The series of webinars entitled Debunking Sex Work, organized by Associazione Iroko Onlus, saw us host Mickey Meji, survivor, activist and founder of the SESP Survivor Empowerment & Support Programme, and Sigma Huda, lawyer at the Bangladeshi Supreme Court, former special rapporteur on trafficking, in particular women and children, for the United Nations, in the penultimate of seven meetings.
With regard to sexual trafficking, Sigma reminded us that the national legislative systems are based on three models, adopted to counter/regulate the phenomenon of prostitution:
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- the prohibitionist model
- the regulatory model
- the abolitionist model
In the prohibition model, prostitution is considered an illegal activity to be prosecuted; it is forbidden to offer sexual services for a fee and it is also a crime to purchase them. “Activities surrounding prostitution” are also punished, including the exploitation of prostitution, induction to prostitution, and aiding and abetting.
In the regulatory model, prostitution is understood as a lawful activity, as any commercial activity. Child prostitution is prohibited and any form of coercion is condemned, however difficult it may be to detect. Bearing in mind the content of some of the international treaties, however, this model is in line with the most recent instruments, the aim of which is limited to the suppression of phenomena such as trafficking in human beings, and not so much the prohibition of prostitution in itself. The United Nations Protocol on the Prevention, Suppression and Persecution of Trafficking in Human Beings, especially Women and Children, adopted in Palermo in 2000, no longer refers to the repression of prostitution itself, but to the repression of human trafficking through coercion.
Both activists, Meji and Huda, support the Nordic or abolitionist model to combat the sexual exploitation of prostitution and thus help to change the mentality of society. It considers prostitution to be neither lawful nor commercial, but at the same time it does not criminally punish prostituted women, thus avoiding aggravating their situation. In the legal systems that adopt this model, offering paid sexual services therefore is not a crime (except forms of solicitation). Rather, activities associated with prostitution, such as exploitation, recruitment and aiding and abetting, are condemned.
In 1985 Sigma succeeded in turning a tragic event into a court case in Bangladesh: a large number of pregnant women were forbidden from continuing to practice prostitution, which aggravated their already precarious economic condition, since no alternative means of economic support or support to exit this form of slavery were recognised. Sigma undertook to request an explanation from the Minister of Justice regarding these bans, arguing that the goal should remain the activation of measures for the criminalization of the traffickers and exploiters of prostitution, avoiding harm to women in prostitution.
The lawyer argues that the situation in Bangladesh, with regards to prostitution, is ambiguous and therefore weakens the system, because there is a very fine line in the legislation between what is considered legal and what is understood as exploitation. In fact, all you need to do is sign an affidavit, if you are of legal age, with which you declare that you cannot find other employment and are aware of the choice you are making, i.e. prostitution. On the other hand, the “Prevention of Women & Children Repression Act”[1], which has been in force since 2000, makes forced prostitution illegal by introducing severe penalties for exploiters and sex buyers.
Sigma explains that the Bangladesh Constitution has precise principles, but contains a gray area represented by art. 29 part three, which reads: “Everyone has the right to a job”[2]. “Pimps try to appropriate this right” the lawyer says, adding that “in every municipality the citizen can apply for their work permit”. This, according to Sigma, facilitates the entry of girls into prostitution, and the age of consent, required for the affidavit, is almost never verified. “Many traffickers and exploiters inject substances into girls to make them look older, as early as 10 or 12 years old.” Sigma continues, “The work permit also does not protect any prostituted woman from stigma and many end up in prostitution networks after past trauma, such as incest or trafficking.”
Trafficking in human beings is banned in Bangladesh and is punishable by a minimum of five years’ imprisonment, and a fine of at least 50,000 Taka (approximately EUR 510). According to Article 3, letter a) of the Palermo Protocol, the treatment is defined as coercion for the purpose of exploitation, with the aim of one person to gain control over another. “This legal provision recognises sexual exploitation, forced labour, slavery or other related practices, servitude or organ harvesting as such.”
Bangladesh is one of the main countries where human trafficking originates, but in recent years it has also become a country of transit and destination. According to UNICEF, the widespread discrimination and inequalities between marginal groups and the lack of reliable livelihoods are linked to the phenomenon of trafficking in human beings. Poverty remains the main cause of migration and, as a result, of the acceptance of job offers that prove to be forms of exploitation. Bengali victims of trafficking can reach anywhere in the world and modern forms of exploitation include forced labour in agriculture, fishing and construction, domestic servitude and trafficking for sexual exploitation.
The government reported 355 victims in 2016, a fall from 2,899 and 1,815 in 2014 and 2015, respectively. The experts interviewed for the 2017 report of the United States Department of State on trafficking in human beings, stated that «this decrease could be partly due to the application of a more accurate definition of trafficking».The testimonies of survivors are fundamental to change public opinion and make people aware of the violence of prostitution. The shocking reality of the sex industry was recently brought to light in Bangladesh, where five girls managed to escape from online trafficking. Human trafficking and exploitation are on the increase in the country, which does not seem to effectively combat traffickers and has therefore been defined as “vulnerable” by the Office for Monitoring and Combating Human Trafficking of the US State Department. For a few pennies girls are sold by boyfriends or poor families, kidnapped and drugged and then disappear. Madams and traffickers force the girls to sign the affidavit against their will.
Thailand is also among the countries considered vulnerable, and is known for sex tourism. “Men who buy sex are casual visitors who then leave, like German tourists who buy 12-year-old girls by spending all of their retirement money. These countries are poor. That’s why families sell their daughters,” reports Sigma.
The lawyer reflects on prostitution by stating that women, in this form of slavery, have a subordinate role and anyone can use their bodies. “Prostitution happens on planes, in homes, anywhere. Decriminalization and legalization do not protect prostituted women. If we accept the red light districts, and so the sale of the body, then the men who have sadistic fantasies can carry them out with prostituted women rather than their wives, as the former are considered a lower class of women. I mean, we accept a real system of inequality. The stigma stays on the woman and not on the client.”
Mickey adds that women do not choose to be prostitutes, but it is prostitution that chooses them, that “their vulnerability and the context in which they live prepares the ground”. She adds that “they are mostly poor, black women in a condition of vulnerability. Melissa Farley tells us that 70% of women who have entered prostitution have been in that situation since they were young girls, and the moment they come of age, they paradoxically enter the realm of so-called free choice, that is, consent.”
Sigma contests the slogan ‘sex work is work’. “Which choice?” – she asks -. “The sale of your body? Then why are there so many victims? What the supporters of sex work often defend is the idea of women having control over their own bodies, but this is practically impossible in prostitution, since it is a third person to buy the body of a woman”.For both activists, one of the solutions lies in the constitutions of some states, including Bangladesh and South Africa.
Mickey reiterates that the South African Bill of Rights [3] has Article 37, guaranteeing the right to life as an inalienable right, which is threatened by prostitution. “In South Africa the rate of femicide is high, so we can imagine how hard it is for women in prostitution,” says Mickey. “In Senegal, where prostitution is legal, it is the women who have to test for AIDS, not clients, and if you are positive you can no longer practice prostitution, while men are free to infect others.”
Another instrument that could be useful is the African Charter of Human and Peoples’ Rights, adopted in Nairobi, Kenya, on 27 June 1981. Having come into force on 21 October 1986, today all the States belonging geographically to the African continent are part of it, except the Kingdom of Morocco, but there is a good chance that Morocco will soon be able to adhere to the African Charter.Potential and limits of the African Charter
The African system of protection of human rights hinges on this treaty in which the protected rights are set out and the monitoring mechanism, the African Charter of Human and Peoples’ Rights, is regulated, as a binding instrument and a treaty like the ECHR and the Inter-American Convention.
The African Charter is divided into three parts: the first part on guaranteed rights, the second contains the clauses of the final transitional provisions, and the third section deals with and regulates a part of the mechanism for monitoring States’ compliance with the rights therein guaranteed.
The control mechanism of the African Charter is binary, revolving around an African Commission on Human and Peoples’ Rights and an African Court of Human and Peoples’ Rights. In addition to the latter, there are also eight sub-regional courts belonging to economic integration organisations. These organisations, of which 5 or 6 States are members, have economic integration as their main objective, and the courts, which operate in their context, have over time acquired human rights competences. In some cases, States have even confirmed this competence with additional protocols.
Article 4 of the African Charter states that no individual may be arbitrarily deprived of his or her life, but that word “arbitrarily” allows, for example, the death penalty if there is a court ruling.
Some social groups are not protected, especially women, and there is no rule in the African Charter from which we can derive the prohibition of infibulation – female genital mutilation -, in deference to what are considered ‘African traditions’. In addition, there is no derogation clause that would allow a State to suspend some of the rights guaranteed by the charter, for example in a situation of emergency, while obliging them to protect the so-called core rights, including the right to life, the prohibition of torture, the prohibition of slavery or even in some cases the non-retroactivity of the criminal law. Rather than such a derogation clause, the African Charter allows States, in the event of an emergency, to suspend the African Charter by simply making use of the rules contained in the Vienna Convention on the Law of Treaties, thereby also excluding the protection of core rights. This would not happen in the case of application of a derogation clause, for example in American or European States, where such a clause is contained both in the ECHR and in the Inter-American Convention.To date, the system of protection of human rights in Africa is still pernicious and complex. A widespread and perhaps excessive culturalisation of human rights makes the system ineffective: on the one hand, the protection of rights is read according to traditional culture and values, on the other hand, this may penalise entire categories of persons in the name of these values. It is as if in the African Charter there was a sort of primacy of traditional values over the rights set forth. Traditional culture cannot be protected to the point of sacrificing or limiting certain rights inherent to the individual. In particular, equality between men and women is not protected in the Charter; there is no form of protection of the right of everyone to freely contract marriage. In such a context it is very likely that trafficking will find favorable ground to establish itself and circumvent the system. One solution could therefore be to strengthen the system of protection of human rights by creating a balance with the recognition given to traditional values. We are certainly talking about a long process of improvement which must be accompanied by the fight against prostitution.
This article was written in collaboration with Giulia Poletti.
References
[1] Prevention of Cruelty against Women and Children Act
[2] Bangladesh’s Constitution of 1972, Reinstated in 1986, with Amendments through 2014
Part III article 29. Equality of opportunity in public employment
1. There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic
2. No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.
3. Nothing in this article shall prevent the State from:
a. making special Provision in favour of any backward section of citizens for the purpose of securing adequate representation in the service of their Republic;
b. giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination;
c. reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.
[3] https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf
Title 1 – Fundamental provisions Art 11 – Life Everyone has the right to life.