Prospects of legal regulation of HIV status and sex work in Ukraine with Oksana Kashyntseva. Part Two

For your attention is the second part of the interview with the coordinator of the legal group of “Fight for Health” Platform, Oksana Kashyntseva.

Part one is at the link here

“L-U”: How are things going with the decriminalization of sex work? What are the prospects?

O.K.: This is another rudiment of Sovietism in Ukrainian law. Today, the “Fight for Health” platform, together with partners from BRDO (Better Regulation Delivery Office), has developed a plan A and plan B for possible changes in legislation in this sphere. When we talk about decriminalization of sex work, we must understand, that its complete removal from the gray zone to a legal one and making it safe for both the consumer and the provider of this kind of service, leads to its simultaneous legalization.

Therefore, even before the decriminalization of sex work, it is assumed that Article 181-1, which provides for administrative liability for the provision of sexual services, should be removed from the Code of Administrative Offenses.

And this is also absolutely normal and acceptable, because we know from the experience of the Netherlands, Germany and other countries, that responsibility for the provision of sexual services is not provided for in the criminal law, I won’t say that in all, but in many countries (at least those that are following the ECHR judgements).

The absence of punishment for the provision of sexual services by an adult to an adult fully corresponds to the ideas of rights and freedoms, and corresponds to Article 8 of the European Convention on Human Rights - on respect for a person’s private and family life.

A person’s sexual life is a physiological and spiritual need that an adult can and has the right to provide for himself in any way that does not violate the freedom and rights of another person. Let’s not engage in the hypocrisy inherited from the too Soviet past, in which "there was no sex", as well as secular or undemocratic societies, authoritarian societies, an example of which we have in our neighborhood.

The approach of decriminalization is justified in the jurisdictions of countries that position themselves as countries with people-centric policies.

Our Platform developed and agreed with CO “Legalife-Ukraine” two packages of draft laws: for the implementation of plan A and plan B. However, it is necessary to form the position of people’s deputies, who would take on the role of driver of this process, and who would understand that criminalization of sex work is disgusting, it a prudishness that drives sex workers (we are here considering the provision of such services by both genders, or even of an indeterminate gender) into a gray zone of violence and blackmail.

To the zone, where sexually transmitted diseases are not diagnosed and prevented, to the zone, where a person is afraid to carry out certain examinations due to inevitable persecution from the police, who are so fond of “test purchases” of sexual services, into a zone, where persecution and blackmail replace the fight against genuine human trafficking.

As the experience of countries where sex work is legalized shows, there is a direct correlation between decriminalization, legalization and a drop in the transmission of HIV infection and other diseases. This is our main desire, this is the main thing that motivated the community to advocate and explain to the deputies that the legalization of sex work is the only thing that should provide an opportunity to fight human trafficking and fight the HIV epidemic. Decriminalization and legalization of sex work requires clarification, requires a scientific approach to the problem, and not vulgar and unprofessional hype on the topic.

On the meeting with the team of CO “Legalife-Ukraine” during the Forum of sex workers of Ukraine, December 2023

This is what we do - CO "100% Life" and your community. We put on the table of deputies and law enforcement bodies relevant scientific studies, WHO recommendations, which prove the level of decline in infectious diseases, HIV, first of all, in those countries where sex work is decriminalized. We show the falsity and lack of evidence base in cases of violations of pre-trial proceedings, as well as consideration of such cases in court. Armed with the support of the international expert environment and the national scientific community, it is, of course, much easier to advocate and talk about the decriminalization and legalization of sex work. But the advocacy process is a two-way process. Active communication of this information is expected from your communities, and from those who adopt legislative acts and formulate policies - a desire to hear us. In fact, today we are still at this stage, in order to form the desire of the deputies to hear us.

"L-U": Ukraine is in the process of digitalization of public services by now. Could this digitalization be in help with providing sexual services to people with disabilities at the state level, and could this be included in such service as "Diya"?

["Diya"- ("Дія" - "Action" Engl. transl.)  -  is a Ukrainian electronic service of public services, developed by the Ministry of Digital Transformation of Ukraine. This is a website and mobile application with digital documents, the ability to digitally sign and verify, as well as a portal with public services.]

O.K.: This is both a sensitive and sensible question. I propose to divide it into two: understanding the importance of sexual services at the state level and separately - digitalization.

So, we agreed that we consider a person’s sexual life in a civilized manner as a basic need. As a natural phenomenon, as a component that determines the quality of human life.

Today, we are witnessing an exponential increase in people with special needs, for whom the sexual side of life should not be taboo and inaccessible.

Providing sexual life for these people should be one of the priorities of a healthy society. The attitude and understanding of such a request is a sign of the maturity of society. Let’s turn to the experience of countries - the Netherlands and Portugal, for example - where there are appropriate protocols for providing sexual services to people with disabilities. As a rule, these are contactless sexual services. Just as we substitute prostheses for a missing arm or leg, so that a person can have support physically, so, in many moments, we need to substitute a prosthesis in the form of providing a sexual service in order to satisfy this function of human life. Considering how many such people with special needs we will have, we understand the relevance of this topic.

By the way, we have already started talking about this topic at the academic level, in particular at the events of the National Academy of Legal Sciences. In the framework of conferences and round tables, this problem is not vulgarly discussed, but scientifically. And I must tell you that the scientific community is not hypocritical. Scientists are ready to study the experience of countries, where this was implemented. I think that our society has already formed, not just a tolerant attitude towards this, but a full understanding that we will be bloodless for a long time. We already have a lot of challenges that will not arise for a long time before societies that have not had such a tragic experience as we have. This is the experience of war, and we need to know how we will come out of this war, who we will come out with, and what we will provide to the people who protect us today.

With regard to how it should be put into action, it is technically a matter for the Ministry of Digital Transformation of Ukraine. The lawyers of CO "100 % Life" are ready to develop the legal basis together with your organization and all human rights organizations and our partners. It is clear that when we are talking about the implementation of such a social function of providing services by the State itself, this is one issue, and here one must have appropriate medical grounds. And if we are talking in general about the possibility of using sexual services, then here we are talking about decriminalization and a normal civilized attitude towards this process.

"L-U": How can you evaluate the initiative of sex workers of Ukraine to develop a domestic analogue of the OnlyFans platform, thanks to which it would be possible to direct more funds to the country’s defense budget?

O.K.: I respect and thank you for such an initiative. This is what a socially responsible business does.

Therefore, representatives of our sex business are ready to be socially responsible from the intention to come out of the shadows, to be safe for the consumer, to the intention to pay taxes and donate.

Society will only benefit: sexual services will be provided in a controlled and safe manner, and one of the most profitable businesses will pay taxes. And a side effect - they will provide donations for needs where the state cannot cope.

Well, let’s be aware that this war has exacerbated another section of society: women (and men, trans people) from occupied and de-occupied territories are today beyond the limit of survival, and today they often save their lives in this way. They do not have access to food for themselves and their children, they do not have access to medicine. Today, you and I are not even ready to comprehend all the tragedy of these circumstances that we have in the occupied or recently de-occupied territories.

I would like to add that I am the coordinator of the "Fight for Health" Platform, and all key communities belong to this platform, in particular, the “Legalife-Ukraine” organization. As a representative of the legal part of the team, I emphasize that together we must protect the rights of all communities. I am very pleased to work in this area also because we have additional arguments for advocacy today - it is the European integration track of Ukraine. And here all the issues that we had time to talk about today, they are all covered by it, because these European values, for which Ukraine is fighting today and which Ukraine defends on its territory, are the values of human rights, non-discrimination, non-stigmatization, and they are achieved in dependence from the community, which is covered by the “Fight for Health” platform through various mechanisms.

We’re only talking about your community (Legalife-Ukraine) today, and it’s doing a tremendous job: it`s makes a request to the lawyers of the Platform for the package of bills and initiatives that we talked about today. Here I should say a few words about my colleagues - we have a very powerful team. Our team includes academics, doctors of law, candidates of legal sciences, leading lawyers who know how the legal norm works directly "in the field", where it is communicated directly to the person whose interests must be protected. By uniting such a powerful team of colleagues on the Platform, on whose behalf I have the honor to speak today, I think that we will achieve the interests of CO “Legalife-Ukraine” and other communities. Actually, in the synergy of joint actions and our advocacy work in promoting these legislative initiatives, we will complete this puzzle of a democratic state. These values, which we defend with "fire and sword" today, we will also defend at the level of one of the most progressive legislations on the territory of the European Union. This is beyond doubt.

"L-U": Thank you very much for the conversation and cooperation!

Interview: team CO “Legalife-Ukraine”

The first part of the interview with Oksana Kashyntseva can be found at the link here