Austria: Discriminations against Sex Workers

Discrimination against Women by Health Checks

Worldwide, there are serious concerns about the indirect discrimination against women (Article 3) in the enjoyment of Article 12 by obligatory registrations of prostitutes, mandatory vaginal inspections or compulsory HIV tests. For, by requiring only sex workers to comply to such medical interventions, authorities are stating that they are not interested in the health of the sex worker but are merely concerned with the health of the client.
For instance, the United Nations Committee on Discrimination against Women Committee was concerned about legislation in India that encouraged mandatory HIV testing. And there were concerns about Greece, as sex workers were publicly shamed and made responsible for HIV. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} The Committee expressed also concern about mandatory registration of sex workers in the Netherlands, as it may expose registered sex workers to serious risks for their safety. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} (According to UNDP, supra note 6, “sex workers are often targeted for harassment and violence because they are considered immoral and deserving of punishment.”) In Hungary, Constitutional Court judged that the very obligation of women to register as a prostitute is incompatible with the dignity of the concerned woman. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} More generally, the unilateral character of obligations for sex workers that are enforced and de facto criminalize them, while there are no similar obligations for clients, or such obligations are not enforced, is seen as a discrimination against women in ever more countries, e.g. Taiwan. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
Austria applies such a system of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests. It makes women in sex work responsible for HIV and STIs and imposes upon them obligations to protect the health of their male clients (section 5.4). However, neither did Austria prove the need for such protection of men (after all, the responsibility for consensual sex rests also on the clients), nor did Austria introduce laws to protect sex workers: Rather, Austria absolves the male clients of sex workers from responsibility, whence they pressure sex workers for sex without a condom (section 5.4). There is no justification (Article 4) for this differentiation.
Thus, the concerns of the cited authorities about the discriminatory character of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests applies to Austria: Austrian prostitution laws that restrict the freedom of women in sex work to control their own health discriminate against women in sex work in the enjoyment of Article 12 in two aspects, namely first, as there are no similar obligations for their male clients and second, as the purpose of these obligations serves only the interests of the male clients.

6. Additional Issues for Health Checks

UNAIDS and the government of Guatemala agreed about the following characterization of mandatory health checks that applies as well to Austria: ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} “The health code requires sex workers to undergo a sexual health check which is not designed to be holistic care but the fulfillment of a requirement that often generates no benefit and instead promotes or creates police abuse and extortion.” Such problems are directly linked to any system of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests. For, aside from Austria, there are only few countries in Europe, where registrations of sex workers as prostitutes and mandatory health checks are foreseen, and in all these countries these regulations caused serious human rights concerns: Germany abolished such regulations in 2001 for concerns mentioned in section 5.4 above. Problems for Greece, Hungary and the Netherlands are mentioned in section 5.5 above. In Latvia, registration and health checks resulted in stunning reports of lawlessness. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} By judgments of European Court of Human Rights, in Switzerland registration caused unlawful detention and a violation of data protection; ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} and in Turkey registration resulted in unfair proceedings and torture. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
Similar problems with police harassment are common in the law enforcement of Austrian regulations of prostitution. The root causes are on the one hand the prostitution laws, and on the other a systematic lack of precautions against police harassment and unlawful police investigations against sex workers. Very common are undercover investigations to discover illegal prostitution, although such investigations are unlawful: They violate private homes of women and subject them to degrading treatment, as police uses sex as a weapon to debase them.
The following cases illustrate different types of police harassment: In September 2011, members of the National Human Rights Advisory Board (a subsidiary of Ombudsman Board) observed police measures against illegal street prostitution in Vienna. The board was appalled by the degrading treatment of the women, and by the evident discrimination. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} There are also reports about women suffering from intimidating nightly visits by police officers, who suspected illegal prostitution; in one case even an eight years old child was traumatized. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Several undercover investigations were brought to court, with proceedings lasting several years, but never was a police officer made responsible for misconduct. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} In all these cases, an undercover officer contacted a young woman under the false pretense of being a customer for pay sex and was invited to her apartment. There he humiliated her, as he first had sex-talk and often let her pose nude, only to inform her in the bedroom about the deceit; often the officer forcefully let his colleagues enter the home of the woman to expose her nude to their views. In one case, in May 2005, the situation escalated, leaving the woman handcuffed, with bare breasts, and bruised, but the obvious concern of possible rape, and thus of torture, has never been investigated. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
It follows that the policy instruments of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests generate additional risks for sex workers to suffer from police harassment that violates privacy and may reach the threshold of degrading treatment. Women with an unconventional sexual life, who want avoid this risk, can only change their conduct, or register as a prostitute (yet again with the risk of degrading treatment: section 5.3). Thus, Austria de facto restricts the sexual autonomy of women, protected by Article 12. As several court cases cited above demonstrate, also women not in illegal prostitution came into the focus of police, as their sexual life did not conform to gender stereotypes. Hence, also under the aspect of indirect consequences of prostitution laws Austria discriminates against women (Article 3 together with Article 12).
Another concern is the de facto impunity for police harassment, which may also be counterproductive for public health. For, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} “policies that prosecute violence perpetrated by police or clients, or promote proven public health standards regarding condom use and promotion of safer sex, would not only ameliorate the conditions which make sex workers particularly vulnerable to HIV infection but would facilitate their use of needed services.” In order to ensure that police misconduct is effectively investigated, Austria should adopt as legally binding the recommendations of the United Nations Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}

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