Letter from Human Rights Watch to the Spanish Congress of Deputies for Proposed Law on Pimping

Congress of Deputies, Spain
 

To Whom It May Concern:

Human Rights Watch respectfully writes to present our concerns about the Bill to prohibit pimping (proxentismo) in all its forms (the “Bill”),[1] which we ask you to reject based on Spain’s human rights obligations.

Human Rights Watch is an independent, international non-governmental organization that documents human rights abuses and advocates for an end to abusive practices and policies in over 100 countries worldwide. Human Rights Watch is committed to producing material that is comprehensively documented, verified, and objective.

Human Rights Watch shares with the proponents of the Bill their interest in ensuring robust legal frameworks against exploitation, including labor and sexual exploitation. Although the objectives of the Bill are commendable, there is enough reliable data from countries that have implemented similar regulations to assert without any doubt that the Bill will fail to protect persons who are sexually exploited and will instead put sex workers at a greater risk of violence, including police brutality and persecution. The Bill will also negatively impact people from communities that are more prone to suffer violence and discrimination at the hands of the police such as migrants, transgender people, people of African descent, and people from communities that are already marginalized.[2]

Furthermore, the Bill takes a punitive approach to human rights protection, ignoring the fact that criminal law does not create alternative employment, does not take anyone out of poverty, and usually has a disproportionate impact on vulnerable communities.

1. The amendments to Article 187 of the Penal Code reduce autonomy by infantilizing women as requiring assistance rather than recognizing their rights. These amendments violate the rights to work, freedom of association, and the highest attainable standard of health, as well as the rights to integrity and life, as the Bill will increase the risk of violence against sex workers.

Human Rights Watch is particularly concerned about the proposed amendment to Article 187.2, which imposes a “prison sentence of between one and three years and a fine of between twelve and twenty-four months on anyone who, for profit, promotes, encourages, or facilitates the prostitution of another person, even with their consent.”[3]

This language criminalizes the people with whom sex workers choose to work for their own safety, effectively barring them from establishing and maintaining support networks, colleagues, and safe practices. For example:

1. It would prevent a person from being hired as a security guard by one or more sex workers.
2. It would force sex workers to advertise their services in more dangerous and illegal spaces. When sex workers are unable to use reliable websites, they cannot warn others about violent and dangerous situations and clients.
3. It would push sex workers onto the streets, and to follow clients to their homes, where the risks of violence are demonstrably higher.

A 2021 report from Front Line Defenders, an international organization for the protection of human rights defenders, shows that criminalization endangers both the personal safety and human rights work of human rights advocates, including those doing vital anti-trafficking work, health outreach, and access-to-justice training.[4] The report finds that criminalization inhibits human rights defenders from accessing managed spaces where sex is sold and where women face some of the most egregious violations of their rights.[5] Criminalization causes establishment managers to deny that sex work is happening on their premises, making it harder and more dangerous for health advocates to enter, and leaving the women inside with access to even fewer resources and witnesses. The report also found that advocating for women’s and gender rights was more difficult and dangerous in a context of criminalization.[6] Advocates reported dozens of cases in which—although they were exclusively engaged in human rights work and were not selling sex—the act of meeting, gathering testimonies, engaging in community outreach, and publicly advocating for their rights put them at risk of arrest under existing anti-prostitution laws.

We should emphasize that this legislation will not in any way provide increased protection for victims of sexual exploitation. A 2022 report by the LSE Centre for Women, Peace and Security, based on interviews with 129 sex workers in Sweden, Norway, and Denmark over a three-year period, showed that only 6 percent of those interviewed considered themselves to have been trafficked: “[T]he research demonstrates a discrepancy between the ideological discourse equating commercial sex with sex trafficking and exploitation and the realities experienced by sex workers and people in the sex trade.”[7] Spain already has laws in place to protect victims of sexual exploitation.[8]

Research shows that in New Zealand, since 2003 when the country adopted a full decriminalization of sex work model, there has been no increase in sex work and, more importantly, no increase in trafficking or violence against sex workers.[9]

Laws that clearly distinguish between sex work and crimes like human trafficking and sexual exploitation of children help protect both sex workers and crime victims. Sex workers may be in a position to have important information about crimes such as human trafficking and sexual exploitation of children, but unless the work they themselves do is not treated as criminal, they are unlikely to feel safe reporting this information to the police.[10]

2. The proposed Article 187bis to the Penal Code is not an effective tool for combating human trafficking but will instead increase the risks of labor and sexual exploitation by pushing people into poverty.

The Bill undermines the right to housing by providing for prison sentences of up to four years for anyone who “for profit and in a habitual manner, uses a property, premises or establishment, whether or not open to the public, or any other space, to promote, encourage  or facilitate the prostitution of another person, even with their consent.”[11] This could criminalize sex workers who live and work together for their own safety and security.

The 2022 report by the LSE Centre for Women, Peace and Security, cited above, found that third-party laws harm sex workers and that third-party policies can lead to more dire and exploitative housing situations for sex workers, pushing them into increasingly dangerous situations.[12] Fear of eviction and deportation make sex workers vulnerable to blackmail and abuse.[13] The report recommends that commercial sex is decriminalized and all prohibitions on non-exploitative third parties, such as landlords, hotel owners, and others, are removed in order to better protect sex workers.[14]

Similarly, a 2012 report funded by the Norwegian Department of Justice states that the enforcement of the “pimping” section of the Sex Purchase Act, as well as police efforts to evict sex workers, have resulted in sex workers being unwilling to report acts of violence and threats to the police for fear of being evicted themselves or having the people they live with evicted.[15] The report also states that housing insecurity in Norway was a determining factor in the development of sex worker exploitation.[16]

It should be emphasized that there is no evidence that restricting sex workers’ access to housing is an effective tool against human trafficking.

3. The proposed Article 187ter to the Penal Code, which criminalizes the procurement of sexual services, will increase violence, stigma and discrimination, especially against women and trans sex workers. Its vagueness will also lead to the continued criminalization of sex workers.

The language used in the proposed article leaves the door open for the criminalization of sex workers and victims of exploitation, despite the stated intent of the Bill to the contrary. Paragraph 1 of the proposed Article 187ter states: “Any person who agrees to the practice of sexual acts in exchange for money or any other kind of economic benefit shall be punished with a fine of between twelve and twenty-four months.”[17]  Even if the Bill’s intent is  to criminalize the procurement of sexual services, according to the language used it is the transaction itself—“agreeing to the practice of sexual acts”—that is criminalized.

While paragraph 3 states that “[u]nder no circumstances shall the person in prostitution be punished,”[18] the Bill does not define “person in prostitution” or “prostituted person.” Whether or not a sex worker is a “person in prostitution” will be left to judicial interpretation. The vagueness of this article may encourage the police to continue harassing and detaining sex workers.

Human Rights Watch has conducted research into the impacts of criminalization of sex workers in Cambodia, China, Tanzania, the United States, and South Africa.[19] The 2019 report Why Sex Work Should be Decriminalized in South Africa shows that criminalization undermines the health and dignity of sex workers and exposes them to violence and abuse.[20]

Human Rights Watch supports full decriminalization rather than models that criminalize clients, such as the Bill proposed in Spain, because credible research consistently shows that full decriminalization is a more effective approach to protecting women's rights.[21]

“End Demand” or “Nordic Model” laws have devastating, and sometimes even lethal, effects on women. Because the aim of these laws is to eradicate sex work, it pushes the sale of sex into more secluded, dangerous areas. This has several harmful impacts, including:

• Making it harder for sex workers to find safe places to work, unionize, work together, protect each other, advocate for their rights and access health services.
• Forcing sex workers to abandon basic safety strategies, such as living and working together, either because clients fear being in public or because the law expressly criminalizes their working together.
• Eliminating the possibility for sex workers to record license plates, phone numbers, and faces of clients before heading into a private area (another basic safety strategy) because clients once again fear being or parking in public areas for long periods of time.
• Exposing sex workers to increasingly brutal physical and sexual violence by police and abusers because their clients continue to be criminalized.

In Europe specifically, several credible reports have consistently shown that these laws increase sexual violence, murders, homelessness, and police harassment against sex workers, while having no demonstrable effect on human trafficking or the demand for sex. Although sex workers and the selling of sex are not criminalized per se, sex workers and their work are de facto criminalized through the enforcement of immigration, third-party, and fiscal policies.[22]

Northern Ireland adopted this model in 2015. Research commissioned by the Northern Ireland Department of Justice in 2019 showed there was “evidence” that the criminalization of the purchase of sex led to a decrease in demand for sexual services and had a “limited deterrent effect on client behavior.”[23] 

Similarly, in the Republic of Ireland, statistics from a sex worker organization showed a 92% jump in reports of violent crime against sex workers in the country in the first two years after the country adopted the Nordic Model in 2017[24]. In 2022, an Irish Department of Justice-funded report found that one-fifth of sex workers interviewed had been sexually exploited by police, and that the legislation had “drastically marginalized” an at-risk population.[25] An Amnesty International report on the criminalization of sex work in Ireland stated: “our research clearly shows that criminalizing the purchase of sex is forcing sex workers to take more risks while penalizing brothel keeping is preventing sex workers from working together to ensure their own safety.”[26]

In France, the 2016 introduction of the Nordic Model created a fear of arrest for clients, which forced street sex workers into secluded, dangerous locations and led to a spike in gruesome murders.[27]

A 2016 Amnesty International report on the effects of the criminalization of sex work in Norway found that sex workers do not face less harm and stigma under the Nordic Model, but are often targeted by police, penalized, and continue to experience a high level of policing[28]. The law, which was meant to shift the blame from sex workers to those buying their services, has had serious effects on the most marginalized, who face threats and forced evictions, deportation and loss of livelihood. By strictly enforcing laws prohibiting the letting of places where sex is sold, sex workers are disproportionately affected as they may be forcibly evicted and made homeless in an instant, sometimes as a result of reporting a crime to the police.[29] The report found that sex workers were reluctant to report acts of violence because of fears about eviction and deportation.[30] Various social service providers also bore witness that criminalizing the buyers of these services directly reduced safety for sex workers.[31]

The Swedish Association for Sexuality Education (RFSU) commissioned a report which compiles all relevant research and studies on the criminalization of the procurement of sexual services in Sweden, focusing especially on post-2000 materials.[32] The report is regarded as a synopsis of knowledge on the intended effect and unintended consequences of the Sex Purchase Act, also known as the “Nordic Model,” in Sweden. It found that one of the unintended consequences of criminalizing the buyers of sex was that it stigmatized sex workers even more and made them more prone to discrimination.[33] The report notes that there is little evidence that the law has had the intended effect of reducing prostitution. Instead, the work has shifted to less visible areas and the risks to sex workers have increased.[34] 

These findings are in line with Human Rights Watch research on sex work in several countries, as well as with an extensive body of research by NGOs, academics, sex workers’ rights advocates, and international organizations such as the World Health Organization and UNAIDS, all of which agree that criminalization of the demand for sexual services endangers rather than protects individuals, especially women.

4. Human Rights Watch is particularly concerned that the proposed amendment to the Penal Code expressly overrides consent.

Criminalization of adult, consensual sex work creates barriers for those engaged in sex work to exercise their basic rights, such as protection from violence, access to justice for abuses and access to essential health services, and interferes with their right to personal autonomy and right to privacy.

Spain has steadily advanced in recognizing women’s rights. The real test comes when lawmakers need to protect women’s rights to make decisions about their bodies and their lives. People, especially women, who work in the sex industry have spoken loud and clear about their needs, their rights and what happens to them when lawmakers choose not to believe them. There is abundant evidence from credible research institutions to support sex workers’ call for full decriminalization.

Spain should comply with its obligations under regional and international human rights law and recognize the rights of all persons to equal protection under the law, health, housing, freedom from discrimination, privacy, integrity, and life. Spain should refrain from enacting a law based on a model that has systematically failed to protect anyone and has instead merely increased stigma and violence against people, especially women.

We urge the Congress of Deputies to reject the Bill and begin an immediate, thorough, and consultative process of engagement with sex worker rights advocates and sex worker-led organizations in Spain to address the many human rights violations they continue to face.

Macarena Sáez
Executive Director, Women's Rights
Human Rights Watch

Erin Kilbride
Researcher, Women's Rights
Human Rights Watch

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