Page 5

different norms that affect the way it is performed because they impose restrictions. The legal system in the countries under study involves a hierarchy of norms with the country’s Constitution being at the highest level. In some cases, international norms that the country adheres to are assigned an equal rank. The hierarchy includes the national and the provincial or municipal regulations with the latter being at the lowest level. Within this system, no law is to be considered valid if it contradicts what a higher law mandates. This hierarchical ordering of norms is mentioned in the national Constitution of all the countries, and this must be read together with the articles of these Constitutions that say that nobody can be forced to do what the law does not require or be deprived of doing what the law does not forbid. This is also complemented by norms recognizing the right to work, to choose one's trade and to decent working conditions as well as by guarantees of equality and non-discrimination. National laws include Penal Codes and their complementary laws (for instance, laws on trafficking) that while not forbidding practicing sex work, have an indirect impact on it as they punish the exploitation of sex work by third parties, or restrict related activities like advertising sex services. And, finally, there are lower hierarchy local norms (Contraventional Codes, administrative or police regulations, according to the country) that are related to morals, good customs or the use of public spaces that security forces usually invoke to impose their moral views on sex work. Overall, these lower hierarchy norms hold criminalizing and punitive views everywhere in the region and far from protecting WSWs rights set the stage for human rights violations against them. Current norms regarding sex work in the region can be grouped in the following way: • Laws related to activities considered to be crimes in the Penal Codes and in other national norms (National Constitutions and/or laws on women’s rights). In these cases, what is penalized or forbidden is exploiting the prostitution of others – pimping, sexual exploitation of minors, and, in some cases, pornography-related crimes or promoting prostitution through different channels. As we have said, these laws are often used to restrict autonomous sex work even when it is licit according to higher-ranked laws. • Laws related to prevention and care for sexually transmitted infections (HIV/AIDS and STIs) that mention WSWs as vulnerable populations and in some cases as being in-charge of or replicating prevention policies. These laws prescribe testing – in most cases, voluntary and confidential at least as written in the law, but not necessarily in practice (see RedTraSex, 2013), and also prescribe health cards and controls issued by the health system and/or security forces. • Laws on persecuting, punishing and preventing trafficking of persons and providing care for victims that can be found in most countries across the region since the mid-2000s . Even though they never mention sex work, the ways in which the law is enforced through procedures and operations carried out by the judicial system and security forces constitute an obstacle for practicing autonomous sex work and often constitute a clear violation of WSWs rights. This is explained by the confusion among the actors involved (police and justice officers conducting raids in workplaces), born of misinformation or of political design, about which activities linked to the sex trade are crimes (pimping, prostitution and/or corruption of minors, pornography involving minors, trafficking of persons for sexual exploitation) and which ones are not according to the Penal Codes of the countries across the region, like sex work conducted by those of legal age. • Laws related to coexistence in public spaces and misdemeanours (Contraventional Codes, Misdemeanour Codes, municipal ordinances) that are typically enforced by local security forces and framed as regulating ‘public morals’. In most cases, these Codes violate the rights of WSWs and allow for procedures to check their identity cards, stop their free movement, prohibit their offering sexual services in exchange for money in public spaces, or create 'tolerance areas' and set minimum distances from certain types of institutions, among others. They also grant significant power to security forces and enable a whole set of abusive and extortionist practices that will be described in this report. 1 An exhaustive description can be found (in Spanish) in “Estudio sobre la incidencia y la participación política de las mujeres trabajadoras sexuales en América Latina y el Caribe”, RedTraSex, 2013.


Sex work and working conditions: The impact of being clandestine  

Research conducted in 14 Latin American and Caribbean Countries