This open letter, supported by 140 organisations from 24 countries and 1331 individuals from 44 countries, is a response to a ‘Human Rights Comment’ entitled, ‘Protecting the human rights of sex workers’, published on 15 February 2024 by the Council of Europe’s Human Rights Commissioner, Dunja Mijatović.
Marija Pejčinović Burić, Secretary General, Council of Europe,
Bjørn Berge, Deputy Secretary General, Council of Europe
Dominique Hasler, President of the Council of Europe Committee of Ministers
Domenik Wanger, President of the Ministers’ Deputies
Directorate of Internal Oversight (DIO), Council of Europe
Síofra O’Leary, President, European Court of Human Rights
Georges Ravarani, Vice President, European Court of Human Rights
Marko Bošnjak, Vice President, European Court of Human Rights
cc: Dunja Mijatović, Human Rights Commissioner, Council of Europe
4 March 2024
Dear Madam or Sir
We are dismayed by the ‘Human Rights Comment’ entitled, ‘Protecting the human rights of sex workers’, published on 15 February 2024 by the Council of Europe’s Human Rights Commissioner, Dunja Mijatović. In essence, it argues for the full decriminalisation of prostitution, including of pimps and other third parties who profit from women’s prostitution, in direct contravention of Article 6 of CEDAW, and against legislative measures aimed at deterring men from buying sex, in direct contravention of Article 9 of the Palermo Protocol.
Hidden in a footnote is the premise that “sex work is understood as the consensual exchange of sexual services for payment among adults.” And there is the rub – because within prostitution “consent” has a very different meaning from the standard socio-legal understanding of it within sexual relationships, where it involves unconstrained consent to sexual intimacy.
In prostitution, the (usually male) sex buyer pays (typically) a woman to participate in sexual activity that she would not otherwise countenance. She agrees because she needs the money. Consent is therefore constrained and not freely given. Non-compliance by the woman risks loss of payment, violence from the would-be buyer, negative reviews on online sex buyer forums, and/or violence from a pimp or the displeasure of a brothel keeper.
Accepting prostitution as involving meaningful consent therefore changes the understanding of consent to something that can be bought, sold, and coerced. This has profound social consequences – particularly for women. It reduces their status because it is predicated on the prioritisation of men’s desires and women’s submission to them. It positions women as second class or even subhuman.
It also invisibilises the poverty, racism, and structural inequality that lead so many women and girls into a position where they have little or no choice but to accept a life of prostitution, and the giant superstructure of third parties feeding off that – estimated in 2013 to be worth more than €100 billion a year globally and no doubt much more now.
This is why we vehemently disagree with the Commissioner’s statement and believe that its publication brings the Council of Europe into disrepute – particularly as the European Court of Human Rights (the ECHR) is currently considering its decision in the case of M.A. and others v. France. In England and Wales, such behaviour by a high-ranking official during a criminal trial could be considered contempt of court, which is a very serious matter. Such comments would also be constrained during civil proceedings because of rules against commenting on issues that are ‘sub judice’. These rules are designed to protect the independence of the judiciary.
Was the Commissioner’s comment an attempt to influence ECHR’s decision in the French case? How will the public be reassured that this will not happen? Is that even possible?
The Commissioner states that she consulted with “sex workers across Europe, their representative organisations, relevant international organisations and experts” – but we are not aware of her consulting with any of the many prostitution survivor groups, and organisations and experts who do not support the full decriminalisation of prostitution, nor of any public calls for evidence.
The ‘evidence’ the Commissioner draws on in her piece is likewise biased. For example, out of 25 references, four are documents by Amnesty International, which formally supports full decriminalisation; one is from La Strada praising Amnesty’s policy; three are from the Global Network of Sex Work Projects (NSWP); and one is from Human Rights Watch, which has a similar policy to Amnesty’s. In addition there are references to reports by Picum and GAATW that are both funded by the Open Society Foundation, which aggressively funds initiatives supporting the campaign for full decriminalisation.
There is one reference for the claim that the criminalisation of sex buying increases the scale of the sex industry – but it is a study, undertaken in Northern Ireland, that has been shown to have major flaws that make its conclusions unreliable. There is no reference supporting the claim that full decriminalisation of the industry results in improved safety, social protection and health outcomes. Which is perhaps not surprising given that these results have not been demonstrated in New Zealand, the first country to adopt this approach and one of very few to have done so.
Amnesty International took up the cause of decriminalisation of pimps, brothel owners and sex buyers after Douglas Fox, a noted pimp, brought a motion for this to the UK Amnesty AGM in 2008 and subsequently encouraged his sex trade associates to join Amnesty to help push the policy through. The NSWP was led for years by Alejandra Gil, a now convicted sex trafficker. Rather than NSWP dealing with this appropriately, it doubled down on support for her, condemning her arrest and claiming the Mexican law under which she was convicted incorrectly “conflates sex work and human trafficking” – a trope beloved by the lobby for full decriminalisation that is also repeated by the Commissioner.
Both Douglas Fox and Alejandra Gil described themselves as “sex worker rights activists” and Douglas Fox is known to have called himself a “sex worker”. This illustrates one of the problems with the “sex worker” terminology – it doesn’t just refer to those who have lived experience of prostitution, but also to others who may be involved in practices that do not involve direct physical contact and do not fall under prostitution legislation, along with pimps and brothel keepers (redefined as “managers” and “employers”) as the NSWP website helpfully explains.
This begs the question of whom exactly did the Commissioner meet and consult? Does she even know how many of them are actually pimps or in the pockets of pimps? Is listening to both sides not a fundamental principle of the rule of law that the Council of Europe is meant to uphold? Why should the women of Europe be obliged to watch this unaccountable official making statements that are inaccurate, unevidenced and biased on an issue that affects all women but particularly the most marginalised?
We are unequivocal that women involved in prostitution should be decriminalised and that they should have access to high-quality healthcare and support that includes genuine routes out of the industry and viable alternatives for making a living. What the Commissioner recommends, however, is unlikely to lead to this outcome but rather to the expansion of a brutal industry that performs no useful social role, and official acceptance of prostitution as a normal job that women with few other prospects are expected to undertake. Is that a world you really want to live in?
To understand what that would look like in Europe, we need to look at Germany, where a fully legalised prostitution system has existed since 2002. While not identical to the fully decriminalised system the Commissioner calls for, it has many similarities – not least large brothels operating in plain sight, pimps and brothel keepers being considered respectable businessmen, and buying sex is completely normal – like going to the pub or having a haircut. The result? A huge industry, in which hundreds of thousands of women are trapped in brothels, the majority migrants from Africa, Asia and the poorest regions of Europe, brothels next to McDonald’s restaurants, and something in the region of a million men buying sex in the country every single day. It is now widely recognised that the scale of the industry is such that effectively policing the rampant sex trafficking is like Canute trying to turn back the tide.
Wouldn’t it be better to hold to account those who buy sex and those who profit from women’s prostitution, with the ultimate aim of bringing the entire system to an end? This approach is called the Nordic or Equality Model and results from Sweden, France and Ireland are promising – as the Commissioner would have found if she had undertaken unbiased research.
This is the model that the centre-right coalition in the German Bundestag now supports as they have come to recognise the profound harms of the German system. They are supported in this by Professors Ulrich Rommelfanger and Elke Mack, two legal academics, who argue that the rhetoric about women’s right to autonomy and agency is not reflected in reality for most women caught up in the system and nor can the system guarantee it. They conclude that the system does not conform to the German Constitution – and presumably not to the European Convention on Human Rights either.
We therefore urge the Council of Europe to repudiate the Commissioner’s statement and to arrange visits to Sweden, France and Ireland to investigate the thinking behind, and outcomes of, their Nordic Model systems and to compare that with the reality in Germany. We also urge the Council to take measures to ensure that the ECHR has not been influenced by the Commissioner’s statement and to ensure that such a thing cannot happen again.
For a more detailed analysis of the Commissioner’s comment, please see: Hubris at the Council of Europe: ‘Protecting the human rights of sex workers’.
Yours sincerely
Nordic Model Now! and 140 organisations from 24 countries and 1331 individuals from 44 countries.
For the full list of organisations and signatures, please see the PDF version of the letter.