Analysis Law and Policy

Advocates Fight for Sex Workers’ Contracts in Switzerland

Maddy French

Even though prostitution is legal in Switzerland, sex workers cannot rely on the courts to uphold their legitimate employment complaints.

Compared with colleagues in some of their neighboring countries, sex workers in Switzerland appear to have it quite good. Prostitution there has been legal since 1942, and the country is known today for its a fairly liberal and pragmatic approach to the industry. News of the “drive in” sex boxes installed on the streets of the country’s largest city, Zurich, to offer privacy for street prostitutes and their clients went around the world and was heralded by many (although criticized by some) as an example of a sex-friendly policy. The requirement for sex workers to pay taxes and social security contributions is another example of the integration of the industry into regular Swiss public and bureaucratic life.

But even in countries with a liberal attitude toward selling sex, issues steeped in morality tend to find a way to creep in. In Switzerland, it comes in the shape of a legislative hangover from the ’60s that blocks the legal rights of prostitutes in the courts and leaves them vulnerable to exploitation. In Switzerland, an oral agreement is legally recognized as a binding contract, just as it would be if it had been written down. Every time a sex worker agrees with a client on the price, time, and any other terms of their exchange, a contract is made.

One of the ways a contract—made by anyone—can be declared null and void is if a court decides it is immoral. This is what the Swiss Federal Court, the country’s highest court, did around 30 years ago with prostitution. So today, even though prostitution is legal, sex workers cannot rely on the courts to uphold their legitimate employment complaints.

“The advantage to having contracts would be that sex workers could go to the justice system when they say that they haven’t been paid or the price is not normal or anything like that,” explained Michel Félix de Vidas, spokesperson for Aspasie, a Swiss association representing sex workers in the country. De Vidas warns that without the confidence that they will be backed up, sex workers are left vulnerable to exploitation, even though they are working legally. “It should be based on human rights rather than morality. Here sex workers have to pay health care, they have to pay [taxes], so they should have rights,” he says. Those advocating for a change in the law in favor of the legal rights of sex workers point out that the judgment was made at a different time in a society that was not the same as the Switzerland of today.

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“There has been an evolution in society,” said Andreas Caroni, a lawyer and politician for the liberal FDP party in Switzerland. “This judgment was a 1960s and 1970s position towards prostitution. Switzerland was quite conservative with some of its policies around sex and sexuality until 1990. It was even punishable to advertise condoms, for example. Now, in 2014, I think quite a few people would agree that these contracts are fine, or at least normal.”

Caroni says that he asked his party’s member on the Swiss Federal Council if this was also his view on the world. “He replied that he no longer sees such contracts as immoral,” said Caroni. He added that there are federal court judges who would see it this way too if a case was brought before them.

A report by the country’s Federal Department of Justice and Migration published last month has also added pressure for strengthening the legal rights of prostitutes, pushing the issue further up the political agenda. The report, which included contributions from experts from a broad range of groups working in or around the industry, concluded that there are several key priorities for sex workers in the country, including the need for better protection from exploitation. “There have been some problems for prostitutes, such as abusive situations, violence, exploitation, working conditions—this isn’t helping the women,” said Ursina Jud Huwiler, who coordinated the report for the department.

Reiterating their position against adopting the Swedish model of criminalizing the purchase of sex, the experts in the report agreed that to improve working conditions, there must be an abolition of moral legal standards and improved protection. “This is one of the main recommendations made for changes in the law: more protection for sex workers,” said Jud Huwiler. She added that there is now a sense that things are beginning to change regarding the issue of contracts between sex workers and clients.

Recent challenges to the law also suggest that the country is on the verge of improving these legal rights—it’s just a matter of exactly how to do it. In Zurich a few months ago, a court contradicted the federal court judgment when it ruled that a contract between a prostitute and a “John” was not immoral and therefore valid. But this judgment does not automatically apply to the country’s other courts. Now the Canton of Bern, one of the 26 regions in Switzerland, has called on the Committee of Legal Affairs of the National Council to create a legal basis for saying contracts between sex workers and “Johns” are valid.

Caroni, who sits on the committee, said committee members are thinking about how support for sex workers’ rights could be put on the books. “So we don’t just have to rely on the courts, we are thinking about how we should write it into law. To keep up the pressure, we asked the federal administration for guidance on how this could be written in if it was needed, and we are still waiting to hear the options. But if a federal court decides that the contract is moral then we won’t need to do anything; it is just a back up plan,” he said.

One of the problems with this “plan A” is that it might be a while before a federal court ever gets to hear a case that deals with this issue, as it would need to go through all the lower courts first.

Aspasie is one organization that’s calling for a top-down approach to legislative change—but the group also thinks the legal problems for sex workers extend further, to the issue of contracts with brothel owners as well as with “Johns.” At the moment, there is a section written into the country’s criminal code, called Article 195, that states sex work activity must not be supervised or controlled by someone else, and prostitutes must be free to “determine the time, place, volume or other aspects of their work.” This regulation was included with the intention of protecting people from exploitation and trafficking, but according to Aspasie’s Félix de Vidas, because Article 195 makes it difficult to bring complaints over a contract with a brothel owner to a judge, it should be revisited.

Ursina Jud Huwiler agrees that the law as it stands means it is not possible for prostitutes to work in such a way that they are dependent on others, with what the Swiss call a “classical working contract,” but pointed out that the group of experts recommended in their report that self-employment offers better protection for sex workers.

“This is a separate issue to the morality one—this is about self-determination,” she said. “The majority of the group agreed that it would be better if the prostitutes are self-employed. The majority of the group thought that working independently gives prostitutes better protection and that it doesn’t protect them from everything, but that it does protect them a little more.”

News Politics

Trump Has ‘Never’ Heard of Immigrant Detention Centers That He Mentioned in 2011 Book

Ally Boguhn

"I've never even heard the term," Trump replied when Bill O'Reilly asked about "detention centers." Trump's book, however, used the term "immigrant detention facilities."

Republican presidential nominee Donald Trump claimed during an appearance on Fox News that he had never heard of immigrant detention centers and would not use them as part of his immigration plan, despite having mentioned the facilities in one of his books.

“You don’t have to put them in a detention center. Bill, you’re the first one to mention a detention center,” Trump said on The O’Reilly Factor after host Bill O’Reilly brought up the immigrant detention system, which, according to the American Civil Liberties Union, “locks up hundreds of thousands of immigrants unnecessarily every year, exposing detainees to brutal and inhumane conditions of confinement at massive costs to American taxpayers.”

“OK, so you wouldn’t do that. You would keep them in their homes,” O’Reilly said.

“No, I never said—I’ve never even heard the term,” Trump said. “I’m not going to put them in a detention center.”

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O’Reilly pointed out that Trump had said he would model his immigration proposal after President Dwight D. Eisenhower’s 1954 program “Operation Wetback,” which used detention centers. The policy “plucked Mexican laborers from fields and ranches in targeted raids, bused them to detention centers along the border, and ultimately sent many of them deep into the interior of Mexico, some by airlift, others on cargo boats that typically hauled bananas,” according to CNN.

“No I said it, yeah, I said that is something that has been done in a very strong manner,” Trump interjected. “I don’t agree with that, I’m not talking about detention centers.”

Trump’s 2011 book, Time To Get Tough, referred to immigrant detention centers, as Fusion reported. The book used the term “immigrant detention facilities” and laments that undocumented immigrants at some detention centers may have access to “resort-like accommodations” like a vegetable bar and immigration attorneys.

The immigration proposal posted to Trump’s website calls for a “Detention—not catch-and-release” policy on immigration. “Illegal aliens apprehended crossing the border must be detained until they are sent home, no more catch-and-release,” reads the candidate’s website.

Democratic Party nominee Hillary Clinton’s immigration plan calls to “end family detention for parents and children who arrive at our border in desperate situations and close private immigrant detention centers,” but does not call for the complete end to the immigrant detention system.

Rewire Immigration Fellow Tina Vasquez has reported that Clinton’s plan would instead leave detention up to the government instead of private facilities:

Put plainly, Clinton’s plan is to stop the privatization of detention centers and instead, make them a function solely of the government. In October, Clinton’s campaign spokeswoman Xochitl Hinojosa released a statement on Clinton’s behalf further outlining her plan, saying Clinton “believes that we should not contract out this core responsibility of the federal government, and when we’re dealing with a mass incarceration crisis, we don’t need private industry incentives that may contribute—or have the appearance of contributing—to over-incarceration.”

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

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