Policy Idea: Decriminalizing Sex Work in the Philippines

5 Decriminalization of sex work

Photo by Ice Arrojado-Basit

Context

Sex workers in the Philippines operate within a criminalized context. The Philippines’ Republic Act No. 10158, passed in 2012, maintains that prostitution is a crime.1 Those found guilty of prostitution can face fines and imprisonment of up to six months.2 The criminal nature of their work also make them susceptible to abuse from the authorities themselves, as a 2014 study on HIV and STI prevention initiatives in Quezon City has uncovered.3 Study participants revealed that they have experienced paying bribes to their arresting officers while others were forced to provide sexual favors in exchange for their release.

Beyond legal and extra-legal risks, sex workers also experience stigmatization and discrimination across many social contexts. The unwillingness of modern society to acknowledge sex work as a normal fact of human society, a historical regularity, and, for some, simply just a way to pay the bills like any other job leaves sex workers less able to obtain key social and government services that would make them less vulnerable to diseases, abuse, and violence.

These experiences reflect the government’s confusing approach to sex work in the Philippines, an overall policy approach that sex work researcher Sharmila Parmanand aptly calls a “hodgepodge.”5 She describes the Philippine approach thusly, “We have a dualistic way of looking at sex workers which also confuses the issue. Our anti-trafficking law assumes that they are victims or it lends itself to that assumption. So that’s one approach we’re taking. The other approach we’re taking is in our penal code. They’re criminals, right?”6
This criminal-victim dualism that exists in government policy is perhaps best explained in the Philippines AIDS Medium Term Plan (2011-2016 Philippine Strategic Plan on HIV and AIDS) authored by the Department of Health and the Philippine National AIDS Council:

“Sex work is illegal under the Revised Penal Code but, in actual practice, there is an unstated recognition that it exists and can pose a threat to public health. From the Spanish to the American period, the policy on sex workers has been to treat those among them who are infected with sexually transmitted disease in government facilities, giving it thecharacter of a public health measure, even as the work itself is not officially sanctioned.”7

Legal and Policy Approaches to Sex Work

The Philippines is not alone in criminalizing sex work. A review of sex work policies of 100 countries by ProCon.org reveals that the Philippines is among 39 countries where sex work is illegal.8 Criminalized sex work means that the seller, buyer, and any third party that facilitates sex work may be penalized. These policies are rooted in deterrence, with the threat of jail time and/or penalties as the official means for governments to discourage the proliferation of sex work. However, as can be easily observed, legal prohibition of sex work has done little to curb supply nor demand for it.

Partial criminalization, meanwhile, allows for the buying and selling of sex but prohibits brothel-keeping and street solicitation.9 In a TED Talk filmed in London earlier this year, sex worker and activist Toni Mac points out that this policy approach creates conditions where sex workers are forced to work “behind closed doors and all alone”10 which introduces a new set of risks, particularly abuse by violent clients. An offshoot of partial criminalization is the Nordic model—so named because Sweden was the first to adopt it. Here, the selling of sex is legal while the buying of sex isn’t—so you punish only the clients. The idea here is that with the demand side of the transaction being illegal, workers in the sex industry can be disincentivized from continuing with sex work. The core weakness of this approach, however, is that, logically, it discourages all but those clients who are seeking to fulfill more potentially dangerous desires or to buy “scarce” activities/experiences, which creates even greater vulnerabilities for sex workers.11

Then you have legalization, which on the surface sounds like it would address most of the valid grievances of sex workers. However, Toni Mac notes that with full legalization comes state regulation—indeed overregulation, in many cases. Says Mac: “Regulation sounds great on paper, but politicians deliberately make regulation around the sex industry expensive and difficult to comply with.”12 Legalization might make it easier for those with the resources to pay for licenses and regular health checks, but those who are most vulnerable and are in the most desperate of circumstances would invariably be left behind.

Policy Proposal

For the most part, the Philippine government’s recognition of sex work as an industry is confined in its view of sex workers as at-risk populations to HIV and AIDS or as victims of trafficking. This approach, while theoretically providing some protections and services to sex workers, undermines the sex workers’ realization of their full human rights, specifically their right to security, employment, and health.

For as long as sex workers are forced to operate covertly, under threat of arrest or abuse, they shall remain exposed to a whole host of risks and vulnerabilities which not only endanger their health and safety, but also limit their access to services and protections available to other workers.

For this reason, PAMPUBLIKO proposes to decriminalize adult, consensual sex work by repealing all laws that make the sale of sex illegal. The foundation of this proposal is a recognition that sex workers—adult, consenting citizens of the Philippines who choose to sell sexual services—are entitled to the same labor and human rights as everybody else.

Decriminalization can lead to the realization of the following favorable conditions:

1. Sex workers will be protected by the same labor laws as other workers in the Philippines, and will be more likely to turn to law enforcement officials when in need.

2. Abuse by errant law enforcement officials, clients, and third-parties involved in sex work, such as pimps and managers, will be curtailed.

3. Direct and indirect forms of discrimination against sex work will be lessened, leading to safer, less hostile work environments for sex workers.

4. Sex workers, now able to come out of the shadows of criminality, can be employed as the frontline against illegal, coercive activities, such as human trafficking. Indeed, sex workers are the best positioned to report such activity, to protect their industry from such abusive practices, and to provide on-the-ground intelligence on and insight into such activity.

Corollary to decriminalization, a range of policy measures should also be instituted:

1. Review existing anti-trafficking laws and practices that directly or indirectly classify adult, consensual sex workers as trafficking victims.

2. Repeal existing laws that directly or indirectly penalize the consensual exchange of sexual services between adults for remuneration.

3. Create new laws that acknowledge the elevated health and safety risks of sex workers and provide necessary protections.

Any and all policy efforts for sex workers should involve meaningful participation of sex workers. Dialogue and consultations must be instituted in order to accurately reflect their conditions and needs. Efforts should also be extended to develop a knowledge base on sex work in the Philippines that can provide insights, leading to policies that are needs- and evidence-based. Just as important, garnering support from and developing consensus among sex workers’ groups, anti-trafficking organizations, law enforcement agencies, legislators, and the general public would provide a strong political base that will enable meaningful progress towards ensuring the welfare of the country’s sex workers.

 

FOOTNOTES:

1. Philippines. Office of the President. Republic Act No. 10158. Official Gazette, 27 Mar 2012. Web. 10 Oct. 2016

2. Ibid.

3. Macapagal, Raymond, and Danielle Ochoa. Baseline Assessment of HIV and STI Prevention Program for Sex Workers in Quezon City. Manuscript. Print. Unpublished.

4. Ibid.

5. "Q&A: Sharmila Parmanand on Sex Work in the Philippines." Personal interview. 18 July 2016.

6. Ibid.

7. 5th AIDS Medium Term Plan: 2011-2016 Philippine Strategic Plan on HIV and AIDS. Rep. Philippine National AIDS Council, 19 Jan. 2010. Web. 25 Sept. 2016.

8. "100 Countries and Their Prostitution Policies." ProCon.org. ProCon, n.d. Web. 30 Nov. 2016.

9. Mac, Toni. "Toni Mac: The Laws That Sex Workers Really Want." TEDxEastEnd. London. 1 Dec.
2016. Speech.

10. Ibid.

11. "Q&A: Sharmila Parmanand on Sex Work in the Philippines." Personal interview. 18 July 2016.

12. Mac, Toni. "Toni Mac: The Laws That Sex Workers Really Want." TEDxEastEnd. London. 1 Dec. 2016. Speech.

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