Prostitution and the Reform of the Criminal Code in Brazil: A Debate

Also posted on Durham University’s blog on law, gender and sexuality: Inherently Human

The question of voice – of who speaks, and who speaks in the name of whom – is a crucial issue for this debate, and for democracy in general‘ – Sonia Corrêa

Everything that exists, but is illegal, creates a mafia‘ – Gabriela Leite

Now is undoubtably a fascinating and crucial time for those interested in the law and human rights in Brazil. The rapid social, political and economic changes of the past few years have instigated corresponding changes in civil society, as citizens react to, and interact with, the forces that are shaping the future of their lives and nation. Interesting discussions around citizenship and social justice have been raised, for example, recently introducing laws that aim to criminalise prejudice with a view to protecting minority groups.

Part of this wider discussion on citizenship and rights could be seen on 7th November in Rio de Janeiro, when The Brazilian Lawyers Organisation hosted a debate ’A prostituição na reforma do Código Penal,’ regarding the ongoing aim to reform the Criminal Code, and the current proposal PL 4211/2012 that is before Brazil’s Congress. Proposed by Federal Deputy Jean Wyllys in July of this year the law would alter the criminal laws surrounding adult prostitution to allow prostitution businesses and cooperatives and makes clear distinctions between “prostitution” and “sexual exploitation”. 

Context

Sex work is legal in Brazil, and since 2002, a recognised profession in the Ministry of Labor’s Brazilian Occupation Categories (CBO). However it is illegal to operate a prostitution business or make a profit from prostitution, which makes it impossible to regulate, increases vulnerability to police violence and corruption, and makes it difficult for sex workers to demand labor rights.

Daspu Logo

Daspu Logo

Nevertheless, sex worker organisations in Brazil have a history of actively organising and fighting for their rights. One of the oldest is the national Network of Brazilian Prostitutes. It was founded in 1987 in the middle of popular movements which rose during the redemocratization of the country, after two decades of military dictatorship. The sex worker organisation Davida also had a central role in the definition of policy combating AIDS since the 1990s. It has a monthly newspaper, ‘Kiss from the Street’, and an internationally successful fashion line, Daspu. The birth and subsequent important role of these movements is a clear example of the Marxist idea that revolutionary upheavals can enable some of the most vulnerable workers in society to alter their lives, even if such an achievement is somewhat limited due to the persistence of existing systems of inequality.

However, sex worker NGOs have again been affected by national political and socio-economic changes, as well as international political and economic crises. Since 2008, the reduction of international aid for Brazil and structural changes in the government funding mechanisms has reduced the activities and influence of civil society organizations, in particular those working on sexual rights and HIV prevention, including sex worker organizations. For the impact on the AIDS movement, see the recent SPW open letter and Gabriela Leite’s reflections in her blog (both in English).

 The Debate

The majority of the panel were in favour of the proposed changes. Judge Dr. Rubens Roberto Rebello Casara – vice-President of the Permanent Forum of Human Rights, State Magistrate School of Rio de Janeiro, opened the debate by arguing against proposal to change the Criminal Code.

Left to Right: Judge Dr. Rubens Roberto Rebello Casara, and Alana Moraes

Casara believes the proposal has a serious conservative agenda that will be used to increase incarcerations. He pointed out that there is a limit to the power of the Code, because it is created within social conditions such as a strong authoritarian tradition, capitalism, and a machista, sexist society. Furthermore, Casara argued for the regulation of prostitution, because the law as it is leaves people without basic human rights. He concluded strongly by pointing out that intolerance is always directed at someone different, and that it is unfortunately both a crime and a tradition in Brazil, and should be changed.

Alana Moraes, an anthropologist from the Federal University of Rio de Janeiro, UFRJ, and member of the Marcha Mundial das Mulheres-RJ, presented an alternative, abolitionist perspective. In keeping with this perspective, she highlighted the historical masculine power over the female body, stating that this structural inequality remains, even if a woman tries to use her body strategically. Moraes also pointed out that regulating prostitution now will only serve the forces of capitalism, with the World Cup and Olympics coming to Brazil soon. She argued that it is a problem of race and class exploitation, as the white man will have power over the bodies of women of colour She concluded by using data from the Police in the Netherlands to argue that it is impossible to regulate the market, and so will only increase the trafficking of women.

Left to Right: Gabriela Silva Leite, Jean Wyllys, Sonia Corrêa.

Gabriela Silva Leite is a sociologist, ex-prostitute, and founder of Davida. She has written two autobiographies, and was recently awarded the prestigious WISE Award 2012 (Women in Social Enterprise). A documentary film, A Kiss for Gabriela, was made about her 2010 campaign for Brazilian Congress.

Leite began her compelling contribution by emphasizing that the main achievement of National Prostitute Movement is that it enabled sex workers to speak for themselves, and for them, prostitution is both a sexual right and a profession. Moreover, Leite pointed out that anything that exists, and is illegal, creates exploitation. If, on the other hand, prostitution was completely decriminalized they could pay taxes, be treated as persons, and make an official report if there is any problem: for example, many sex workers are against the sexual exploitation of minors, but they cannot report it. Finally, Leite concluded that sexual exploration is positive, and lamented that society is becoming more conservative nowadays.

The debate included Federal Deputy, Jean Wyllys (PSOL), who presented the PL4211/2012 law on clarifing the legal distinction between “sexual exploitation” and “prostitution.” This law would legalize prostitution businesses in order to promote sex workers’ labour rights, and reduce the sexual exploitation of women and minors. Wyllys is also known for defending LGBT rights and the decriminalization of abortion and marijuana. Wyllys explained that he proposed the regulation of sex work because the “fight for the rights of homossexuals is completely aligned with fights for individual rights and broader human rights”. Finally, Wyllys addressed the issue of Capitalism by highlighting that prostitution existed thousands of years before it, so it is therefore not solely a result of capitalist structural inequality. However, he believes regulation of the trade is important for the World Cup and Olympics, so that sex workers will have more power to denounce any exploitative behaviour.

Margarida Pressburger, President of the Commission of Human Rights OAB/RJ, presided over the debate. She rejected the simplification that prostitution is only about men’s control of women’s bodies, and emphasized that male sex workers also exist. Pressburger also noted that regulating sex work would, at the same time, involve tackling political and police corruption.

Maira Fernandes, the President of the Penitentiary Council of the State of Rio de Janeiro, and post-graduate in Human Rights and Work Relations (UFRJ), also took part in the debate. Fernandes presented arguments from the political Left when she highlighted the fact that other professions also involve using one’s body, and can involve worse working conditions. She used Marta Nussbaum’s famous article to explain that everyone uses their bodies for work, and how the stigma around to prostitution is probably due to class prejudice. Fernandes concluded by arguing that it is certainly possible to regulate, as it has been in other countries, such as Germany.

Sonia Corrêa, the founder of SOS-Corpo and co-chair of Sexuality Policy Watch, and co-author of the book Sexuality, Health and Human Rights (Routledge, 2008) among many others, moderated the debate. She closed the debate by referring to Friedrich Engels’ point on sex work from his classic work, “The Origin of the Family, Private Property and the State”, where he states that the only things that explain the condemnation of prostitution are religious morality and bourgeois values.”

Overall, the debate was fascinating and quite Marxist in spirit. The open question time and responses from the panel deepened the level of discussion, while the wide range of perspectives evident led to lively, and at times rather heated, exchanges.

Comments

The polarised positions on prostitution, especially within groups such as feminism and socialism, should be familiar to most readers of this piece.¹ So it was particularly encouraging to see that the majority of the panel were in favour of the proposition, especially as the evidence on the topic is clear. International expert advice, that was formulated after research with prostitute movements all over the world, advocates regulation. For example, the recent UNAIDS Global Report on the Aids Epidemic, highlights the adverse effects of criminalization and stigma in terms of human rights and health: ‘Laws deeming some aspect of sex work to be illegal are in place in the majority of countries and are often used to justify harassment, extortion and violence against sex workers by police and clients, which places them at increased risk of HIV infection’ (2012:83). For more research on the topic see also: UNAIDS Guidance on Sex Work, the international commission HIV & the Law, and numerous papers published by the Network on Sex Work Projects.²

Unfortunately, the crisis in civil society at the moment also seems to be linked to a tendency to move away from listening to grassroots organizations, in favour of a more top-down, conservative approach. Earlier this year, Judge Casara linked this approach to the current wider political agenda when he absolved two owners of prostitution businesses who were accused of sexual exploitation. He stated that the Public Ministries’ prosecution ‘was proposed amid the repressive political climate which has been generated from the adoption of hygienist policies aimed at preparing the city of Rio de Janeiro for the mega sports events in 2014 and 2016’ (translation my own). It seems, therefore, unlikely that the proposal will pass. Members of the panel confirmed this during the discussion, with Wyllys highlighting how conservative the Congress still is.

Brazil is not alone in this trend however, as attitudes towards sex workers are becoming increasingly condemnatory and regressive in other parts of the world. The European Women’s Lobby recently made the news in the U.K. for a current campaign restricting sex work, where they are quoted as claiming that ‘Prostitution is violence.’* A large scale review of the prostitution laws in Ireland is also underway, with significant input from anti-sex worker groups. Alarm has also been raised in the media in India regarding the negative health effects of the increasing freedom of sex workers there.

Nonetheless, it is crucial that such debates take place, especially given in the current socio-political climate in Brazil. It is heartening to see such clarity on the topic from those in positions of power and with expertise in law, and it was particularly encouraging to hear from sex workers and those involved in sex worker organisations. It will be interesting and, I believe, imperative to keep track of how these issues around the law, citizenship and sexuality develop as Brazil takes to the world stage – in political, economic, cultural and sporting terms – in the coming years.

* Update: Since writing this post there have also been further calls to review the prostitution laws in England and Wales.

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Notes

– I would like to acknowledge Laura Murray for her assistance in pointing me to Casara’s case on sex work, and to several resources on this topic.

¹ For those unaware, the sex-work debate has different dimensions internationally, but Sheila Jeffreys’ work would be an example of the abolitionist perspective, and for one of the earliest ‘voices’ of sex-workers arguing for their rights see, Kate Millett’s The Prostitution Papers (1973). For a debate on the topic in the International Socialism Journal, see Schaffauser’s response posted December 2010.

² Resources kindly shared from Laura Murray’s blog post on the same debate.