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Prostitution > The legal aspect in France


© Yves Lambert

Sex and remuneration

The first thing to do is propose a definition. In other words, what is prostitution and what is a prostitute? Legally, the system of prostitution is defined by a decree dated November 5, 1947: the activity of a person who habitually consents to sexual relations with an indeterminate number of individuals for remuneration. The term "remuneration" is very general: money but also valuable objects or even services.

The Use of one's Body

The legal principle on which the law concerning prostitution lies is the right to use one's body as one sees fit: this freedom goes as far as to use one's body for lucrative ends, a principle which is an exception to the unavailability of the human body, in other words the ban on selling one's blood, an organ, etc with the exception of selling one's hair.
Also, the right to prostitute oneself is a given because the right to have sexual relations is within the notion of the right to respect an individual's privacy. Therefore, prostitution is not in itself an offense. However, the right to prostitute oneself has its limits, especially as a result of the law dated April 13, 1946.

The Closing of Brothels

The law dated April 13, 1946, better known as the Marthe Richard law from the name of this Member of Parliament, well-known in public opinion for her combat against houses "of tolerance" (brothels).
Initially, this law closed all these houses and afterward, repealed the regulatory arrangements which were the basis of the previous system (the existence of brothels but also the registration and enrollment of prostitutes in a record book eventually leading prostitutes to be deprived of freedoms by a simple administrative decision…).
This law had at least two legal consequences: first, it considerably amplified the State's control of prostitution; and secondly, de facto, from then on it authorized the practice of prostitution in places other than brothels, most noticeably in the streets.
Nevertheless, these changes had their own limits, especially from the point of view of local enforcement, as the law established a medical-social listing, but this would be done away with in 1960 to carry out an international convention of 1949.

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Places of prostitution

Concerning the freedom to prostitute oneself anywhere, the general police authorities can, in the guise of anti-loitering, control the comings and goings of prostitutes on public passages, but the control cannot result in a general and absolute ban (Court of Appeals. 01.02.56).
These bans may only be applied to certain places (near schools for example) or certain times. Finally, these penal sanctions primarily repress solicitation and procuring.

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A decree dated November 25, 1960 defines solicitation as the following: a displayed attitude on a public passage with intent to cause debauchery. Based on this text, several tens of thousands of fines were written each year. An arrangement as imprecise as it was arbitrary: the simple presence of the prostitute in the street was sometimes sanctioned.
The new Penal Code (1993) only retained the notion of active solicitation: the act by any means of publicly soliciting someone with the express goal of inciting sexual relations is punished by a fine meant for 5th class tickets, meaning 10.000 F and 20.000 F in the case of recidivism. But the Domestic Security Law dated January 21, 2003 radically changed the rules of the game ... Read below.

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From the Use of Fines …

In general, fines given to prostitutes (solicitation but also public disturbance or any other motive …) were always aimed at identifying and reporting on the state of the prostitute population and constituted another means of diverting the ban on listing prostitutes.
This being the case, this highly questionable "method" tends to regress, especially due to new forms of prostitution less "visible" than street prostitution: classified ads, "veiled" ads in the press, remote processing servers, internet …

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Procuring, commonly known as pimping, is defined as the exploitation of a prostitute by a third party. Several international conventions address this subject: on the repression of white slavery (1910), on the trafficking of women and children (1921), on the trafficking of adult women (1933), and one dated December 2, 1949 (cited above) that France did not ratify until 1960, the New York convention for the repression of the trafficking of human beings and the exploitation of prostituting a third party. Its article 6 provides that each of the parties agrees to take all necessary measures to appeal or abolish any law, any regulation, or any administrative practice in which any person involved in prostitution or suspected of being involved in prostitution must register themselves in special record books, possess special papers or conform to exceptional surveillance conditions or a statement.

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Assisting Prostitution

It's not only the exploitation of a person prostituted by a third party which can be considered as procuring but also any form of assistance given toward prostitution, for example the act of a hotel owner renting to a prostitute for the purpose of meeting clients or helping to launder money from prostitution. A simple tolerance could have been assimilated to procuring, for example the act of a restaurant owner allowing prostitutes on the terrace of his restaurant (Court of Appeals, 1973); the act of a hairdresser putting his salon at the disposal of prostitutes during a police raid (Court of Appeals, 1971); the act of a husband who is a prisoner of war receiving money from his wife who had been working for a short time in a brothel (Court of Appeals, 1944).

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From Julot Casse-Croûte to the State Income Tax Service …

Until 1993, simple cohabitation with a prostitute was considered to be procuring. This arrangement was repealed by the New Penal Code: in fact, it forbade prostitutes to have a normal private life, which is in contradiction with the principle of the right to respect people's private lives.
Nevertheless, still today, cohabitation may be sanctioned if the household doesn't have other revenue except those from prostitution or if the lifestyle doesn't correspond to the official recorded revenues not received from prostitution.
The only authorized exploitation of prostitution is the exploitation by the State Income Tax Service (fisc). In fact, the fisc considers prostitution as a profession from which revenue must be declared in the category of non-commercial profits (a well known refrain: the State is the biggest pimp …). In doing this, the fisc recognizes prostitutes as economic agents.

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Contradictions and confusion

In French affirmative law (that which is not forbidden is authorized), this total ban on procuring, meaning not only the ban on exploiting the prostitute but also all arrangements stemming from case-law, seems to be contradictory with the freedom to prostitute oneself. The existence of procuring is a priori difficult to disassociate from prostitution, in any case as long as the notion itself of procuring generates such a large variety of definitions and, therefore, confusion. In fact, will be considered as a procurer (notion of exploitation) a man who forces a woman by threat, violence, deception or any other means to have sexual relations for money with other men. But the notion of "all assistance given to prostitution" has also led to justice, for example, the condemnation for procuring of a woman who kept watch and assured security while another woman worked.


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State Control

As a result, prostitutes remain under State control, in this case from agents which are partly the fisc, and partly penal sanctions which can strike solicitation and procuring "under all its legal forms." Also, the relative liberalism of the 1946 law could not have modified previous police behavior in in regard to prostitutes, except in an extremely limited way.
Even though, though since 1945 prostitutes can file a civil complaint (most notably in cases against their pimp), even though this possibility has also been recognized by associations acknowledged as a public service, the situation of prostitutes remains difficult to the point that in 1975, it led to organized movements demanding an improvement of their social status. The government then decided to do a comprehensive study of this question, which resulted in the (Guy) Pinot Report but this report, which among other things recommended the decriminalization of solicitation without efficiency in the fight against procuring, ended with no resulting effect.

At that time, the Minister in charge of Women's Rights declared that the State would make a renewed effort in the fight against prostitution with additional means. The fisc should show itself to be more understanding and female inspectors should be assigned to police stations. (La prostitution, Le Monde, files and documents n°71, May 1980).

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Creation of the SPRS

Law No. 60-1246 dated November 25, 1960 cancels all arrangements in health matters and provides for the creation of a specialized social service in each department: the famous SPRS or Service for Prevention and Social Reinsertion. In all, only about twenty will be set up. Today, they have almost all disappeared.


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An Abolitionist System

In April 1997, during the Conference of the Hague, the Juppé government reaffirmed France's strictly abolitionist position and declared :
" France has made heard its position, significantly different from that expressed by the Netherlands, on the one hand because we consider all forms of prostitution as violence against the concerned persons and that there cannot be voluntary prostitution, knowing also that procuring is, in itself, repressed in French law ; and also, because the scope of Dutch prostitution is limited to the fight against the treatment of women, even though, if women are undeniably affected by this phenomenon, it is just as true that today, the problems of violence and trafficking concern more and more men and children ".

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And the clients?

The policy of the fight against prostitution that France and all of its governments have led since 1946 has never led France to take the slightest measure which concerns the clients of prostitutes ... until the law dated March 4, 2002: repressive measures were then taken in regard to clients of prostitutes younger than 15 years old, clients who could from then on be prosecuted. (Another legislative disposition permits prosecution in France of the clients of minor prostitutes abroad since ... 1994.)

May 30, 1997, the Minister of Employment and Social Affairs wrote to Regional and Departmental Prefects: "It is important that France reaffirms its principles and its policy faced with the attempts in Europe to impose a return to a regulatory government, which consists of recognizing prostitution as one activity among others, even if it means framing it with a specific status. Concerning France, it defends an "abolitionist" position, so named because it abolishes all rules likely to legalize prostitution in a way to allow, by an adapted policy, to envision its disappearance. (…) In fact, the French position will be particularly credible and our legislation will understood domestically, If its social sector is neglected.

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The law on Domestic Security

Tuesday, January 21, 2003, assemblymen adopted the text proposed by Interior Minister, Nicolas Sarkozy. This law created a passive solicitation misdemeanor, with a maximum 2-month prison sentence and 3.750   fine for the act of solicitation which extends to "all persons who make available prostitutes in vehicles, the same sentences will apply as in hotel-based prostitution". They also adopted a government amendment which planned for the placing of prostitutes in "common law shelters in order to ease their re-insertion ."


As well, a provision was also created for the incrimination of "trafficking in human beings" punishable by 7 years imprisonment and a 150.000   fine (10 years and 1,5 million   if the victim is a minor or vulnerable; 20 years and 3 million   if the offense is committed by organized gangs; life imprisonment and 4,5 million   in the case of torture and barbaric acts).
The law on Domestic Security has been applicable (application decree) since March 2003.

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