Décision du conseil constitutionnel sur la QPC de MDM (France, in English)

Texte original - Feb 1, 2019

Summarized translation by Cybele Please signal any mistakes or improvements.

Legal Background

• The Article 611-1 of the Penal Code (13 April, 2016) provides that soliciting, accepting or obtaining sexual relations from a person who engages in prostitution, including occasionally, in exchange for remuneration, promise of remuneration, the provision of a benefit in kind or the promise of such a benefit is punishable by a 5th class fine. Private persons found guilty of these charges shall also incur one or more of the complementary penalties (awareness-raising course - John school - and 100-120 hours of community work)

• The Article 225-12-1 of the Penal Code provides that when committed as a recidivist within 1 year of sentence expiration or prescription, soliciting, accepting or obtaining sexual relations from a person who engages in prostitution, including occasionally, in exchange for remuneration, a promise of remuneration, the provision of a benefit in kind or the promise of such a benefit is punishable by a € 3,750 fine.

• There is a penalty of three years' imprisonment and a € 45,000 fine for soliciting, accepting or obtaining, in return for remuneration, a promise of remuneration, the provision of a benefit in kind or promise of such benefit, sexual relations of a person who engages in prostitution, including occasionally, where that person is a minor or has a particular vulnerability, apparent or known to its author, due to illness, infirmity, disability or a state of pregnancy.

• Paragraph 9(b) of Article 131-16 may provide the following additional penalty:

"The obligation to carry out, if necessary at his own expense, an awareness-raising course on the fight against the purchase of sexual acts".

• Paragraph 9 of paragraph I of Article 225-20 also provides the awareness course penalty additional penalty.

Request & Defense

• Petitioners and some speakers criticize those provisions repressing any purchase of sexual acts, including acts that are freely performed between consenting adults in a private area. This general and absolute prohibition would infringe the freedom of prostitutes and their clients in a way that is not likely to be justified by the protection of the public order, the fight against pimping and human trafficking or the protection of prostitutes themselves. This would result in :
  • A breach of their right to privacy as well as their right to personal autonomy and sexual freedom.
  • A breach of their right to trade and freedom to contract.
  • Lastly, it is argued that the criminalisation of any recourse to prostitution would contravene the principles of necessity and proportionality of penalties.

• The priority question of constitutionality concerns the first paragraph of Article 225-12-1 and Article 611-1 of the Criminal Code.

• Moreover, some speakers argue that those provisions would increase the isolation and clandestinity of prostitutes, therefore exposing them to increased risks of violence from their clients and forcing them to accept hygiene conditions that undermine their right to health protection in order to stay in the industry.

On the Complaint Alleging Breach of Personal Freedom

• According to Article 2 of the Declaration of the Rights of Man and of the Citizen of 1789, "The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression." Article 4 proclaims that "Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law."

• It is for the legislator's duty to reconcile the constitutional value of safeguarding public order and preventing infringements with the exercise of constitutionally guaranteed freedoms, including the personal liberty protected by Articles 2 and 4 of the 1789 Declaration.

• The first paragraph of Article 611-1 of the Penal Code punishes the fact of soliciting, accepting or obtaining sexual relations from a person who engages in prostitution, including occasionally, in exchange for remuneration, a promise of remuneration, the provision of a benefit in kind or the promise of such a benefit. The first paragraph of article 225-12-1 of the same code makes it a crime when committed in a situation of lawful recidivism.

• On one hand, it appears from the preparatory work that the choice made by the legislator to penalize the buyers of sexual services aimed at fighting against pimping and against human trafficking for the purpose of sexual exploitation, criminal activities based on coercion and enslavement of the human being by depriving procuring of its sources of profit. It thus intended to protect the human dignity against these forms of enslavement and pursued the constitutional objective of protecting the public order and preventing infringements.

• On the other hand, the Constitutional Council does not have a general power of assessment and decision of the same nature as that of the Parliament, but only has power to validate its conformity with the Constitution. If the legislator has repressed all recourse to prostitution including when sexual acts are presented as freely performed between consenting adults in a private area, it therefore considered that the vast majority of those who engage in prostitution are victims of pimping and trafficking and that these offenses are made possible by the existence of a demand for transactional sex. By outlawing the demand, the legislature chose means that is not manifestly inappropriate to the public policy goal.

• The legislator ensured a conciliation which is not manifestly unbalanced between, on one hand, the constitutional objective of protecting the public order and preventing infringements and protecting of the human dignity and on the other hand personal freedom. The complaint based on the breach of personal freedom must therefore be rejected.

On the Other Complaints

• First, the Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 provides: "The law should establish only penalties that are strictly and evidently necessary...". While the necessity of the penalties attached to the offenses if left to the legislator to evaluate, the Constitutional Council must ensure that there is no manifest disproportion between the offense and the sentence incurred.

• The provisions in dispute punish the recourse to prostitution with a fine of €1,500, increased to €3,750 when a repeat offense, as well as certain additional penalties. Considering the nature of the repressed behavior, those penalties are not manifestly disproportionate. Consequently, the complaints alleging contravention to the principles of necessity and proportionality of penalties must be rejected.

• Second, according to the Preamble to the 1946 Constitution, the Nation "guarantees protection of health to everyone, including children, mothers and the elderly workers...". The Constitutional Council cannot substitute its assessment to that of the legislator regarding the health consequences for prostituted persons, since that assessment is not manifestly inadequate in the current state of knowledge. The complaint alleging breach of the right to health protection must therefore be rejected.

• Finally, the legislator may provide limitations to the right to trade and freedom to contract, provided that it is related to constitutional requirements or justified by the general interest and that it does not result in disproportionate infringements with regard to the objective pursued.

• The complaints alleging breach of freedom of enterprise and freedom of contract must be rejected. Consequently, the first paragraph of Article 225-12-1 and Article 611-1 of the Criminal Code do not infringe the right to privacy, nor any other right or freedom guaranteed by the Constitution and must be declared in conformity with the Constitution.

Decision

The first paragraph of Article 225-12-1 and Article 611-1 of the Penal Code, in their wording resulting from Law No. 2016-444 of April 13, 2016 to strengthen the fight against the prostitution system and to accompany prostitutes, are in accordance with the Constitution.

Article 2. - This decision will be published in the Official Journal of the French Republic and notified under the conditions provided for in Article 23-11 of the aforementioned Order of 7 November 1958.