Criminalisation of sex workers: rethinking the public order

Abstract

While there is no European consensus on the most appropriate prostitution policies, in most European countries selling sex itself is not criminalised. Exceptions are most of the former communist/socialist countries of the Central and Eastern Europe and Central Asia, including Croatia, where it is a misdemeanour/administrative offence against public order and peace, despite recommendations by human rights bodies to decriminalise sex workers. The legitimacy of protecting public order through criminalising selling sex has remained largely unchallenged and there is a lack of empirical studies examining the application of those provisions from a human rights perspective. This article addresses the gap and provides a human rights analysis of the case-law of the municipal misdemeanour courts in the two largest Croatian cities (Zagreb and Split), in the period from 2014 to 2019 concerning the offence of ‘falling into prostitution’. We show how laws criminalising sex workers are not only ineffective, but are also harmful for public order. Not only does the indeterminacy of the offence and its different interpretations fail to fully respect the principle of legality, police and judicial practice show discrepancies with the human rights standards, which impacts primarily women in vulnerable situations, thus raising the questions of gender (in)equality and intersectional discrimination.