Key Benefits:
(Plenary Assembly - 22 May 2014)
1. On December 4, 2013, the National Assembly adopted on first reading a bill strengthening the fight against the prostitution system (1). This text, which received the support of the Government, is presented as the culmination of an in-depth work on the issue of prostitution carried out in particular by the information mission on prostitution in France. This mission, formed within the National Assembly's Law Commission, issued a report in April 2011 entitled "Prostitution: the requirement of accountability. To finish with the oldest trade in the world" (2). This work led to the unanimous adoption by the Assembly on 6 December 2011 of a resolution reaffirming France's abolitionist position on prostitution (3). Following this resolution, two parliamentary reports based on separate logics were adopted in the fall of 2013, one written by the delegation to the rights of women of the same Assembly on "the strengthening of the fight against the prostitution system" (4); the other from the Senate on "the health and social situation of prostitutes: reversing their eyes" (5). As it appears from its title and its statement of reasons, the bill adopted by the National Assembly, which should be debated in the Senate before the summer, is in line with the first of these two reports, namely the fight against prostitution; a prostitution apprehended as part of a system in which it is intrinsically linked to the trafficking and exploitation of human beings.
2. In the context of its mission to protect fundamental rights and freedoms, the National Commission for Human Rights (CNCDH) has found it necessary to self-study this bill, which aims to combat the trafficking and exploitation of human beings, as they are the cause of human rights violations among the most serious. With a view to the fight against this scourge, the CNCDH – which has already, following a major study conducted in 2009 on this subject, drafted a rich opinion of 94 recommendations (6) ― welcomes a number of advances in the proposed legislation, including the prevention and control of trafficking and exploitation and the care of victims. It regrets, however, that some of these advances remain limited and recommends, after a long reflection enriched by the hearings of many actors in the field, the abandonment of certain provisions. She also intends to contribute, in her opinion, to enlightening the debate and to appease it, because as the Senate noted in its above-mentioned report, "there are few issues that raise as many controversies and passions as that of prostitution. Everyone seems to have a specific idea, either to condemn it as a violence against women, or to defend it as a translation of the free disposition of the human body. Because it refers to two taboo subjects among all that are sexuality and money, prostitution provokes both rejection and fascination reactions that seem to prevent any construction of a soothed discourse that could be shared by the largest number of people." (7).
3. The statement of the grounds for the bill included the text in an abolitionist approach to prostitution, but the hearings carried out by the CNCDH showed that the abolitionist movement was far from unified, and that within it approaches could be very different (8). It is therefore necessary to be prudent in the use of terms. That is why CNCDH considers it useful to clarify the meaning attributed to abolitionist doctrine in relation to prohibitionist and regulatory doctrines:
– Prohibitionism corresponds to the criminal prohibition of prostitution, its definition as an offence and thus to the sanction of all its actors (the client, the prostitute person, the eventual offend). Its purpose is to eradicate prostitution;
– Regulationism is based on the existence of a legal and/or administrative regulation of prostitution. The exercise of this activity is subject to a number of conditions under which compliance is controlled by the public authorities (registration requirement on a health and social file, regular health examinations, limited exercise at specific locations, etc.) (9);
– Abolitionism originally targets the abolition of the regulatory regime. "It is to remove any form of intervention by the public power in the course of prostitution" (10) (11). The CNCDH notes, however, that the very definition of abolitionism is subject to debate. These debates find their source in the ambiguity of the term "Abolitionism" and are explained by the history of the abolitionist movement. Born at the end of the 19th century in England, the aim of this movement was to put an end to the corpus of rules that helped to enclose prostitutes (houses closed, health card, police files, etc.). But from that time on, debates have emerged in her womb on what should be the long-term objective: the abolition of regulations, leaving open to prostitution without coercion, or the abolition of prostitution itself, in order to protect people from the "scourge" it constitutes (12).
At the end of these definitions, themselves subject to debate within the CNCDH, the bill proposal, which introduces repressive measures (prohibition of the purchase of a sexual act, penalization of the clients of prostitutes) and aims at the suppression of prostitution, seems to be inscribed in a more prohibitionist than abolitionist logic.
4. CNCDH reviewed the proposed legislation by addressing the complexity and diversity of prostitution, exploitation and trafficking phenomena. If it appears that the use of repression must be limited to the exploitation of prostitution of others and trafficking for that purpose, as well as to the prostitution of minors and vulnerable persons, it welcomes, on the other hand, the social aspect of the bill's proposal, which tends to provide adequate support to every person who is a prostitute who guarantees the enjoyment of the rights recognized to all. It therefore intends to distinguish the repressive part of the bill (I) from its social component (II).
I. - Repressive component
5. In France, the fight against trafficking and exploitation of human beings is often considered primarily in the context of prostitution and violence against women. The bill does not derogate from this approach. It is part of the fight against violence against women and, more broadly, the promotion of equality between men and women. Combining the issues of human trafficking in general, exploitation of prostitution and prostitution as such, it considers prostitution as a homogeneous phenomenon. It is also based on the assumption that any form of prostitution violates human dignity and constitutes violence against women and poor people and exploitation of the weakest (13).
6. However, prostitution is heterogeneous and more particularly difficult to understand. It covers a wide range of social practices, of which no one knows the extent, the exact limits, or diversity. Prostitution can be "traditional", street or indoor, feminine, masculine or transgender, regular or occasional, etc. This heterogeneity testifies to the fact that there is no "state of prostitution", but "prostitution situations". It is therefore necessary to talk about prostitutes and not prostitution. Moreover, "the examination of the diversity of prostitution situations reveals very varying degrees in coercion or on the contrary in freedom" (14). This gradation between coercion and freedom cannot be ignored because it is translated in a concrete way in terms of practices, health risks, violence, and vulnerability. It therefore excludes that it is referred to as a "prostitutional system" to describe in a comprehensive manner the situation of prostitutes. On the other hand, there is a system, but it is a system of exploitation and trafficking for this purpose, which affects all human activities and is the result of organized individuals or groups, including very powerful mafia networks, nationally or internationally. In this regard, the CNCDH intends to recall that exploitation and trafficking are not the proper practice of prostitution and affect all sectors of activity (15).
7. CNCDH is of the view that, based on, inter alia, the reports of the Senate and the general inspection of social affairs (IGAS) (16), the legislative text must take into account this complexity and diversity of prostitution situations in order to provide the most appropriate responses. Such an approach leads to distinguishing, on the one hand, prostitution as such (legal activity in France, subject to respect for public order and the exception of the use of prostitution of minors and vulnerable persons) and, on the other hand, the exploitation of prostitution of others and the trafficking to that end, activities that are heavily penalized both at the national and international level. Accordingly, it is necessary to examine successively the provisions of the proposed law relating to the criminal punishment of trafficking and exploitation (A), and those relating to the criminal suppression of prostitution (B).
A. ― Criminal repression of trafficking and exploitation
8. CNCDH welcomes the legislator's intention to adapt the legal framework for the fight against trafficking and exploitation to recent developments in this type of crime. In the face of the expansion of networks of trafficking, exploitation and procuring on the internet, the bill proposes to strengthen the means of combating these phenomena on the internet. Article 1, paragraph 1, thus tends to involve more actors in the internet, including website hosts and internet providers in this struggle. They must now put in place a device that allows anyone to bring to their knowledge the offences related to trafficking in human beings and to proxiety on the Internet, promptly inform the competent public authorities and make public the means they are dedicated to combating these illicit activities (17). Paragraph 2 of Article 1 further provided that websites hosted abroad, contravening the French law against procuring and trafficking in human beings, may be blocked by Internet service providers upon request by the judicial authority. However, the National Digital Council (CNN) considered that this provision was "infringing on freedom of expression and communication" and that, in addition, the institution of an electronic address filtering device by the administrative authority was "a measure whose adoption would be counterproductive, without even meeting the objectives set by the proposed legislation". According to the CNN, the Government and the legislature have ruled out this provision. While the CNCDH understands the difficulties identified by the CNN, it nevertheless invites the legislator to reflect on the implementation of a new system that, without disproportionately harming freedom of expression and communication, would be able to report, block access and search for the authors of illicit content related to human trafficking and exploitation.
9. The CNCDH also regrets that the proposed legislation does not address the issue of the legal framework for trafficking and exploitation more widely, although the law of 5 August 2013 on various provisions of adaptation in the field of justice in accordance with European Union law and the international commitments of France has already introduced new elements of the definition of trafficking and exploitation offences and has allowed for the coherence of the repression of exploitation and exploitation.
10. Certainly, this law reinforces the fight against trafficking in human beings, now defined as "the recruitment of a person, the transport, transfer, shelter or welcome of a person" for various purposes of operation and in various circumstances (art. 225-4-1 of the Criminal Code). It further broadens the material element of the offence (18) by adding to the search for profit, which had previously been the only component of the trafficking, new hypotheses do not refer to mercantile behaviour (traint, violence, abuse of authority, abuse of vulnerability, minority...), which previously were aggravating circumstances. The operating objectives pursued by the author were also extended by the new law (19). If the criminal field has been significantly expanded, however, ambiguity persists in the definition of the moral element of the offence (20), with respect to the subject matter of the knowledge of the draft trafficking or exploitation by the person performing one of the operations listed in the Act (21). This inaccuracy is a problem with the quality requirement of the law arising from the constitutional principle of criminal legality.
11. In addition, the CNCDH notes that the offence of trafficking in human beings raises a conflict of qualification with that of procuring (22). Even if the circulars of the Ministry of Justice (23) recall that it is appropriate, in cases of trafficking and exploitation, to prosecute the individuals concerned for both trafficking and procuring, the hearings showed that the provisions relating to procuring remain privileged because they are less demanding in terms of evidence, result in equivalent sanctions and allow for the closure of the investigation more quickly, and thus to stop the crime more quickly, While the CNCDH can understand the concern for efficiency and speed that presides over the selection of qualifications that base prosecutions, it considers, however, that, in the light of the seriousness of the behaviour in question, on behalf of the principle of the highest criminal expression, it is appropriate to choose, as a priority, the qualification of trafficking.
12. The Act of 5 August 2013 identifies and then specifies the concept of exploitation and the circumstances under which it falls. The exploitation is thus the subject of a definition, based on facts whose purposes represent forms of use of others without their consent, to which the reduction in slavery, the reduction in servitude, forced labour and the removal of organs come. The law therefore introduced a clearer distinction between behaviour (recruit, transport...), the means used that was expanded (threats, promises of remuneration...) and the purpose pursued (operating a person, that is, having it in order to compel it to do different things). In this regard, the CNCDH notes that the law, by focusing on the gradation approach adopted by the jurisprudence of the European Court of Human Rights (24), gives coherence to the repression of exploitation, and defines it in a clear and precise manner. A hierarchy is introduced between the various forms of exploitation, the three degrees of which are the reduction in slavery, servitude and forced labour (25).
13. The CNCDH further notes that the diversity of penalties currently being imposed by the perpetrators of trafficking and exploitation does not allow respect for the principle of criminal legality or equality. Due to the use of "relaying offences" (26) providing their perpetrators with sentences of two months in prison for life imprisonment, the penalty for trafficking or exploitation is particularly unpredictable. It may also vary, even though similar facts have been committed, depending on the incrimination finally chosen.
14. In addition, the seriousness of the acts of trafficking and exploitation requires that investigations be immediately and systematically opened, without depending on the statement or denunciation of a victim, especially when a victim is a minor. Such recommendations should be addressed to prosecutors with force. In order to harmonize the repression of trafficking and exploitation throughout the territory, CNCDH therefore recommends that a criminal policy be defined in this regard, with emphasis on its priority. In the face of a complex phenomenon with still poorly defined contours, the awareness and training of police officers, gendarmes and magistrates is essential to the effective implementation of internal criminal provisions.
15. In addition, in order to measure the action of law enforcement agencies and justice in relation to trafficking and exploitation, but also to enable them to adapt to the evolutions of the phenomenon, CNCDH recommends that each year:
- the identification of the facts found, prosecuted and convicted, regardless of the form of trafficking or exploitation, and in the form in question;
- the collection of information relating to the profile of authors (sex, age, nationality, etc.) and the methods used by them;
- the quantitative and qualitative analysis of all of these data.
16. CNCDH also recommends a strengthening of the fight against trafficking and exploitation of minors. The bill remains silent in this matter. Yet, real attention is required to the treatment of offences committed against them; CNCDH recalls in this regard that the minority of victims is not always held in the qualification of offences of procuring (27). Investigations must be thorough, as situations are complex and can cover several offences. A minor victim of trafficking and exploitation, especially in the case of exploitation and use of prostitution, must be systematically considered as a victim and accompanied so that he can be represented throughout the proceedings. Offences should not be corrected when criminal acts were committed. It is important to ensure that police and judicial practices are harmonized across the territory. More generally, the CNCDH notes the observation made by IGAS (28) of the very low investment of the public authorities in this fight against prostitution and child prostitution. Political will must therefore be strengthened so that there is no half-measure in taking these minors into account. Training of professional investigators, social workers, magistrates, medical teams, and public awareness of the criminalization of clients of minors who are victims of prostitution is urgent and necessary. There is also the question of the care of these minors, who must be able to benefit from structures adapted and supervised by specially trained professionals.
17. Finally, the CNCDH recalls that the fight against trafficking and exploitation can only be effective if the phenomenon is understood in its entirety. However, the bill, because it assimilates prostitution, exploitation of prostitution and trafficking in human beings, apprehends the fight against trafficking and exploitation from the sole angle of prostitution (by forgetting other forms of exploitation, such as forced labour). In 2001 already, the information mission on the various forms of modern slavery invited not to isolate prostitution from other forms of slavery (29). Similarly, the Group of Experts on the Fight against Trafficking in Human Beings (GRETA), in its first 2013 report on France (30), "remembers the importance of covering all types of trafficking, especially for the purposes of exploitation by work (e.g. in seasonal work, construction or domestic work)". The CNCDH therefore recommends, on behalf of the intelligibility and authority of the criminal mechanism to combat trafficking and exploitation, to confer on it a general character rather than to create a specific right to exploitation of prostitution and trafficking for that purpose. It calls on the legislature to broaden the scope of the bill to strengthen the fight against trafficking and exploitation of human beings in all their forms. With regard to forms of sexual exploitation, she reiterates her recommendation to make sexuality an aggravating circumstance of exploitation and trafficking, because of the additional physical and moral damage that this form of exploitation may result. In this regard, the adoption by the Council of Ministers of 14 May 2014 of a national action plan against trafficking in human beings (2014-2016), which lays the foundations for a genuine public policy to combat human trafficking in all forms of exploitation, must be welcomed. This plan provides for an evaluation of this public policy and the drafting of a periodic public report by an independent national rapporteur, who have been entrusted to the CNCDH. The CNCDH hopes that it will be able to benefit from all the necessary means to carry out these missions.
B. ― Criminal punishment of prostitution: the suppression of the offence of schooling
and the criminalization of the purchase of sexual acts
18. CNCDH welcomes the repeal of the offence of public bonding, whether active or passive, which placed victims of trafficking and exploitation in the context or through prostitution in a crime situation. Threatened by prosecution, victims of trafficking or exploitation of prostitution are still suffering secondary harm and are challenged by law enforcement agencies that could help them. In addition, the offence of passive public bonding, introduced by the Internal Security Act of 18 March 2003, reflected a desire to combat the visibility of prostitution on the public road. This political evolution, coupled with technical developments (31), undoubtedly contributed to the development of other forms of prostitution, which are described as indoor, less visible, but which place prostitutes in a greater vulnerability. As several associations heard by the CNCDH have revealed, this tendency to "invisibility" or to less visibility, prostitution has contributed to the deterioration of the health status of prostitutes and the conditions of their activity. She has increased the relegation and isolation of prostitutes because of the clandestinity she has induced, and has made them more vulnerable to violence.
19. Sections 16 and 17 of the Bill are intended to prohibit and punish the purchase of a sexual act; CNCDH considers that they pose a problem to more than one title. The requirement of accountability of clients of prostitution and the expressive and pedagogical functions of the criminal law are arguments that can be advanced in favour of the prohibition of the purchase of a sexual act and the criminalization of clients of prostitutes (32). However, the criminalization of the client will necessarily have an impact on the prostitute, since the prohibited act requires a partner engaged in prostitution. Thus, even if it is the client who is penalized and not the person who prostitutes, these provisions indirectly tend to consider prostitution as an illegal activity.
20. The CNCDH also wonders about the choice of legislators to base their struggle against prostitution on the principle of dignity, without taking the precautions of reading it, and especially since the hearings it conducted show how the issue is divided. In this regard, she recalls that the various work of the Constitutional Council (33), the Council of State (34) or the Committee entrusted in 2009 to reflect on the rewriting of the Preamble to the 1958 Constitution (35) underline, beyond the eminent nature of this principle, its ambivalence. In the clearest way, the Council of State refers to "two conceptions of dignity that may potentially oppose or limit one another: that of the collective moral requirement of safeguarding dignity, if any, at the expense of the free will of the person (which finds a jurisprudential translation in the Morsang-sur-Orge decision) and that of the protection of free will as a consubstantial element). For its part, the European Court of Human Rights considers that there is no incompatibility between dignity and prostitution, provided that it is not exercised under coercion (37).
21. The bill also addresses the issue of prostitution through the prism of equality between women and men: because it is a sexual act imposed by money and financial coercion, prostitution would in itself be a violence against women and an obstacle to equality. The CNCDH first notes that the diversification of prostitution situations (feminine, masculine and transgender) makes it difficult to invoke the principle of equality. Secondly, it observes that the law on trafficking and exploitation, the repression of the use of prostitution of minors or particularly vulnerable persons, the law on rape... are all legal means already allowing to punish the forms of forced prostitution and the violence that then occurs.
22. The relevance of the provision to penalize the customer seems more questionable as it may be counterproductive. Indeed, the penalization of clients would in fact relegate prostitutes to more remote and more dangerous places. The "negotiation" power with customers and the choice of the client would be diminished; Medico-social actors would have more difficulty accessing people. There is also a risk of greater defiance of law enforcement forces and therefore a less reflex to resort to it in the event of violence suffered, which would in fact constitute a decline in law. This paradoxical benevolence would therefore lead to bypassing strategies that would not without serious impact on the health and rights of prostitutes (38).
23. Indeed, rather than establishing a new repressive instrument, it would be better to question the scarcity of prosecutions and convictions in cases of recourse to a minor's prostitution. In fact, the CNCDH's hearings indicate that the special offence of the use of prostitution of any minor by any person ( irrespective of age) (39) is almost not held by the courts and that the number of convictions is anecdotal. Even in the event of investigations into acts of procuring on minors, after long observations and the identification of many clients, only the offspring of adolescent victims of prostitution are prosecuted; Customers are only exceptionally. Moreover, the associations note that, in most cases, when adolescents in prostitution are apprehended by the police or cared for by social services (SAS), they are often treated as offenders by some investigators. However, without acknowledging their situation as a victim of prostitution, these minors may engage in prostitution. CNCDH is of the view that criminal policy must place at the heart of its priorities the prosecution of juvenile clients.
24. The criminalization of clients, which is difficult to implement, may have no impact on visible prostitution, street prostitution, and not on other forms of exploitation of prostitution. It will undoubtedly help to accentuate the development of other forms of prostitution, known as indoor prostitution. Yet this "invisible" prostitution is more moving or even elusive. As a result, victims of these forms of exploitation are less accessible to associations and public authorities, the problem of their care and support. In addition, in a Europe with heterogeneous legislation, the criminalization of customers may push them back to the borders (cf. what happens at the Franco-Spanish border, at the Junquera, or what happens in the Danish territorial waters, between Sweden and Denmark).
25. It is also possible to question more broadly about the coherence of the scheme: if the aim is to enrol prostitution in the field of violence and harm to the dignity of the person, why is the new offence of recourse to prostitution considered only as a minor disorder to public order, punishable by a fifth class violation? In addition, what about the symbolism of the criminal law if, beyond the uncertainty over the effectiveness of its implementation, the prohibition is discredited by the weakness of the penalty that accompanies it? Finally, the effectiveness of the repression will involve the establishment of surveillance devices, whose necessary generalization will obviously contradict the requirements of a free society.
II. - Social Component: accompaniment and access to rights
26. In the preamble to this chapter on the care of prostitutes, the CNCDH wishes to recall that it is impossible in the current state of the statistical data to accurately assess not only the number of persons in prostitution in France, but also the proportion of those who are victims of exploitation of prostitution or trafficking for that purpose. Indeed, the various actors agree to deplore the almost total lack of public data on the conditions of exercise as well as on the health and social situation of prostitutes (40).
27. The Homeland Security Act of March 18, 2003 provided in section 52 for a report to be sent annually to Parliament on the subject. In practice, it was published only once and, in the absence of a sufficiently substantiated expertise, could only propose a very limited analysis of scope. Only one recent survey, that of IGAS, provides a relatively comprehensive overview of the health status of persons who prostitute (41). However, a finding shared by all the actors in the demographic, health and social situation of prostitutes is the first and indispensable step in setting up smart policies in this area (42). As such, the CNCDH regrets that the bill does not contain any provision relating to quantitative and qualitative studies or to the development of academic research to understand the evolution of prostitution and sexual exploitation in France as well as to trafficking in persons.
28. If findings can be made, they cannot be encrypted precisely. However, a consensus is reached: the vast majority of people in prostitution are particularly vulnerable to exploitation or trafficking, especially migrants, when in precarious administrative situations. Everyone also agrees that the so-called "traditional" prostitution is declining, while prostitution organized and managed by trafficking networks has developed considerably, to the point of forming the largely majority form of prostitution today in France.
A. ― Accompanying victims of trafficking and exploitation
29. The CNCDH welcomes the willingness of the legislator to make the issue of protection and care for victims of trafficking and exploitation of prostitution the core of the bill. A number of proposals that constitute real progress should be noted (43). This is how:
- the inclusion of trafficking and procuring offences in the list of offences that open the right to compensation by the Offences Compensation Commission (CIVI), subject to the requirement that foreigners be in a regular situation (infra 36) (art. 706-3 of the Code of Criminal Procedure) a measure that promotes fair reparation for the damages they have suffered and that is beyond an important springboard for reintegration;
- the inclusion of provisions relating to anonymity, accommodation, the possibility of using a borrowing identity to better protect victims during the course of judicial proceedings;
- the possibility for foreign persons who are victims of prostitution to obtain a residence permit without condition of denunciation of the exploiters;
―the creation of a new forum, in the departmental councils for the prevention of crime, "to organize and coordinate action for victims of prostitution and trafficking". This multi-party proceeding, under the authority of the prefect and the prosecutor, will, among other things, seek and receive persons in danger of exploitation of prostitution, provide the assistance they may need and carry out any medical-social action in favour of persons in situations of prostitution. The CNCDH hopes that this new system, in close proximity, will allow equal access to assistance and rights throughout the territory, and recommends in this regard to evaluate the existing system beforehand;
― the setting up of a course to accompany victims of the exploitation of prostitution and trafficking. This course should allow them to benefit from a system of protection, accommodation and social support to build a project to exit prostitution and promote their socio-professional integration.
30. However, the CNCDH wishes to point out that some measures seem problematic in respect of fundamental rights. In 2009, the CNCDH had highlighted three main principles that must preside over the establishment of any measures to protect or assist victims:
non-discrimination;
the effective right to justice;
the right of victims to recovery in their economic and social rights.
31. Under the principle of non-discrimination, there should be no difference in treatment between victims of trafficking and exploitation and victims of other offences. However, it is noted in the bill that for victims of the exploitation of prostitution, the granting of certain rights is conditional on the cessation of prostitution. Thus, section 3 of the Bill provides for the repeal of theArticle 42 of Act No. 2003-239 of 18 March 2003 for internal security (44), which had the general obligation to protect and assist the State in favour of all victims of exploitation without condition; however, this assistance is now conditioned by the release of prostitution. At the State's obligation to attend and protect, the bill replaces the obligation of "victims of prostitution" to cease prostitution if they want to benefit from such assistance or protection. Similarly, with respect to the right to stay, the proposed new article L. 316-1-1 of the CESEDA provides for a temporary residence permit conditioned on the cessation of prostitution. More broadly, the bill provides for the granting of social rights, including accommodation, health, resources, the exit of prostitution and the signing of a tripartite convention with the administration and an association. CNCDH cannot endorse such provisions, which are contrary to the principle of equal access to rights. Moreover, the implementation of these provisions seems at least random in the face of the difficulties of all kinds (economic, social, professional) that people who wish to leave prostitution encounter. In any case, to offer them real alternatives, a strengthening of the means allocated to accompaniment is necessary. The CNCDH recommends the suppression of the notion of "outward journey", which implies that the outwarding of prostitution could go through predefined stages, which does not take into account individual situations: each person, according to his or her history, his or her situation, does not have the same needs, will progress in the implementation of his or her project at his or her pace, will be able to return a time in his or her prostitution activity, without questioning the reality of his or her career. It is therefore a question of proposing a "social and professional integration project", a condition for a sustainable reintegration, rather than a "output path". This project, which would highlight the individualized support dimension, would make the person accompanied by a full actor in his construction and implementation.
32. In addition, the proposal of law is based on the idea, already contained in the report of the delegation to women's rights, of an exit path that can be enjoyed by the person, as long as it is taken care of by an accredited association for this purpose. Without questioning the high-quality work that these associations can provide, the CNCDH is concerned that the criteria for accreditation will be for associations that will in fact become the forced passage for victims of trafficking and exploitation of prostitution who seek assistance. This configuration can cause some mistrust of the victims – who in fact will not have the choice of an association – vis-à-vis those organizations that have a particular connection with the public authorities. It also fears that such a provision will not have the associative offer of care for prostitutes, even though the associations are few and unevenly distributed in the territory.
33. The principle of non-discrimination also implies the absence of discrimination between the victims of exploitation and trafficking between them, depending on the forms of exploitation (sexual, domestic, forced labour...) or the situation of the victims (their sex, their age, their nationality, their regular administrative situation or not, their cooperation or not with the law enforcement authorities, etc.). However, the bill does not provide for such provisions only for victims of the exploitation of prostitution or trafficking for that purpose. Victims of other forms of exploitation or trafficking are excluded from devices. Protection and care should be extended to all victims of trafficking and exploitation, regardless of the form of exploitation.
34. With regard to the right to stay for victims of trafficking and exploitation, the regularization of their stay through the granting of a residence permit is an indispensable provision. It allows, on the one hand, to guarantee their access to justice and their recovery in their economic and social rights, on the other hand, and above all, to prevent the commission of the same facts against them. If section 6 of the proposed legislation provides for the granting of a residence permit (non-denunciation of the exploiters), it does not question the discretionary nature of the issuance of the residence permit or its short duration. Moreover, he conditioned the granting of the title of the stay at the stop of prostitution. The CNCDH therefore reiterates its recommendation (45) that every foreigner, including community nationals subject to a transitional regime (46), be free of charge, in respect of which concordant elements (circumcised recital of the person, followed by a specialized association or trade union, indices collected by the authorities or any other available element) be presumed to be a victim of trafficking or exploitation:
– a temporary residence permit of at least six months, with permission to work;
― then a temporary residence card mentions "private and family life" of one year, with permission to work, automatically renews the time it actually accesses justice and is restored in its economic and social rights.
With regard to the procedure for issuing these residence permits, the CNCDH recommends that:
• provide for a simple procedure;
- to exempt foreign victims without resources from the costs associated with the issuance of such residence permits or, at a minimum, to defer payment.
35. The CNCDH also wishes to point out that at no time the right to asylum is addressed. It is important to remember that access to the asylum procedure is a real course of the fighter for a victim of trafficking and exploitation, especially since it happens that a first "fictitious" asylum application is filed by traffickers for the victim in order to regularize his stay in France for a few months and thus facilitate his exploitation. The CNCDH, in this regard, refers to its opinions on the right of asylum (47) and its opinion on the trafficking and exploitation of human beings, in which it recalls that the request or the obtaining of a residence permit by a trafficked or exploited victim, including when it is issued in this capacity, must be without impact on its right to seek asylum and to receive the information necessary for its exercise. It further emphasizes the need to recommend to the competent asylum authorities that special vigilance be exercised in the review, under the 1951 Geneva Convention and its 1967 Protocol relating to refugee status, of the requests of aliens who are victims of trafficking or exploitation who fear persecution in the event of return to their country of origin. Finally, the CNCDH recommends that the greatest attention be paid to requests for "an asylum visa" made abroad by family members of a trafficked or exploited victim when exposed or subjected, as such, to persecution.
B. ― Access to rights and assistance to persons in prostitution
36. In addition to the implementation of a number of measures to ensure a better integration of victims of the exploitation of prostitution and trafficking for that purpose, the bill provides for the strengthening of the mechanisms for the support of persons in prostitution, whether or not they are victims of exploitation or trafficking for that purpose. These provisions must be welcomed, as they contribute to strengthening access to the rights of prostitutes:
― the creation of a special fund to contribute to the financing of the various devices, prevention and protection (art. L. 121-9 of the Code of Social Action and Families [48]). However, the issue of supply of the fund remains raised;
– the creation of a national reference document on health and risk prevention.
37. In addition, while a major action is needed to compensate for the delay in the support and follow-up of prostitutes in order to ensure their effective access to rights, prevention and care, the CNCDH regrets that the bill does not contain more provisions guaranteeing prostitutes equal rights to those of the rest of the population (49). To meet all of their needs, it is necessary to ensure, across the country, including populations that are difficult to reach or isolated, a suitable service offering including: counselling (50), provision of preventive equipment, effective access to screening, post-exposure treatment (TPE), care for sexually transmitted infections (STIs), primary health care, sexual health services, reduction of risks, and cultural support
38. With regard to the crucial role of prostitutes themselves in preventive action, community approaches should be supported by:
― strengthening community actions to promote self-organization of prostitutes;
― encouraging the management by these people of health prevention and mediation missions, and providing community programs with sufficient means to open positions of mediation, prevention and information officers;
- particularly supporting programmes targeting populations traditionally the least beneficiaries of community actions: escorts, massagers, migrant people, transgender people.
39. Regarding transgender people, the hearings showed that they were a particularly vulnerable group. The social inclusion of transgender people is made very difficult because of stigma and discrimination against them. The excessive duration of the process of gender change in civil status threatens, inter alia, their access to housing, employment and social rights. As a result, many transgender people have other solutions than the use of prostitution because it is the only economic resource they can have. As such, the CNCDH recalls its opinion of 27 June 2013 on gender identity and on the change of gender in civil status (51), and reiterates its request for demedicalization and partial diversion of the gender change procedure to the civil status, in order to reduce it, accelerate it, and thus promote their release from precariousness and social integration.
40. With regard to vulnerable persons, the CNCDH, alerted by some associations hearing about the situation of persons with disabilities (52), draws the attention of the Government to the issue of their emotional and sexual life, too often violated or denied, but also to the particular vigilance that is required with regard to the risk of their sexual exploitation and to the collection of their consent in their sexual life.
41. In addition to the advances in the proposed law on access to the rights of persons in situations of prostitution, and the suggestions here made by the CNCDH, the CNCDH wishes to emphasize the importance of measures of education and prevention, in matters of sexuality, sexual and reproductive health, of representations of the body. In that connection, she welcomed the provision in chapter III of the text, which provided for information at all stages of schooling. It recalls Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women, which provides that "States Parties shall take all appropriate measures to modify the patterns and models of sociocultural behaviour of man and woman in order to achieve the elimination of prejudices and customary practices, or of any other type, which are based on the idea of inferiority or gender
(20 votes "for", 16 votes "against", 4 abstentions.)
