Cultural Rights (Articles 13, 15)
With respect to § 1 Article 13 the author notes that Austria did not ratify the the UNESCO Convention against Discrimination in Education and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Both ratifications would support the integration of trafficked persons (several with academic background) into Austrian society.
With regards to § 1 Article 15, there are negative spill-over effects of prostitution laws to another disadvantaged social group: Prostitution laws ignore that many persons with disabilities need enabling conditions to develop their sexual life. If their social contacts are restricted (e.g. due to immobility), they may not be able to develop their sexual self without the aid of sexual assistants. However, if sexual assistants would visit them, in several provinces this would be illegal prostitution. For, in the province of Vorarlberg, sex work is prohibited altogether; in other provinces (e.g. Tyrol) sex work is confined to brothels and prohibited elsewhere. Thereby, de facto persons with disabilities are denied sexual autonomy. This violates the positive obligation of states to support persons with disabilities in this respect under § 1 Article 15 (General Comment 5/1994 at §§ 37 ff). Already Rule 9 of the United Nations’ Standard Rules of 1993 on the Equalization of Opportunities for Persons with Disabilities asks states to give persons with disabilities the opportunity to develop sexual life.
A specific problem arises for persons with disabilities, who are under guardianship. The author acknowledges that for persons incapable of exercising sexual autonomy special measures are to be taken to protect their rights and interests. However, persons with disabilities should be protected from paternalistic approaches, which restrict their autonomy despite their capacity of exercising it. For, although they may have problems in organizing their finances, they may very well make their own informed decisions about their sexual life. However, their guardians may impose their own moral convictions upon their wards and deny them access to their own money for the purchase of sexual services. Austria does not provide remedies against such a denial of sexual autonomy.
Another problem concerns sex work of persons under guardianship. Some provinces (e.g. Upper Austria) want protect them against sexual exploitation and prohibit registration of persons with disabilities for sex work, if they are under guardianship. This prohibition does not make exceptions for persons, who have the mental capacity to make decisions about their sexual life. Yet, if these persons nevertheless practice sex work, the alleged “protection” turns against them: They are fined under the Administrative Penal Act, rather than supported as potential victims of sexual exploitation.
Recommendations
Austrian policies towards voluntary sex work should change in agreement with the international consensus that sex workers and other marginalized populations should not be stigmatized and denied the protection of the law. The author therefore recommends that Austria uses the United Nations Human Rights Based Approach and revises at all levels the legal regulations related to sex work accordingly. Respect for the human rights of women in sex work needs to become a founding principle of Austrian prostitution policies.
To this end, Austria needs to repeal all laws that de facto criminalize sex work, implicate its immorality or in any other way do not respect the sexual autonomy of women. In particular the obligation to register as a prostitute, undergo regular health checks and HIV tests violates the dignity of women and needs to be revoked. Instead, Austria should more vigorously address the crimes of sexual exploitation and trafficking, and provide adequate redress for victims, regardless of their residency status. In the regulation of commercial prostitution, the focus should be on the empowerment of sex workers to reduce their vulnerabilities. Thereby, sex work that is visible to the public might be regulated, but not through policing that leads to de facto criminalization. Sex work that is invisible to the public should be respected as private life, whereby safeguards against unlawful police intrusions are needed.
Austria should also reconsider the current interpretation of Article 9 Federal Constitutional Law and allow that all ratified international human rights agreements, including this Covenant, become part of the domestic legislation, and that individuals may directly invoke the provisions of these agreements before national courts.
Approved by Sex-Worker Forum of Vienna
Christian Knappik, executive manager, Sex-Worker Forum
Verein: Sexworker Forum, ZVR-Zahl 699583522, Pannaschgasse 5-7/14, A-1050 Wien, Austria
Aoife Nic Seáin O’Neill, public relations officer, Sex-Worker Forum, admina_aoife@sexworker.at
© Sexworker Forum Wien, 2013
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