Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 47
Another term commonly used in discussions around commercial
sexual activity is “sex work” and this is the term preferred by
those advocating for prostitution to be considered as legitimate
work and subject to legislation regarding health and safety at
work. According to UNAIDS, “[t]he term sex worker has gained
popularity over prostitute because those involved feel that it is
less stigmatizing and say that the reference to work better
describes their experience”. 112
The difference in terminology reflects a profound disagreement
about whether the exchange of sexual acts for payment is a
form of sexual slavery or an exercise of adults’ individual
liberty. The CEDAW Commentary notes that: “Others
acknowledge discomfort with the concept of sex as labour, yet
none the less oppose [criminalization of prostitution/sex work]
on pragmatic grounds, believing that such policies – even those
that seek to decriminalize the prostitute while penalizing all
other actors involved in the sex industry – can work to harm
prostitutes, for example, by driving the sex industry further
underground”. 113 However, under both conceptions of the
appropriate criminal law, the sex worker/prostitute should not
be subject to the criminal law. This is either because: sex
workers/prostitutes are considered to be exercising their right
to privacy and sexual autonomy in choosing sex
work/prostitution as a form of work, and therefore this is
protected behaviour under international human rights law,
which should not be subject to the criminal law; or, conversely,
that a prostitute/sex worker is a victim of sexual violence and
coercion, and should not be criminalized because of her (or his)
victimization.
Irrespective of the view taken on whether sex work/prostitution
is inherently a form of criminal abuse or inherently a matter of
individual choice, there are some general principles of
international human rights law that are relevant to the situation
of sex workers/prostitutes.
112
UNAIDS Technical Update, “Sex work and HIV/AIDS” (June 2002),
page 3.
113
CEDAW Commentary, above note 109, page 178.