NLGRev 68-2[1].indd - National Lawyers Guild

84 national lawyers guild review
report being confined in much worse situations than those described by these
prisoners, and they have not been convicted of any crime.
Sexual assault is a serious interference in a person’s private life. It also is
a crime. States must criminalize such acts and create possibilities for prosecuting
the perpetrators of these assaults. 157 Physical integrity is a right protected
by Article 8 of the European Convention on Human Rights. 158 Interference
with the physical integrity of a person must thus be proscribed by law and
requires consent. 159 States can curtail serious abuse, even if it takes place with
the abused person’s consent, by passing appropriate laws. 160 States, however,
may interfere when very strong reasons exist for such interference. Such
reasons could be the protection of minors, protection of others in dependent
positions, or protection of people who cannot make their decisions in complete
freedom. States can interfere with sexual acts that include the use of
significant violence even if consent exists. 161 This has been done in a case
concerning sadomasochistic acts.
In many ways tolerance for prostitution is analogous to antiquated views
of sexual assault and domestic violence. It took a long time for institutions
to understand that rape is violence and not sex. Likewise, it took a long time
for the justice system to understand that domestic violence is not an acceptable
part of the marriage contract. At one time it was considered men’s right
to beat, rape, sell and even kill their wives because they owned them. Such
acts were not seen as “violence” or criminal. Historically speaking, it has
been only recently that both women and men agreed that these acts are not
acceptable and that women have all the human rights men do. Renunciation
of the right of men to rape their wives is an even more recent phenomenon.
The parallels among prostitution, domestic violence and marital rape are
very strong. How long will it take us to see that prostitution is simply men
paying to perpetrate violence against women?
Legalization of prostitution constitutes “state action”
under international law
Prostitution has been legalized in the Netherlands, Germany, New Zealand,
some states of Australia, and in parts of Nevada in the United States. 162
Canada and Thailand are considering it. 163 In 2000, the Dutch Ministry of
Justice argued for a legal quota of foreign “sex workers” to feed their prostitution
market that demanded more “bodies.” 164 Similarly, the European
Court recognized prostitution as an economic activity so that more bodies
could be supplied. 165
The level of “state action” sufficient to be covered under international
law does not need to be actual authority but can merely be the “semblance of
official authority.” 166 Legalization gives actual authority for the acts to occur.