Iryna Yakovets: The law of Ukraine does not define what it means to engage in prostitution

Recently, activists of CO ‘Legalife-Ukraine’ invited me to answer a few questions about the legal interpretation of the uncertainty of the so-called ‘prostitution’ phenomenon. Here are this questions and my answers.

As a lawyer, what is your opinion on the existence of provisions in our national legislation that provide for liability for so-called «love for sale»? What is the impact of these norms and do you think they are still relevant today?

I would like to emphasise right away that in such matters I always try to abstract myself from emotions and hate, which are usually associated with issues of the intimate sphere of people’s lives. And this is exactly what we are talking about. So let’s try to speak the language of facts.

The current Article 181-1 of the Code of Ukraine on Administrative Offences provides for liability for ‘prostitution’. Everything seems clear, but there are a few caveats.

First, what is administrative liability in general and what is the point of it?

The state establishes administrative liability as a tool for prevention, education of legal awareness and ensuring public order, without immediately resorting to severe criminal punishment. Administrative liability is a form of legal responsibility that applies to persons who have committed offences that are less dangerous than criminal ones. It operates through a system of administrative penalties (fines, warnings, confiscation, arrest, etc.).

Administrative liability is introduced to regulate behaviour in the public sphere (i.e. where the state performs control or supervisory functions: road safety, landscaping, migration, environmental protection, public order). Actions in these areas require a quick response without complicated criminal prosecution procedures. The aim is also to prevent offences, as the system of fines and administrative sanctions should encourage compliance with the rules. This is also done to protect the interests of the state, the community, and individual citizens, as administrative sanctions are meant to protect society from harm that is not criminal but still violates rights or creates risks.

Secondly, let’s try to determine what harm or risks are from engaging in prostitution?

In this context, the following is usually said:

Prostitution is a threat to health. However, in countries where prostitution is legalised and regulated by the state (the Netherlands, Germany, New Zealand), sex workers undergo regular medical examinations and have access to free protective equipment and medical services. This reduces, not increases, the level of disease.

Prostitution is always about coercion and exploitation, even when a person is engaged in it as if voluntarily. At the same time, there are many examples of adults who are mentally healthy and consciously choose this activity as a way of earning money.  Coercion and trafficking are criminal offences, regardless of whether prostitution is legal. That is, it is the exploitation that should be prosecuted, not the fact of providing services.

Prostitution is stigmatising and destroys social integration. However, the stigma arises precisely because of the illegal status of this activity. Legalisation leads to recognition, professional protection, the formation of trade unions, and changes in social attitudes, as has happened, for example, in some Scandinavian countries.

Prostitution leads to the criminalisation of the environment. However, it is the prohibition and lack of legislative regulation that leads to shadow schemes, corruption, and racketeering. The state loses control and tax revenues, and people providing services lose legal protection. On the contrary, legalisation reduces the pressure of the criminal environment by bringing activities into the legal field.

Prostitution leads to the criminalisation of the environment. However, it is the prohibition and lack of legislative regulation that leads to shadow schemes, corruption, and racketeering. The state loses control and tax revenues, and people providing services lose legal protection. On the contrary, legalisation reduces the pressure of the criminal environment by bringing activities into the legal field.

And the extreme argument is that prostitution violates public order. But we all understand that disorder is only possible in the absence of rules. If the activity is carried out in specially designated places, according to clear rules, it does not affect the lives of citizens and even reduces the number of street prostitution and related offences.

That is why I am convinced that the risks of prostitution do not depend on its nature, but on how effectively the state regulates this area. Ignoring it or banning it without an accompanying social policy only exacerbates the problem. But a regulated and protected format can reduce harm and increase safety for both workers and society.

Moreover, let’s remember how much time the fight against prostitution as a phenomenon has been going on. And what are the results? Has it disappeared? So maybe we should stop trying to overcome something that has existed for centuries and finally, instead of persecuting it, start regulating these processes?

Therefore, in my opinion, the rules on liability for prostitution have long since lost both their preventive effect and their significance in a democratic society. And their result is only the formation of a corruption component and an unnecessary burden on law enforcement and judicial authorities.

Next questions.

What is the legal definition of ‘prostitution’? What actions are subject to liability?

In fact, this is a very good question.  But I’ll say right away that I’m not going to answer it. And no one else will, no matter how strange it sounds.

We all seem to know what prostitution is, but try asking this question to people of different professions and you will get different answers.

The current Code of Ukraine on Administrative Offences contains a general reference to liability for ‘prostitution’, but does not define what actions are included in this concept. In simple terms, the law does not define what it means to engage in prostitution.

And this is very important in reality, since this gap excludes the possibility of a single interpretation of the acts covered by the concept of ‘prostitution’, which, in turn, is a gross violation of the principle of legal certainty in the formulation of the relevant prohibitions.

The conceptual framework of any regulatory act must meet certain requirements. In particular, it must be clear and understandable. The terminology will be clear if the meaning of each term follows from the law itself without any additional interpretation. In other words, such an apparatus should ideally be self-sufficient, and there would be no need to refer to sources other than the law itself to clarify the meaning of its components.

In its judgment in "Tolstoy Miloslavsky v. the United Kingdom", the European Court of Human Rights (ECHR) explained that the concept of law covers both written and unwritten law, which must be accessible and predictable. The ECHR sets out the following basic requirements for the quality of a ‘law’ that ensure its legal certainty: 1) accessibility of the ‘law’; 2) certainty, specificity of its provisions; 3) predictability of the ‘law’.

The judgment in the case of the «Sunday Times» v. United Kingdom states that a rule cannot be considered ‘law’ if it is not formulated clearly enough to allow a person to correlate his or her behaviour with it. Each citizen, depending on the circumstances, should be able to understand which legal provision applies in a particular case and, with the help of competent advisers, to predict, within reasonable limits, based on the given circumstances, what consequences a particular act may have.

The decision in «S.W. v. the United Kingdom» states that any crime must be clearly defined in the law, and it is necessary that everyone should be able to understand from the text of the relevant article, and if necessary, by means of judicial interpretation, what act or omission is criminal.

Thus, I, like any other citizen, should be able to understand, depending on the circumstances, which legal provision applies in a particular case and, with the help of competent advisers, to predict, within reasonable limits, based on the given circumstances, what consequences a particular act may have.

In other words, after reviewing the law and court practice with a lawyer, I should understand what I cannot do and what my responsibility will be.

And what about prostitution?

As I have already emphasised. The law does not define this concept.

Similarly, an analysis of current court practice also shows that there is no clear approach to understanding the concepts of ‘engaging in prostitution’ and ‘prostitution’.

If you look at the scientific literature, you will find more than 30 (!) variants of the definition of ‘prostitution’. I will cite just a few of them as examples.

Prostitution is involvement of persons other than spouses in disorderly sexual relations in exchange for immediate payment in money or other valuable things.

Prostitution is performance of sexual acts for remuneration; prostitution is the provision of a woman’s body for remuneration to persons seeking the satisfaction of sexual desire.

Prostitution is the sphere of emotionally depersonalised, extramarital, disorderly, paid sexual relations; prostitution is an act practiced by any person (usually a woman) using her own body for sexual relations for the purpose of earning money.

Prostitution is a form of extramarital sexual relations that are not based on personal affection or sensual need, with earnings being an important incentive for one of the parties.

By the way. The latter definition may well be applied to cases where women are looking for one permanent sponsor (‘daddy’) who, in exchange for intimate services, will support them, including paying for rent, clothes, etc. Thus, sexual intercourse with one man for an agreed reward takes place.

Prostitution is a certain form of extramarital sexual relations, which are distinguished by the fact that an individual, embarking on the path of prostitution, constantly, undoubtedly and publicly, gives himself or herself, more or less without choice, to an indefinite number of people.

And this is not the only definition of prostitution.

Sometimes prostitution is closely associated with the commission of lewd acts. However, it is also not known for certain what actions are considered to be lewd. I will quote a thesis from one of the court decisions, which even stumped me.

Thus, the court noted that the person committed certain actions ‘ignoring the requirements of public morality, according to which the satisfaction of sexual needs should be carried out without manifestations of lewdness, promiscuous sexual intercourse and prostitution’.

Try to answer the question for yourself - what does this mean? What can’t be done in bed to exclude manifestations of lewdness? How can sexual needs be satisfied so that they are not seen as manifestations of lewdness? I mean, to make sure that every sexual contact meets the norms of public morality (I wonder what kind of phenomenon is public morality?) It is difficult for me personally to even imagine this.  So what kind of sexual relations are considered not promiscuous? Monday-Wednesday-Friday? Or Tuesday-Thursday? Or Sunday - a day off? You might laugh at such statements. But in reality, it’s not funny. Because we all need to know and understand the rules. If they are not clear and understandable, we cannot guarantee their observance.

Therefore, I repeat the question - what is prostitution? As we can see, science and judicial practice do not know for certain.

That is why in a number of countries it is common practice for courts to acquit people because, for example, ‘the law does not contain an interpretation of the concept of prostitution’.

By the way, such positive practice has also begun to emerge in Ukraine. In a number of cases, the courts are still correctly applying the current legal provisions and cancelling decisions to bring to justice under Article 181-1 of the Code of Administrative Offences on the following grounds: ‘In accordance with Article 77(1) and (2) of the Code of Administrative Procedure of Ukraine, each party must prove the circumstances on which its claims and objections are based, except as provided for in Article 78 of this Code. In administrative cases on the unlawfulness of decisions, actions or omissions of a public authority, the burden of proof of the lawfulness of its decision, action or omission is on the defendant. As can be seen from the contested resolution, the plaintiff is charged with committing an administrative offence under Part 1 of Article 181-1 of the Code of Administrative Offences, which provides for liability for prostitution. At the same time, the current Ukrainian legislation does not define the concept of ‘prostitution’ and what actions should be understood as prostitution’.

And this approach is progressive. However, in reality, only the abolition of liability for such uncertain actions could resolve the situation. And in the long term, the legalisation of prostitution, or rather - this form of sex work.

Iryna Yakovets, Head of the Centre for Legal Support of Science and Technology Development of the Research Institute of Intellectual Property of the National Academy of Sciences of Ukraine, Doctor of Law, Senior Researcher