In my legal capacity, I was invited to participate in an interesting discussion hosted by Professor Andrew Azzopardi.

My contribution as the advocate founder of One Voice Malta, a collaborative platform made up of stakeholders & individuals reaching out on controversial matters, with the aim to voice their concerns through a constructive and meaningful dialogue.  

This challenge concerns the legitimacy of a commercial activity from a perspective that requires defined legal parameters to prevent the exploitation of persons (men and women) lured into sexual activities for gain since the act itself is not illegal when the natural persons participating in the act would have consented to such sexual activity in exchange for payment.

From the premise, one must consider the validity of the consent being transferred to the client and when such consent is considered to be vitiated or a free choice made by a person with the necessary mental capacity to understand the implications on the person participating in such an activity.

Presently, commercial activities ancillary to the sexual act itself are considered illegal in Malta even though it makes it hard for the layman and practitioners to understand what actually constitutes the sexual service since the term 'Prostitution' is not defined under Maltese Law.

Notwithstanding, the law is not silent on loitering and soliciting.

Chapter 63 of the Laws of Malta, White Slave Traffic (Suppression) Ordinance, specifically Article 7(2), as it stands today, prohibits any person who in any street or in other public or in any place exposed to the public, loiters or solicits for the purpose of prostitution or for other immoral purposes, and such person shall be liable, on conviction, to imprisonment for a term of not more than six months.

A proposal has been submitted to the executive arm of the Maltese Government for the decriminalisation of the act of 'Loitering and Soliciting' (Tlajjar u Thajjir) for prostitution purposes by the Parliamentary Secretariat for Civil Rights and Reforms, with the aim to protect the vulnerable person instead of convicting those participating to imprisonment.

There seems to be a consensus reached on the vulnerability of the prostitute, irrespective of the gender since the main stakeholders are in agreement with the proposed law to decriminalise loitering and soliciting as regards to the prostitute in Malta.

However, they seem not to be in favour of the decriminalisation of sex clients even though the Government announced that human trafficking and exploitation will not be tolerated under any circumstance.

As a legal practitioner, I am concerned about the legal procedures envisaged by the legislator to determine who and to what extent the abuser may be found guilty of an abusive/exploitative act since the identification of the person, natural or legal, bearing legal responsibility in circumstances when any form of abuse is endured by the vulnerable person, is a legal requirement.

This legal requirement may be explained by means of an analogy between an abusive act committed by a natural person participating in person in the sexual activity and the illegal involvement of a separate legal person (natural person/pimp or non-natural person/registered commercial entity) making use of legitimate commercial activities which indirectly exploit persons (men and women) luring them to give sexual services for gain.

As I understand, both scenarios remain illegal. However, I am duty-bound to voice the concerns raised by the public, since I am not in a position to reply to the following questions:

Are there any other existing provisions, other than article 7(2) White Slave Traffic (Suppression) Ordinance, being repealed?

What is the legal procedure being envisaged by the legislator to identify any natural or legal person in breach of the law and to what extent the abuser may be found guilty of an abusive/exploitative act?

What are the legal remedies available for the aggrieved vulnerable person in case the abuse is manifested by the client during the giving of the service?

Will the law provide a definition of the other forms of violence intrinsic to the commercial activity undertaken, which may be attributed to a third natural or legal person?

When is an accomplice or initiator of such a sexual act for gain legally liable?

How will the authorities deter abusive and illegal behaviour by any person involved in commercial activity?

On the one hand, the person abusing the consensual sexual act may be one of the two adults (both natural persons) directly involved; and on the other hand, it may be the case that the illegal involvement of a legal person (example recruitment entities, parlours, where the juridical person is required) gives rise to such abusive act.

In the course of my specialisation, I have researched the paramount consideration of the Principle of the Best Interest of the Child, its implementation during decision-making processes undertaken by policymakers, governmental or non-governmental and the enforcement thereof.

Therefore, my attention is drawn to the other forms of commercial activities ancillary to the sexual act itself which are considered illegal at the time being. The defilement of minors remains a criminal act.

The legal provisions enacted to safeguard the interests of minors, particularly under the section of the Criminal Code 'Of Crimes Relating to the Reciprocal Duties of the Members of a Family' and in particular subtitle II - OF SEXUAL OFFENCES regulated under Articles 198 till 209A, among others, are necessary legal assurances when decriminalisation of sexual offences are being debated in national fora.

It is understood that every legitimate service may be permitted to advertise such a service.

Some legal practitioners have voiced their queries with regards to the extent the 'loitering and soliciting' will be permitted under the new law. In particular, the questions raised focused on how will the new law regulate and monitor the advertising (on new media or other forms) of the service by natural and/or legal persons, non-participants in the sexual act?

How is the protection of minors is being ensured and is given paramount consideration in the proposed legal framework?

How are the measures undertaken by the Directorate for Child Protection, the Judiciary and the Executive Police triggered in pursuant to becoming aware that minors are being indirectly or directly exposed to sexual activities, usually also reported by professionals in the field?

A clear legal delineation of the sexual service between two adults to avoid the exploitation by other persons involved is required to set the legal parameters and define the ancillary acts intended for the advertising of the service and illegal activities such as pornographic acting.

Academics argue that the lack of regulation on the manner by which the service is advertised may give rise to the exploitation of the vulnerable persons, including minors and the proliferation of this lucrative commercial activity in view that studies show that decriminalisation of both parties actively involved in the sexual activity may lead to more complex commercial undertakings.

In conclusion, I humbly opine that the law must ensure that it provides an exhaustive definition of the activity being permitted within the new legal framework and the safeguards for the interests of all the vulnerable persons involved, directly or indirectly, are clearly stipulated to mitigate the risks of abuse by the natural or legal persons making use of legitimate commercial activity to exploit persons (men and women) luring them to provide sexual services in exchange for payment.

 

Dr Lynn Faure Chircop - Advocate for Children's Rights & Youth Justice.