Sex work: Critics of the ECtHR judgment of 25 July 2024, M.A. and others against France
Spendenbutton / Faire un don
Gender Law Newsletter FRI 2025#3, 01.09.2025 - Newsletter abonnieren
EUROPE: HUMAN RIGHTS APPLIED ON SEX WORK
Published on 7 July 2025
Cristina CAYO ASCENCIO, Sex Work Between Paternalism and Autonomy, sui generis 2025, p. 43–53.
This paper critically examines the judgment of the European Court of Human Rights (hereinafter ‘the Court’) of 25 July 2024 M.A. and Others v. France (summarized in our newsletter 2024#4).
In this judgment, the Court considered that the French prohibition on purchasing sexual services (Nordic model) did not violate Art. 8 of the European Convention of Human Rights (ECHR) on the following grounds. First, there is a broad margin of appreciation of the parties to the ECHR due to the lack of international consensus about the best way to legislate on prostitution (§§ 149-153). The Court dismissed the argument of the applicants that the French prohibition concerns the modalities of their sexuality – which concerns an essential aspect of the individual identity and leads to a narrower margin of appreciation of the states – because the applicants only complained not being able to exercise their profession (§ 157). Second, according to the Court, there is no clear causal link between the French prohibition and the degradation of the working of the sex worker (§§ 154-155; translation from the French). Third, this prohibition was decided in a “lengthy and complex legislative process” (§§ 158-159). Fourth, the Court held that it is part of a wider system taking all the aspects into account, including the protection of sex workers and the abolition of the offence of solicitation (§§ 160-162). Fifth, this prohibition also aims to fight against child prostitution because it is difficult to prove that the client of sex work knew that the sex worker was a minor person (§ 163). However, the Court stated that France could have to nuance its approach in the future, “depending on developments in European societies and international standards [...], as well as the consequences produced, in a given situation, by the application of this legislation” (§ 167). The violation of Art. 2 and 3 ECHR had also been claimed before the court, but the Court did not examine this claim specifically (see § 75).
The author of the paper first describes two current perspectives regarding sex work (p. 44-45):
1.) The neo-abolitionist perspective considers that a real consent to sex work is impossible and that prostitution can only be coercive and exploitative. It therefore wants the clients of sex services to be punished and considers sex workers as victims (nordic model).
2.) On the contrary, the pro-sex-workers' feminist perspective of the author emphasises the right to self-determination of the sex workers. It rejects their infantilisation and pleads for labour rights to protect sex workers from unsafe working conditions. The author observes that “[...] there is a normative moral view that sexual relationships are only genuine if they are free from economic considerations, making it implausible that one could consent to sex work for financial reasons: This underlying assumption is at the root of the stigmatisation of sex workers, who are often seen as either ‘morally compromised’ or ‘lacking agency’”. She argues that on the contrary, the fact that financial reasons lead individuals to do sex work, like in other forms of precarious labour, should lead to respect this decision. From this perspective, she identifies two positive state obligations instead of the stigmatisation of sex workers, which perpetuates socio-economic inequalities: ensuring “labour rights and protections within the sex industry” and “guarantee an adequate standard of living” (p. 51).
From this second perspective, she explains that the criminalisation of sex work clients especially infringes the following rights (p. 46-47):
1.) the sex workers' right to privacy (Art. 8 ECHR), by undermining their autonomy to choose to do sex work and to get economic independence through this work;
2.) their right to life (Art. 2 ECHR), including in a live with dignity, because they are stigmatized as victims who have lost their dignity and they have to put their lives at a higher risk due to a lower demand of sex work; and
3.) their right to be protected from torture and ill-treatment (Art. 3 ECHR), because they are exposed to a risk of police abuse and arbitrary detention in a partial criminalisation system.
The author gives the following main critics of the judgment from a sex workers' rights perspective, focusing of sex worker autonomy:
1.) The Court did not define the concept of ‘prostitution’ (p. 47-48 and 50).
2.) The legitimacy of the aims of the French prohibition (especially combatting human trafficking, protect human dignity and respect the states positive obligations under Art. 2 to 4 ECHR) could be contested, inter alia, because no conclusive evidence has been found that the criminalisation of the clients reduces human trafficking and because the Court only stated in its case law that the coercion in prostitution – and not voluntary prostitution – was incompatible with human rights (p. 48-49).
3.) The author states that a closer examination of Art. 2 and 3 ECHR, in the context of higher health and safety risks due to the French prohibition, could have led to a narrower margin of appreciation (p. 49 and 50).
4.) She criticises the distinction made by the Court between sexuality and work to dismiss the argument that prostitution is protected by the freedom to exercise freely one's sexuality. Indeed, she states that work and sexuality are interconnected in the prostitution. She stresses that prostitution challenges the cultural belief that sexuality and monetary transactions are separated (p. 49-50).
5.) The author also states that by only highlighting a lack of consensus on whether the French prohibition causes the health and safety risks claimed by the applicants, the Court did not address the negative consequences of this prohibition, and especially the reduction of their autonomy (under Art. 8 ECHR). She explains that a distinction between forced and voluntary sex work would have showed that sex work can be an autonomous response to socio-economic challenges which had been undermined by the French prohibition (p. 50). She also criticises that the Court did not address the higher health and safety risks for sex workers, although this would have clarified the implications of the French prohibition on Art. 2 and 3 ECHR. The author argues that by refraining itself to examine the negative effects of the French prohibition, the Court “reinforces a paternalistic framework that fails to protect sex workers” (p. 50), “undermines sex workers’ autonomy” and that the French prohibition, although aiming to address human trafficking and gender inequality, could “drive trafficking further underground and increase risks for sex workers” (p. 53).
Direct access to the article (https://sui-generis.ch)
Summary of the judgement of the ECHR of 25 juillet 2024 (Newsletter 2024#4)
In this judgment, the Court considered that the French prohibition on purchasing sexual services (Nordic model) did not violate Art. 8 of the European Convention of Human Rights (ECHR) on the following grounds. First, there is a broad margin of appreciation of the parties to the ECHR due to the lack of international consensus about the best way to legislate on prostitution (§§ 149-153). The Court dismissed the argument of the applicants that the French prohibition concerns the modalities of their sexuality – which concerns an essential aspect of the individual identity and leads to a narrower margin of appreciation of the states – because the applicants only complained not being able to exercise their profession (§ 157). Second, according to the Court, there is no clear causal link between the French prohibition and the degradation of the working of the sex worker (§§ 154-155; translation from the French). Third, this prohibition was decided in a “lengthy and complex legislative process” (§§ 158-159). Fourth, the Court held that it is part of a wider system taking all the aspects into account, including the protection of sex workers and the abolition of the offence of solicitation (§§ 160-162). Fifth, this prohibition also aims to fight against child prostitution because it is difficult to prove that the client of sex work knew that the sex worker was a minor person (§ 163). However, the Court stated that France could have to nuance its approach in the future, “depending on developments in European societies and international standards [...], as well as the consequences produced, in a given situation, by the application of this legislation” (§ 167). The violation of Art. 2 and 3 ECHR had also been claimed before the court, but the Court did not examine this claim specifically (see § 75).
The author of the paper first describes two current perspectives regarding sex work (p. 44-45):
1.) The neo-abolitionist perspective considers that a real consent to sex work is impossible and that prostitution can only be coercive and exploitative. It therefore wants the clients of sex services to be punished and considers sex workers as victims (nordic model).
2.) On the contrary, the pro-sex-workers' feminist perspective of the author emphasises the right to self-determination of the sex workers. It rejects their infantilisation and pleads for labour rights to protect sex workers from unsafe working conditions. The author observes that “[...] there is a normative moral view that sexual relationships are only genuine if they are free from economic considerations, making it implausible that one could consent to sex work for financial reasons: This underlying assumption is at the root of the stigmatisation of sex workers, who are often seen as either ‘morally compromised’ or ‘lacking agency’”. She argues that on the contrary, the fact that financial reasons lead individuals to do sex work, like in other forms of precarious labour, should lead to respect this decision. From this perspective, she identifies two positive state obligations instead of the stigmatisation of sex workers, which perpetuates socio-economic inequalities: ensuring “labour rights and protections within the sex industry” and “guarantee an adequate standard of living” (p. 51).
From this second perspective, she explains that the criminalisation of sex work clients especially infringes the following rights (p. 46-47):
1.) the sex workers' right to privacy (Art. 8 ECHR), by undermining their autonomy to choose to do sex work and to get economic independence through this work;
2.) their right to life (Art. 2 ECHR), including in a live with dignity, because they are stigmatized as victims who have lost their dignity and they have to put their lives at a higher risk due to a lower demand of sex work; and
3.) their right to be protected from torture and ill-treatment (Art. 3 ECHR), because they are exposed to a risk of police abuse and arbitrary detention in a partial criminalisation system.
The author gives the following main critics of the judgment from a sex workers' rights perspective, focusing of sex worker autonomy:
1.) The Court did not define the concept of ‘prostitution’ (p. 47-48 and 50).
2.) The legitimacy of the aims of the French prohibition (especially combatting human trafficking, protect human dignity and respect the states positive obligations under Art. 2 to 4 ECHR) could be contested, inter alia, because no conclusive evidence has been found that the criminalisation of the clients reduces human trafficking and because the Court only stated in its case law that the coercion in prostitution – and not voluntary prostitution – was incompatible with human rights (p. 48-49).
3.) The author states that a closer examination of Art. 2 and 3 ECHR, in the context of higher health and safety risks due to the French prohibition, could have led to a narrower margin of appreciation (p. 49 and 50).
4.) She criticises the distinction made by the Court between sexuality and work to dismiss the argument that prostitution is protected by the freedom to exercise freely one's sexuality. Indeed, she states that work and sexuality are interconnected in the prostitution. She stresses that prostitution challenges the cultural belief that sexuality and monetary transactions are separated (p. 49-50).
5.) The author also states that by only highlighting a lack of consensus on whether the French prohibition causes the health and safety risks claimed by the applicants, the Court did not address the negative consequences of this prohibition, and especially the reduction of their autonomy (under Art. 8 ECHR). She explains that a distinction between forced and voluntary sex work would have showed that sex work can be an autonomous response to socio-economic challenges which had been undermined by the French prohibition (p. 50). She also criticises that the Court did not address the higher health and safety risks for sex workers, although this would have clarified the implications of the French prohibition on Art. 2 and 3 ECHR. The author argues that by refraining itself to examine the negative effects of the French prohibition, the Court “reinforces a paternalistic framework that fails to protect sex workers” (p. 50), “undermines sex workers’ autonomy” and that the French prohibition, although aiming to address human trafficking and gender inequality, could “drive trafficking further underground and increase risks for sex workers” (p. 53).
Direct access to the article (https://sui-generis.ch)
Summary of the judgement of the ECHR of 25 juillet 2024 (Newsletter 2024#4)