When democracy considered pimping part of sexual freedom

2022-06-20T00:16:59.101Z

Prostitution has been between regulatory swings for three decades, with some radical changes in position, as in the case of the PSOE

“Our position in this regard [...] is that if the man or woman who engages in prostitution does so as a result of a free decision, a voluntary decision taken autonomously, there is no reason to draw criminal consequences, there is no reason, and it would be tremendously absurd, as the current Criminal Code does, that in those cases, when the exercise of prostitution is a free and voluntary activity, it is not a crime for the man or woman who exercises it, but, on the other hand, it is It is a crime for the person who facilitates this activity to hire you.

In our opinion, Mr. President, it makes no sense."

This is how the socialist deputy Pedro Jover Presa explained on June 2, 1995 in the Justice and Interior Commission why his group understood that pimping had to be decriminalized in cases of supposedly consensual prostitution.

27 years later, Congress has just approved, also at the proposal of the PSOE, to take the opposite path: punish anyone who profits from prostitution.

The turn of the socialists is the reflection of a political, legal and social evolution that over almost three decades has conditioned the legal treatment of prostitution in Spain and has subjected it to ups and downs and uncertainties that still weigh down, even, the struggle against behaviors that are already penalized.

Probably, no socialist deputy today would identify with those words of deputy Jover and the majority would deny that thesis, but at that time they represented the position of the PSOE and most of the hemicycle.

The context is important: in June 1995, the first major reform of the Penal Code since democracy was recovered was being debated, and it was about erasing all vestiges of Francoism.

The dictatorship had prohibited any conduct related to the business of prostitution and its decriminalization seemed to be one more symbol.

“Everything was formally prohibited, but in practice, no.

There was tolerance and no one was surprised that it was decriminalized”, warns Professor of Criminal Law Manuel Cancio.

Deputy Jover explained it in his speech, collected in the Journal of Sessions of the Chamber: "What it does is avoid and overcome the moralizing conceptions that still existed in the current text and protect as a substantial legal right fundamentally what has to be protected. , which is the individual's capacity for the free exercise of sexual self-determination”.

Under this splendor of sexual freedom, ruffianism (living at the expense of the prostituted person), locative third party (leasing a premises for the exercise of prostitution) and even the corruption of minors were decriminalized, which was reintroduced in the Penal Code four years after.

Penalizing the locative third party, punished in the PSOE proposal approved by Congress last week, seemed to Jover an "outrageous".

“What does the landlord have to do with it?

He rents a place and if there is criminal activity there or not, it is not his fault, ”she exclaimed.

For former socialist deputy Ángeles Álvarez, with the 1995 reform Spain

de facto

left the 1950 international agreement on prostitution, to which it had adhered in 1962 and which punishes anyone who "keeps a house of prostitution, manages it or knowingly supports it or participates in its financing”.

The practical consequence of this reform was the hatching of the sex business in the public eye.

"Before there were these places, the usual whiskey bars, but they no longer had to hide and the clubs proliferated," recalls Professor Cancio.

More information

The debate to abolish prostitution in the Second Republic: "It's nauseating"

Except for a 1999 reform that introduced the crime of trafficking for the purpose of sexual exploitation for the first time, the matter was not discussed again in the courts until 2001, when CiU launched an offensive to reopen the debate.

It was Jordi Xuclà, then a young 28-year-old senator, who promoted her within his group.

On September 26, 2001, Xuclà asked the then Vice President and Minister of the Interior, Mariano Rajoy, if he planned to regulate prostitution.

“What is the Spanish position regarding prostitution?

Abolitionist?

Not Prohibitionist?

Nor Regulatory?

Either.

We move in a framework of lack of definition and tolerance that can become negligence if we do not react to the profound mutations that prostitution is undergoing.

Rajoy assured that there were sufficient legal instruments to fight against exploitation networks and took refuge in his proverbial ambiguity: "I don't have clear ideas on this matter either, it is very difficult and complex."

Xuclà remembers that, after the session, Rajoy approached him to tell him that it was better to leave things as they were, that there was no debate in society and it was not necessary to promote it.

"But we did it and all the groups joined and a study commission on prostitution was created," recalls the then senator, now far from politics.

that there was no debate in society and it was not necessary to promote it.

"But we did it and all the groups joined and a study commission on prostitution was created," recalls the then senator, now far from politics.

that there was no debate in society and it was not necessary to promote it.

"But we did it and all the groups joined and a study commission on prostitution was created," recalls the then senator, now far from politics.

In parallel, CiU presented a motion to urge pimping to be criminalized in the Penal Code.

From there came the 2003 reform, which recovered as crimes all conduct intended to profit from the sex trade.

The new article 188.1 punished whoever "profits by exploiting the prostitution of another person, even with the consent of the same", but his subsequent legal journey was, to say the least, bizarre.

It was never clear whether what was being prohibited was pimping in all its forms or only when women were being "exploited" by abusing them financially and at work.

Mercè Pigen, a CiU deputy who promoted the reform in Congress, assures that her proposal, and what was approved, was to punish everyone who profited except the prostitute.

But the penalties provided for pimping and for forced prostitution were the same (from two to four years in prison), and the Supreme Court interpreted that it could not refer to all "exploitation", but only to that of "special gravity", that is, when there was violence, intimidation or deception due to the situation of “vulnerability or need” of the woman.

"Perhaps the wording was not lucky," admits Pigem, who defends eliminating the term "exploitation" to avoid double interpretations.

“But what we managed to do was penalize pimping in all its forms and proof of this is that I had never felt as much pressure as in that debate on the part, above all,

The legal reform, however, sailed in the opposite direction, to such an extent that, in 2015, the PP approved with its absolute majority a new legal change to bring to the norm what the legal doctrine had consolidated.

Since then, the Penal Code specifies the cases in which there is "exploitation" according to the criteria established by the Supreme Court.

During the debate on that reform, the socialist deputy Ángeles Álvarez asked Alberto Ruiz-Gallardón, then Minister of Justice, if she intended to "legalize pimping."

"Introducing two subjective conditions almost impossible to prove will leave pimping behaviors out of the Penal Code in general," she lamented Álvarez.

The minister defended that he only intended to establish "objective" criteria that would allow the "situation of exploitation" to be proven.

“A situation of exploitation, how is it proven in court?

With incriminating testimony.

Whose?

Of the woman forced to practice prostitution who, naturally, due to the pressure of the pimp, will never appear in court to testify against it,” Gallardón warned.

"It will never be necessary for the women themselves to give their testimony, it will suffice to prove the objective situation," he argued in defense of his reform.

Álvarez still regrets that reform.

"It was sold as a useful measure, but what it did was de

facto

legalize a situation: that soft pimping is not criminalized."

By then, says the former deputy, the women of the PSOE were already rejecting the 1995 reform and, of course, the subsequent ones.

She recalls "internal clashes" with the "influential regulatory sector", which was defeated after the arrival of Alfredo Pérez Rubalcaba to the general secretariat.

"With Alfredo the abolitionist concept appears for the first time and now for the first time it has materialized in a bill," applauds the former deputy.

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