“Regulationism hides selective prohibitionism”

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Por Admin febrero 28, 2019 16:40

“Regulationism hides selective prohibitionism”

Silvina Perugino, lawyer, feminist, Specialist in Gender and Communication, UNLP researcher, part of the interdisciplinary team at Gender Secretariat in School of Journalism, in La Plata, in an interview with Diario Digital Femenino, approached the concept of “Prostitution” within the framework of Human and Labor Rights, as well as the responsibilities assumed by States, the legal framework and abolitionism.

By Lenny Cáceres
Translation by María Eugenia Carrillo

What are the different viewpoints taken by the States facing prostitution?
We could encompass different positions into three: prohibitionism, regulationism and abolitionims. Prohibitionism, as its name implies, is a position that aims at implementing measures to prohibit prostitution. This prohibition falls within the State’s repressive policy and, in theory, pursues both prostituting and prostituted people. In practice, though, it is people working in prostitution who get pursued and, besides, it results in clandestine prostitution. Prohibitionism arises thus as a mask behind which pimping and human trafficking underground systems emerge for purposes of sexual exploitation, within illegal trades.

On the other hand, regulationism is set up as the quintessential neo-liberal position facing prostitution. Although from a speech point of view, it states the need to regulate prostitution in order to safeguard the conquest of the social rights of “sexual workers”, in specific proposals it entails some kind of “selective prohibitionism”, as regulation proposals pose that prostitution can only be “practiced” in “places authorized by the State for such purpose” and, in order to be able to practice it, a series of requirements shall be fulfilled, such as health tests, carrying of a health card, attending theoretical courses, so as to be granted an enabling license; without these requirements, people working in prostitution will be left at the mercy of the state enforcement authorities. That is to say, it allows for prostitution in certain places specified by the State, thus prohibiting it for those that are outside the scope. That is why we call it “selective prohibition”. Selectivity is related to state and commercial control of the bodies; prostituted bodies shall be controlled, both by the State and by those people managing such facilities, and bodies that don’t fit this control system are left at the mercy of police persecution. It is also selective because only the person working in prostitution is left at the mercy of the control authority, not the prostitution consumer. Regulationism aims at legalizing the prostituting system and providing a legal framework for pimping, on top of portraying itself as a stop to all the breakthroughs we have had in our country, for instance, since the Anti Trafficking Law was passed; therefore, part of its demands aim at modifying or overturning the Anti Trafficking Law.

The abolitionist position, which I support, states, in the first place, that prostitution is one of the many types of violence against women’s, transvestites’, transsexuals’, girls’ and boys’ bodies. There is a historical foundation supporting this argument and it is related to the emergence of prostitution as a patriarchal institution, closely linked to family establishment. Two institutions complementing each other: family on the one hand, ensuring a type of social organization based on private property and reproduction, both of workforce and species, with clear cut features, such as monogamy and heterosexuality, and prostitution on the other hand, simply being the material support of said monogamy, presented as an outlet, only for men, of course. An institution based on satisfying men’s sexual desires, where there are bodies prone to be used, abused, violated and disposed of: prostituting culture. Abolitionism also triggers a class analysis, an analysis from a material point of view: it asserts that most people working in prostitution are poor people who, rather than choose freely, are forced into prostitution. From this analysis, abolitionism demands that the State implements public policies, so as to provide a solution for those people who want to, desire, long for, dream of quitting prostitution. Thus, an active role is expected from the State as public policies maker, in order to protect Human Rights, and not as pursuer of people working in prostitution, as both previous systems do. Abolitionism is anti-repressive; as such, it advocates for a State as guarantor of rights, as opposed to a police state.

-How can the concept of “prostitution” be approached within the framework of Human and Labor Rights?
The concept of Human Rights arises from the perspective of putting a stop on despotic power; the first steps in this theory are taken within the framework of revolutionary movements confronting monarchies, those life and death powers on the bodies of male and female subjects. Then, as of the creation of Modern States and land annexation wars, this theory was refined to conclude as a stop on Modern State powers. That is, as human beings, we have inherent rights no-one can take away from us, not even the State power. These rights are characterized by, among others: universality, completeness, interdependence and inalienability. In particular, this last characteristic entails that Human Rights are inalienable, that is to say, no-one can give up their rights. This legal standpoint indeed aims at preventing systems for legitimizing violation of Human Rights, under the cover of free choice; for example, a system that can have slaves, if it is possible that by their own free will, people “decide” to enslave themselves; this kind of (un)intelligence has no place in the theory of Human Rights. Another facet is the limit that is imposed on the State as legitimizer of slavery or Human Rights violation systems, not only in terms of action, but also in terms of omission. That is to say, since feminism, we’ve seen for a while the state’s failure to act in cases of femicide as violation of Human Rights; not taking the necessary measures to put an end to prostitution systems would also be so.

As for the theory of the Human Right to Work, also from a historical perspective, it arises to protect human dignity. In the midst of the industrial revolution, it was necessary to encompass economic, social and cultural rights within Human Rights, which, up until then, only included civil and political rights. The theory of Labor Rights is inscribed in a limit imposed on the capitalist production system, as well as on the federal obligation of being the guardians of Human Rights of those who work, as hunger for production started to steamroll human dignity. To think of an action that in deed entails steamrolling people’s dignity as work is an oxymoron. Then, and more specifically in terms of labor material rights, prostitution regulation by means of labor laws is unattainable; let’s just think about how we would prove a breach of the work agreement, let’s think that working in a dependency relationship would be to legalize pimping, not taking into account that work “risks” are rather the certainty of getting infected with, for instance, any type of sexually transmitted disease.

-What’s the legal framework in Argentina in terms of prostitution and pimping?
In Argentina, prostitution is not prohibited, pimping is. That is, the Criminal Code pursues pimps, those who make a living out of the prostitution of others and who promote prostitution, but not those people working in prostitution. On the other hand, our country has taken an abolitionist standpoint, that is to say, the Argentine State must implement public policies to guarantee the rights of people working in prostitution who want to quit. That is at national policies level; then, each province has a Misdemeanors Code, where certain conducts are classified as “misdemeanors”, i.e., they are one level below offenses. And although there are still some misdemeanors that can be subject to days of arrest (unconstitutionality of said penalty is well known and widely debated), those codes could only imply fines. In such codes, for instance in the province of Buenos Aires, a misdemeanor was to “create public outrage”, so police and security forces, as of that penalty implementation, would pursue people working in prostitution. I’d like to clarify that in the province of Buenos Aires, overturning said article was possible due to the abolitionist struggle. Diana Sacayan pushed that overturning since 2003 and, finally and thanks to Graciela Collantes’s work, the bill became a law this year.

-In that sense and in light of bills presented to regulate prostitution: What are they? What are they really after?
Up until now, I was able to collect seven bills presented from 2013 to 2016. They were presented at national level, in the City of Buenos Aires and in the provinces of Mendoza, Neuquén, Santiago del Estero, Entre Ríos and Catamarca. Beyond some aspects I pointed out in my first answer when I referred to regulationism, I’ll mention some others now. In the first place, bills presented in the City of Buenos Aires and in Catamarca propose the regulation of facilities where sexual work is carried out; the other bills are about regulating sexual work. It is important to take note of the object of bills when it comes to regulating facilities, that is to say, in a commercial sense rather than to protect rights. The articles referring to rights are simply declarative; i.e., they are intended for a national law; it is not enough to re-declare rights (I use the term re-declare because it implies a sheer repetition of rights included in the Constitution and in International Human Rights Treaties with constitutional hierarchy). In the national law, it is necessary to implement mechanisms for material exercise of said rights, unless the law declares new rights not envisaged by the treaties or by the constitution. It is not the case we’re analyzing; the rights claimed already exist. How to exercise those rights is not explained in the text of those bills. However, in every bill, control mechanisms are present. Thus, all presented bills have control mechanisms over bodies, so as to determine which ones have sexually transmitted diseases and to reflect such an extreme situation in the enabling license to work in prostitution. They also propose different courses for getting the license and a health card that must reflect health exams to be performed every 6 months. Every bill stipulates that such license and card must be available to all authorities concerned, at all times. The bill from Catamarca is the ones goes farthest in terms of requirements. In order to get it, authorized placed shall have disinfection strips in every room, condom vending machines, lounge areas, every room must have a toilet, a bidet and a shower, both cold and hot water; our attention is drawn by the hotel-type of requirements, because we have to reflect on the material (non)possibilities of many transsexual and transvestite women to generate such an infrastructure. That is to say, street prostitution will continue to be pursed, as it can only be practiced in certain places authorized for such purpose; however, those places must fulfill certain requirements that people’s private homes cannot, and then they shall got to authorized places and be subject to management by legal pimping.

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Por Admin febrero 28, 2019 16:40
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