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  • Writer's pictureAntonia Boorman
    • Dec 3, 2020
    • 17 min read

Full Criminalisation in Croatia [Sex Work Series]

Updated: Apr 18

[Sex Work Series] Paper 4a: Sex Work Legislation Case Studies - Full Criminalisation in Croatia An evaluative analysis of the legal approaches to sex work in Western Europe to distinguish which system best protects the human rights of sex workers.

 

Within this series, I will compare and evaluate the five different legislative approaches to sex work, as outlined below, that currently exist within Western Europe: Full Criminalisation, where sex work is completely illegal; Partial Criminalisation, where sex work is legal, but organised activities such as brothels and pimping are illegal; the Nordic Model, where it is legal to sell sex, yet it is illegal to purchase sex and for third party involvement; Legalisation, where sex work legal and regulated; and Decriminalisation, where there are no criminal penalties for conducting or purchasing sex work for citizens.


I will use case studies to examine the effects of these laws in practice in Western Europe, specifically studying the effect of sex work laws in Croatia, England, Sweden, The Netherlands, and New Zealand¹. Using the examination of each legislative approach to sex work and the respective case studies, this series aims to analyse how sex work legislation can have completely different effects in practice than what was intended, even leading to worse conditions than originally present. I aim to evaluate each of the current sex work legislative approaches in an effort to see which, if any, protects the human rights of sex workers as intended. Until a better society can be achieved where sex work isn’t a go-to industry for the economically vulnerable, and just another industry for consenting adults, the legislation surrounding should protect those in the sex work industry. This series argues that sex work should be completely decriminalised across Western Europe as all other legislative approaches towards sex work that currently exist (Criminalisation, Legalisation, the Nordic Model and Partial Criminalisation) create harmful consequences on sex workers, while not solving the systemic problems that push people into sex work, such as poverty or discrimination.


Full Criminalisation


Full criminalisation, as present in Croatia, Russia, Kenya, and many other countries worldwide, is the complete prohibition of both the selling and buying of sex, with a deterrent of full arrest and incarceration. This approach is usually based upon religious and cultural beliefs that sex work is inherently oppressive, sinful and a violation of human dignity (Vanwesenbeeck, 2017).


For this section, I will be focusing on Croatia as a case study of full criminalisation. In Croatia, all aspects surrounding sex work are illegal; more specifically, the selling of sex (Article 12, Act on the Misdemeanours against Public Peace and Order), the buying of sex (Article 157, Criminal Code), the existence and use of brothels (Article 7, Act on the Misdemeanours against Public Peace and Order), advertising and solicitation (Article 157, Criminal Code), and any third-party involvement ie pimping (Article 157, Criminal Code). In Croatia, the punishment for sex work is a significant fine of $1,700 (Radosavljevic, 2012) or 30 days to five years imprisonment with a criminal record (Article 12, Act on the Misdemeanours against Public Peace and Order). There are few studies on sex work in Croatia due to its illegality. Croatian academics claim it to be “under-theorised and under-researched” (Radačić & Pajnik, 2017, p. 16) as sex workers are reluctant to be included in studies or surveys as it is seen as a trap to identification, and thus arrest and incarceration. Due to this lack of research, legislation surrounding sex work in Croatia is based more on ideological stance than empirical evidence (Radačić & Pajnik, 2017).


Despite the criminalisation of sex work in Croatia, sex work is practiced very widely (Overs, 2019), meaning that banning sex work doesn’t have the intended effect of eradicating sex work. Instead, it just creates a system where sex workers lack the protection of the law. It doesn’t combat the economic, political or social problems causing people to go into sex work and instead just punishes those who must conduct it. For example, if a sex worker is abused, denied payment, or exploited by a pimp, they cannot report it to the authorities as instead they will just face prosecution themselves. According to a study interviewing sex workers on the impacts of sex work legislation in Croatia (Radačić & Pajnik, 2017), the most commonly cited problem among sex workers was the inability to report violence due to the criminalisation model (Radačić & Pajnik, 2017). This, combined with an intense stigma surrounding sex workers and their practice, allows for sex workers to become the perfect targets for abusers. They become victims who cannot report the perpetrators. Through this forced silence, criminalisation laws protect the perpetrators rather than the victims which ends up encouraging violence towards sex workers. Furthermore, by criminalising sex workers this causes fear among sex trafficking victims, as similarly if they report their circumstances to the police they risk imprisonment for conducting sex work. Within a system of criminalisation, the prosecution has been prioritised over protection.


The Global Network of Sex Work Projects (NSWP) complied 86 qualitative and quantitative research studies² comparing criminalisation in multiple countries to get a more comprehensive understanding of how criminalisation affects sex workers’ safety, sexual and emotional health, and access to health and social care services (NSWP, 2018). The NSWP identifies three distinct phases of criminalisation: phase one concerned the surveillance and policing of sex workers prior to arrest; phase two involved the arrest, court involvement, and incarceration; and phase three was the release back into society after a prison sentence (NSWP, 2018). Splitting the process of criminalisation into three distinct parts created a framework to analyse the effect of criminalisation on sex workers, which I will directly apply to the case study of Croatia. These phases can overlap such as the continued surveillance and policing of sex workers after they have been sentenced and return to society (NSWP, 2018).


Within phase one, the surveillance and risk of arrest can affect the mental health of sex workers, increasing fear, anxiety, and post-traumatic stress disorder (NSWP, 2018). Safety and physical health are also at risk. Due to the nature of the work requiring vulnerability and privacy, this can put sex workers at risk, so as expected, they have safety strategies to protect themselves such as working collectively to protect each other (Mac & Smith, 2018). However, in Croatia “allowing for one’s premises to be used for prostitution” (Article 7, Act on the Misdemeanours against Public Peace and Order) or “enabling or helping another to engage in prostitution” (Article 175, Criminal Code) is illegal. This means that a sex worker cannot work in the safety of her home or work in numbers with friends for protection. Advertising through a third party, ie. newspaper, online, etc, is illegal (Article 175, Criminal Code) meaning that street solicitation becomes the only option to get clients. Street solicitation is also illegal, but it is less traceable so it is widely practiced (Overs, 2019). These laws increase a sex worker’s vulnerability as she must be alone, on the street, in secretive places where she is unlikely to be caught but is also far more at risk for violence. Due to not wanting to get caught to be criminalised and face further fees, sex workers must work in hidden secretive places where they are also vulnerable to attack, rape, and murder. Sex workers still need to attract clients to make the money they need, which makes street solicitation a last but necessary resort. To remain less traceable and avoid arrest, a sex worker must put herself in more dangerous situations, without the knowledge that she will be protected under the law. Not only is there a lack of protection for sex workers under a system with criminalisation, but this system actively makes it more dangerous for sex workers to conduct sex work.


Criminalisation affects physical health as well as mental health. Sex workers are at high risk of sexually transmitted infection (STI) and HIV/AIDS, yet rarely have access to the preventative and treatment services necessary due to criminalisation (Alexander, 2001). Criminalisation can lead to the targeting of sex workers for violence, police brutality, and the reinforcement of negative stigma associated with sex workers. These factors contribute to a higher risk of STIs and HIV/AIDS. Possession of condoms is frequently used as evidence to arrest and prosecute sex workers (Open Society Foundations, 2012) even though carrying condoms is perfectly legal. This deters sex workers from carrying condoms due to fear of arrest, increasing condom-less sex and the risk of STIs and HIV/AIDS (NSWP, 2018). Additionally, the illegal nature of solicitation means that it leaves little time to screen clients or negotiate aspects like prices and/or condom use before getting in a stranger’s car, they need to be quick to avoid detection and arrest, meaning that sex workers are forced to take dangerous risks with strangers. This leads to increased pressure to have condom-less sex and increases the risk of contracting STIs and HIV/AIDS (Shannon et al., 2009).


The stigma surrounding sex work is present in health and social services where sex workers may be subject to dismal, refusal for treatment, identification as a sex worker and reporting to the authorities (Alexander, 2001). This deters sex workers from seeking preventative services and treatment (Alexander, 2001). Research analysing the determinants of the global epidemiology of HIV among female sex workers (Shannon et al., 2015) found that violence directed towards sex workers, occurring in the form of sexual violence, is “among the most ubiquitous and influential determinants of HIV acquisition and transmission risk” for sex workers (Shannon et al., 2015, p. 5). Due to the risks needed to be taken and increased vulnerability caused by criminalisation, sex workers commonly raped, which is frequently condom-less, increasing STIs and HIV/AIDS spread (NSWP, 2018). Furthermore, the increased risk of STIs and HIV/AIDS for sex workers reinforces the negative stereotype of the sex worker as dirty and disease-ridden (Mac & Smith, 2018). The NSWP reported that “HIV-positive sex workers in our region are marginalised, stigmatised, regularly subjected to sexual violence, assault and battery in the course of their work, and their life” (NSWP, 2018, p. 8) and that HIV-positive sex workers may be doubly criminalised through discriminatory laws that lead to longer prison sentences (NSWP, 2018).


This violence against sex workers can be seen as present in Croatia. From a survey examining the experiences of sex workers in Croatia, conducted in Split in 2008, 66% of sex workers respectively had experienced physical abuse from clients and 75% had experienced sexual abuse from clients in the previous year (Wagennar and Altink, 2012). The survey was replicated in Zagreb, where similar results arose with 46% of sex workers reporting physical abuse and 87% of workers reporting sexual abuse from clients in the past year (Wagennar and Altink, 2012). Three years proceeding, sex workers were surveyed again to find similar results. 61% of sex workers reported being physically abused by a person who was not their client and 52.5% reporting rape from men who were not their clients (Wagennar and Altink, 2012). Within the same survey, 14% were diagnosed with an STI, which rose to 24.2% when surveyed again a month later (Wagennar and Altink, 2012). The results of this survey show the predominance of violence against sex workers specifically in Croatia.


Criminalisation creates a problematic power dynamic between the police and sex workers which allows for many police workers to abuse sex workers. The fear of arrest, and the negative effects that come with it, coerces sex workers into a situation where they try to avoid arrest at all costs. Police officers abuse this by using the threat of arrest to demand sex, rape or use violence towards sex workers (NSWP, 2018). Sex workers become targets for sexual or physical violence from police officers as they are less likely to report the abuse (NSWP, 2018). Reporting the abuse could result in their incarceration through the criminalisation legal system. This creates a feedback loop of targeting and non-reporting where sex workers are continually abused and cannot seek justice through the legal system or help through social services due to the associated stigma (NSWP, 2018). The violence against sex workers conducted by police is allowed for by criminalisation which propagates this feedback loop and reinforces the stigma. This is further seen in phase two during incarceration, where sex workers are treated as criminals rather than victims of sexual assault (NSWP, 2018). The acceptance of criminalisation laws, therefore, is also the acceptance of the abuse against sex workers.


Examining phase three, the release back into society after a prison sentence, requires looking at the stigma directed towards sex workers in Croatia. Sex work in Croatia is considered a “social evil” (Radačić & Pajnik, 2017, p. 188) and a “danger to the well-being of the public” (Radačić & Pajnik, 2017, p. 188). This, combined with the religious views of predominantly conservative Catholic society, has created a negative stigma towards sex workers in Croatia (Jovović, 2019).

The intent of the criminalisation of sex work in Croatia is to reduce sex work from happening until it is completely eradicated. However, it is this very stigma against sex workers that ends up creating more sex work. The stigma influences full criminalisation laws to be implemented to eradicate sex work, yet in practice, if a sex worker is incarcerated then they will have a criminal record and will be identified as a sex worker which will negatively impact their hire-ability in other industries due to the taboo and stigma surrounding both sex work and convicts in Croatia (Overs, 2019). This means that again they will be forced back into sex work to gain an income as they will not have access to other forms of formal employment. Alongside the incarceration, within the criminalisation laws in Croatia, hefty fines of $1,700 (Radosavljevic, 2012) exist putting sex workers, who are usually pursuing sex work for reasons of economic need, in further poverty, meaning they have to do more sex work to repay the fines. These punishments, in conjunction with the stigma that fuels them, which were designed to deter sex work from happening thus actually result in a reinforcing feedback loop creating more poverty and more sex work occurring.


To truly understand how criminalisation affects sex workers in Croatia, the opinions of sex workers must be considered. A recently conducted study in Croatia interviewed 15 sex workers and 30 of their clients on their opinions on different legislative frameworks surrounding sex work and their motivations for selling/buying sex (Jovović, 2019). The results showed poverty as the main reason for sex workers going into the industry, with a lack of other employment opportunities and flexible working hours enabling time for childcare as the next most common factor (Jovović, 2019). Many of the sex workers interviewed spoke of the risks of sex work, in terms of aggression from clients and pimps, risk of sexually transmitted diseases, and pregnancy (Jovović, 2019) yet an 80% majority cited concerns for their safety as their biggest fear in the industry (Jovović, 2019). Additionally, 100% of sex workers interviewed cited a major concern for health, both mental and physical (Jovović, 2019). Due to the informality of the industry and the need to be secretive to avoid arrest, there are no labor unions or medical insurance packages that come with the job, meaning that many sex workers, 35% of those interviewed, have no access to medical insurance (Jovović, 2019). Based on the expressed concerns, the majority of sex workers interviewed noted a preference for legalization rather than the criminalization approach that currently exists in Croatia. 35% of sex workers interviewed claim that legal measures could help “legal measures could ensure fair and loyal competition on the market, balanced prices, and protection of domestic sex workers from foreigners” as well as improving working conditions, access to health insurance, and protection under the law (Jovović, 2019, para. 7).


A comparative research analysis (Radačić & Pajnik, 2017) comparing how the sex work laws in Croatia and Slovenia affects sex workers solidifies this. This study used a combination of sex workers’ narratives from 20 interviews, public policy documents associated with the sex work laws, and an examination of sex work cases brought to court in Croatia and Slovenia over two years. These researchers were able to collect reliable data due to their respect for the sex workers’ anonymity which enhanced trust and participation. The Croatian sex workers in the study recommended law reform, in the form of decriminalisation, as an approach necessary to make their lives better (Radačić & Pajnik, 2017). Sex workers reported the urgent need to address stigmatisation (Radačić & Pajnik, 2017) present in Croatia as they stated it increased social isolation and made them more vulnerable (Radačić & Pajnik, 2017). Furthermore, the study reported recommendations of an establishment of a sex worker organisation that provided education, social service, and legal support (Radačić & Pajnik, 2017).


The reason that these restrictive laws are in place is to reduce sex work being conducted, however, criminalisation doesn’t stop sex work from happening, it just pushes it out of sight; underground, in secrecy and through the black market. Without solving the systemic reasons why sex workers pursue sex work, criminalisation will just further harm sex workers through making them easy targets for violence and abuse, making them unemployable through criminal records, and further pushing them into poverty through the hefty fines that exist.


Criminalisation forces a trade-off upon sex workers of protecting their health and safety or preserving their freedom from incarceration. An arrest can lead to worse outcomes such as more financial issues through hefty fines, lack of access to formal employment or housing through a criminal record, and increased stigma through identification as a sex worker. Therefore, sex workers are more likely to put themselves in dangerous situations, such as working in hidden locations where they could be subject to violence or working without condoms where they could be at risk of contracting an STI and HIV/AIDS, to avoid arrest (NSWP, 2018). Criminalisation laws give abusers protection to abuse sex workers through the lack of legal protection and forced silence sex workers are subjected to. This increased violence, stigmatisation, social isolation and mental and physical health issues for sex workers.


Criminalisation is often described as a “revolving-door of arrest and prosecution” (Mac & Smith 2018, p. 231) which results in more poverty and survival sex work occurring, with an increased risk for the safety of sex workers due to their enhanced vulnerability by trying to work secretively combined with stigma making them easy targets for violence, especially due to the lack of protection under the law as exemplified by the case study of Croatia. In the words of current sex workers, Juno and Molly, “the criminal status of ‘prostitute’ is thus a trap” (Mac & Smith, 2018, p. 231).


 

Footnotes

¹ There are no countries who have completely decriminalised sex work in Western Europe, therefore New Zealand will be the case study.

² From the complied data they conducted “a meta-analysis (pooling results from eligible quantitative studies)to estimate the average effect of experiencing physical/sexual violence, HIV or sexually transmitted infections (STI), and sex without a condom, for sex workers who had experienced repressive policing (arrest, imprisonment, confiscation of condoms or needle/syringes, violence from police, or displacement) compared to those who had not….” and “summarised data on emotional health, access to services, drug use and the effect of regulatory models narratively” (NSWP, 2018, p. 1).

 

References

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