Released: October 10th 2023
Office of the UN High Commissioner for Human Rights
Objection to the “Mandate of the Working Group on discrimination against women and girls Eliminating discrimination against sex workers and securing their human rights” report.
INTRODUCTION Two issues emerge from the statement: Who is speaking and what is the solution?
AREAS OF AGREEMENT We and the WG agree on some issues.
Prostituted women suffer discrimination and violations of their human rights the world over by both State and non-state actors. The choice of victims follows patriarchal, racial, class and nationalistic hierarchies. These women suffer because they are women, because they are poor, because women are seen as inferior to men, because women do not have sufficient political power. The regulation of sex is the regulation of women whether it is abortion, birth control, pornography, prostitution, or marriage and therefore one of the core issues for women seeking freedom and equality.
We and WG also agree that police discriminate against prostituted women and abuse their human rights. However, police discriminate against all women and abuse their rights e.g. in intimate violence situations. In the U.S. they often arrest the victim rather than the perpetrator, women get higher sentences for protecting themselves, and children are removed from a protective mother and given to an abusive father. Discrimination against women is not new nor limited to prostituted women. It is not criminalization that causes violence to women or stigmatizes them; it is discrimination and the belief that women are inferior to men and therefore can be treated as items in commerce.
It used to be legal to beat or sell or even kill your wife or daughter. It was considered a humanitarian step when that beating was reduced to using an instrument no bigger around then 2 your thumb. It was also considered humane when they prohibited men in Pennsylvania (U.S) from beating their wives after 10 p.m. We realize now how wrong and harmful those acts were. Today we must realize it is not humane to allow men to abuse women under the guise of law. It just makes the State a partner in the abuse.
The WG complains and we agree that law enforcement agents target prostituted women. Law enforcement agents targets all marginalized women e.g. if they are wearing their head scarf wrong, or showing their ankles, or seeking an abortion, or just riding the bus. Again, the discrimination against women is the problem that will not be solved by exposing women to legalized violence. The WG is correct that attacks on prostituted women are linked to socioeconomic status and marginalization. Likewise, prostitution and trafficking are related to socioeconomic status and marginalization. Our energies need to be put into ending the structures of hierarchy not enabling them.
We also agree with WG that prostituted women deserve all human rights, social protection, and equality. We disagree on how to achieve that. We agree that the women themselves must be the directly involved which is why the survivors of prostitution have formed their own organizations and should be listened to. We agree with solidarity among the victims not with the perpetrators and profiteers.
AREAS OF DISAGREEMENT We and the WG disagree on some things. There are not three sides. Full decriminalization of prostitution, whatever the alleged rationale, is the same side. The abolition side is not dealing in abstractions but in the lived reality of women who have been victims of prostitution and trafficking.
The issue is not consent. As WG’s own quote says, if the woman had any other options, she would have taken it. That is also the finding of countless research on real victims. The lack of options is caused by patriarchal, racial, class, and nationalistic hierarchies – the very structures that must be abolished not fortified.
Contrary to WG’s statement, the violations have been challenged in international human rights law as the WG admits in the Nigerian amicus brief:
These rights are found, inter alia, in the Universal Declaration of Human Rights (UDHR, Articles 2, 3, 5, 7, 9, 10, 11, 12), the International Covenant on Civil and Political Rights (ICCPR, Articles 2, 7, 9, 10, 14, 17 and 26) and the International Covenant on Economic, Social and Cultural Rights (Article 12), as well as the African Charter on Human and Peoples’ Rights (African Charter, Articles 2, 3, 5, 6, 7) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol, Articles 2, 3, 4, 8, 14). These rights are of universal nature and apply to everyone.
Further, a cursory review of the foundational international human rights documents shows that the issues of discrimination against and violence toward women are covered. The International 3 Covenant on Civil and Political Rights deals with self-determination for all persons in Article 1 and discrimination based on sex in Articles 2, 3, and 26. Article 5 outlines the principle that any principle in the Covenant cannot be used to destroy any other principle which the WG is doing when they say that self-determination means we should override the equality principle for women. Many studies have found that prostituted women are tortured that is prohibited by Article 7 and that women are held in slavery like conditions that is prohibited under Article 8.
The International Covenant on Economic, Social and Cultural Rights likewise deals with selfdetermination in Article 1, discrimination in Articles 2 and 3. Article 4 prohibits using one principle to limit another and makes it clear that these rights can be limited “solely for the purpose of promoting the general welfare in a democratic society.” Prostitution does not promote the general welfare, nor does it promote the welfare of the 51% of the public that is women. In fact, research shows prostitution harms the perpetrators as well. Children shall be given special protection (Article 10 (5)) not recruited or forced into prostitution.
The Convention on the Elimination of all Forms of Discrimination Against Women reaffirms the dignity, worth, and equality of women. It prohibits discrimination against women as it recognizes that discrimination violates every principle, is an obstacle to the equal participation of women in society and harms the growth of society. The definition of discrimination against women in Article 1, part I makes it clear that it applies to the scheme suggested by the WG to make women items of commerce for male use. Article 6 specifically addresses the need to stop prostitution and trafficking. Sex trafficking only exists to fill the demand for new and younger prostituted women and girls. Therefore to support prostitution is to support trafficking.
The Convention on the Rights of the Child prohibits sex discrimination in Article 2. Article 32 specifically recognizes the child’s right to be free from economic exploitation and dangerous work. Everyone agrees prostitution is one of the most dangerous undertakings. In fact, victims of prostitution show PTSD at higher rates than military men in battle. Article 34 specifically addresses sexual exploitation and sex abuse making inducement and exploitation both wrongful. Article 37 prohibits torture and other degrading treatment as in the other conventions.
The Slavery Convention says in Article 1 that (1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.
No dispute exists that profiteers and perpetrators exert rights of ownership over prostituted women. Prostitution involves the intent of sales and exchange of women by definition. Article 2 calls for the complete abolition of slavery in all its forms not a kinder, gentler slavery protected by State regulation.
Other international courts have found that discrimination and violence toward women are both causes and effects and are the chief obstacle to women achieving equality. See REPORT No 54/01, CASE 12.051, MARIA DA PENHA MAIA FERNANDES BRAZIL, April 16, 2001, 4 Inter-American Court of Human Rights; I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 16, 2009. Series C No. 205; Jessica Lenahan (Gonzales) et al v. United States (Report No. 80/11, Case 12.626, July 21, 2011) Inter-American Commission for Human Rights.
We and WG disagree on whose voices are heard. The research cited by the WG has serious defects as to whose voices those really are – the prostituted woman or the profiteer and perpetrator. The abolitionist groups are the voice of survivors of trafficking and prostitution. Likewise the WG “research” on the effectiveness of the Nordic Model is skewed and grossly deficient.
The WG misconstrues the comments of the CEDAW committee. The committee noted that prostituted women are vulnerable to violence, exploitation, and poverty and that criminalization of the women does not help. That is correct. But the Nordic Model does not criminalize the victim of the violence, exploitation, and poverty – it seeks to end it. WG seeks to give amnesty to the perpetrators of violence and establishes a legal hierarchy of abuse.
The WG also misconstrues the meaning of consent. Consent means mutual agreement without coercion. Everyone agrees that the women, as quoted in WG’s own statement, is not giving mutual consent but is forced into it whether by poverty, marginalization, violence, war etc. The issue of consent is well described in the New York Times editorial by Pamela Paul, “What it means to call prostitution “sex work.” As a survivor pointed out, the claim of consent is false and absolves sex profiteers and perpetrators of responsibility.
The WG leans on the amicus brief in the case In the Federal High Court of Nigeria in the Abuja Judicial Division, Joint Amicus Curiae Submission by the United Nations Human Rights Council’s Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 ORS vs. THE MINISTER, FCT & 13 ORS 3 February 2020. The WG admit in the amicus brief that women are involved in prostitution because of discrimination and lack of work: “Moreover, laws targeting sex workers do not take account of the fact that the lack of decent work opportunities, affected by the context of gender discrimination, is one of the major reasons for women’s involvement in certain forms of prostitution.” The WG brief illustrates that they know consent is absent.
Further, it comes as no surprise that the police target the most vulnerable people for violence, abuse, and rape. This is not unusual behavior for police anywhere in the world. Walking down the street in the United States is legal but police stop, harass, and murder Black men for doing that (Elijah McClain). Driving a car is legal but police stop, harass, and murder Black men for doing that (Philandro Castile). Sleeping in your bed at night is legal in the United States but police break in and shoot Black women for doing that (Bryonna Taylor). It’s not the people; it’s the police. Making prostitution legal won’t stop police violence. Only the end of patriarchy and white supremacy will do that. 5 In the amicus brief, the WG claim that “violations of the rights of sex workers have long been committed with impunity.” We agree (absent the terminology). But the WG response is to make it worse by making everyone, including profiteers and perpetrators, immune thus harming women more.
It is unfortunate that there is not one front in the fight to end violence and discrimination against women. While we agree that there is much harm to women in prostitution; we vehemently disagree on the remedy suggested by the WG. The WG are inconsistent in their own statements; they speak in the voice of the profiteer and perpetrator not the victim; they mistake poverty and discrimination for consent; they distort both the record and the evidence; and ultimately they confuse the problem with the solution. The solution is not to grant amnesty for the abuse, but to stop it.
Dianne Post, Attorney President of CPIC NOW