Advocates Fight for Sex Workers’ Contracts in Switzerland

Even though prostitution is legal in Switzerland, sex workers cannot rely on the courts to uphold their legitimate employment complaints.

Even though prostitution is legal in Switzerland, sex workers cannot rely on the courts to uphold their legitimate employment complaints. Swiss law via Shutterstock

Compared with colleagues in some of their neighboring countries, sex workers in Switzerland appear to have it quite good. Prostitution there has been legal since 1942, and the country is known today for its a fairly liberal and pragmatic approach to the industry. News of the “drive in” sex boxes installed on the streets of the country’s largest city, Zurich, to offer privacy for street prostitutes and their clients went around the world and was heralded by many (although criticized by some) as an example of a sex-friendly policy. The requirement for sex workers to pay taxes and social security contributions is another example of the integration of the industry into regular Swiss public and bureaucratic life.

But even in countries with a liberal attitude toward selling sex, issues steeped in morality tend to find a way to creep in. In Switzerland, it comes in the shape of a legislative hangover from the ’60s that blocks the legal rights of prostitutes in the courts and leaves them vulnerable to exploitation. In Switzerland, an oral agreement is legally recognized as a binding contract, just as it would be if it had been written down. Every time a sex worker agrees with a client on the price, time, and any other terms of their exchange, a contract is made.

One of the ways a contract—made by anyone—can be declared null and void is if a court decides it is immoral. This is what the Swiss Federal Court, the country’s highest court, did around 30 years ago with prostitution. So today, even though prostitution is legal, sex workers cannot rely on the courts to uphold their legitimate employment complaints.

“The advantage to having contracts would be that sex workers could go to the justice system when they say that they haven’t been paid or the price is not normal or anything like that,” explained Michel Félix de Vidas, spokesperson for Aspasie, a Swiss association representing sex workers in the country. De Vidas warns that without the confidence that they will be backed up, sex workers are left vulnerable to exploitation, even though they are working legally. “It should be based on human rights rather than morality. Here sex workers have to pay health care, they have to pay [taxes], so they should have rights,” he says. Those advocating for a change in the law in favor of the legal rights of sex workers point out that the judgment was made at a different time in a society that was not the same as the Switzerland of today.

“There has been an evolution in society,” said Andreas Caroni, a lawyer and politician for the liberal FDP party in Switzerland. “This judgment was a 1960s and 1970s position towards prostitution. Switzerland was quite conservative with some of its policies around sex and sexuality until 1990. It was even punishable to advertise condoms, for example. Now, in 2014, I think quite a few people would agree that these contracts are fine, or at least normal.”

Caroni says that he asked his party’s member on the Swiss Federal Council if this was also his view on the world. “He replied that he no longer sees such contracts as immoral,” said Caroni. He added that there are federal court judges who would see it this way too if a case was brought before them.

A report by the country’s Federal Department of Justice and Migration published last month has also added pressure for strengthening the legal rights of prostitutes, pushing the issue further up the political agenda. The report, which included contributions from experts from a broad range of groups working in or around the industry, concluded that there are several key priorities for sex workers in the country, including the need for better protection from exploitation. “There have been some problems for prostitutes, such as abusive situations, violence, exploitation, working conditions—this isn’t helping the women,” said Ursina Jud Huwiler, who coordinated the report for the department.

Reiterating their position against adopting the Swedish model of criminalizing the purchase of sex, the experts in the report agreed that to improve working conditions, there must be an abolition of moral legal standards and improved protection. “This is one of the main recommendations made for changes in the law: more protection for sex workers,” said Jud Huwiler. She added that there is now a sense that things are beginning to change regarding the issue of contracts between sex workers and clients.

Recent challenges to the law also suggest that the country is on the verge of improving these legal rights—it’s just a matter of exactly how to do it. In Zurich a few months ago, a court contradicted the federal court judgment when it ruled that a contract between a prostitute and a “John” was not immoral and therefore valid. But this judgment does not automatically apply to the country’s other courts. Now the Canton of Bern, one of the 26 regions in Switzerland, has called on the Committee of Legal Affairs of the National Council to create a legal basis for saying contracts between sex workers and “Johns” are valid.

Caroni, who sits on the committee, said committee members are thinking about how support for sex workers’ rights could be put on the books. “So we don’t just have to rely on the courts, we are thinking about how we should write it into law. To keep up the pressure, we asked the federal administration for guidance on how this could be written in if it was needed, and we are still waiting to hear the options. But if a federal court decides that the contract is moral then we won’t need to do anything; it is just a back up plan,” he said.

One of the problems with this “plan A” is that it might be a while before a federal court ever gets to hear a case that deals with this issue, as it would need to go through all the lower courts first.

Aspasie is one organization that’s calling for a top-down approach to legislative change—but the group also thinks the legal problems for sex workers extend further, to the issue of contracts with brothel owners as well as with “Johns.” At the moment, there is a section written into the country’s criminal code, called Article 195, that states sex work activity must not be supervised or controlled by someone else, and prostitutes must be free to “determine the time, place, volume or other aspects of their work.” This regulation was included with the intention of protecting people from exploitation and trafficking, but according to Aspasie’s Félix de Vidas, because Article 195 makes it difficult to bring complaints over a contract with a brothel owner to a judge, it should be revisited.

Ursina Jud Huwiler agrees that the law as it stands means it is not possible for prostitutes to work in such a way that they are dependent on others, with what the Swiss call a “classical working contract,” but pointed out that the group of experts recommended in their report that self-employment offers better protection for sex workers.

“This is a separate issue to the morality one—this is about self-determination,” she said. “The majority of the group agreed that it would be better if the prostitutes are self-employed. The majority of the group thought that working independently gives prostitutes better protection and that it doesn’t protect them from everything, but that it does protect them a little more.”