25/02/2022 | Writer: Kardelen Yılmaz
Sex workers, whose actions are intervened in as if there is a crime and whom we look at their images at media as if they are the perpetrator, are not the real perpetrators.
Sex work is the provision of sexual and emotional services by individuals in exchange for money, property or any other benefit (measurable or unmeasurable). [1] This definition describes sex work and sex worker in the most basic and understandable way. However, it should be said that there is still uncertainty about whether the stories in which the word "sex work" is used are sex work.
Sex work is a sector that includes the supply-demand balance, where labor is spent and income is obtained in return for the effort spent. For this reason, it is important to use the concept of sex work. The concept of sex work makes it easier to perceive the field as worker-labor oriented. In order to make labor visible and to talk about the existence of rights as a field of labor, it is necessary to emphasize that sex work is a form of work. In this way, the uncertainty that arises as a result of different uses and judgments regarding the field can be reduced.
There is more than one word on this subject in our language and legislation. We can see that there is a long list of uses such as prostitution, prostitute, secret prostitution, escort, street woman, certified woman, sex worker, forced sex work, woman trafficking, sexual exploitation, sexual abuse. In fact, what feeds this ambiguity is, firstly, not approaching with a focus on the subject/worker, and secondly, seeing "get laid with more than one person for money" as a behavior contrary to the morality and decency of society. The legal regulations made on the basis of this judgment also make it difficult for us to see this sector from a worker-oriented perspective. This moral protection approach, which brings hatred, creates the need to constantly criminalize sex work in legal regulations, society and by practitioners.
The crime of prostitution under the title named Crimes against Public Morality in Turkish Penal Code is one of the first regulations that indirectly or directly involve sex work in Turkey. This arrangement makes us think that prostitution is a crime regardless of the meaning of the word. The Turkish Language Institution defines the word prostitution as "having sexual intercourse with one or more people in exchange for money in a way that does not comply with the rules of the society". [2] However, in fact, sex work -prostitution with its use in the legislation - is not regulated as a crime in Turkey. When we look at the content of the article, the person who commits prostitution is considered as the person dragged into prostitution and is defined as a victim. For this reason, it should be said that the title of the article, in which acts such as encouragement, mediation, and facilitation of prostitution are punishable by penalties, should be updated accordingly.
Other actors in sex work have different roles in regulation. The person who is with money, that is, the customer, does not take place as a victim or perpetrator. In practice, when we compare with sex workers, customers do not face the risk of an administrative or criminal sanction and investigation, and they can sometimes take part as witnesses in interventions on the grounds of prostitution.
The perpetrator of this crime is regulated as the person who encourages prostitution, facilitates prostitution, mediates prostitution and provides a place for prostitution. In other words, the existence of a third person other than the sex worker and customer relationship is sought. However, it should be said that in practice, the title of victim or perpetrator and the effect of these titles on sex workers, their involvement in the proceedings, even though they are victims, do not coincide with the regulation in the legislation.
Apart from the prostitution article in the Turkish Penal Code, obscenity and indecent acts under the same section are among the regulations that come before us in the field of sex work. Definitions of obscenity and indecent acts remained vague. Indecent acts are regulated as publicly sexual intercourse and exhibitionism. Again, the exhibitionism here carries the same uncertainty. This includes every step taken to realize sex work, every move necessary to practice the profession, in words that have ambiguous meanings and can be interpreted differently according to culture, geography, space and time. It is possible to exemplify this uncertainty as follows: While any image or gesture of a person who is not a sex worker is not considered obscene, if the person is a sex worker, that act or image may be considered obscene. Every step taken to get the job done can arbitrarily be considered a crime or an indication of a crime. Again, we can see the same example in the practice of indecent acts against sex workers from time to time.
Apart from the Turkish Penal Code, another regulation that is regularly applied to sex workers in practice is the Misdemeanor Law. Although prostitution is not among the misdemeanors listed in the Misdemeanors Law, administrative fines are charged to sex workers, waiting to find customers on the streets, on the grounds such as "disturbing, violating orders, not reporting identity, noise". Although it is sometimes said that intervention is made upon complaint, we can deduce from field experiences that most of the time, the implementation of administrative sanctions is not like this. We can exemplify this situation as follows: First of all, it is necessary to count the police (and sometimes the gendarmerie) among the subjects of the sex work field, because the police and the sex worker constantly meet in this field, and, therefore, the sex worker has to constantly contact the police. These encounters make it easier for people who do sex work to be known and recognized by the police. Even if there are no complaints, these administrative sanctions are easily applied to sex workers who are known where they live and work.
The legislation regulating sex work is the Public Health Law and the Provisions, on which this law is based, General Provisions to which Women and Brothels will be subject and the Regulation on Combating Venereal Diseases Transmitted by Prostitution. [3] As the name suggests, this regulation primarily aims to combat venereal diseases (contagious infections) in the form of expression in the law. There are certain definitions in the statute, such as the general definition of women, the general conditions of being a woman, the brothels, the place of intercourse, the houses where prostitution is made alone. These definitions show us that sex work, sex worker and the necessary place for this work are defined in the legislation.
In the studies carried out in the field of sex work, working inside the brothel with social security is called registered field; on the other hand, working outside of brothel without social security is called unregistered field. According to the statute, those who can obtain a general women's certificate work in a brothel. Although other fields of study are defined in the legislation, they are almost never seen in practice. Brothels are private businesses whose establishment is dependent on permission and there is a worker-employer relationship. In this case, sex workers working in brothels are subject to labor law. Unfortunately, it is not easy to have information about the working conditions in the brothel. It should be said that what is in practice regarding overtime, public holidays, annual leave and even retirement rights are very different from the labor law. Working conditions, monthly and daily earnings, working hours of each brothel may vary. Apart from these, we learn from field experiences that another problem regarding brothels is the restriction of freedom of movement. According to the information received from the employees, it is known that employees are not allowed to go out outside the working hours. The brothel is also a living space for the registered sex worker. Going out of the brothel is dependent on the initiative of the boss or the local police. This shows that there are working conditions in the brothel where the right to travel and the right to respect for private life are ignored.
It should be said that one of the reasons behind the difficulty of accessing the right source regarding these working conditions is the isolation of the sex work field. It is difficult to reveal the information about the conditions under which the sex worker works and lives in the unregistered or registered area. It is known that the workers in the field have been violated, it is known that the working conditions are not good, but it is mostly discussed whether the workers in the sector have consent. In my opinion, it is correct to say that having sexual intercourse with someone without consent will neither be defined as sex work, nor is it correct to say that the crime here is only prostitution. It should not be forgotten that the crime committed here is also sexual assault. For this reason, questioning the existence of consent while talking about the working conditions of the sex work area causes not to recognize sex work as a field of labor, and also renders the coercion invisible in the absence of consent in the sector. The absence of claims in the area that is not defined as a form of labor causes more violations of rights, more discriminatory and arbitrary practices; actors can easily use violence and establish power; In addition, this situation facilitates the exploitation of the boss and makes it difficult to leave the sector in cases where non-consent starts.
For the above reasons, it is necessary to know that this regulation is the only regulation that legally defines sex work, but it should be underlined that it does not aim to protect workers. The existence of a protective regulation for sex workers will be an important step in preventing the industry from continuing its existence under boss exploitation. At the same time, the visibility and prevention of violence in the sector necessitates a worker-protective approach. Violence and exploitation system for sex workers, both registered and unregistered, becomes a part of this work and is accepted. For this reason, it is possible to say that sex workers have reservations about exhausting legal remedies.
Again, as a result of a regulation in the same statute, the living spaces of sex workers working in unregistered area are restricted. The statute frequently uses the term "hidden prostitution". Article 8 of the statute, titled "executive part", describes the enforcement part of the anti-prostitution commission as follows:
“The executive part of the commission; in Article 23 where identification and registration of general women, women who make prostitution an art and means of livelihood, and brothels, uncovering places where prostitution is made with secret prostitutes, bringing in people who need to be examined, closing the places that need to be closed, and the decisions taken by the commissions to combat venereal diseases and prostitution. It consists of enough moral police officers or plainclothes police officers, clerks and file officers under the supervision and responsibility of the highest police chief of the locality for its implementation and execution.”
Again, in Article 95 titled "Houses where prostitution is made without permission", covert prostitution is included as follows:
“A secret examination is made by the moral police officers about the houses that are alleged or reported to be involved in secret prostitution without obtaining permission, or about which they are informed in any way possible. If it is determined with evidence that secret prostitution was carried out in such houses, the minutes to be drawn up together with the secret inspection reports are submitted to the commission by the highest police chief. Actions are taken by the commission regarding these places in accordance with Article 104.”
According to this definition, prostitution without permission in the places defined in the statute is 'hidden prostitution'. The statute regulates the sealing of places where hidden prostitution is detected. This means that the houses of sex workers who do sex work in their own homes are sealed. Recognition of the sex workers mentioned above by the police may cause their homes to be permanently sealed.
Although the statute also gave the task of "returning the person to an honorable life" to the commission against prostitution, the only decision that came out of the commission was the decision to seal the house. Moreover, it is also problematic to impose the mission of "returning to honorable life" to the commission. The use of returning to an honorable life is mentioned in Article 20 of the statute, titled 'detection', under the title of 'general woman, detection, registration, examination and treatment' in the third part of the bylaws.
“If it is suspected that a woman has acquired the art of prostitution because of her repetitive relationships with many men, and if it is revealed that she has the general women's qualifications written in Article 15, with the positive evidences obtained through a confidential and detailed examination, first of all, the reasons that led this woman to prostitution are investigated by the commission. Measures are taken to ensure that she returns to an honorable life…”
It is difficult to understand what it means to return to honorable life. Moreover, the statute did not define the return to honorable life, but only used this phrase in the content of the article. Just like the ambiguous and open to interpretation words in other regulations, it is very inconvenient for this definition to be included in the legal regulations. The fact that concepts such as the concept of public morality can take place in law means that an unrealistic or subjective sense of morality can be used against anyone at any time, individuals or communities can be criminalized, they can cause discrimination, stigmatization, and violation of their rights. This is a situation that we do encounter outside the field of sex work. The censorship applied to the sales of the rainbow flag shows us the same approach. [4] Similarly, LGBTI+s sharing their childhood photos and the discourse "There are LGBTI+ children" can be found obscene and subject to investigation. [5]
As a result, even if we try to understand the task of "returning to an honorable life" given to the commission as a positive aim for the determination of worker-oriented and unconsensual situations, as we have seen from the field experiences, the commission does not take steps towards this aim. There is no research on why the person engages in sex work. There is no opportunity to access alternative employment opportunities. Questions like whether they are 'strained' into this job, "do they do it under violence and threats", "do they have an intermediary", "do they have access to services", or financial questions such as “does he need support”, “does she have dependents”, “does she want to be a registered employee” are never on the agenda of the commission. In short, it must be said that no one talks to sex workers, listens to sex workers, and does not get an addressee so that they can have better conditions.
This legislation surrounding sex work causes some events in daily life to be constantly experienced by sex workers. The number of such experiences is so high that these scenarios have become a part of the sex work field. I will try to give some examples of these scenarios specific to places.
House
Investigations initiated on the grounds of prostitution:
Under this heading, we can give one of the examples in which the understanding of victimized sex worker in the prostitution article in the Turkish Penal Code is ignored. For the two sex workers residing in the same house and working independently, the one whose name is written in the rent contract is considered as perpetrator (the one providing the place) and the other whose name is not written in the contract is considered as victim. This situation is so common.
In fact, it is common for two housemates who do not have a boss (intermediary) - sex worker relationship to find themselves as parties to an investigation file.
In some of the cases we learned from field experiences, we can hear that acquittal was given. Apart from this, the proceedings initiated against sex workers may result in the decision to defer the announcement of the verdict. This may only mean not going to jail for the sex worker. For this reason, sex workers may not have the determination and desire to maintain the claim of innocence against deferment of the announcement of the verdict decisions.
In my opinion, it is necessary to characterize it as a problem that sex workers regularly take part in such an investigation, rather than whether they are convicted or not as a result of the trial. Each investigation means being constantly taken to the police station, humiliated by the officers at the police station, being judged, harassed and being subjected to many irregular and unfair actions one after the other as employees of an isolated area. For this reason, it may be insufficient for lawyers to consider the field of sex work as situations that can be applied to judicial organs or to evaluate unfair practices according to the outcome of the trial. The important thing here is to understand why the sex worker has to deal with the police all the time, and it is necessary to intervene in this direction.
Referencing the client's statement:
As we mentioned before, knowing who the sex workers are and their addresses makes it easier to include the sex worker in an event involving judicial or administrative sanctions. As a result, it is a common practice for sex workers to be taken to the police station and to issue an 'information' report when the police wait at the exit of the apartment and the customer leaves. This process starts with the client giving a statement in which he tells everything he knows about the sex worker, out of fear of being exposed. When information is received from his social media account that he has communicated with the sex worker, an investigation can be initiated or if it is learned that a sexual intercourse agreement has been made only for money, the sex worker's house is sealed. As a result, the act of waiting for the customer at the door is not clear which crime is being revealed. Is it an operation, is it a prosecutor's order, are there strong suspicions that a crime will be committed? Customers can be taken in front of the sex worker's apartment without being prepared to answer these questions.
In my opinion, it is necessary to realize that what is considered a crime here is prostitution itself. Regardless of the definition of crime made according to the law, sex workers and prostitutes can be criminalized by seeing them as 'sinners, against society’s values, living an unacceptable life'. Throughout history, this understanding of perpetration and punishment has continued to exist.
Along with other practices, this practice violating their right to shelter also causes sex workers to constantly relocate, change provinces and go to places where they will not be recognized. Even though prostitution is not a crime in Turkey and it is a workable sector in the registered area, sex workers are not to be employed in the unregistered area. Here, the following example should also be underlined: When we think about trans sex workers, the legislation grants the right to be registered (registered) only to those who have a "female" identity card. In this case, trans sex workers who have not completed the gender affirmation process cannot obtain the right to work in the brothel and have to work in the unregistered area. In addition, the houses of trans women whose official gender is not "female" are also sealed on the grounds of secret prostitution. In other words, only trans women can be seen as prostitutes within the implementation examples of the policy of intimidating sex workers. However, there is no opportunity for them to work with a document. For this reason, trans sex workers who have to work in the unregistered area.
Social Media
Investigations against sex workers due to their social media accounts:
As a result of a regulation introduced in the 3rd paragraph of Article 227 of the Turkish Penal Code in 2016, sex workers who use social media regularly become a party to the proceedings. The relevant paragraph is as follows:
“(3) (Abolished: 6/12/2006 – 5560/45 art.; Re-arrangement: 24/11/2016-6763/18 art.) The person who gives, distributes or disseminates products containing images, texts and words prepared to facilitate or mediate prostitution is punished with imprisonment from one year to three years and a judicial fine from two hundred days to two thousand days.”
Although the example of throwing business cards with phone numbers of sex workers to the streets, especially in metropolitan cities, is given as the reason for this regulation, in the parliamentary commission report, sex workers who place advertisements on social media accounts where sex workers try to find customers and on "escort sites" have become targets.
It should be said that this practice also creates a contradiction with the article. According to the prostitution article, when the sex worker is called a victim and the presence of a third person is sought for the title of perpetrator, it is necessary to see that the victim and the perpetrator are combined with this added paragraph. A sex worker is described as facilitating prostitution because she advertises herself on social media in order to find customers. Naturally, there is no understanding that defines the sex worker as a victim here. The crime of prostitution is one of the crimes against public morality, that is, the victim here is the society whose public moral understanding is damaged.
Another factor that draws attention from field experiences in this scenario is the cases where the managers of escort sites are not sex workers. In cases where advertising from social media accounts alone is not enough, dissemination of the account via 'hashtag' is a common method to increase recognition in social media. To talk about it a little: Hashtags can be monopolized by one person. If the sex worker wants her name to be featured in a hashtag, she has to pay. In the same way, money has to be paid for advertising for escort sites. However, when we look at the practice, it is seen that the investigations are not aimed at "third parties who earn money from advertising to facilitate prostitution". It is again seen as a sex worker who makes prostitution a crime here. When the sex worker, who is constantly exposed to police violence while working on the streets, uses the social media, which she sees as safer, to find customers, the criminal in practice becomes the sex worker again.
Streets
Waiting customers:
Administrative sanctions over the Misdemeanor Law mentioned above are mostly carried out under this heading. It is one of the most common problems we encounter in field experiences. Sex workers waiting for customers on the street are constantly taken to the police station, made to wait for hours, and released after being subject to administrative sanctions. However, on the same day, in the same police station, there were cases where 4-5 administrative sanctions were imposed on the same person, one hour apart, for different misdemeanors. This practice became more frequent with the start of the city guard practice. Considering the duration of the administrative sanction and the length of the time spent in the police station, it should be said that de facto detention is frequently applied to sex workers. When we look at the hours they are kept in the police station, on the one hand, it becomes clear that the working hours of the sex worker are spent in the police station. This may lead to more work and to produce different methods of reconciliation with the actors of the field.
Another remarkable unfair practice in the field regarding this issue is perpetrated against trans sex workers. Trans sex workers waiting for customers on the street, trans sex workers who are known to do sex work but at that time only go to the market, and even trans people who do not do sex work are frequently taken to the police station for administrative sanctions. While imposing an administrative sanction on the grounds of sex work is an illegal and unfair practice, assigning a profession and criminalizing the person on the basis of gender identity is one of the most important indicators that trans people and sex workers are approached in a discriminatory and stigmatizing manner. Again, our field experiences have shown us different scenarios for trans people: It is necessary to consider that practices such as keeping trans people in police stations all the time, having to deal with the police, and conducting GBT (general information gathering) for trans people, even though it is not done to anyone, may be aimed at preventing LGBTI+s from being present in the public sphere. Appointment of a profession regarding being a sex worker is seen as a legitimate reason for this prevention.
As a result of the interventions against sex workers, we can find ourselves constantly thinking: Why is every action of sex worker considered a crime, is sex work a crime? The fact that we know the regulation stating that there is no crime is not enough on its own, the settled social perception of sex work can cause us to go back to the beginning over and over again. When we look at the news about sex work, we can see that the photos of sex workers, who are defined as victims in the legislation, are posted as if they were perpetrators. Sometimes their faces are censored, sometimes sex workers cover their faces in videos, we are shown the images of sex workers walking to the police car in turn, and we can even see the footage of the police pushing the sex worker's head into the car. However, these people are “victims” according to the law and we have watched the victims being put in a vehicle with their faces covered. In my opinion, when we think of the title of 'prostitution operation', the photograph that occurs in our minds may be these images.
Sex workers, whose actions are intervened in as if there is a crime and whom we look at their images at media as if they are the perpetrator, are not the real perpetrators. Although sex work is not a crime in Turkey, it is a business line regulated and legalized within a certain framework, it is always known as a "crime" in the society and efforts are made to make it known as a crime in practice. This facilitates the systematic criminalization of sex work within the framework of legal regulations or through illegal practices. Legislation, police, media and morality arguments feed each other and constantly criminalize sex work. Fear of 'criminal incident' and 'criminal persons' in the society also causes ignoring the profession and professional workers, assigning the adjective dangerous and making sex workers lonely. Sex workers, who are trying to make a living, can see themselves as perpetrators and criminals due to being constantly involved in judicial processes, being in contact with law enforcement officers, and investigating every action they take in order to practice their profession. This necessitates the sector to adopt unique working methods, to be in solidarity as people doing the same job, to submit to violence and exploitation in order to protect their lives, to work with bosses who promise security, and all these unfair practices helplessly become a part of this business.
The perception of prostitution in society should not be forgotten. Sex work, whether legal or not, emerges as a profession that is practiced in violence and exploitation. However, the fact that the sex worker is not a perpetrator in this violence and exploitation does not change the awareness of the society that she is the perpetrator. Because, as mentioned above, prostitution is perceived as an immoral and illegal behavior committed against society. The approach of 'behavior harmful to health and morals' has not changed throughout history. Legalization without changing this approach causes unlawful and unfair practices to become a law on its own.
It should be considered that the resistance to not accepting this profession as a field of labor may stem from the act of "being together with more than one person for money" within the framework of gender roles and expectations in sexual intercourse, the lack of sexual freedoms and a moral protective approach. Sometimes we can see that the legislation supports this. As an example, the last paragraph of the prostitution article can be considered. In the paragraph, it says: “The person driven into prostitution may be subjected to treatment or psychological therapy.” The question of what is meant by treatment and psychological therapy here and what the legislator determines the purpose of directing to psychological therapy is important. It is necessary to examine where we got the idea that a person who has nothing to do with sex work and sex workers and who is with more than one person will need psychological therapy. When we look at the justification for the substance, the reason for subjecting them to psychological therapy is that "the person who commits prostitution puts up with other people's sexual behavior on their body". However, in my opinion, the basis of this psychological therapy is that prostitution, with or without consent, is seen as a condition that needs to be treated. Here, it is necessary to change the rationale in the regulations that define the victimization or needs. It would be useful not to focus on the act of 'being with more than one person in a way that is not suitable for society' and to justify by drawing attention to the systematic violence and exploitation in the sector. This, when regulated with rights such as improving working conditions, providing access to alternative employment opportunities, and the right to refuse the job, will make it easier to distinguish whether the person is doing the job voluntarily and voluntarily.
In conclusion, it is always important to underline that sex work is a field of labor and to ask the right questions about this field. Apart from whether the job is done voluntarily, it is necessary to hear the rights demands of sex workers, to work on this issue by always prioritizing sex workers, and to demand a legislation that facilitates access to worker/subject-oriented rights, and a legislation that is suitable for special needs. In addition to these, it is necessary to examine the idea of "protection of public morals", where it is not clear who/ when will become criminal, and it is necessary to know that these moral protection policies and practices produced against sex workers can be easily associated with other areas of rights, and a struggle for rights should be waged together.
Translation: Damla Umut Uzun
*This article was produced with the financial support of the European Union. Its contents are the sole responsibility of Kaos GL Association and do not necessarily reflect the views of the European Union.
[1] Seks İşçileri için Sağlık Hizmet Yönetimi ve Sunumu: T.C. Sağlık Bakanlığı’na Yönelik El Kitabı, Kırmızı Şemsiye Derneği, 2017
[2] https://sozluk.gov.tr
[3] https://www.mevzuat.gov.tr/MevzuatMetin/2.4.5984.pdf
[4] https://kaosgl.org/haber/karar-bir-sansur
[5] https://kaosgl.org/gokkusagi-forumu-kose-yazisi/hepsi-gececek-biz-kalacagiz
Tags: human rights, labour
