Regarding Amendment that would establish administrative liability for sex work
November 18, 2012

Bokoyev Kenjebek Satymkulovich

Parliamentary Committee on Rule of Law, order and fighting crime  

 

Atakhanov Shamil Esenjanovich Minister of the Interior

Ministry of the Interior of the Kyrgyz Republic

 

We write to express concern regarding the proposed amendment to the Administrative Liability Code of the Kyrgyz Republic that would establish administrative liability for sex work, or “prostitution.” Under current Kyrgyz law, sex work is neither a crime nor an administrative offense. As such the move to penalize sex work is a regressive measure and Human Rights Watch is concerned that there has not been appropriate justification for the necessity of such a measure or consideration given to the negative impact it will have on the rights of those currently lawfully engaged in sex work. 

Through monitoring human rights in the Kyrgyz Republic and working with advocates on the ground, we believe that this measure at this time risks contributing to a climate of intolerance, heightening the risk of violence and other serious risks to the lives and health of sex workers and others in their communities and undermining efforts to promote public health.  

The government of Kyrgyzstan has shown leadership in working collaboratively with sex workers to implement public health programs. These important partnerships will be undermined if this amendment is adopted.  We urge you to reconsider the necessity of such an amendment, and prioritize strengthening existing partnerships as a means to identify appropriate policies that will address health concerns and human rights problems.

 

Human Rights and Public Health Concerns

Proposed amendments

The proposed legislation would amend article 366-1 of the Administrative Liability Code by making prostitution punishable by fines up to 1,500 soms (US$30) and up to 15 days in detention for a repeated offence within a year. It is not clear from the text of the amendment whether the fine and risk of imprisonment would apply to both the sex worker, accepting consideration for sexual services, or also to the client who is paying. The Ministry of the Interior has justified the proposed law in terms of public health and public safety, claiming that sex work is “often accompanied by the spread of dangerous venereal diseases, including HIV” as well as “serious violent crimes against the life and health of individuals.”

This amendment is being proposed in the context of extensive violence against sex workers and their unequal access to protection by law enforcement in Kyrgyzstan.  Sex workers in Kyrgyzstan have reported high rates of violence by police and members of the general public, but they routinely do not report abuse because it would expose them to mistreatment and disclosure of their identities, subjecting them to further danger.

Violence against sex workers and impunity for violence

Studies by Kyrgyz civil society groups report high rates ofextortion and physical and sexual violence by police.[1]  Nearly 65 percent of the Kyrgyz sex workers interviewed for a 2009 study conducted by the Sex Workers Rights Advocacy Network[2] reported that police had physically assaulted them and nearly 90 percent stated that police had sexually assaulted them . According to the same study, police extortion of sex workers is even more widespread, with every sex worker interviewed reporting it, and some sex workers reporting they pay off police every day or even multiple times per day.[3]

In this context, Human Rights Watch is concerned that penalizing sex work risks further exposing sex workers to violence and deterring them from filing complaints about abuses against them on the part of police and others.

Regulation of sex work should not impede public health

International health and human rights bodies have advised that penalizing sex work can increase risks of HIV and other sexually transmitted infections by driving sex work underground. For example, the UN Special Rapporteur on Health has noted that “The use of punitive measures against sex workers, such as antisocial behavior orders … has undermined effective health promotion activities.”[4]

Penalization of sex work can contribute to an increase in stigma amongst sex workers which, in turn, has been shown to increase barriers to accessing needed services. The Special Rapporteur on Health has explained: “Laws criminalizing or onerously regulating sex work compound the stigmatization experienced by sex workers, adversely affecting health outcomes, often without justification on the grounds of public health.”[5]

Characterizing sex workers as disease carriers only fuels the widespread stigmatization of sex work and contributes to a climate that encourages further violence and abuse.

Particularly in the context of the violence by police against sex workers and impunity for that violence that has been documented in Kyrgyzstan, penalizing sex work may exacerbate HIV risk in many ways including: making sex workers reluctant to carry condoms if these will be used as evidence to support prostitution charges; forcing sex workers to rush negotiations with clients, which can lead to unsafe sex; or compelling sex workers to accept unsafe sex demanded by clients in order to pay off fines or respond to police extortion. Such conditions have been documented in other countries with laws penalizing sex work.

Any regulation of sex work should incorporate a right-to-health approach. In the International Guidelines on HIV/AIDS and Human Rights, the Office of the UN High Commissioner for Human Rights and Joint United Nations Programme on HIV/AIDS (UNAIDS) have recommended to governments that, “[w]ith regard to adult sex work that involves no victimization, criminal law should be reviewed with the aim of decriminalizing, then legally regulating occupational health and safety conditions to protect sex workers and their clients, including support for safe sex during sex work. Criminal law should not impede provision of HIV prevention and care services to sex workers and their clients.”[6]

 

Protect, don’t punish, children

In his published justification of the law project, the Ministry of Interior has raised concerns about the involvement of children and minors in sex work. While the protection of children from sex work is explicitly enshrined in international law, laws and policies related to children involved in sex work should protect, not punish, children.

The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography clearly sets out the illegality of the use of children in sex work, stating that “offering, obtaining, procuring or providing a child for child prostitution” violates international law.[7] Article 8 of that Optional Protocol lists the measures states must take in order to protect children who have been victims of exploitation associated with sex work. International law clearly indicates that laws regulating sex work should not penalize the minor, but rather those who facilitate or procure commercial sex involving minors.

Kyrgyz law already protects minors from being exploited in sex work. Article 157(1) of the Criminal Code states that “involvement of a juvenile in … prostitution … by a person over 18 … shall be subject to a fine of one hundred to three hundred calculated rates or imprisonment between 1 and 3 years,” and imposes harsher penalties for repeated violations or the use or threat of physical violence.[8] Research by NGOs and the UNAIDS has determined that these policies have been effective deterrents against sex work involving minors.[9]

Human Rights Watch is concerned that the proposed amendment places liability solely on those engaged in sex work and therefore risks both penalizing children for their involvement, and attenuating efforts to punish adults who involve children in sex work exploitatively.

 

Partner with, don’t penalize sex workers

Kyrgyz NGO Tais Plus has been recognized by UNAIDS as an example of best practice for its outstanding work “not only … with sex workers, but [moving] the whole HIV prevention agenda forward for other vulnerable groups.”[10] Involvement of sex workers in crafting and implementing policies related to their health and human rights has been a central tenet of the organization’s success.

For example, the HIV-prevention working group at the Ministry of Internal Affairs has a strong relationship with Tais Plus and other organizations representing vulnerable groups. The Kyrgyz Ombudsman has also expressed interest in collaborating with Tais Plus.

The history of positive engagement between the government and sex worker organizations to promote health and other rights will be undermined if this proposed amendment is adopted.

The United Nations Global Commission on HIV and Law has offered the following guidance: “to ensure an effective, sustainable response to HIV that is consistent with human rights obligations: Countries must reform their approach towards sex work. Rather than punishing consenting adults involved in sex work, countries must ensure safe working conditions. … Countries must repeal laws that prohibit consenting adults to buy or sell sex.”[11]

The CEDAW committee has expressed concern about police harassment of women sex workers in Kyrgyzstan and urged the government to expand human rights protections for all women:

“The Committee is concerned … about acts of harassment against women in prostitution by police officials. The Committee urges the State party to take all appropriate measures to ensure that the Convention applies to all women without discrimination and to further take all necessary steps to protect them from all forms of discrimination and violence by public and private individuals.”[12]

Human Rights Watch is concerned that amendments penalizing sex work would not offer such protection. Human Rights Watch urges the government instead to strengthen existing relationships with sex worker NGOs and other civil society groups to identify and develop policies that those in sex work would consider protective of their rights. The Kyrgyz government could pursue policies, for example, that specifically address the criminal violence and harassment against sex workers.

 

Overbroad law and potential for harm

Article 366-1 defines “prostitution” as any “sexual relation in any form with anybody for money or other reward.” Human Rights Watch is concerned that this definition is vague, overbroad, and inconsistent with international standards.  

Under Article 366-1, the definition of “prostitution” could be used to punish conduct that is legal (such as stripping) as well as discriminatory conduct by employers (such as sexual harassment).  Such laws offend basic principles of fairness and legality enshrined in international standards. For a criminal law to be legitimate it should target specific conduct accompanied by the requisite intent. Human rights standards and the rule of law require that the law be foreseeable and predictable, obligating states to define precisely and in a foreseeable manner all criminal offences.[13] The proposed amendment does not meet these standards.

We are also concerned that such a vague definition of sex work may be open to abuse through selective and discriminatory implementation. As noted above, the CEDAW Committee has raised concerns about police harassment, as well as public and private violence against sex workers, concerns echoed by civil society.

We understand the Kyrgyz government’s concern for the health and well-being of its citizens. We also recognize the important steps it has taken to work with sex workers to address HIV and we urge the government to continue this pattern of progress when considering regulating sex work. The proposed legislation may undermine public health objectives by impeding peer outreach, straining constructive relationships with government, and increasing stigma and discrimination against sex workers.  If enacted, it could undo progress made on public health and challenge Kyrgyzstan’s position as a regional leader in taking steps to work with sex workers to promote public health.

 

Sincerely,

 

Rebecca A. Schleifer JD, MPH

Advocacy Director, Health and Human Rights Division

Human Rights Watch



[1] Tais Plus, “Shadow report to the Third Periodic Report of Kyrgyzstan to the Committee on the Elimination of Discrimination Against Women,” 2008;Sex Workers Rights Advocacy Network, “Arrest the Violence: Human Rights Violations Against Sex Workers in 11 Countries in Central and Eastern Europe and Central Asia,” November 2009, http://swannet.org/node/1639 (accessed November 18, 2012).

[2]The Sex Workers Rights Advocacy Network is a network of civil society organizations that advocates for the human rights of sex workers in Central, Eastern, and Southeast Europe and the Commonwealth of Independent States. 

[3] Sex Workers Rights Advocacy Network, “Arrest the Violence: Human Rights Violations Against Sex Workers in 11 Countries in Central and Eastern Europe and Central Asia,” November 2009.

[4] UN General Assembly, Report of the Special Rapporteur on the on the right of everyone to

the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, A/HRC/14/20, April 27, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf (accessed November 18, 2012), para. 37.

[5] Ibid., para. 39.

[6] Office of the High Commissioner for Human Rights and UNAIDS, International Guidelines on HIV/AIDS and Human Rights, consolidated version (Geneva: UNAIDS, 2006), para. 21(c).

[7] Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution

and child pornography, adopted May 25, 2000, G.A. Res. 54/263, Annex II, 54

U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49, Vol. III (2000), entered into force January

18, 2002,

[8] Criminal Code of Kyrgyzstan, Involvement of a Juvenile in Commission of Antisocial Actions, art. 157.

[9] UNAIDS, “HIV and sexually transmitted infection prevention among sex workers in Eastern Europe and Central Asia,”2006, http://data.unaids.org/publications/IRC-pub07/jc1212-hivpreveasterneurcentrasia_en.pdf, (accessed November 18, 2012).

[10] Ibid., p. 16.

[11] UNDP Global Commission on HIV and the Law, “Risks, Rights, and Health,” July,2012, p. 43.

[12] United Nations Committee on the Elimination of Discrimination Against Women, “Concluding Observations of the Committee on the Elimination of Discrimination Against Women, Kyrgyzstan,” CEDAW/C/KGZ/CO/3, November 7, 2008, http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-KGZ-CO-3.pdf, paras. 43, 44.

[13] The requirement of “clarity” of the law is found in two aspects of human rights law. Firstly, it is required when defining proscribed criminal behavior in penal statutes—a doctrine often referred to as the “void for vagueness” doctrine enshrined in article 15 of the International Covenant on Civil and Political Rights (ICCPR). And secondly, it is required in the limitations on the enjoyment of certain fundamental rights, which must be prescribed by, established by, or in accordance with “law,” such as those enshrined in articles 17 – 22 of the ICCPR. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed,. (Kehl am Rhein: Engel, 2005), p.361.