Draft Law on Legalization of Sex Work in Ukraine: Everything about Us but without Us
Recently, Ukrainian and Russian media have once again started discussing sex work related issues in Ukraine due to the fact that the MP from the "Self-Help" party Andrey Nemirovskiy registered a draft law "On regulation prostitution and sex establishments’ activity" (№3139) in the Supreme Council of Ukraine. This law has caused a great resonance in society, and caused a debate on legalization of sex work in Ukraine.
However, when writing the law, its authors did not bother to consult with sex workers or sex workers’ rights advocates. Elena Tsukerman from "All-Ukrainian League "Legalife” commented on the fact that this draft law has appeared out of the blue: “All about us, but without us! How can one develop a draft law on the legalization of any kind of profession, without asking the workers / professionals beforehand, without asking what they think about this step, what it should be if one takes into account human rights and the reality, and whether the workers want such kind of legalization, and what should be taken into account in the draft law?! Since 2009 All-Ukrainian self-organization of sex workers League “Legalife” has been active in the country, and one of its tasks is protection of sex workers’ the rights and interests in Ukraine. The MPs, who are now lobbying for the project law on legalization of prostitution, did not even bother to contact the activists of the Charitable Organization "All-Ukrainian League "Legalife” to ask for their opinion and to avoid mistakes and subsequent problems for the society."
Let’s scrutinize the draft law. At first sight it seems, as Dafna Rachok points out, that the several pages long project law “has been written on one’s knee in a few hours". For comparison, the law on sex work in New Zealand already has 33 pages.
First, the draft law proposes a definition of terms, describes the responsibilities of sex workers and requirements to the operation and location of "sex establishments" (including the requirement to sex establishments to identify their visitors by making the latter present their identity documents with the date of birth, as for persons under 18 years of age visiting sex establishments is prohibited), social guarantees for sex workers, roles of political institutions standard for other laws (the Supreme Council, the Cabinet of Ministers and local government). The proposed law also talks about cancellation of some articles of the existing legislation. This is the latter what is a truly positive moment of the draft law, as these last provisions require abolition of administrative responsibility for sex work and criminal responsibility for brothel management.
Let's look at some parts in more details. The first problematic aspect of the draft law is the terminology: "prostitute" and "prostitution" instead of the more neutral and less stigmatizing by the society "sex worker" and "sex work." Then, a "prostitute" is defined as an individual entrepreneur, and "prostitution" as a kind of business activity. It turns out that in order to work legally every sex worker, without exception, will have to register as an individual entrepreneur, who "provides services of an intimate nature". This provision violates sex workers’ right to privacy, because they prefer not to disclose their identity due to stigma around sex work. This provision also automatically excludes those sex workers who only work part time or from time to time, or would prefer to be employed, and not work as an individual entrepreneur.
Natalia Isayeva from All-Ukrainian Charitable Organization "Legalife-Ukraine" notes that "registration of sex workers as a self-employed individuals is nonsense. Due to the stigma in the society sex workers tend not to disclose their identity, also due to the situation with the police. So, it would be good to replace the definition used in the law to something like "leisure organization" or "service provision in the field of leisure". Someone might guess what these terms stand for, but it will be more veiled and it will allow a lot of sex workers to maintain their privacy".
It is also stated that it is allowed to provide paid sex services in sex establishments. This provision of the draft law automatically makes street and apartment (hotel) sex workers outlaws, and makes individual sex work outside sex establishments impossible.
The following provisions of the draft bill state that "the state promotes the development of sex establishments, takes measures to increase the image of prostitutes’ work, promotes the activity of trade unions and social organizations in the area of prostitution and sex establishments’ activity" and that "prostitutes should use all social guarantees, stipulated by the Labour Code of Ukraine and other legislative acts". Apparently, the authors meant that sex work should be equal in importance to other types of employment, but they were not able to articulate the idea verbally. Furthermore, there is nothing mentioned about additional guarantees for sex workers due to the nature of their work, such as medical and security guarantees, and access to justice. It is unclear how exactly the rights of sex workers will be defended.
Among other things, the bill does not specify the minimum age to engage in sex work. The statement that the relations in the field of prostitution and activities of sex establishments are regulated, inter alia, by the Labor Code of Ukraine, may be wrongly interpreted. Thus, in the latter it stated that "as an exception, persons who are 15 years old can be employed with the consent of a parent or a guardian, and 14 years old pupils can be employed for easy work during the time study-free time". Therefore, the draft law can be interpreted as allowing a minor to engage in sex work.
Together with the draft bill an “Explanatory Note" has been issued, which contains such arguments for the legalization of sex work as budget revenue from taxes on sex work, social guarantees for sex workers and "because it was already done so in some Western European countries". The document uses improper vocabulary: "In the Netherlands it is legal to open debauchery houses [brothels] since 2000, the brothels display their commodities in the window displays”. This proposal objectifies sex workers as human "commodity" that is exhibited in the store fronts, oblivious to the fact that sex work is the provision of services for money. Moreover, the authors had forgot to check the accuracy of the information they provided. In the Netherlands sex workers are working for themselves as individual entrepreneurs and they rent "window displays" by themselves.
Therefore, the majority of the project law’s provisions are very problematic, and if it is passed in the current form, it will worsen the situation of sex workers in Ukraine. According to Elena Tsukerman, if this draft law passes as it is, then the Ukrainian society will be expecting “increase of violence, socially dangerous diseases, human trafficking and corruption- as sex workers will not pay taxes as required by the law that does not take into account their interests. They will go into even deeper underground and by doing so they will lose already insufficient access to medical, social and legal services!”
Fortunately, sex workers’ rights advocacy organizations managed to establish a dialogue with the authors of this draft law. According to Natalia Isaeva, on September 29 she and the Director of Policy and Partnership of the International Alliance on HIV in Ukraine Pavlo Skala had a meeting with two assistants of MP Nemirovskiy. As of Natalia, the atmosphere of the meeting was relaxed and constructive. It was possible for Natalia and Pavlo to get across the position of "Alliance" and "All-Ukrainian Charity Organization" "Legalife-Ukraine" to the legislators, as well as to verbalize all pros and cons of this project law.
“All the participants of the meeting came to the conclusion that it is necessary to change the message of this draft law from filling in the budget to social security, reducing the level of HIV and other diseases, protecting from violence and reducing corruption of the police towards sex workers. And we should talk about taxes and the functioning of sex business in Ukrainian reality after all the others. As there is no properly functioning taxation and worker protection in Ukraine, and sex business is a very complicated structure, it is impossible to talk about the latter without looking inside it and understanding all the possible consequences. Sex business cannot be compared to other activities, it is more complicated than it may seem to those unaware of it!”, Natalia said. She also shared her positive impression from the meeting and noted that “everything went even too well, the ice was broken, I have a hope that it will pass further, and it will come to a logical conclusion in the form of decriminalization of adult, voluntary sex work in Ukraine”. She also added that she hopes that in the future sex workers who do this job in Ukraine will be protected from all sorts of misconduct and their work and lives will be safe.