In July, the European Court of Human Rights (ECtHR) delivered its judgment in the case of M.A. and others v France. The case was initiated by 261 sex workers who argued that the 2016 French law that criminalised the purchase of sexual services (the so-called ‘End Demand’ or ‘Swedish’ model, aimed at abolishing the sex trade through criminalising buying rather than selling of sex) violated their rights under Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR). After examining the case solely under Article 8, the Court concluded that France had struck a fair balance between competing interests and had not exceeded its margin of appreciation [166]. As justification it called upon the lack of European consensus on (the regulation of) sex work and the ‘highly sensitive moral and ethical questions’ prostitution raised [149].
According to France, the law was necessary to ensure the safeguarding of human dignity and public order, arguing that the vast majority of sex workers were victims of traffickers or pimps, ‘criminal activities based on coercion and the enslavement of human beings’ [141], and that if there were no demand, criminal networks would not be able to profit. The applicants argued that the law violated their personal autonomy and sexual freedom and put them in danger by relegating them to more remote and dangerous locations, reducing their negotiating power, increasing their exposure to violence, and jeopardising their health and well-being.
The applicant sex workers turned to the Court hoping that for once it would be about their human rights and not about morality and ideology. However, by confining itself to Article 8, the ECtHR reduced the case to the question of whether sex work can be consensual [149], thereby putting into question the capacity for self-determination and bodily autonomy of sex workers, and disregarding the actual effects of the law on the human rights of sex workers. This omission is critical, as the real issue is not whether sex workers have the capacity to give or withhold consent, but whether France’s criminalisation of the purchase of sexual services endangers their life, health and freedom from inhuman treatment.
Problematic also is the Courts’ outright adoption of France’s abolitionist claim that the vast majority of sex workers are victims of pimping or trafficking, without critically questioning its empirical base or checking the definition of pimping, which includes, for example, two sex workers working together for safety. Although the Court acknowledged the possible harmful effects of the law [138], this did not prompt it to require France to show that the law did not cause further harm to sex workers. Instead, it questioned the relationship between the law and its effects, referring to ‘conflicting evidence’ and arguing that sex workers were already exposed to ‘the difficulties and risks’ as described by the applicants before the introduction of the law [155].
This approach either reflects the Court’s preconceived position that prostitution is inherently violent, implies that sex work policies are irrelevant because they have no impact, or reduces the safety and health of sex workers to irrelevant factors for the greater good of abolishing prostitution. Additionally, the Court did not question the effectiveness of the law to achieve its stated aims as part of the necessity test. It thus ignored French studies on the law’s impact and the growing body of research documenting the negative impact of the criminalisation of sex work, including of clients, on the health, safety and living conditions of sex workers.
A final issue is the problematic use of human dignity as a justification for repressive measures against a particular group of citizens, in casu sex workers, even when the activity is consensual and the group itself does not feel its dignity has been violated. Also on other respects the Court’s analysis is problematic, including, as raised by Kagiaros & Thiemann, and by Steininger, the Court’s questionable level of consensus assessment to determine the margin of appreciation, its problematic evaluation of the domestic procedural review, and its unrealistic perception of legal reform.
The Court’s decision in M.A. and others is emblematic of its reasoning in other cases involving women’s agency and bodily autonomy, such as those concerning the right to wear a face veil, access to home births, and the legal limitations on reproductive rights, thus underscoring the need for a more inclusive, evidence-led and rights-based approach. One that genuinely recognises and respects the agency, dignity, and lived realities of all individuals, including sex workers.
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