I am in Switzerland for three months, where prostitution is legal at the national level. At the same time, Switzerland is a (con)federation of 26 states, which means that each state has a certain autonomy over its internal affairs. There are also three general language areas (Italian, German, French) coexisting and complicating things. Switzerland is not a member of the European Union, but a Free Movement of Persons Agreement now exists (for EU legal residents). In the clearly written explanation below, from a government website, both positive and negative aspects of the law are made apparent. On the whole, the situation is better – less hypocritical, less moralistic – than in most countries I know, the best aspect being that selling sex is considered an economic activity. At the same time, there are familiar problems.
- Prostitution is a lawful profession but you have to do it on your own – no businesses allowed supposedly
- But there are, of course, massage parlours and brothels, the technicality being that workers are not ’employed’ but independent contractors
- Prostitution is not to be confused with human trafficking
- Procurement and passive solicitation are allowed
- Only legal residents are allowed to sell sex (although there’s a 90-day visa for Other Europeans)
- Trafficking is a criminal offence
- Minors over 16 may sell sex (but this conflicts with other European statutes)
- Police ‘inspect’ prostitutes and red-light areas
Prostitution: Information from the Swiss Coordination Unit against the Trafficking of Persons and Smuggling of Migrants KSMM, which follows the topic of prostitution insofar as it is linked to human trafficking for the purpose of sexual exploitation. The following observations are intended to provide a sharper distinction between the two areas.
Prostitution is legal
Prostitution in Switzerland is legal and considered a form of economic activity. Any person wishing to work in the sex trade in Switzerland must be of the age of sexual maturity and adhere to cantonal and municipal regulations relating to the pursuance of prostitution as a trade. Income derived from prostitution is subject to taxation and social insurance contributions. Foreign nationals must also fulfil residence and employment regulations.
Federal legislation and cantonal regulations relating to prostitution
Prostitution has been regulated throughout Switzerland since the enactment of the Swiss Criminal Code in 1942 (SCC, SR 311.0). Under Article 199 SCC, whoever violates cantonal regulations relating to the exercising of prostitution shall be liable to a fine. Thus, prostitution in Switzerland is legal and falls under cantonal jurisdiction. Some cantons such as Ticino, Geneva, Vaud, Fribourg, Neuchatel and Jura have adopted separate legislation on prostitution. In other cantons provisions on prostitution are incorporated into other pieces of legislation or regulated in municipal statutes.
Regulating prostitution has the aim of curtailing the negative side effects of the trade on the surrounding areas and of improving the general conditions for sex workers for their own protection. A special unit of the cantonal police force ─ often the vice squad ─ is responsible for carrying out inspections of prostitutes in red light areas. Inspections of establishments or businesses are carried out by the local police responsible for trade and industry controls. Unfortunately, national statistics are not available because regulations and controls fall in cantonal jurisdiction, and the characteristics of the sex trade and controls vary so greatly between cantons that there is no common basis for comparison.
Prostitution does not imply human trafficking
Prostitution should not be equated with human trafficking for the purpose of sexual exploitation. Although sexual exploitation does, indeed, frequently occur in prostitution circles, it would be incorrect to conclude that all prostitutes are victims of human trafficking.
For many foreign and Swiss nationals, prostitution is their lawful profession. The reasons for earning one’s livelihood in the sex trade can be many-faceted. The world of prostitution is attractive for people who want to draw a profit from human trafficking and the exploitation of human beings, however, because the danger of conviction is small and profits are large.
Increase in prostitution since the revision of criminal law relating to sexual offences
Criminal law relating to sexual offences was revised in Switzerland in 1992. Since then, procuring and passive solicitation are no longer punishable offences. Instead, the infringement of sexual or bodily autonomy, for example through forced prostitution is the decisive factor in determining the question of culpability.
Following the revision of criminal law relating to sexual offences, prostitution rose sharply in Switzerland. This led to a situation of increasing competition and of driving out competitors from the market. There has been a further increase in prostitution since the Free Movement of Persons Agreement between Switzerland and the EU has come into effect. At the same time, it should be noted that many sex workers – especially from Eastern Europe – who were previously working as prostitutes in Switzerland illegally, can now exercise their trade legally under the new agreement. Nationals from those member states to whom the Free Movement of Persons Agreement applies are granted work (with) a 90-day permit for self-employment.
Protection against abusive practices relating to prostitution
To protect prostitutes from abuse, the federal legislator has passed a series of penal provisions. Prohibiting human trafficking for the purpose of sexual exploitation (Art. 182 SCC), for example, is an important provision against excesses in the prostitution trade. Also, Article 195 SCC (inducing prostitution) places a ban on inducing a person into prostitution, or preventing a person from quitting the trade, thereby restricting their freedom to act. A person is restricted in their freedom to act if, as a result of an imbalance of power:
- their dependency is exploited or they are forced into prostitution for financial gain, i.e. as a source of income
- their activity is supervised or controlled, or they are not free to determine the time, place, volume or other aspects of their work as a prostitute, or
- they are forced to remain a prostitute against their will.
Article 195 makes merely inducing a minor into prostitution a criminal offence. Since a minor is often not yet fully capable of bodily autonomy, an older person or a person who is superior in some other way makes himself liable to prosecution merely by suggesting or persuading a minor into prostitution. Also, under Article 188 SCC whoever commits a sexual act with a minor by exploiting their relationship, or encourages a minor to commit a sexual act by exploiting such a relationship, is liable to punishment.
Prostitution by minors
Under current legislation minors over 16 may engage in the sex trade. However, prostitution in younger years can affect a person in their sexual development, and can traumatise and destabilise them both psychologically and socially. Under Article 302 of the Swiss Civil Code (SR 210) parents are responsible for the welfare of their children. If their welfare is at risk, it is the duty of the guardianship office under Article 307 to adopt suitable measures.
On 4 June 2010, the Federal Council voted to sign the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. The Convention places member states under the obligation to outlaw the use of sexual services of minor prostitutes for money or other emoluments. This provision goes beyond the scope of existing Swiss criminal legislation, which means that national law will have to be adapted on ratification of the Convention.
Sex workers can practice their trade only in a self-employed capacity because employment contracts contain employee obligations and employers’ rights of authority that are not compatible with the principle of bodily autonomy. The more sex workers are prescribed how to work and supervised by a proprietor or pimp, the more a criminal offence for force prostitution under Article 195 of the Swiss Criminal Code is likely to exist.