Prostitution
AbstractThe report disputes the identification of prostitution as a human rights violation akin to slavery which informs the 1949 Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The research reveals that rather than facing conditions of slavery, most men and women working as prostitutes are subjected to abuses which are similar in nature to those experienced by others working in low status jobs in the informal sector.
This finding is supported by an investigation of the applicability of existing human rights and labour standards to issues of concern to men and women in the sex industry. The investigation concludes that most of these issues are subject to existing standards, developed to curtail abuses in other industries. However, the marginal position of sex workers in society excludes them from the international, national and customary protection afforded to others as citizens, workers or women. Their vulnerability to human and labour rights violations is greater than that of others because of the stigma and criminal charges widely attached to sex work. These allow police and others to harass sex workers without ever intervening to uphold their most elementary rights.
The report finds that the dismissal of the entire sex industry as abusive obscures the particular violations of international norms which are of concern to sex workers. This approach also fails accurately to reflect the limited nature of the relationship negotiated between sex worker and client in the commercial transaction. This is not an employment relationship as the client does not have enduring power over the worker. Sex work can take place in the context of exploitative employment relationships, even slavery, where someone with enduring power over the worker constrains her power to negotiate with the client. This case does not support an assertion that all sex work is akin to slavery. Moreover, by distinguishing sex work from other forms of labour, such an approach reinforces the marginal, and therefore vulnerable, status of the sex worker.
The report recommends that all national legislation which, in intent or in practice, results in the placing of sex workers outside the scope of the rule of law, should be repealed. The redefinition of prostitution as sex work is proposed as a preliminary condition for the enjoyment by sex workers of their full human and labour rights. Investigation is recommended into the mechanisms which exclude sex workers from the protection of existing human rights and non-industry specific labour standards. It is recognised that existing labour standards may not be adequate to protect the right to security of person in the context of sex work. It is suggested that of the intergovernmental organisations, the International Labour Organization is in principle best suited to the task of regulating working conditions to accommodate the special features of the sex industry.
वर्क
2a. Redefining Prostitution as Sex WorkSex workers, usually referred to as prostitutes, have occupied an anomalous position in societies throughout history. Prostitutes are generally regarded as a social category, as women who do not adhere to sexual and other behavioural norms; pitied or despised, they are excluded from mainstream society, their lowly and marginal position analogous to that of a low caste or minority ethnic group. Outcast status denies them whatever international, national or customary protection from abuse is available to others as citizens, women or workers. This social exclusion renders the prostitute vulnerable to exploitation.
The designation of prostitution as a special human rights issue, a violation in itself, emphasises the distinction between prostitution and other forms of female or low-status labour, such as cleaning or food-serving, however exploitative they are. It thus reinforces the marginal, and therefore vulnerable, position of the women and men involved in prostitution. By dismissing the entire sex industry as abusive, it also obscures the particular problems and violations of international norms within the industry which are of concern to sex workers.
The terms 'sex work' and 'sex worker' have been coined by sex workers themselves to redefine commercial sex, not as the social or psychological characteristic of a class of women, but as an income-generating activity or form of employment for women and men. As such it can be considered along with other forms of economic activity. An employment or labour perspective is a necessary, if not sufficient, condition for making sex work a part of the mainstream debate on human, women's, and workers' rights at local, national and international level.
The lack of international and local protection renders sex workers vulnerable to exploitation in the workplace, and to harassment or violence at the hands of employers, law enforcement officials, clients and the public. The need for worker protection, including occupational health and safety provisions, is of particular relevance in the current context of HIV/AIDS. Sex workers without rights in their place of work are uniquely vulnerable to infection with HIV and other sexually transmitted disease, as they routinely lack the information, materials or authority to protect themselves and their clients.
This report is intended as a preliminary step in the process of ending the exclusion of sex workers. By looking at commercial sex as work, and at the conditions under which that work is performed, sex workers can be included and protected under the existing instruments which aim to protect all workers in a general way, all persons from violence, children from sexual exploitation, and women from discrimination. The focus of the report is on how much sex workers have in common with other people and workers, not on how they differ. This report demonstrates that the social discrimination faced by sex workers and the problems they face in their working lives are not, in general, unique. Rather, their experience resembles the experience of other persons and workers. An examination of international human rights and labour standards reveals that most issues of concern to sex workers could be subject to the international instruments already developed to protect the rights of others. This approach contrasts with the historic treatment of prostitution at international level.
2b. Prostitution on the International Agenda: the 'Trafficking' framework
The earliest definitions of 'trafficking' were used to distinguish the 'innocent' woman, who found herself in the sex industry as a result of abduction or deceit, from the ordinary prostitute. This was to allow the participation in the treaties about 'trafficking' of the many national governments which permitted highly regulated forms of prostitution. These were not willing to sign a document which required the elimination of prostitution. For this reason, until 1949 prostitution was not named as a separate phenomenon but addressed in international agreements through the concept of 'white slavery' and, after 1921, through 'trafficking.' The international process began with a conference in 1895 in Paris, followed by others in London and Budapest in 1899, and the first international instrument in 1904. These were prompted by alarm at reports of European women being tricked, with offers of other employment or marriage, into brothels far from home. Women from western Europe were going to other parts of Europe, British women to the United States, and eastern European women to Latin America. One writer has linked growing concern with 'trafficking' and prostitution in the European public arena to social dislocation in the wake of industrialisation. Prostitution was a target for fears associated with urbanisation and mass male migration in search of work.
Between 1895 and 1949 there were seven successive international agreements on the issue, each with its own different definition. The definitions were all variations on the themes of: prostitution, recruitment into prostitution, the issue of coercion and the validity of consent, and movement across frontiers. All agreements shared the basic themes of trying to protect women and children from engagement in prostitution, and from prosecution if already in prostitution, and the criminalisation of 'third parties,' anyone recruiting for or profiting from prostitution. These themes derive from the 'Abolitionist' approach to prostitution, which gained ground throughout the first half of the twentieth century.
The Abolitionist approach declares that the institution of prostitution itself constitutes a violation of human rights, akin to the institution of slavery (in fact the term 'Abolitionist' was originally used to describe campaigners against the transatlantic slave trade). As such, no person, even an adult, is believed to be able to give genuine consent to engaging in prostitution. Prostitution only persists through the efforts of procurers or pimps, the 'third parties,' who induce a woman into prostitution, openly or by means of deceit and coercion, to extort her earnings from her. The Abolitionist approach requires governments to abolish prostitution through the penalisation of this 'third party', which profits from the transaction between prostitute and client. The prostitute cannot be punished, as she is the victim of a process she does not control. Without the 'third party', it is believed that the institution of prostitution will wither away.
The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) reflects the Abolitionist position to the point that its preamble states that "...prostitution (is) incompatible with the dignity and worth of the human person...", and it specifically targets the 'third party.' Abolitionists nevertheless continue to call for the amendment of the Convention, to define all prostitution as a violation of human rights and call for its complete abolition.
The 1949 Convention has been widely criticised from other quarters and in 1996 had be ratified by only 70 countries. There is no evidence that the Convention or other international and local sanctions have been effective either in eliminating the flow of women and men into the sex industry, or in curtailing abuses within it. Meanwhile, in the years since 1949, prostitutes themselves and others have been redefining the problem, asserting that the abuses are neither inherent nor unique to prostitution, but the outcome of the stigmatisation of the prostitute.
The 1949 Convention has yet to be revised or replaced, but the discussion of 'trafficking' has arisen in other fora. In the 1990s, the UN Commission on Human Rights Special Rapporteur on Violence against Women has been looking at "Trafficking in Women" in the context of her wider investigations into abuses directed at women for her report to the Commission in April 1997.
An international NGO, the Global Alliance Against Trafficking in Women (GAATW) prepared a report for the Special Rapporteur, in which their definitions put the emphasis on the coercion to which women are subjected. For the first time on the international agenda, they explicitly distinguish 'trafficking' from prostitution, which is not named at all in the definition. 'Trafficking in Women' becomes:
All acts involved in the recruitment and/or transportation of a woman within and across national borders for work or services by means of violence or threat of violence, abuse of authority or dominant position, debt bondage, deception or other forms of coercion.
They recognise that women may be particularly at risk of abuse both in transit and in situ because they are hidden in unregulated sectors: the private home, as domestic workers or wives, and the sex industry. They also distinguish between 'trafficking' and abusive practices which occur when a woman is already in situ or has reached her destination. The latter are covered under a separate definition of Forced Labour and Slavery-like Practices.
Meanwhile, a European Union (EU) discussion has focused on migration and prostitution under the title "Trafficking in Women for the Purpose of Sexual Exploitation." The Netherlands government took advantage of its position as President of the European Union in the first half of 1997 to follow up the activities of 1996. In June 1996 the European Commission hosted a conference on the issue jointly with the International Organisation for Migration on "Trafficking in Women", in Vienna. A European Commission Communication, on "Trafficking in Women for the Purpose of Sexual Exploitation", in November 1996 reported that in September 1996 the work of Europol's Drug Unit was extended to include "trafficking in human beings." A ministerial conference in the Hague in April 1997 agreed Union-wide procedures for addressing the issue.
There is still no authoritative definition of the term 'trafficking' and so some commentators prefer to avoid the term completely, but debates on the sex industry and on female migration in various fora continue to be placed under the heading 'Trafficking' or 'Trafficking in Women.' Some activists distrust all definitions of 'trafficking' as the term continues to be associated with the image of 'white slavery,' with transnational migration or deception with respect to prostitution. This constitutes an anomaly in a world where most sex workers work in their country of origin and are not brought into the industry by deception. The focus on extreme abuses, they argue, demands justice for the deceived and enslaved prostitute, but neglects the ordinarily exploited person who is typical of the majority of sex workers, and indeed, workers in general. It runs the danger of reiterating the distinction between the 'innocent victim' who deserves pity and the punishment of those who have criminally abused her, and the willing 'whore' who has sacrificed her right to social protection through her degraded behaviour.
The International Agenda today: prostitution and slaveryUN standards which refer to prostitution reflect the confusion still surrounding the issue. The 1949 Convention is placed alongside the Slavery Conventions for the consideration of the Working Group on Contemporary Forms of Slavery at the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The very fact that a separate convention exists linking 'trafficking' and prostitution indicates a confusion. Other processes considered under both the UN and International Labour Organization's Conventions against slavery and forced labour are classified only according to means of control, for example debt bondage, rather than to activities performed. The 1949 Convention appears, moreover, to be fundamentally flawed. The world-wide investigation of "Trafficking in Women" by GAATW in 1996 examined the recruitment of female migrants and the conditions they experience in the sex industry and in the home. The problems they identified, such as limited opportunities for legal migration and lack of recourse to the authorities, are in no way addressed by the Convention, with its focus on repressing the 'third party'. In considering the institution of prostitution itself as the abuse, the opportunity to prevent human and labour rights violations has been missed. It is hoped that this report will be a step in an ongoing process to resolve this confusion.
At the 16th Session of the Working Group on Contemporary Forms of Slavery in 1991, the Coalition Against Trafficking in Women, an Abolitionist group, declared that "to be a prostitute was to be unconditionally sexually available to any male who bought the right to use a woman's body in whatever manner he chose". The words "unconditionally" and "in whatever manner he chose" imply the rights of ownership which have been a part of the international definition of slavery since the League of Nations Slavery Convention of 1926. This represents a fundamental misconception about what constitutes slavery and what prostitution.
Slavery is a distortion of the employer-employee relationship and is predicated upon an enduring relationship characterised by the employer's abuse of superior power in relation to the employee. Without this enduring power to prevent the employee's resistance or escape, slavery and slavery-like practices are not possible. Some sex work is conducted in the structure of employment. Employment relations in the sex industry, and the working conditions associated with them, as in every other industry, can be more or less exploitative. The most exploitative relations in any industry are categorised as slavery and slavery-like practices. The 1926 Slavery Convention defines slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery defines the practices applicable to the sex industry, debt bondage and child servitude. Debt bondage occurs where a debt is to be paid off with services but "the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined" (Article 1(a)). Child servitude is "Any institution or practice whereby a ...person under the age of 18 years, is delivered by ...his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour" .
The commercial transaction between sex worker and client, however, is not characterised by employment relations. He is the customer for the service provided, not the employer, and the relationship contained in the commercial transaction is limited in time and scope. Within the sex worker-client transaction, consent is continually negotiated. The 'right of ownership' implied by "unconditionally sexually available" and "in whatever manner he chose" is not possible in this relationship. The sex worker has no reason to accept a particular client or to submit to acts to which she does not consent or to refrain from seeking redress in the case of assault by a client which she cannot resist, unless she is constrained by pressures from an employer or other authority, in whose power she remains.
Where an individual's ability to negotiate is constrained by another person; where another person has the power to decide which or how many clients she will service, and what services may be performed, or the consent of the individual is overridden in any direction, then indeed we find slavery. There is, moreover, no need to qualify the abuse that is slavery with terms such as 'sexual slavery' -- the condition of slavery is itself violation enough under any circumstances. It is no coincidence that slavery and slavery-like practices are disproportionately associated with the sex industry. The sex industry exists on the margins of society, beyond the legal and customary restraints on commercial and social behaviour which regulate the mainstream, and out of sight of those not directly involved. Moreover, the labour force is overwhelmingly made up of persons -- women and young persons, transgendered persons and men who have sex with men -- whose ability to defend their rights and whose economic opportunities are already restricted in society, limiting their ability to resist exploitation. Those most vulnerable are the poor, who face exploitation in every industry. However, the fact that some sex workers are subject to conditions of slavery does not constitute a logical basis for claims that all sex work amounts to slavery.
The sex worker who works outside an employment relationship may find her capacity to freely withhold consent is constrained by immediate economic necessity, rather than another person. This does not constitute slavery, as slavery means that a person is subject to "any or all of the powers attaching to the right of ownership". The street worker who accepts a client she would prefer to reject, for fear of being unable to meet daily expenses, or the worker in hired premises who must earn a minimum amount to pay the proprietor for that day's hire of the premises, is facing not slavery but simple economic and social injustice, of the kind which constrains workers in every field to accept inequitable or dangerous conditions. The solution to this injustice lies beyond the scope of law alone, in the field of economic and social rights.
As the Abolitionist model does not allow for the existence of the independent sex worker, the image of the 'pimp' has arisen, as the 'third party' associated with sex work outside the commercial sex-based business. The 'pimp' is a man who uses physical and emotional threats to force a woman into prostitution, and extorts from her the proceeds. Sex workers are understood to operate in association with male pimps, and male associates of sex workers are taken to be pimps and may be penalised as criminal.
While some sex workers, like women outside the sex industry, are in abusive relationships with partners, evidence would be needed to justify the assertion that there is a form of domestic violence uniquely associated with the sex industry. The lives of sex workers cannot be examined in isolation from recent discussions on violence against women. The Special Rapporteur on Violence against Women noted in her 1994 Report to the UN Commission on Human Rights that "violence against women within the family is a significant pattern in all countries of the globe" and cited studies from industrialised and developing countries demonstrating the prevalence of domestic, especially marital, violence. It is unclear that the violent partner of a sex worker is always using violence to extort money. There is, furthermore, a lack of research about men who use violence or the threat of violence to extort money from partners who generate income by means other than the sex industry. The only conclusion possible so far is that the protection against assault and extortion already enshrined in local law must be extended into the domestic sphere in order to protect all women effectively.
