Abolish, persecute, regulate, give rights. Beyond the debate about what to do with prostitution, Spain already drags facts and policies that make up a heterogeneous framework, also contradictory, which is far from a consistent model to address this phenomenon. It is illegal and official data is lacking, but it counts for GDP; it is not considered an employment relationship, but there are registered employers; There is no state framework for sanctions, but there are ordinances that establish fines, even for prostitutes.
Prostitution in Spain is not illegal but it is not legal either. "In Spain there is a general legal uncertainty: prostitution as an activity free of coercion is in limbo, in a situation of illegality: it is neither legal nor illegal," says a guide drawn up between the Madrid City Council and the Press Association on the treatment of prostitution and trafficking for the purpose of sexual exploitation. In other words, "voluntary prostitution freely exercised" by adults is not a crime. Yes, pimping is illegal; that is, the sexual exploitation of third parties.
Specifically, the Penal Code persecutes the so-called "coercive pimping", which occurs when someone uses violence, intimidation or deception to determine another person to engage in prostitution. It is also possible to prosecute "whoever profits from exploiting the prostitution of another person" even if it is with her consent. In this case, it must be shown that two circumstances concur: vulnerability of the victim or imposition of "burdensome, disproportionate or abusive conditions."
The reform that the PSOE has proposed and that Congress has accepted for processing modifies this last case to persecute whoever "for profit, favors, promotes or facilitates the prostitution of another person, even with the consent of the same", is In other words, it eliminates the need for there to be "exploitation of prostitution".
The legality of prostitution in Spain also generates situations that are less strange in the workplace. Prostitution is not considered an employment relationship: prostitutes cannot have contracts attached to this activity. The jurisprudence puts the limit of labor in the "carnal access". In 2017 the Supreme Court issued a ruling in which it marked the difference between the hostess and prostitution: if there is sex, it is not possible to recognize an employment relationship; that is, that person is not a worker. If there is no sex and only alternating, that is, customer acquisition, accompaniment and drinking, there is an employment relationship between the person who carries out the activity and the person who runs the place where it is produced.
In practice, prostitutes can register as self-employed under a heading that does not specify their dedication in the National Classification of Economic Activities (CNAE).
There is hardly any official data on the scope and nature of prostitution in Spain and what there is, coming from different reports, is disparate. A few years ago, the State Security Forces and Bodies estimated that there were up to 1,600 clubs and premises where prostitution was practiced, a figure that would have decreased since the coronavirus crisis. In 2019, the Women's Institute calculated, however, that there were 1,200 clubs. How many women are in contexts of prostitution? There are no clear or recent data. A report from ten years ago by the Intelligence Center against Organized Crime of the Ministry of the Interior estimated that 45,000 women were trafficked for the purpose of sexual exploitation. A report by the sociologist Antonio Ariño, from the University of Valencia, raises the figure to 100,000, since it adds the women who exercise it but who are not in contexts of trafficking. That number is more like the one I threw a report of the Ministry of Labor made in 2005, which spoke of 113,000 women.
Yes there is data on the consumption of prostitution. The CIS showed in 2008 that 4.6% of men had paid to have sex in the previous 12 months. In 2003, a survey by the National Institute of Statistics revealed that 27.3% of men had resorted to prostitution at some point in their lives, 6.7% during the previous year.
Since 2014, prostitution counts in GDP. The change in the way of accounting for national wealth had its origin in the request of the European body in charge (the European System of Accounts) that all countries include in their accounts the money they move prostitution or drug dealing. The estimate of the National Institute of Statistics is that prostitution represents approximately 0.35% of the Gross Domestic Product, about 4,100 million euros per year.
The GDP measures the value of the economic activity of a country, that is, everything that involves an economic exchange. The indicator takes into account the shadow economy (because it involves a monetary exchange), but not, for example, unpaid care work because there is no such exchange. To estimate the impact of illegal or illegal activities, such as prostitution, the INE takes into account data collected from various sources, such as the Police, NGOs, the health system or employers of hostess clubs.
And it is that employers of hostess clubs and prostitution on their own account are legally organized in our country. Two different sentences recognized their nature and forced the General Directorate of Labor to register them in 2004. That year, the supreme court legalized the National Association of Mesalina Entrepreneurs, whose activity is the ownership and management of establishments that offer "products or services" to people "who engage in prostitutes and prostitution on their own account." The General Directorate of Labor had denied her registration for alluding to prostitution, but the Supreme Court issued her registration. The sentence argued that they were hotel establishments that needed staff to function and, therefore, had the legitimacy to associate as businessmen. They also added that it could not be assumed that their object was the exploitation of prostitution. That is, in a sector that, de facto, works, the employer part is legally recognized but not who performs those jobs.
In Spain there are municipal ordinances that have served to sanction clients, but also prostitutes. They are joined by the Gag Law, approved in 2015, whose articles 37.4 – which pursues "the performance or incitement to perform acts that violate sexual freedom and indemnity, or carry out acts of obscene display" – or even 36.6 – that punishes "disobedience or resistance to authority – have allowed prostitutes from different cities have been sanctionedas reported various organizations.