Sex work in The Democratic Republic of Congo (DRC) is composed of many human rights violations that have gone unaddressed by the government. Discrimination against sex workers in DRC is as much an issue as the discrimination faced by other marginalized groups along lines of class, caste, race and religion. The Netherlands however has found means to address these issues by legalizing sex work and currently implementing a new bill which will continue to regulate prostitution and suppress abuses in the sex industry. The distinction between voluntary sex work, which is legal, and forced prostitution which remains a criminal offense, was heavily considered through its legalization process. The legal sex work sector was in turn created to combat possible trafficking, abuse and unfit working conditions.
The human right to health entails that everyone has the right to the highest attainable standard of physical and mental health, which includes access to all medical services, sanitation, adequate food, decent housing, healthy working conditions, and a clean environment. HIV risk patterns tend to be significantly geared towards woman in the sexindustry due to lack of access to prevetial mechanisms treatment and care services. The Netherlands has done a great deal to combat this stigma. Studies have shown addressing societal factors such as violence and decriminalization are key components to reducing the number of sex workers by over forty percent within the next decade. Nonetheless neither state aims to reduce the number of sex work but rather improve the living condition for these individuals. Alongside organizations such as WHO, UNFPA, UNAIDS, NSWP, World Bank and UNDP produced an innovative tool to assist with developing necessary HIV programmes for sex workers. Although universal healthcare can be interpreted as an unattainable goal of sort, there is room for improvement and a continuous reach towards a specific goal. These systematic changes do not occur overnight, however the small steps towards progressive realization gives hope to those living in impoverished conditions. Furthermore, this will ensure equality is at the forefront of every agenda regardless of one’s socioeconomic background. In the context of this analysis women are the marginalized group from predominantly low income neighborhoods.
THE DEMOCRATIC REPUBLIC OF CONGO
Transactional sex and prostitution form a significant part of everyday urban life in South Kivu, Democratic Republic of Congo (DRC). Engaging in this form of sex leaves women vulnerable to health, physical and emotional risks. (Mwapu 2016). The Democratic Republic of the Congo (DRC) can be described as not only a source but destination and transit country for individuals subjected to forced labor and sex trafficking. While the majority of cases are internal, incidents of trafficking have occurred throughout all eleven provinces. Reports have shown patterns of children sent off for educational opportunities only to be subjected to sex trafficking on arrival. Subsequently the United States Department of State Office to Monitor and Combat Trafficking in Persons ranked the Democratic Republic of Congo as a Tier 3 country. (US Department of State , 2017)
During the colonial era and the years subsequent to independence, calling cards to identify sex workers and provide adequate medical health checks were given by the Ministry of Health. This system was abandoned in the 1980s leading to public order laws which augmented harrasment violence and extortion towards sexworkers by the police. (Sexuality, Poverty and Law 2017) According to an estimation made by UNAIDS there are 2.9 million sex workers in the country. (UNAIDS 2016) The underlying causality has been said to be food insecurity and extreme poverty for women to enter the field of sex work. (Koltermann, 2006) The majority of clients are made up of clients, officials working for national and international NGOs. General income of a sex worker depends on arrangement. For example generally sex workers earn $2 and $5 per transaction. Those working in bars and nightclubs earn $10 and $20 and those considered “VIP prostitutes” operate from hotels, earning between $50 and $100. (Refugee Documentation Centre of Ireland, 2009)
Twenty six year old sex worker Hamida shared her narrative of causality and repercussions, “I have a difficult life. I live this way because I have many problems to resolve. I have no education or opportunities to study, but one day if I can have a job I can improve my situation. If God gives me a man to marry and who supports my children, I can also be happy. Because no woman can receive so many men in this way and be happy, it is only out of necessity. In Congo we do not have many men, the many wars were killed them. So have many women and to stay married is difficult. Often if we marry the Congolese man, we have a child after six months or a year, and then he leaves.” (Brown, 2013)
As early as 1983, the Democratic Republic of Congo recognized HIV as a population health issue. By documenting and registering cases among hospital patients this number has now reached a 5.7% rate amongst sex workers in 2016, in comparison to 0.7% amongst the general population. (UNAIDS, 2016) Clients will often pay double the solicited price to avoid the use of protection. (Barkham, 2005)
DOMESTIC LAWS ADDRESSING: SEX WORK & THE RIGHT TO HEALTH
Sex work is loosely legal in the Democratic Republic of the Congo. Activities that incite minors or promote the prostitution of others have been criminalised. However, transactional sex is not entirely illegal. The US Department of State 2017 report stated, “The July 2006 sexual violence statute (Law 6/018) specifically prohibits sexual slavery, sex trafficking, child and forced prostitution, and pimping, prescribing penalties for these offenses ranging from three months’ to 20 years’ imprisonment. These penalties are sufficiently stringent and commensurate with those prescribed for other serious crimes, such as rape. The government has not reported applying this law to suspected trafficking cases. The Child Protection Code (Law 09/001) also prohibits and prescribes penalties of 10 to 20 years’ imprisonment for sexual slavery, child trafficking, child commercial sexual exploitation, and the enlistment of children into the armed forces; however, it cannot be fully implemented, because necessary decrees from several ministries reportedly continue to be lacking. Existing laws do not prohibit all forms of labor trafficking and the government has done very little to enforce these laws.” (US Department of State , 2017) In more recent years the Democratic Republic of Congo is amidst massive oppererations against sexwork. A new police initiative launched by the governor is at the forefront of cobatting displays of “offensive morality” through arrests. (NSWP 2018) However this has led to violent arrests and further harassments of women. The police chief in Kinshasa stated the operation, “is about a group of minors who are at the base of the erosion of our customs, who prostitute themselves”. The Congolese Alliance for Human Rights Projects of Sex Work challenged claims made by the Kinshasa Police Department stating, “more than 200 women have been arbitrarily arrested and held in Kinshasa under the new initiative, and are seeking to meet with local authorities to challenge the programme.”
THE NETHERLANDS
Historically the Netherlands has been known for its nondiscriminatory stance towards sex work. Over the past few decades the country has found ways to establish the profession as a safe and protected way of earning income. In the city of Amsterdam’s red light district prostitutes can be found behind large windows openly soliciting their services. Since its legalization in 2000 the city has been more vigilant in combating human trafficking and other exploitation within the sex work industry. Close to 75% of the women working in the sex industry are from eastern Europe. The remaining 25% is comprised migrants from Latin America, the Caribbeans and Dutch nationals. Most of the women migrated in order to escape economic hardships in their home country.
“It’s nice here, The people are nice, and the police, and the landlord—they’re all very respectful. I want to stop, but I can’t, I’ve always got money on my mind. I stacked shelves in a supermarket for a few days when I first moved here, but I switched jobs soon after, because the money in prostitution is better. Really, I’m just working to make money for my family.”
Elizabet, Madella Vice 2014
Today sex workers have the same rights, protections and obligations as any worker in the Netherlands. The main bodies responsible for enforcing the existing laws in order to monitor and regulate sex work are the police, urban district council and municipal health authorities. Regulations within the premises have strict specifications on the minimum size of working areas and govern safety, fire precautions and hygiene. An example stated by the Dutch Ministry of Foreign Affairs shows that every working area must be equipped with a panic button, hot and cold running water and condoms must be provided. Additionally those operating the sex businesses must protect the physical and mental integrity of their employees. Prohibiting forced prostitution, the employment of minors or people without a valid residence permit. It also includes measures to prevent excessive nuisance in neighbourhoods where brothels are located.
“There is no trouble here. Police cameras, set high on electric poles, watch constantly. No problem for the neighbours either, some have kids, but people are tolerant here. For them, this is ordinary street life in Amsterdam. The girls come to my bar and are treated like any other person, They look happy and are well dressed. I’ve never seen a bruise on them, or a black eye. In Amsterdam, we have very few sexual crimes, because the girls are out there in the open. Criminalise, what for? It will always be there, if you try to suppress it, it will come back in one form or another and it will be harder to control.”
Sabine Cessou 2013
In the Democratic Republic of Congo research showed a reluctance by the state to fully monitor activities however in the Netherlands, police control many of the sex establishments in order to verify that minors or illegal aliens are not forcibly employed. Often reasons for forced closure of businesses are often due to infringements such as the presence of illegal prostitutes or employment of the minors. The laws set by the state and local entities are taken seriously since reports in 2007 showed roughly 30 licenses of sex businesses withdrawn by the municipality of Amsterdam due to the infringement of existing laws.
“Since 1999. I started at the Red Light District of Amsterdam. I also worked in Groningen for a while but decided to go back to Amsterdam. When I worked in Amsterdam’s Red Light District again, the mayor of Amsterdam decided to introduce more stringent regulations which women have to meet when working as a prostitute. That’s one of the reasons I decided to work in Utrecht instead of Amsterdam. Looking back, after a while the rules in Utrecht became more strict than those in Amsterdam, which led to a forced end of my job as a Dutch prostitute.” (Caja van Tolie, 2015)
By completely banning an existing social phenomena, further issues may arise in controlling the industry. Subsequently making it much more difficult to eliminate the gravest of crimes such as human trafficking, exploitation and prostitution of minors.
“There are a lot of pro’s! The job offers a feeling of freedom. You’re able to plan your own shifts. The high income is another pro of course. Also, I like the entertainment part of the job. I’m always very happy during my shifts and have a lot of pleasant experiences. I can’t imagine that someone wouldn’t like to earn money in this way! That’s hard to explain. I just experience an enjoyable feeling when I’m working. It feels like I’m onstage and that creates excitement. And I always have enjoyable conversations with both regular clients and strangers. So I always have fun during my shifts. The con is that prostitution is being stigmatized. People think that prostitutes are aimlessly victims of human trafficking. This metaphor is totally inappropriate.” (Caja van Tolie, 2015)
DOMESTIC LAWS ADDRESSING: SEX WORK & THE RIGHT TO HEALTH
Sex work has been legal in the Netherlands since 1830. From 1911 until 1980 a law was set in place forbidding profit from sales of sex services. This law was made to combat those exploiting women in this industry yet in practice the law was rarely applied and sex workers were not protected. Two decades later sex work not only recognized as a legal profession, new laws introduced in October 2000 gave the women more control over their earned income.
“Prostitution as such has never been a criminal offence in the Netherlands, provided it was voluntary and that no minors were involved. Brothels, however, were illegal until 1 October 2000, when articles 250bis and 432 were removed from the Criminal Code and the ban on brothels and pimping lifted. It is now legal to run a business where men or women over the age of consent are voluntarily employed as sex workers. The person running the business must satisfy certain conditions and obtain a licence from the local authorities (if required). Moreover, the bill concerning the regulation of prostitution and prevention of abuses in the sex industry (‘the new bill’) makes licences compulsory, so as to standardise policy across different municipalities. Sex clubs, brothels and escort services may therefore operate as legal businesses. The Netherlands is one of the first countries in the world to recognise voluntary adult prostitution as a normal occupation” (Dutch Ministry of Foreign Affairs 2012)
Each sex business must obtain a license certified by the municipality showing that it has fulfilled the legal requirements to operate. Article 273f goes on to list what may constitute as an offense such as exploitation of another person for the purpose of prostitution and outlaws other forms of sexual exploitation. It also prohibits labour exploitation and slavery, and such practices as removing a person’s organs by means of deception or force.
According to the Dutch Ministry of Foreign Affairs, anyone who is complacent in the following:
Forces another person to engage in prostitution
Induces a minor to engage in prostitution
Recruits, takes away or abducts a person to engage in prostitution in another country (pursuant to the 1933 International Convention for the Suppression of the Traffic in Women of Full Age)
Profits from prostitution involving a minor or forced prostitution
Forces another person to surrender the proceeds of prostitution
is liable to a custodial sentence of up to eight years. In the event of aggravating circumstances (the victim is under the age of sixteen or if two persons committed the offence acting in concert) the sentence may be raised to a maximum of twelve years. If the offence involves serious physical injury or danger to life, the penalty may be raised to a maximum of 15 years and to a maximum of 18 years for loss of life.
Authorities and law enforcement in each city in the Netherlands have treated sex workers as independent entrepreneurs. The law states that all sex workers must submit income tax declaration forms and pay their taxes. Pertaining to the right to health, the city health services informs sex workers of free or low cost clinics for medical care and treatment of any sexually transmitted diseases. Local organizations such as The Red Thread and the Prostitution Information Center have been established by former sex workers to assist those still working in the industry. Foundations AMOC and Rainbow focuses on rehabilitation and assisting sex workers with drug addiction.
APPLICATION OF INTERNATIONAL LAW IN THE DEMOCRATIC REPUBLIC OF CONGO AND THE NETHERLANDS
When analysing the role the government should play in ensuring the protection and fulfillment of the right to health for all citizens one can infer that both the Democratic Republic of Congo and Thailand has an abundance of work to be completed. While facing issues of degradation of health, a conclusion is brought forth that perhaps it is not the lack of laws and regulations covered in the constitution but a lack of enforcement and accountability.
Both the Democratic Republic of Congo and the Netherlands have signed and ratified several treaties which set its obligation to the protection and fulfillment of human rights for women. The ICCPR, ICESCR and CEDAW all address elements of what has been discussed.
Most importantly the ICESCR states,
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
A case study on the right to health by Brigit Toebes highlights the measures taken by the Netherlands to ensure availability, accessibility, acceptability, and quality. As discussed in Professor Sheila Dauer’s Human Rights of Women course this semester, the General Comment 14 of the UN Committee on Economic, Social and Cultural Rights, addresses the right to health in Article 12.
(a) Availability. Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the State party’s developmental level. As a highly developed country there is sufficient availability of medical services. The Dutch healthcare system fulfills the requirement with preventive, primary, secondary and tertiary health care facilities. The Democratic Republic of Congo however is a developing nation and has yet to implement the necessary measure to assure availability.
(b) Accessibility. Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:
Non-discrimination: In the Netherlands, the most marginalized and vulnerable sections of the population have sufficient access to health care services without discrimination on any of the prohibited grounds
Physical accessibility: In the Netherlands primary health care services are accessible in proximity of many homes. Within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS as noted by the General Comment.
Economic accessibility (affordability): In the Netherlands health facilities, goods and services are set to be affordable. of the population 40% seek additional voluntary private health insurance coverage however what is offered by the state is adequate to cover all costs.
Information accessibility: In the Netherlands patients are generally adequately informed of their health status with confidentiality. If a patient seeks to obtain further information it is widely accessible. The General Comment further describes accessibility to include not only the right to seek but also receive and impart information and ideas concerning health issues.
The income disparity in the Democratic Republic of Congo and cultural norms set by the patriarchy system along with many other factors has hindered the full realization of the right to health pertaining to accessibility in all four overlapping dimensions.
(c) Acceptability. Due to the influx of migration to the Netherlands within the past few decades the country has struggled with this component of ensuring facilities, goods and services are respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned. There is a language gap between Dutch and non Dutch speakers. Furthermore, culturally amongst female immigrants there is an unwillingness or inability to speak openly about reproductive health. The system should establish training for healthcare providers to find means of speaking to patients privately and in a comfortable manner. Acceptability has yet to be considered in the Democratic Republic of Congo since the country must first counter the notion of availability quality and accessibility.
(d) Quality. With highly skilled medical personnel, scientifically approved and unexpired drugs, hospital equipment, safe and potable water, and adequate sanitation; the Netherlands has tried to maintain sufficient health facilities, goods and services which are scientifically, medically appropriate and of good quality. Unfortunately the Democratic Republic of Congo lacks quality medical services for all individuals seeking assistance.
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