The UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health – yes, that’s his full title – visited Ireland today to address a conference held by the National Women’s Council of Ireland. I couldn’t attend, which I was quite disappointed by as my Master’s research was in this area. However, I gather from Twitter that he spent a lot of time criticising Ireland’s abortion laws. And rightly so.
What conference attendees may not have been aware of (and I suspect the NWCI certainly weren’t) is that the Rapporteur, Mr Anand Grover, has also come down firmly on the side of decriminalising the sex industry. In fact, a 2010 report of his is one of the strongest statements I’ve ever seen in this regard by a UN official, and I’ve seen quite a few. I’ll just copy a few especially pertinent bits (omitting internal citations) and let them speak for themselves. Regular readers of this blog will notice a few familiar themes!
27. Sex workers remain subject to stigma and marginalization, and are at significant risk of experiencing violence in the course of their work, often as a result of criminalization. As with other criminalized practices, the sex-work sector invariably restructures itself so that those involved may evade punishment. In doing so, access to health services is impeded and occupational risk increases. Basic rights afforded to other workers are also denied to sex workers because of criminalization, as illegal work does not afford the protections that legal work requires, such as occupational health and safety standards.
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30. Alongside the right to health, the International Covenant on Economic, Social and Cultural Rights protects the right to freely chosen, gainful work (art. 6), which the State must take steps to safeguard. Article 6 of the Convention on the Elimination of All Forms of Discrimination against Women does not require States to suppress consensual, adult sex work. Rather, it calls for the suppression of “all forms of traffic in women and exploitation of prostitution of women”. The term “exploitation of prostitution” has not been defined within the Convention, but is interpreted to refer to exploitation in the context of prostitution. Additionally, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families applies to a significant number of sex workers who travel between States to engage in sex work.
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33. The trafficking and enforced sexual slavery of any person is abhorrent, and undoubtedly merits criminal prohibition. However, the conflation of consensual sex work and sex trafficking in such legislation leads to, at best, the implementation of inappropriate
responses that fail to assist either of these groups in realizing their rights, and, at worst, to violence and oppression.
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35. For example, New Zealand decriminalized sex work in 2003, with the express aim of safeguarding the human rights of sex workers. Prior to decriminalization, sex workers were less willing to disclose their occupation to health workers or to carry condoms. Since decriminalization, sex workers have reported feeling that they have enforceable rights, including the rights to health and security of person, and are increasingly able to refuse particular clients and practices, and negotiate safer sex.
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43. The criminalization of sex work infringes on the enjoyment of the right to health, by creating barriers to access by sex workers to health services and legal remedies. When sex workers are not recognized as engaging in legitimate work, they are not recognized by standard labour laws in many countries. Sex workers often cannot gain access to State benefits, and are not protected by occupational health and safety regulations that routinely protect employees in other industries. The criminalization of selling sex also renders any
agreement concluded for sex work illegal or unenforceable by law on the grounds of being contrary to public policy, resulting in no legal recourse for sex workers.44. Moreover, the criminalization of practices related to sex work can create barriers to the realization of safe working conditions. For instance, where laws exist prohibiting the running of a brothel, those who invariably subvert the law and run such a business can
impose unsafe working conditions without difficulty, as sex workers themselves have no recourse to legal mechanisms through which they can demand safer working conditions. Where criminalization in any form exists, the protection offered by a brothel or a manager may become increasingly desirable or necessary, but this also comes at a price: fiscally, through the opportunities created for extortion, and in terms of health.
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46. The decriminalization or legalization of sex work with appropriate regulation forms a necessary part of a right-to-health approach to sex work, and can lead to improved health outcomes for sex workers. Any regulation of the sex sector should be implemented in accordance with a right-to-health framework, and should satisfy the requirement of safe working conditions as incorporated into the right to health. Decriminalization, along with the institution of appropriate occupational health and safety regulations, safeguards the rights of sex workers. Where sex work is legally recognized, the incidence of violence may also be reduced, through the enforcement of laws against abuse and exploitation.
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48. It is vital that those designing interventions to assist victims of trafficking differentiate between those persons working in the sex sector against their will and those who consensually participate in sex work. Brothel raids that are designed to assist victims of trafficking but fail to discriminate between these individuals can impede the realization of the right to health of both groups in some circumstances. Conversely, evidence from one study indicates that individuals consensually engaging in sex work are well placed to assist trafficked and underage persons engaging involuntarily in this industry. This demonstrates the benefits of participation as part of a right-to-health approach.
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50. Decriminalization also assists in appropriately targeting these health promotion projects, as sex workers are more likely to self-identify and voluntarily take part in interventions if the risk of legal repercussion is eliminated. Effective interventions around
the health of sex workers and clients should also consider shared responsibility and client behaviour; this is increasingly possible in an environment where clients are not criminalized for using the services of sex workers.
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Recommendations
76. The Special Rapporteur calls upon States:
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(b) To repeal all laws criminalizing sex work and practices around it, and to establish appropriate regulatory frameworks within which sex workers can enjoy the safe working conditions to which they are entitled.
Feminist Ire 