Proposals
From the grassroots organisations and survivors of prostitution on the Organic Draft Law modifying the Organic Law 10/1995, from November 23rd, from the Penal Code to prohibit pimping in all its forms
This document aims at strengthening and expanding the current Draft Law with the experience of the grassroots organisations and the knowledge of the reality of prostitution held by the survivors of that system. We acknowledge the efforts of all MPs who are striving for abolition of prostitution and their commitment to engage civil society in the process, at the same time we consider it necessary to widen the scope of the forementioned Draft Law during the amendment period, so as to provide the victims with an efficient response and move towards the eradication of prostitution.
FIRST PROPOSAL:
Regarding the Second Point of the unique article, that appears in the Draft Law with the following formulation:
“Two. A new article 187 bis is introduced with the wording that follows:
«Article 187 bis. The person who destines a building, a commercial premise or establishment, wether open or not to the public, or any other kind of space to promote, foster or enable somebody else’s prostitution, even if they get their consent, and does it for profit and on a regular basis, will be penalised with two to four years of prison and a fine of eighteen to twenty-four months, notwithstanding the clause foreseen in article 194 of this Code.
The penalty imposed will be on the upper half of the range when the exercise of prostitution results of an act of violence, intimidation, hoax or abuse described on the first part of article 187»”
We propose the following wording:
«Article 187 bis. Whoever using a building, a commercial premise or establishment, wether open or not to the public, or any other kind of space to promote, foster or enable somebody else’s prostitution, even if they get their consent, will be penalised with two to four years of prison and a fine of eighteen to twenty-four months, notwithstanding the clause foreseen in article 194 of this Code.
The penalty imposed will be on the upper half of the range when the exercise of prostitution results of an act of violence, intimidation, hoax or abuse described on the first part of article 187»Arguments: we propose the suppression to the mention “and does it for profit and on a regular basis”, because we consider this to
hamper the fight against pimping. On the one hand this ‘for profit’ can be difficult to prove and risks being a prerequisite for the sanction, as it is linked to find the evidence of the economic benefits resulting from prostituting another person.
On the other hand, ‘on a regular basis’ risks being a way out for the pimps. They could adapt to it and avoid all liability promoting temporary rentals, something increasingly common, hence evolving to what we know as “prostitution 2.0”.
On the same vein, “on a regular basis” seems quite vague: what does it mean? Twice? Three times? More than once? This lack of legal precision hampers the prosecution of pimping in all its forms.
SECOND PROPOSAL:
Regarding the Third Point of the unique article, that appears in the Draft Law with the following formulation:
“"Three. A new Article 187b is inserted, with the following wording:
"Article 187 third.
The act of agreeing to perform[1] acts of a sexual nature in exchange for money or any other type of economic benefit shall be punishable by a fine of twelve to twenty-four months.
In the event that the person providing the act of a sexual nature is a minor or a person in a situation of vulnerability, the penalty shall be imprisonment of one to three years and a fine of twenty-four to forty-eight months.
In no case shall the person who is in a situation of prostitution be punished".
[1] ‘convenir’ in the original is quite ambiguous. In this case, the article refers to the prostitution customer, as the following clauses confirm. An unambiguous option in English would be ’proposing to perform’ N. of the T.)
We propose the following wording:
"Three. A new Article 187b is inserted, with the following wording:
"Article 187 ter.
The fact of agreeing to perform acts of a sexual nature in exchange for money or any other type of benefit shall be considered coercion and shall be punished with a fine of twelve to twenty-four months.
In the event that the person providing the act of a sexual nature is a minor or a person in a vulnerable situation, the penalty shall be imprisonment of one to three years and a fine of twenty-four to forty-eight months.
In the case of obtaining acts of a sexual nature by means of economic or other coercion, they shall be punished with a prison sentence of two to four years, without prejudice to the penalties that may correspond to them for sexual aggression committed on the prostituted person.
In no case shall the person who is in a situation of prostitution be punished". Arguments: We propose the punishment
of imprisonment for clients of prostitution or sex buyers, this is to say, those who agree on and carry out acts of a sexual nature in exchange for money or other benefits not only in the gravest cases referred to minors or vulnerable victims, but with all victims encompassed.
This sanction is justified by the right to freedom and sexual indemnity of the victims, which precludes the validity of sexual consent under economic coercion or any other kind.
The purchase of sex is therefore a form of sexual violence, and therefore an act constituting a
crime against the sexual freedom of the victim. Economic need is understood as a condition of vulnerability, so that the victim has no real and effective alternative to cover her basic needs or those of minors or dependents.
Trafficking for the purpose of sexual exploitation is known to be widespread in all countries that have established prostitution as a "legal activity" (the Netherlands or Germany for instance).
Countries that have admitted "consensual pimping" validate that women can authorise their exploitation, which is
contrary to international instruments (
Sexual exploitation and prostitution and its impact on gender equality, European Parliament Resolution of 26 February 2014: paragraphs 1, 2, and 29) and to the
State Pact against Gender Violence which contains three very clear measures to reduce the demand for prostitution (Congressional table measures 197, 198 and 199).
It cannot be ignored that prostitution, under the umbrella of "consensual pimping", affects women without economic resources and extraordinarily vulnerable, and consenting to the business constitutes protection for the exploiter who will always hide behind the "consent" of the woman.
There is a clear link between "consensual pimping" and impoverished, marginalised and extremely vulnerable women. To eradicate prostitution it is necessary to neutralise the "client of prostitution".
No international instrument or current Spanish legislation recognises "sex work", nor can it constitute a right.
THIRD PROPOSAL:
Regarding the First Final Provision, that appears in the Draft Law with the following formulation:
“First Final Provision. Acknowledgment of the status of victims.
The status of direct victims is acknowledged in full accordance to article 2, 4/2015 Law, April 27th, the status of victim of a crime, persons in situation of prostitution as a consequence of the behaviours foreseen in the second part of article 187 and 187 bis of the Penal Code.
These persons will be granted all the rights of integral assistance enshrined in the legislation on sexual freedom”.
We propose the following wording:
“First Final Provision. Acknowledgment of the status of victims.
The status of direct victims is acknowledged in full accordance to article 2, 4/2015 Law, April 27th, the status of victim of a crime, persons in situation of prostitution as a consequence of the behaviours foreseen in the title VIII: Crimes against sexual freedom, Chapter V Crimes related to prostitution, sexual exploitation and grooming. These persons will be granted all the rights of an integral assistance enshrined in the legislation on sexual freedom”.
All the women and girls in situation of prostitution are acknowledged as victims of violence against women and all the legal measures aiming at their integral protection will apply.”Arguments: we propose the recognition of women victims of prostitution as victims of male violence. In such a way that the protections and measures contained not only in Organic Law 10/2022, on the comprehensive guarantee of sexual freedom, but also in Organic Law 1/2004 on comprehensive protection measures against gender violence, the State Pact against gender violence and any other regulation of our legal system that protects victims of gender violence, are applicable to them, without prejudice to other specific measures.
This proposal is justified on two grounds: on the one hand, to achieve the
maximum comparable legal protection for women in prostitution, thanks to the experience and regulations followed in our country in the fight against male violence. Thus, although the aforementioned Organic Law 1/2004 was drafted in a restricted manner to gender violence in the sphere of the partner or ex-partner, the ratification of the
Istanbul Convention of the Council of Europe in 2014 and the modifications introduced by Organic Law 10/2022, imply the need to consolidate legislation with an interpretation of gender violence or macho violence that is not restrictive to a type of relationship between victim and perpetrator.
On the other hand, the consideration of women as victims of gender-based violence - understood in this broad sense - transfers to Spanish society and to the legal system the conception of
prostitution as a form of gender-based violence. It is precisely this conception that is the most secure anchorage for the public policies that derive from it, within the framework of the human rights approach or abolitionist approach to prostitution. This need is justified by the reality of the existence of a prostitution system that acts as a real criminal industry based on the sexual exploitation of women and girls, whose social legitimisation is incompatible with the principle of equality between the sexes that is preached in our society.
We especially insist on the need for this recognition with a gender perspective for everything related to victims in an irregular administrative situation, caused by the mechanics of action of the networks of traffickers and pimps. It is essential for these victims to have their human rights respected over and above immigration regulations, and to provide them
with residence and work permits from the moment they are recognised as victims of gender-based violence and the suspension of any proceedings previously opened for this reason. This provision is
essential for the impact of the law: a large number of victims are foreigners in an irregular situation and the precariousness of their migratory situation reinforces the control of pimps over them and makes it difficult for them to leave prostitution.
FOURTH PROPOSAL:
Addition of articles:
• Adding the creation of a Mixed Monitoring Commission to follow up and assess the Law enforcement. The Commission would include MPs, abolitionist experts and survivors of the prostitution system. As a consultive body, it would meet at least once yearly and it would make proposals and recommendations for a correct implementation of the Law. The experience of countries that have adopted abolitionist policies has taught us that the struggle to make the model work effectively is at least as hard as the struggle to pass the Law. The Commission would be a valuable tool to support an ambitious enforcement of the Law.
• Adding the implementation of preventative measures, training and raising awareness against the prostitution system, aimed at society in general as well as all the actors involved.
• Adding the creation of an economic fund enough to sustain the reparation policies as well as an integral reinsertion of the victims. It would be in the form of an allocation of the General State Budget, resulting from the assets expropriated to the criminals of the prostitution system.
Signed in Madrid, October the 7th 2022
