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The following
study analyses the legal system of female prostitution in several European
countries, Germany,
England and Wales, Belgium, Denmark,
Spain, Italy, the Netherlands and
Sweden. It was first published on the Senate
site in October 2000.
Three aspects applicable to female prostitution have been studied: penal,
fiscal and social provisions. However, the specific measures regarding
child prostitution have not been taken into consideration.
This study reveals the following points:
 in
none of the countries studied does the simple act of prostitution constitute
an offense;
with the exception
of Spain and the Netherlands, all countries condemn all forms of procuring
(pimping);
Sweden is the
only country where the purchase of sexual services is prohibited in
all circumstances;
in all of the
countries except the Netherlands, access to full social coverage is
prevented by the absence of legal recognition of the profession;
except in Spain,
a prostitute's income is taxable.
1)
In none of the countries studied does the individual practice of prostitution
constitute an offense
The last
country to have repealed its penal code provisions condemning the individual
practice of prostitution was Denmark. In fact, the Danish law dated
17 March 1999 concerning the decriminalization of prostitution, became
effective July 1st of the same year. It deleted of an article of the
penal code which had become obsolete for several years and in accordance
with which the police had the obligation to address an injunction to
people who were not living from legal means. Now, prostitution was (and
continues to be) considered an illegal activity in the same respect
as gambling or the fact of being kept by a woman living from prostitution.
Since the Danish law became effective, no more countries being studied
punish the individual practice of prostitution, but the majority of
countries studied continue to sanction certain forms of prostitution,
mainly solicitation. However, in Spain, the Netherlands and Sweden,
this specific offense doesn't exist.
2)
With the exception of Spain and the Netherlands, all countries condemn
all forms of procuring (pimping)
All the
other countries studied explicitly condemn procuring in all its forms:
incitement of prostitution, exploitation of a person in a situation
of weakness, hotel trade procuring...
On the other hand - and contrary to that of 1973 -, the Spanish penal
code of 1995 no longer sanctions procuring in a general manner. It only
punishes the act of taking advantage of certain circumstances (age,
relationship of superiority...) which causes a woman to prostitute herself.
In the same way, the Netherlands, with its law dated 28 October 1999
which became effective October 1st 2000, said law prompting the suppression
of the general prohibition of prostitution establishments, repealed
the article of the penal code which condemned procuring in a general
manner. It also introduced a new article into the local code, which
allows the municipal counsel to determine the conditions relative to
the practice of prostitution. Henceforth, procuring is legal, as long
as the prostitution is voluntary. This reform allowed the law to align
itself with the practice, since, for many years; no charges were filed
against procurers in the absence of problems of public nuisance or violence.
3) Sweden
is the only country where the purchase of sexual services is prohibited
in all circumstances
In Sweden,
since January 1st 1999, the date that the law on the ban of the purchase
of sexual services became effective, the clients of prostitutes can
be condemned to pay a fine, or even risk a prison sentence of six months.
Two other countries, Denmark and the Netherlands, have recently adopted
dispositions on the ban of the purchase of sexual services, but they
will only be applied when the prostitute is a minor. The new Danish
law on the decriminalization of prostitution states that the purchase
of sexual services from a minor is considered an offense liable for
a prison sentence of more than two years. In the Netherlands, the law
dated 28 October 1999 sanctions from then on, the clients of prostitutes
whose age is between 16 and 18 years old, while the earlier disposition,
which punished the clients of minors aged between 12 and 16 years old,
remains in effect.
Without having necessarily designated the purchase of sexual services
as a specific offense, all the other countries, in the context of the
fight against pedophilia, condemn the fact of having sexual relations
with children whose age is below a certain limit, which varies between
12 and 16 years old.
As an aside, the English law of 1985 concerning sexual offenses created
a new sexual offense, the " motorized pick up," which consists
of, for a man who is in (or on) a motor vehicle or who just got out
of or off one, to approach a woman several times to propose buying her
services.
4) In all
countries except the Netherlands, access to full social coverage is
prevented by the absence of legal recognition of the profession
In the Netherlands,
prostitutes profit from the same social coverage as salaried or self-employed
people, depending on the system under which they practice their activity.
In the other countries, the penal dispositions concerning procuring
forbid prostitutes to establish employment contracts and to have the
status of employee. However, Belgian case law usually considers as employees
waitresses in bars who are prostitutes.
Moreover, even though prostitution is not considered an offense, its
practice is generally considered as part of a black market economy,
and prostitutes as living on the edge of legality. In Germany and Italy,
the civil code provides for the voiding of contracts which violate "good
morals", while, in the other countries, this absence of recognition
is not explicit. As a result, except in Belgium, where the Social Security
accounts are independent and their affiliation cannot be refused, prostitutes
cannot have a self-employed status.
As a result, they must purchase a private insurance, unless their country
- and it is the case for England, Denmark, Italy and Sweden - proposes
a minimal social coverage to all residents, independent of professional
activity.
5)
Except in Spain, a prostitute's income is taxable
As a logical
consequence of its belonging to the black market, prostitution is not
considered a taxable activity in Spain.
Inversely, the legal recognition of prostitution in the Netherlands
justifies that any income derived from this activity be taxed, and that
the fiscal arrangements vary depending on whether the person concerned
is an employee or self-employed.
The situation is quite similar in Belgium where the ban on procuring
however constitutes a major obstacle to the declaration of prostitutes
as employees.
In the other countries, meaning Germany, England and Scotland, Denmark,
Italy and Sweden, a prostitute's income is taxable, because the fact
of generating income tax is independent of the legality of the activity.
Even though
prostitution is not in itself considered an offense in any of the countries
studied, the Netherlands is actually the only country to consider it
as a true professional activity. In Germany, the government recently
committed itself to improving the status of prostitutes, mostly because
their non-recognition in social legislation seems to be incoherent in
relation to their fiscal recognition. A committee composed of elected
officials from the SPD and the Green parties is currently working on
the elaboration of a proposal of a law concerning the professional recognition
of prostitution.
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