European Court upholds Criminalization of Sex Work not Workers' Rights
Sarthak Gupta
On July 25, 2024, the European Court of Human Rights (ECtHR) upheld France’s law criminalizing the purchase of sexual services, even between consenting adults, ruling that it does not violate article 8 (right to respect for private life) under the European Convention on Human Rights (ECHR). This decision, which has far-reaching implications for sex workers’ rights across Europe, raises significant concerns regarding the Court’s application of the proportionality test and its broader impact on personal autonomy and reproductive health.
The case involved 261 applicants of various nationalities, both male and female, who engage in sex work in France. They challenged Law No. 2016-444 of April 13, 2016, which criminalizes the purchase of sexual services through articles 611-1 and 225-12-1 of the French Criminal Code. Under this law, soliciting, accepting, or obtaining sexual relations from a person engaged in sex work in exchange for payment or benefits is punishable by a fine. The applicants contended that by conflating forced prostitution with voluntary sex work, the law unnecessarily criminalizes consensual adult activities, exacerbates the risks faced by sex workers, and undermines their physical and mental integrity.
The ECtHR, while acknowledging that the French impugned law interferes with the applicants’ right to a private life, personal autonomy, and sexual freedom, found that the interference had a legal basis in the criminal code and pursued legitimate aims, including defending public order and morality, preventing crime, and protecting the health and rights of others. In assessing the necessity and proportionality of the law, the Court noted the lack of European consensus on regulating prostitution, granting France a wide margin of appreciation (§§149-153). The Court referenced VT v. France and SM v. Croatia to highlight the sensitive nature of prostitution-related issues and the divergent approaches among member states (§§149-150).
The Court highlighted that criminalization is part of a broader system to combat prostitution, including protection and reintegration measures for sex workers (§§160-162) and that the general nature of the ban aimed to stop child prostitution. Importantly, the Court observed that prostitution itself remains legal in France, with the law aiming for gradual eradication by offering alternatives. While acknowledging implementation issues raised by applicants, the Court found these insufficient to invalidate the legislature’s democratic choice. The Court concluded that France struck a fair balance between competing interests within its margin of appreciation, finding no violation of article 8 of the Convention. (§§167).
(Dis)Proportionality in ECtHR approach
The ECtHR approach raises serious concerns about the application of the proportionality test, which requires that any restriction on a fundamental right (a) has a legitimate goal, (b) is a suitable means of achieving that goal, (c) imposes the least restriction possible, and (d) does not disproportionately impact the rights holder.
First, the Court’s assessment of the law’s suitability in achieving its goals—combating human trafficking and protecting sex workers—was insufficiently rigorous. The Court accepted the French government’s contentions without thoroughly examining whether criminalizing the purchase of sexual services effectively reduces human trafficking or enhances the protection of sex workers. Evidence suggests that criminalizing sex work does not adequately address issues of exploitation and trafficking. Instead, it tends to exacerbate the vulnerabilities of sex workers by driving their activities underground, making them more susceptible to violence and exploitation. Rather than offering protection, criminalization increases the risks faced by sex workers, who may be less likely to seek help or report abuses due to fear of legal repercussions.
Second, the Court failed to thoroughly explore less restrictive alternatives to criminalization, a critical aspect of the necessity prong of the proportionality test. The suitability of criminalization as a means of achieving its stated goals is further compromised by the existence of alternative approaches that are more effective, less harmful, and aligned with the principle of minimal restriction. Decriminalization, for instance, aims to remove legal penalties for consensual sex work while still addressing issues of exploitation through other means. This approach has been shown to improve safety, health outcomes, and access to services for sex workers. By contrast, criminalization itself fails to provide a suitable mechanism for achieving its objectives, as it often leads to increased stigma, restricted access to health services, and heightened risks of violence. Measures such as fines, arrests, and imprisonment do not reflect a balanced approach to regulation; rather, they impose significant and broad restrictions on individuals’ freedoms and well-being.
Finally, the ECtHR analysis lacked a comprehensive balancing of the law’s benefits against its potential harms, particularly in terms of its impact on sex workers’ rights to privacy, personal autonomy, and health. The disproportionate impact of criminalization on sex workers is a critical concern. Criminalization affects marginalized individuals and communities more severely, exacerbating their existing social and economic disadvantages. The enforcement of sex work laws often disproportionately targets marginalized groups, including those based on race, color, gender identity, and socioeconomic status, thereby reinforcing indirect and systemic inequalities. Thus, the ECtHR reliance on the margin of appreciation due to the lack of European consensus further diluted its proportionality analysis, as seen here.
The ECtHR decision to uphold France’s law criminalizing the purchase of sexual services represents a significant trade-off between protecting public order and individual human rights. While the Court found that the law did not violate article 8, its application of the proportionality test raises serious concerns. By failing to thoroughly examine the suitability, necessity, and proportionality of the law, the Court may have overlooked critical aspects of the law’s impact on sex workers’ rights to privacy, autonomy, and sexual freedom.
Sarthak Gupta graduated with a BA LLB (Hons) from the Institute of Law at Nirma University (India) and is a judicial law clerk, research associate at the Supreme Court of India. He is also a Helton Fellow at the American Society of International Law.