In PH, legal limbo further marginalizes sex workers

Prostitution is a polarizing topic in the Philippines where conservatism is admired. Compounding this dilemma are legislations that seem to contradict one another; some authorities are adamant about criminalizing sex work, while other groups are taking steps toward normalizing prostitution as a legitimate profession. 

In honor of Labor Day this year, President Rodrigo Duterte vowed that his administration would make efforts to improve workers’ welfare and rightfully honor their rights as laborers. But can the same be said for sex workers?

Legal inconsistency

At a glance, the laws that apply to prostitution in the Philippines seem contradictory. Article 202 of the Revised Penal Code (RPC) states that prostitution is punishable with a minor arrest or fine not exceeding P200. If a person is found to be a repeat offender, they can be slapped a penalty ranging from P200 to P2,000 or serve a prison sentence of at most four years and two months. 

While Article 202 of the RPC criminalizes prostitutes, Article 341 on white slave trade covers pimps, or those who recruit people into sex work, penalizing them with jail time of eight to 12 years. In both cases, the law treats individuals involved in the sex trade as criminal offenders.

But not all laws look at the issue this way. More recently, some legal measures have instead viewed these individuals as victims. The Anti-Trafficking Persons Act of 2003 declared that the State recognizes every human person’s dignity and vowed to develop programs to eliminate human trafficking, protect people from threats of violence and exploitation, and ensure the recovery and rehabilitation of trafficked victims. This sentiment was echoed in 2009 by the Magna Carta of Women (MCW), which acknowledged prostitution as a form of violence against women, with victims and survivors entitled to legal protection. 

The MCW had also sought to amend or repeal provisions in existing laws that discriminate against women, including Article 202 of the RPC. While the provision was amended in 2012, only vagrancy was removed, and prostitution remained a crime. Worse still, in 2017, the article was revised again. This time, the fine swelled to a range of P20,000 to P200,000.

“If you look at these laws…it appears that our government or lawmakers, they want to cover everything without a thorough and careful study of what is needed to at least eliminate or mitigate prostitution,” explains Atty. Neptali Salvanera, a lawyer who specializes in labor-related issues and a part-time lecturer from the Commercial Law Department. This ambiguity in legal status, he adds, has led to the marginalization of sex workers.

Regulations around sex work could also be inferred from two other legal codes: Section 62 of the Code on Sanitation of the Philippines requires that massage clinic attendants secure clearance on venereal disease, while Article 138 of the Labor Code considers certain women who work in nightclubs and massage clinics as employees of those establishments. 

Despite the inconsistencies in legislation, Salvanera notes the silver lining of offered protection. “‘Yung thrust of the ordinances in the labor code of protecting them is also there, so protection means protection from prosecution and protection from hazard ng health.”

Prosecution and discrimination 

Inherent dangers to sex workers often originate from current policing strategies, according to Salvanera, as sex trade is still criminalized. The police, he explains, can easily arrest female prostitutes through this law, rendering the protection offered by the Anti-Trafficking Persons Act of 2003 and the MCW futile.

“It’s always a fallback law on the part of the police,” Salvanera summarizes, “so walang lusot ‘yung sex worker.”

(This leaves the sex worker with no way out.)

Sex workers who prefer to remain in their occupation also face labor discrimination. While Article 138 of the Labor Code entitles women workers to a regular employment status, Salvanera argues that they are still not protected in the same way as other employees.

Hindi naman sila nagrereklamo kasi mae-expose sila. Mahihiya sila mag-file ng case,” he furthers, reinforcing the idea that present laws not only fail to protect sex workers but also increase the stigma associated with it.

(They would not file a legal complaint because it would expose their occupational status. They would rather not file a case.)

In her article Selling sex amidst the Philippine drug war, Dr. Sharmila Parmanand, a gender studies expert from the London School of Economics who researched on sex trafficking in the Philippines, writes that the current administration’s war on drugs has made sex workers more susceptible to police abuse because they are categorized as prime suspects of drug use due to a perception that it is widespread among them.

Parmanand adds that many of the 50 sex workers she interviewed had police officers threaten to plant drugs on them if they did not pay bribes or give in to sexual demands. “Gina, for example, was taken to a precinct, where her phone was confiscated and she was threatened with false drug charges. She was made to dance for the police officers and then taken by one of them to the toilet where he raped her,” she recounts.

“In the past, I could still shame the cops who were trying to extort from me. I would taunt them for being too cowardly to go after the real criminals instead of us helpless women,” one of Parmanand’s interviewees, a sex worker in Metro Manila, recalls in the article. “But things have changed now. We do not fight back. We are too scared.”

In need of reform

Salvanera also brings attention to the gaps in the laws surrounding sex work in the Philippines, saying that such legal inconsistencies reveal a lack of policy direction from the government. The work goes beyond the simple reforming of laws, he highlights, adding that there is a need to codify all existing laws on sex trade.

The lack of reliable data on sex workers has also made policies largely ineffective. Salvanera says that there is a need to better understand why individuals turn to sex work in the first place, drawing on how women’s groups and activists point to gender bias and socio-cultural and economic factors such as poverty as possible factors.

Additionally, the difference between trafficked and voluntary sex workers is not as clear-cut. While trafficked victims are lured into labor by sex traffickers, those who voluntarily go into sex work do so to escape poverty. 

Regardless of how policies would be shaped to address the issues surrounding sex work, Salvanera notes that there is a marked difference between decriminalizing and legalizing it. He elaborates that the focus of decriminalization is protecting sex workers who are deemed as victims, while legalization would instead acknowledge the industry as a whole, meaning that clients, pimps, and establishments involved in sex work would also be given protection under the law.

With that, he calls for the Philippine government to be consistent in the creation of its laws, and more so in the implementation. “The government should determine once and for all the policy direction it wants to take,” he concludes.

Isabela Marie Roque

By Isabela Marie Roque

Jemimah Tan

By Jemimah Tan

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