Sex Work and the Law: Beyond the Voluntary/Forced Dichotomy

Chapter Four

Sex Work and the Law: Beyond the Voluntary/Forced Dichotomy

In my previous chapters, I considered how history and socioeconomic forces shaped Cambodia’s sex industry. In this chapter, I examine the laws surrounding sex work in Cambodia today. As a profitable and popular service, sex work not only became subject to more scrutiny but also to increased levels of proletariansation and professionalism. This aspect is evident in the language used by some of the women featured in this chapter who assert a strong identity as “working girls” (see Allen 1990:107). Coming from villages in rural Cambodia, many women working in brothels and nightclubs can be viewed as members of a nascent proletariat. In this chapter, I consider some of the consequences of this for women workers and highlight how being seen as members of a nascent proletariat limits their choices and experiences. Surveying two dominant forms of sex work in the country, namely sex work in brothels and nightclubs, in this chapter I argue that women’s experiences in sex work are highly variable depending on location. Moreover, I consider the ways in which the laws impinge on women workers and how working conditions mould the differential power that women can exert.

Legal Status of Sex Work

In discussing the legal status of sex work blanket statements are often made: “Prostitution and trafficking are illegal in Cambodia” (e.g. Basil 2001:13), or the contrary that sex work in Cambodia is “decriminalised”, claimed by a local NGO worker (Tep 2005). This confusion about the legal status of sex work is a result of the intersection of different laws and programs designed to regulate prostitution, which produces much

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Chapter Four: Sex Work and the Law: Beyond the Voluntary/Forced Dichotomy

uncertainty and contradictions. Four frameworks regulate formal sex work: the Constitution, the Criminal Code, the Human Trafficking Law and the 100% Condom Use Program (100% CUP), while a 2001 ministerial proclamation (prakah) attempted to regulate the informal sector. These different legal frameworks generate widespread confusion about the legal status of sex work.

The Criminal Code, Human Trafficking Law, 100% CUP and 2001 ministerial proclamation do not explicitly outlaw prostitution. The only legal text that comes close to this is the country’s Constitution. Under Chapter Three, titled the “Rights and Obligations of Khmer Citizens”, article 46 prohibits “the commerce of human beings, their exploitation by prostitution and obscenity which affects the reputation of women” (Jennar 1995:15). It can be argued that within this rather poorly worded article exists the desire not to eradicate sex work, but rather to control it and to paternalistically defend “the reputation of women”. Illegal is the “commerce of human beings” (trafficking) and their “exploitation by prostitution” (trafficking for prostitution or forced prostitution).

Further, when this article is read in the context of other laws promulgated in the country it can be argued that “exploitation by prostitution” does not necessarily outlaw the provision of sexual services but rather prohibits situations where non-sex workers profit from the labour of sex workers (WAC-OHK 2001:1). This interpretation thus renders third party, prostitution-related activities such as brothel keeping, living on the earnings or procuring, illegal and unconstitutional, but not prostitution itself.

However, the very vague nature of this article means that the opposite may also apply. This poorly worded clause featuring the terms “exploitation” and “obscenity”, at best elastic in any legal challenge, may have been intended to outlaw prostitution itself (Pers. Comm. Penny Edwards, 2 June 2006). This article has not been challenged in Cambodia’s law courts and until then, it is hard to provide a definitive interpretation of this text. Pending the establishment of legal precedent through such constitutional challenges that would allow us to read and interpret this clause, the inclusion of a clause on prostitution in the nation’s Constitution will continue to generate widespread confusion about the legal and constitutional status of sex work in the country.

My concern, however, is to consider how legal bases impinge on women workers, so, at this stage let us briefly turn our attention to practices. The views of the authorities on this matter show how this article is typically read, rendering prostitution a crime in their eyes:

Cambodia does not permit brothels [phteah baan], does not permit srei baan [brothel prostitutes]. Earning a living from this is against the law because the Constitution of the Kingdom of Cambodia prohibits prostitution. So, all of the people that do this, all of them are criminals (Interview, Chief Inspector Bprah Sahkhon, Chief of Police, Sihanoukville, 5 April 2004).

Thus, members of the police force routinely arrest women on the charge of “prostitution” and proceed to extort money, rape, rob, assault and torture mainly female sex workers with impunity, sometimes resulting in murder (see Jenkins et al. 2006:32-42). However, Cambodia’s Constitution is not the only legal framework regulating sex work. Other provisions contained in the Criminal Code and Human Trafficking Law criminalise third party controlled forms of sex work, but not sex work itself.

Another legacy of the UN’s mission in Cambodia was the drafting of a new Criminal Code (see UNTAC 1992). On the 10 September 1992, the Supreme National Council of Cambodia adopted the UNTAC Criminal Code as Cambodian law and under article 139 of the Constitution, this law is still in effect in the Kingdom (Jennar 1995:7-31 see also OHK 1997). In the section dealing with “misdemeanours”, section 3 of article 42, on indecent assault, prohibited procuring for the purposes of prostitution. This offence carried heavy punishments with two to six years in jail (UNTAC 1992). Through this provision, certain third party aspects of sex work involving intermediaries (procurers or pimps) were criminalised. The Criminal Code itself did not contain any provisions on solicitation. Therefore, the provision of sexual services was not criminalised in this Code.

Marking the first time that prostitution itself was directly dealt with in modern Cambodian law, in January 1996 the National Assembly extended UNTAC provisions on procuring (see Cambodia Daily 11 January 1996:1,7; 17 January 1996:8; OHK 1997). The Human Trafficking Law (1996) reinforced provisions prohibiting procuring or pimping and increased jail terms from the original two to six years to five to fifteen years. Trafficking for prostitution and forced prostitution was prohibited and any person convicted of kidnapping, coercing, selling or forcing a person into the sex trade faced up to fifteen years in jail. In the case of minors, defined in the law as any person under fifteen, the sentence was increased to twenty years. Other third party forms of profiting from prostitution were prohibited under this legislation. Any person who managed, trained, financially benefited from or housed sex workers faced up to $12,000 in fines and a maximum of ten years in jail, fifteen years for offences involving minors. Under the section titled “debauchery” brothels were prohibited with punishments ranging from one to five years in jail and a $12,000 fine (see RGC 1996).

The Human Trafficking Law does not outlaw prostitution. Rather, it made certain aspects inseparably related to prostitution illegal, to be enforced by the imposition of heavy jail terms and fines, thus making it extremely difficult for people to practice prostitution. Trafficking and all third party involvement in prostitution (brothel-keeping, pimping or procuring, living on the earnings, coercion, kidnapping and forced prostitution) is formally illegal, and from 1996, regulated by criminal law.

In the last chapter, I considered how the involvement of government officials, police and military personnel in abduction rackets and in protecting or owning brothels has shaped the Cambodian industry. The pervasive involvement of government officials in the industry renders the trafficking laws as virtually useless. This point was confirmed by sex workers when the laws were passed in 1996: “It is not that I am pessimistic, it is just because I know the police and soldiers are also involved there is little chance that anything will be different” (Cambodia Daily 1 February 1996:9). Provided that government officials, the police and military continue to hold a stake in the industry, not only in regulating but also controlling, maintaining and profiting from it, then these laws will be ineffective. Thus, it was hardly surprising that while officially prohibited, a nation-wide census carried out by the government in 1997 revealed that brothels were located in every province of the country, a finding relevant till today (see RGC 1997:9).

The fourth framework regulating sex work is the 100% Condom Use Program (100% CUP), first trialled in Sihanoukville from October 1998 and implemented nation-wide from late 1999. The 100% CUP is an intervention executed as part of the government’s National HIV/AIDS Strategy. This program was designed to respond to the country’s worsening HIV epidemic, for which many claim sex work is to blame. The 100% CUP itself is a program to control and monitor condom use in brothels, therefore, it does not have the status of a law. But it is the mechanism through which brothel-based sex work was regulated from late 1999. The notion of female sex workers as “core transmitters” is critical to this program and its focus on the presumed role of female sex workers as infectious agents primarily responsible for transmitting HIV to men. It is a program that views condoms as a panacea, and sees it as “necessary to instruct or require ALL sex workers to use condoms in ALL sexual encounters” as a means of protecting the “general population” from HIV (NCHADS 2002:16, emphasis in the original).

The overarching national policy introduced by the government in 1999 devolves power from the national (state government) level to the municipal and provincial (local government) level in regulating brothels for the unspecified duration of the program (see RGC 1999). The only document produced by the government on how provinces and municipalities are to achieve this is the Strategy and Guidelines for Implementation of the 100% CUP (see NCHADS 2002). However, this document provides only the principles of the program and recommendations for implementation. This includes the registration of women workers and compulsory medical examinations for sexually transmissible infections (STIs). In order to encourage “local ownership” of this program each municipality and province is required to draw up their own guidelines for monitoring and regulating consistent condom use in local brothels. Often this involves the registration of brothels and brothel-based sex workers and the mandatory testing of female brothel-based sex workers for STIs but not HIV.[1] The legal base of this program is municipal or provincial level regulations issued by the local government authority. The 100% CUP regulations are thus subordinate legislation equivalent to local government by-laws that have legal effect only within the area covered by that authority.

The national policy does not abrogate existing anti-prostitution legislation, so, as this is still in effect, brothels are prohibited in the Kingdom. However, predicated on the grounds of condoms being a hygienic and social necessity, if brothel management and workers adhere to locally developed guidelines and consistently use condoms, they are granted immunity from prosecution for the duration of the program. Brothels that do not follow guidelines devised by the local authority are deemed “illegal” and are closed down under existing anti-prostitution legislation. Thus, the implementation of this program requires all parties concerned to turn a blind eye to formal legal prohibitions on brothels and brothel-keeping.

This approach is best described as tolerance-based, but specifies the “conditional tolerance” of certain forms of sex work deemed a public health menace. The legal relationship between brothels and the government can be summed up then as one of “tolerance”. As my two previous chapters showed, this relationship is hard to define, being a nether region between legality and illegality: brothels are “tolerated”, which means that they are neither authorised, protected nor prosecuted (Harsin 1985:95). Tolerance thus means that while prostitution can be regarded as illegal (if not in itself then in certain aspects inseparably related to it) the authorities will not bring the force of the law to bear upon it. However, at any moment they can choose to exercise their power, which creates a situation of great tension harbouring much potential for abuse (Harsin 1985:95).

With respect to the regulation of informal sex work in the country, on 20 November 2001 the Prime Minister, Hun Sen, issued a ministerial proclamation (prakah) to all governors in the country stating that the government was outlawing karaoke parlours, discos and nightclubs and would shut down all such establishments starting from 6pm Friday 23 November 2001 (Phnom Penh Post 23 November-6 December 2001:1). Describing karaoke bars and nightclubs as a “social ill”, the proclamation stated that this measure was necessary to protect people from criminal activities such as the violence and drug trafficking associated with such establishments. Moralistic sentiment was reflected in Hun Sen’s commentary “in the past to the present, many offensive acts have occurred [in] nightclubs, pubs, discotheques and karaoke parlours [such as] drug trading, which create crimes and cause disorder and destroy the culture” (Cambodia Daily 21 November 2001:1).

According to the then Governor of Phnom Penh, Chea Sophara, shootings at the Holiday International Hotel on 5 November 2001, and at a karaoke parlour on Street 273 in Russei Keo, on the morning of 19 November 2001, motivated Hun Sen to close all the nightclubs and karaoke bars (Cambodia Daily 21 November 2001:14). The Phnom Penh rumour mill speculated that the move was a result of Hun Sen’s anger at the behaviour of his nephews (especially Nhim Pov) and their friends who embarrassed him with their well-publicised gun-toting activities at karaoke clubs (Phnom Penh Post 23 November-6 December 2001:1).[2] It was also speculated that the order was part of “a general clean-up of an industry that is often a thin disguise for prostitution” (Phnom Penh Post 23 November-6 December 2001:1).

Proprietors have avoided brothel-keeping and other prostitution-related charges by constructing various fronts for their sexual services through the provision of other services such as karaoke, dancing or massage. Today, karaoke and massage parlours and nightclubs have become standard camouflages for sex services. Issuing the order that these business innovations were outlawed and to be closed down, no longer offered owners and managers such protection. Thus, while the more formal sector of the industry such as brothels were directly targeted and prohibited in Cambodia’s legislation, in an attempt to deal with such innovative, surreptitious sexual servicing, Hun Sen’s proclamation regulated the informal sector from 2001.

Confusion about the legal status of sex work and the contradictions between legalisation and programs thus creates a space of power, which can be exploited. This is especially so for women working in brothels because of the interplay between existing anti-prostitution legislation which criminalises third parties involved in sex work (leading them to maintain illegal relationships with their bosses) and the 100% CUP which regulates brothel-based sex work for the present. This program sees the authorities “tolerate” brothels where they are in effect shielded from the law. This privileges brothel-based sex work for the time being, thereby facilitating the entrenchment of highly structured brothel enterprises in which bosses or madams set working conditions. But it also gives the authorities enormous power over prostitution, many of whom I have shown are directly involved in controlling and profiting from it.

In my historical chapters I considered how measures to regulate prostitution, based on “tolerance”, attempted to control prostitution through police and medical supervision on the grounds of this being hygienically and socially necessary. It may be that, in the case of the 100% CUP, the police and government may have been predisposed to take this kind of action because of the ways in which sex work was regulated in the Kingdom in the past (Harsin 1985:57).

Sex Work in Brothels and Nightclubs in Context

Official prohibition (but tacit tolerance) of organised sex work is supported by Cambodia’s laws and criminal code that implement legislation criminalising third parties involved in prostitution. Prostitution regulations criminalised prostitution-related activities that organise and formalise sex work as a profit making activity where third parties profit from the labour of women workers. Simultaneously, the 100% CUP, first introduced in late 1998, operates in tandem with legislation designed to limit the number of sex workers and prohibit brothels in the Kingdom.

Regulating the informal sector of sex work in the country from late 2001, Hun Sen’s proclamation outlawed karaoke parlours and nightclubs that often act as fronts for sex work: “If we know of any karaoke parlour still open, [then we must] go [and] close it immediately and take tanks to knock it down” Hun Sen told army leaders (Far Eastern Economic Review 17 January 2002:63). However, much like the story of brothels, regardless of the government’s efforts to crack down on these establishments and Hun Sen’s threat to use tanks to destroy them in 2002, karaoke parlours and nightclubs remain open and very popular. This reveals the conflicted attitudes and inconsistent regulations that shape the social and legal status of sex work in the country.