The constitutional legitimacy of the criminalisation of forms of conduct that constitute the crime of sexual procurement
Principle of the dignity of the human person
Right to personal identity
Minimal intervention by the criminal law
Freedom to choose one’s profession
RULING No. 654/11
21 of December of 2011
The Constitutional Court held that a norm which criminalises the conduct of anyone who, professionally or with intent to profit, fosters, favours or facilitates prostitution by another person, does not protect assets that are alien to the rights and legal assets to which the Portuguese Constitution affords its protection; under the Constitution, the former type of asset cannot be protected by the ordinary law. The criminalisation of a “professional activity”, whose object is the specific negation of values that involve the protection of freedom and of an autonomy that is necessary for human dignity, does not violate the Constitution.
Supporting its position with its own jurisprudence – particularly Ruling no. 144/2004 – the Constitutional Court accepted that the criminalisation of forms of conduct that use the prostitution of others as a professional or profit-making activity is underlain by a perspective with its roots in history and culture and in the analyses of society which say that prostitution situations in which economic advantage accrues to a third party entail exploitation of the prostitute. The Court did not consider this perspective to result from moral preconceptions, but rather from the recognition that a legal system guided by values of Justice and founded on the dignity of the human person should not guarantee situations and activities whose principle is that a person can, in any dimension (intellectual, physical, sexual), be used as a pure instrument or means for serving another – a principle that seeks to justify itself on the grounds that those situations and activities are an expression of the freedom of action. The latter vision is refused by Article 1 of the Constitution when it says that the basis of the Portuguese State is the dignity of the human person.
The Constitutional Court recalled that this is the guideline set out in both the Convention on the Elimination of All Forms of Discrimination against Women and the Convention for the Suppression of Trafficking in Persons and of the Exploitation of the Prostitution of Others, both of which have been ratified by Portugal.
From this perspective, the fact that prostitution is not prohibited – as it is not in Portugal – is irrelevant. One might even say that prostitution can be an expression of the freedom to dispose of one’s individual sexuality, but for third parties to take economic advantage of it can already represent an interference in the autonomy and freedom of the agent who prostitutes him/herself. This is because it constitutes the use of a specifically intimate dimension of that agent, not for his/her own purposes, but for those of the third parties. Taking advantage in this way entails intolerable risks, given the social contexts in which prostitution occurs.
There are also other cases in the Portuguese legal system in which the actual pursuit of a form of conduct is not criminalised, but third parties who also participate in it are. Examples include assisting with suicide, and the criminalisation of the dissemination of child pornography. The grounds for this criminalisation are always based on the perspective that, in their own right, neither a person’s autonomy, nor their consent to certain acts justifies the behaviour of a third party who assists them or instigates or facilitates the behaviour in question.
Again basing itself on the jurisprudence mentioned above, the Court was also of the view that the freedom to exercise a profession or economic activity is subject to the limits and framework posed by values and rights that are directly linked to the protection of the autonomy and dignity of other human persons. As such, the Constitution imposes conditions on activities that can affect citizens’ life, health and integrity, when engaged in as work or an enterprise. Violation of the constitutional right to choose one’s profession freely is thus not at stake here. Nor could the same conclusion be prevented if one were to accept perspectives like that touched on by the Court of Justice of the European Communities in its Sentence of 20 November 2001, Case no. C-268/99, according to which prostitution can be seen as an economic activity pursued in a self-employed capacity. In that Sentence the Court only held that the permission for people to engage in the activity of prostitution in Community Member States precludes any discrimination against their authorisation to remain in an EU state; this finding had no consequences in a sense that would have proclaimed the lawfulness of activities that favour prostitution.
The Constitutional Court noted that there is clearly no constitutional duty to criminalise the forms of conduct provided for in the article before it. This criminalisation is a criminal policy option that is primarily justified by the habitual link between the forms of conduct known as sexual procurement, or pimping, and the exploitation of the economic and social need of persons who live by prostituting themselves. The fact that the legal provision under review in the present case does not expressly require the existence of a concrete exploitative relationship as a necessary element of the legal type of crime in question, does not mean that the desire to prevent such a relationship is not a fundamental reason for its criminalisation. The purpose of this legal option is to avoid the risk – considered high and unacceptable – that such exploitative situations will occur; the option is justified by the need to prevent such situations. This legislative option is therefore not inappropriate or disproportional to the goal of protecting personal legal assets related to autonomy and freedom.
The Ruling’s original rapporteur dissented. He was of the opinion that it is a Constitutional Court guideline that the criminalisation of certain forms of conduct that imply a restriction on the fundamental rights to freedom and/or property must be justified in the light of the principle of proportionality, which the Constitution says must be respected by laws that restrict fundamental rights, freedoms and guarantees. The imposition of a penalty must thus be limited to that which is needed to safeguard other constitutionally protected rights or interests. The principle that penalties must be necessary is thus a constitutional requirement that cannot be eliminated. It postulates not only a minimum intervention by the criminal law, but first and foremost that the protected legal asset must be worthy enough of protection to justify the imposition of the punishment. The criminal-law treatment of crimes in the sexual field has greatly evolved in recent decades as a result of the significant changes in ethical/social standards of conduct and conceptions. The polarising element in this evolution has been the clear acceptance in the same field of a view that particularly values individual autonomy and the free development of personality. This change is reflected on the one hand in a retreat from the criminalisation of forms of conduct that are freely undertaken by persons with the maturity and autonomy to take decisions, and on the other hand in a broadening of criminalisations as the result of a more clear-cut awareness of the duties of respect for the moral integrity and self-determination of others.
In the view of the dissenting Justice, that which is criminalised in the crime of sexual procurement is the professional or profit-seeking activity of pimping, in its own right, under any circumstances, without any requirement for it to lead to prostitution in a way that can be attributed to taking advantage of situational conditions that typically generate a lack of autonomous will, as was the case with previous versions of the norm before the Court.
The legal theorists have generally been highly critical of this new legislative option, because when the legislator chose to do away with the link between the behaviour and the legal asset of freedom and sexual self-determination, it disrespected the criminal-law principle of the legal asset and criminalised forms of conduct solely on the basis of situations which the legislator considered to be immoral.
Constitutional jurisprudence has favoured an eclectic position that seeks to conjugate together the general interest of society and the protection of a personal asset as a reason for criminalisation.
However, by failing to exclude from the scope of this criminalisation the cases in which there is no proof that advantage has been taken of a special situation of weakness that would negate the conditions needed for a real decision-making autonomy on the part of someone who could then be deemed to be a “victim” of that conduct, the legislator has criminalised forms of behaviour that fall short of those which damage the legal asset of sexual freedom. This option deserves criticism from a constitutional standpoint.
The dissenting Justice goes on to raise the question of whether it can be inferred from the principle of the dignity of the human person that private persons should be subject to rules of conduct which, if they are not respected, are the object of criminal sanctions, even when that failure to respect does not damage any specific asset. In other words, whether the Constitution imposes an objective standard of dignity that is not linked to the freedom and the integrity of the personality of another person, in such a way as to legitimise the criminalisation of a damaging form of conduct that falls within the bounds of interpersonal relations.
In the norm under review, the issue is not just one of denying any legal guarantee to the activity of sexual procurement, such that that activity is excluded from the scope of the protection which the Constitution affords to the freedom of profession and the freedom of private economic initiative. What is also at stake is whether that activity complies with the material concept of crime, with the ensuing restrictions on the agent’s fundamental rights. The question is not whether or not that activity deserves constitutional protection, but rather whether it is a cause that legitimates affecting protected assets by means of the state’s punitive action.
See Rulings nos. 144/04 (10-03-2004) and 396/07 (10-07-2007).