Criminal Law – Incitement to or procurement for prostitution
Right to free personal development;
Dignity of the human person
RULING No. 641/16
21 of November of 2016
The Constitutional Court found no unconstitutionality in a Criminal Code (CP) norm that considers incitement to or procurement for prostitution – i.e. engaging in an activity of an occupational nature or with the intent to make a profit, such as to foster, favour or facilitate the exercise of prostitution by another person – to be a crime. The Court considered that the criminal policy reason which justifies making incitement to or procurement for prostitution a crime and legitimises a penal intervention in this respect is based on the grounded assumption that prostitution-related situations entail a high and unacceptable risk that persons who are experiencing hardship and a lack of social protection will be exploited and economically taken advantage of by third parties. These are situations that endanger the autonomy and freedom of the agents who prostitute themselves.
The appellant in this concrete review case argued that the norm under which incitement to or procurement for prostitution is a crime was unconstitutional because it illicitly and disproportionately compresses the constitutional rights to free personal development, including sexual freedom and the right to work. Her position was that there should be no unlawfulness in fostering or favouring sexual relations when they are engaged in freely (without coercion, violence or serious threat, constraint, deception or fraudulent manipulation, abuse of authority or taking advantage of a victim’s psychological incapacity or special vulnerability) by adults in a place that is not public and the parties’ privacy is preserved, even when the procurer acts on a professional basis and money changes hands in the process. She even accepted that, in their own right, the facts involved in such a practice “might be the object of minimal criticism, not fit into the normal way in which a society does things, and not represent the behaviour that might be desired of both parties”, but she disputed the view that they were so significantly negative as to justify the intervention of the Criminal Law.
The Court referred to its own unchanging jurisprudence, and particularly a leading case dating from 2004 in which it had not found the criminalisation of incitement to or procurement for prostitution to be unconstitutional – a Ruling which the appellant had herself cited, but in the sense that she considered that it no longer matched the current reality in 2016.
The Court reiterated its own argument in the 2004 Ruling – that the Criminal Law’s intervention in this field does not represent the legal protection of a moral perspective, but rather the protection of the freedom and autonomy required to ensure the dignity of persons who prostitute themselves. Referring again to its earlier Ruling, the Court said that freedom of conscience was not at stake here, because that freedom does not include a dimension which consists of taking advantage of other people’s unmet needs or making a profit from someone else’s sexuality. The Court considered the fact that prostitution itself is not prohibited to be irrelevant. Even if one were to take the view that prostitution could be an expression of the free availability of individual sexuality, for third parties to take economic advantage of it is already the expression of an interference which entails intolerable risks, to the extent that it corresponds to the use of a specifically intimate dimension of the other, not for his/her own ends, but for those of third parties. The Court also pointed to other cases in Criminal Law in which a person’s autonomy or consent to certain acts do not of themselves justify the behaviour of those who assist, instigate or facilitate that person’s behaviour – particular examples of such crimes include helping another person commit suicide, and disseminating child pornography.
There are duties of respect and solidarity in one’s relations with others that are derived from the principle of the dignity of the human person and go beyond a mere non-interference with a person’s autonomy. There is no constitutional imperative to criminalise a certain ‘professional activity’ whose object includes the specific negation of this type of value, but nor is that criminalisation contrary to the Constitution. The freedom to engage in an occupation or economic activity is subject to limits and to a framework composed of values and rights that are directly associated with the protection of the autonomy and dignity of other human persons. This is why activities that can affect people’s life, health and moral integrity are particularly subject to conditions when they are undertaken in the form of work or enterprise.
The criminalisation of incitement to or procurement for prostitution is a criminal policy option that is justified above all by the normal association between the forms of conduct incorporated into that concept and the exploitation of the economic and social needs of the persons who devote themselves to prostitution and use it as a means of subsistence. The fact that the legal provision before the Court does not expressly require there to be a concrete exploitative relationship in order to typify this crime does not mean that preventing such relationships is not a fundamental reason for criminalisation.
The Ruling was the object of two dissenting opinions. Although in the past, one Constitutional Justice (the same in both cases) had dissented from Rulings 396/07 of 10-07-2007 and 522/07 of 18-10-2007, and another from Ruling 654/11 of 21-12-2011, and albeit all three dissenting opinions were formulated in terms similar to those employed by the minority Justices in the present case, one cannot say that their positions constitute a sustained line of thought in opposition to that taken by the majority in the present Ruling. Firstly, because the Constitutional Court has not once ruled in accordance with that opposing view, and secondly because so few Justices have ever dissented from the prevailing one.
One of the dissenters against this particular Ruling argued that a 1998 reform which removed an existing element from the criminal type ‘incitement to or procurement for prostitution’ – the “exploitation of situations of abandonment or economic need” – rendered the legal value which this criminalisation was designed to protect indefinite, thereby contradicting the constitutional requirement that any restrictions on fundamental rights must be necessary. In this Justice’s opinion, it would only be possible to say that the legal typification of this crime protects the legal value ‘sexual freedom’ if one were to interpret the norm in question restrictively, limiting its applicability to cases in which the victim is in a situation of economic and social need. However, since the change in the law, that interpretation has no longer been possible.
The other dissenting opinion was penned by the President of the Constitutional Court, who argued the same thesis and that there is no legal value in this situation that requires protection. He said that since 1998, these have been ‘victimless crimes’ in the criminological sense of the term. By giving up the component “exploitation of situations of abandonment or economic need”, which linked the criminal infraction to an offence against sexual freedom, the only element the legislator left in play was the prevention or repression of sin, which is an exercise in atavistic moralism with which the criminal law of a state based on the rule of law in a secularised, democratic society has nothing to do. He considered that it was the criminalisation itself which could be seen as a perverse assault on the dignity or autonomy of people who, as enlightened and free adults, should be able to legitimately choose to lead their lives as much in the “shade of virtue” as in the “shadow of sin”.
Rulings nos. 144/04 (10-03-2004); 196/04 (23-03-2004); 303/04 (05-05-2004); 170/06 (06-03-2006); 396/07 (10-07-2007); 522/07 (18-10-2007); 141/10 (14-04-2010); 559/11 (16-11-2011); 605/11 (05-12-2011); 654/11 (21-12-2011); 203/12 (24-04-2012); and 149/14 (13-02-2014).