they have less control in legalized brothels than on the street.
The ICTY also concluded that the definition of rape meant more than just body parts but must include intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Rape has been found to constitute torture. Paid rape is how the women themselves characterize prostitution. Rape is a violation of personal dignity that is not lessened by paying for the act.
The absence of consent or voluntary participation was also discussed in Dragoljub. Looking at the circumstances that define the vulnerability or deception of the victim, the court concluded that the common denominator was that the behaviors of the perpetrator have an effect such that the victim’s will was overcome or that her ability freely to refuse sexual acts was temporarily or more permanently negated. The tribunal found that alleged consent is not a defense under the Rules of Procedure. Nor should it be since no one can consent to be a victim of crime. The focus must remain on the criminal act not on the behavior of the victim.
Prostituted women are "seasoned" by beatings and rapes, deprived of their identification documents, left naked, locked in rooms until they learn that they have no hope of escape. Capitulation of the victim cannot be "consent" to be involved in prostitution.
The European Court of Human Rights
The European Court of Human Rights has established that filthy conditions, water shortage, skin infections, and sleep deprivation can all be torture when the suffering is intense. Likewise, when the government refuses to stop the behaviors, that government is systematically involved and is to be held liable under the Convention. Many women report such conditions. In the case of legalization of prostitution, the State itself not only doesn’t stop the conditions, it legitimizes them and increases them to the detriment of the victims and must be held accountable.
In the Siliadin v. France case, the European Court of Human Rights held that there had been a violation of Article 4, prohibition of servitude. The victim was a Totolese national who at 15 was brought to Paris to do domestic work but whose passport was confiscated and she became an unpaid servant. The couple was first convicted, then acquitted on appeal and then found guilty of making the applicant, a vulnerable and dependent person, work unpaid for them but the Court considered that her working and living conditions were not incompatible with human dignity.
This decision was taken to the ECtHR as violating Article 4 against forced or compulsory labour that had in reality made her a domestic slave. The Court found that Article 4 was a fundamental value of democratic societies, which of course it must be. The court held that she was subjected to forced labor and compulsory servitude that is to provide ones services under coercion. Given that the vast majority of women are coerced into prostitution and 95% of prostituted women seek to get out of prostitution, one can certainly argue that they are providing services under coercion. The factors the court used to find compulsory servitude in the Siliadin case were that her papers were confiscated, she had been made promises about the immigration status that were never carried out, she was afraid of being arrested by the police, she had no freedom of movement or free time, she was completely dependent on the couple, and she had no hope her situation would improve. This describes precisely the condition of most prostituted women.
Sexual assaults are serious interferences in a person’s private life. The State shall criminalize such acts and create possibilities for prosecuting the perpetrators of these assaults.
Physical integrity is a right protected by article 8 of the European Convention on Human Rights. Interference with the physical integrity of a person must thus be prescribed by law and requires consent. Although, Article 8 restricts States possibilities to prohibit acts that can be seen as violations of a person’s physical integrity, but is performed with that person’s consent. A State can through law prohibit serious abuse, even if it takes place with the abused person’s consent. The State may interfere with legislation or in another way when very strong reasons exist for such interference. Such reasons could be the protection of minors, protection of others in dependant positions or protection of persons who cannot make their decisions in complete freedom. The State can interfere with sexual acts that include the use of significant violence even if consent exists. This has been done in a case concerning sadomasochistic acts.
To be a violation of the European Convention, the torture does not have to be for any reason named in the Convention; rape alone is sufficient to be defined as torture depending on the motive of the perpetrator. In Ortiz v. Cramajo, the kidnapping, beating and rape of a nun constituted torture. In Selmouni v. France, the victim was beaten, sodomized, and threatened which constituted torture. The acts were considered to be intense, humiliating to anyone, heinous and repeated so that they constituted torture rather than just degrading treatment. These are very similar or identical to acts prostituted women experience daily and in some places, it’s called "legal".
In Aydin v. Turkey, the female detainee complained of rape and argued that it constituted torture. She was stripped, put into a car tire and spun around, beaten, sprayed with cold water from a high-pressure hose, blindfolded and raped. Medical evidence showed bruising and a torn hymen. The Court reiterated that there can be no derogation from the prohibition on torture. The court found that rape is an especially grave and abhorrent act that leaves deep psychological scars which do not respond to healing as quickly as other types of injuries. Therefore, rape is justified as being defined as torture rather than just inhuman and degrading treatment. Prostituted women face these conditions and worse on a regular basis and report much more severe injuries due to the long-term nature of the abuse.
The conditions of confinement of criminals have been held to be a violation of human rights. In one case, there was an open toilet, only a tap with cold water, two beds, a table and bench, central heating and a window with bars but no natural lighting. The inmate had books, some food, soap and toilet paper in the cell. The cell was overheated; the light was on 24 hours a day but the radio was switched off at night. The cell was freshly painted but the inmate had only recently been allowed outside for walks. The court found there was a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms based on these conditions. The cumulative impact of the conditions must be considered and the motive or purpose is irrelevant. In another case, prisoners were held in cells with a metal frame bed with mattress, blanket and chair. There was no natural light; the ventilation system did not work well and was noisy; there was no call system in the cell; toilet and shower facilities were nearby; but there were no facilities for exercise. This was held to violate the Convention as well. Women held in prostitution report being confined in much worse situations than those described by these prisoners and they have not been convicted of any crime.
The ECtHR has found that a person’s body concerns the most intimate aspect of private life under Article 8. A compulsory medical intervention, even a minor one, in this case a gynaecological exam which some women would not consider minor and which this woman did not, was an interference with this right. Nor was the fact that she did not "resist" an issue because she was completely vulnerable at the hands of the authorities.
The European Court of Justice
In a case between Germany and England at the European Court of Justice, the Advocate General determined whether public interest issues at home (in this case prohibition of games that simulated killing) can justify the prohibition of movement of the goods from England to Germany. The protection of fundamental rights under the Treaty and as general international law was discussed. The Court held that within European Community law, under the protection of fundamental rights, in the specific case circumstances support finding of a serious threat to fundamental interests important to human dignity because the rejection of the act - in this case conduct or services glorifying or promoting violence - is based on the protection and observance of human dignity.
The Advocate General found, "An individual national public order notice banning a commercial activity found by the national courts to be incompatible with basic principles of constitutional law is compatible with the provisions of the Treaty establishing the European Community relating to freedom to provide services if that order is genuinely justified for public policy purposes relating to the public interest and it is ensured that that purpose cannot be achieved by measures that are less restrictive of the freedom to provide services." Therefore, an EU country could, under this reasoning, prohibit advertising of and access to their country by legalized prostitution because it is conduct or services glorifying or promoting violence violating the protection and observance of human dignity.
In the sexual assault context, it took a long time for institutions to understand that rape is violence not sex. Likewise, in the marriage context, it also took a long time for the justice system to understand that domestic violence is not part of the marriage contract. At one time it was considered men’s right to beat, rape, sell and even kill their wives because they owned them. Such acts were not seen as "violence" or criminal. It was expected as part of the marriage contract. In recent history, it has been only since 1974 with a renewed emphasis against violence against women that it came to be accepted, by both women and men that these acts are not acceptable and in fact women have all the human rights men do. Even more recently has it been seen that men do not have the right to rape their wives. Even today in nearly half the states of the United States, men can do so with impunity. The parallels between prostitution, domestic violence and marital rape are very strong. It is legalization of violence. How long will it take us to see that prostitution is simply violence against women for which men pay? How many women’s lives will be destroyed in the meantime?
Legalization of prostitution constitutes "state action" under international law
Prostitution has been legalized in the Netherlands, Germany, New Zealand, some states of Australia and one county in the state of Nevada in the U.S. Canada and Thailand are considering it. In 2000, the Dutch Ministry of Justice argued for a legal quota of foreign "sex workers" to feed their prostitution market that demanded more "bodies". The European Court recognized prostitution as an economic activity so more bodies could be brought in. The State has become the pimp.
The level of "state action" that will suffice for acts to be covered under international law does not need to be actual authority but can merely be the "semblance of official authority". Legalization gives actual authority for the acts to occur. The acts need not occur when the government has direct control over the victim but only the "consent or acquiescence of a public official" is necessary. By legalizing prostitution, the government is giving its consent to the systemic violence toward women that is endemic to prostitution. The violence is the logical outcome of government policy to legalize prostitution.
Previous cases found that a person who knew sexual violence was occurring and allowed it to take place was responsible because they sent a clear signal of official tolerance. The ICTY tribunal held that the actus reus of aiding and abetting in international law requires practical assistance, encouragement, or moral support that has a substantial effect on the perpetration of the crime. The ICTY held that mere knowledge that the actions aid and abet is sufficient for mens rea. The facts show that legalizing prostitution increases both legal and illegal prostitution and does nothing to diminish the harm to women. Instead, it increases the harm to women. A State is aiding and abetting the violence by sending a clear signal that sexual violence is allowable by legalizing prostitution.
The European Court of Human Rights held in HLR v. France that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms relating to torture may also apply when the danger emanates from the persons or groups of persons who are not public officials because of the absolute character of the right involved. Therefore, the State cannot escape liability by claiming that private citizens own the brothels. The State by its actions has authorized those private citizens to engage in violence. There is nothing novel about applying international law to individuals who are outside the State. In fact international law binds every citizen just as municipal law does. Thus both the State and the individual are responsible.
To end exploitation, demand must be attacked
The men who buy sex have more discriminatory attitudes against women and are more accepting of prostitution and rape myths as well as more violent themselves. A thriving sex industry increases child prostitution and other sex crimes and has a negative effect on how women are regarded by men. The lack of equality between the sexes promotes violence against women. Prostitution promotes gender inequality. Violence against women and children increases when prostitution increases because acceptance or normalization of prostitution justifies and excuses violence against women. The problem is not the women; the problem is the gender relationship of power and control. Legalizing prostitution only institutionalizes that relationship and gives it government credibility.
The missing link is the user, the customer, the john. In the rare occasions when a trafficker is caught, s/he may get a lengthy sentence. Often, when the victims are caught, they too are punished or immediately deported. But the customers, who are creating the demand without which there would be no prostitution, rarely bear any responsibility. These customers may be having sex with children, often knowingly or at their own request, or with women they can see are battered and bruised thus forced. Yet they have no legal or societal consequences.
As Smith points out, "... it exposes the pernicious assumptions at the heart of prostitution. One is the rarely challenged claim that there is something peculiar to male sexuality that makes men entitled to sexual release whenever they want it; another is that women are a class from which men should expect to get sex, regardless of the damage they inflict on individuals. In that sense, it is just as much an abuse of human rights as conventional slavery, which assumed that Africans could be bought and sold for use by white people."
The effects of legalisation on the numbers of women involved in prostitution is clear from a comparison with Germany, that has legalised brothels and has 3.8 prostituted people per 1000 population, and Sweden, that penalises the male buyers and has 0.3 prostituted people per 1000 population. In fact, the effect of the Swedish law has been dramatic. Official figures show that the number of women involved in prostitution fell from 2,500 before the law came into force in 1999 to 1,500 in 2002. By 2004 the recruitment of women into street prostitution had almost halted. With a population of nine million, Sweden is estimated to have only 500 street prostitutes, while neighbouring Denmark, with a population just over half that size, had between 5,500 and 7,800 in 2004, half of whom, it is estimated, were victims of trafficking.
Supporters of the law say it has also had an impact on trafficking into Sweden, with the National Criminal Investigation Department (NCID) reporting that the country is no longer an attractive market for foreign gangs. Intercepted telephone conversations show that pimps and traffickers express frustration about setting up shop in Sweden, preferring to operate in Denmark, Germany, the Netherlands and Spain. In its 2004 report the NCID concluded that the law "continues to function as a barrier against the establishment of traffickers in Sweden"; it estimates that roughly 400-600 women are trafficked into Sweden each year, compared with between 10,000 and 15,000 into Finland. The law's opponents claim it has made street prostitution more risky because the few remaining clients tend to be more "perverted", but most of them concede that it has reduced demand.
Thus it can be seen that the Swedish approach is clearly the best approach to end exploitation of the prostitution of women. Based on the pioneering approach of the Swedish government, the international community has begun to recognize that prostitution is not some inevitable societal fixture, but is driven by the patriarchal expectation of males to have sexual access to females on demand. The success of the Swedish approach clearly shows the way forward for implementation of Article 6. For States Parties to legalize prostitution, thereby creating more exploitation and violence, flies in the face of research, reason and reality.
Patriarchy is the Problem
The acceptance of the myth of men’s uncontrollable sexual urges and the institution of prostitution as a way to prevent men from raping innocent women is seen as the ultimate justification for prostitution. The Whore/Madonna dichotomy then continues; some women can be raped, others cannot. "Prostitution exists in and is maintained by a male-controlled society where violence against women and children is pandemic and racism flourishes." Prostitution functions in tandem with racism and sexism and reduces women to objects.
The fact that prostitution is harmful to women is ignored. Instead male privilege is reinforced through the masculine entitlement to sexual access to and power and control over women, in a situation where men create the market and where customers contribute to the maintenance of a system of slavery at the expense of women’s bodies. Legalized prostitution allows males unconditional sexual access to females and turns women into second-class citizens. Customers, pimps, police and governments are perpetrators of violence against women. The situation where some women shall be completely sexually available to buyers constitutes nothing less than paid rape.
"If we truly want to address the issue of violence against prostituted women, then, we must tackle inequality between women and men in a much broader way. We must above all challenge the demand, i.e., the fact that men want to purchase sexual services, and make the necessary links with the maintenance of women's inferior status. Remember, too, that the institution of prostitution concerns all women. Under patriarchy, the man/buyer does not wonder if the woman wants to be a prostitute. He prostitutes her."
The research has clearly shown that the women who are exploited in prostitution suffer the same kind of acts suffered by torture victims, have the same kind of injuries and the same harms. The victims of prostitution not only suffer the injuries, but they occur daily and are sustained over time. In locations where prostitution is legalized, women suffer these injuries with the permission of the State. The State, by its acquiescence in the legalization and its support of the direct actors, bears responsibility and must be held accountable.
The behaviors rise to the level of torture under international law and are certainly crimes for which on defense of consent is allowed. For consent to be valid there has to be informed choice. In this situation, there is neither accurate information nor actual choice. Approximately 50% of those sold into prostitution are minors and the issue of choice is not even applicable.
Research in the communities where prostitution has been legalized proves that it does not eliminate the problems of violence or trafficking but in fact escalates illegal prostitution, crime and the degradation of women in general. As prostitution grows, so does trafficking as the method to procure sufficient women to prostitute.
International jurisprudence from UN treaties, multilateral documents, NGO conventions, the ICC, the ad hoc tribunals, the ECtHR and the ECJ all give many examples of the illegality of prostitution under international law. The state has an obligation to respect human rights. It cannot do that by supporting a regime to sell women as commodities in the market place. The state has an obligation to protect human rights. It cannot do that by legalization of prostitution that results in such negative consequences to the prostituted woman in particular and all women in general. The state has an obligation to fulfill the substantive requirements of human rights that it must do by focusing on ending the demand for prostituted women and creating the conditions whereby women and children cannot be coerced into prostitution. This begins with ending violence against children in the home, marital rape, domestic violence, inequality in the work place, sexual harassment, lack of political representation and all the other indicia of the inequality of women.
Legalized prostitution cannot exist alongside the true equality of women. Legalized prostitution itself is an indictment of the equality of women. The structural inequity based on gender, class and race is exemplified by the idea that one group of women must be available for men’s sexual access and cannot be squared with any concept of human rights.
This violation of international law cannot go unchallenged. Failure to do so undermines every human rights norm that claims to support the dignity of the person and equality between the sexes. Literally, the lives of millions of women depend on us taking action.
Dianne Post is an international attorney/consultant with over 30 years of feminist work on women's rights. Her website is www.diannepost.net/