Is keeping a prostitution house a crime?

Highly profitable, prostitution has been the livelihood of many people. This is not an activity exclusively carried out by women – it is enough to have a body that one intends to commercialize – but their presence is predominant.

The reasons why these women decide to submit to prostitution are countless. Some have come out of extreme poverty, others need to help their families, and there are those who have not been through it, but have made prostitution a bridge to a more comfortable life.

Every day these women move to their work – despite society’s vehement denial to recognize it as such – and they go through another journey of satisfying the desire of others.

In every Brazilian city – and in the world – there are numerous houses of prostitution, carefully created for all types and tastes. Unlike ordinary imaginary, which brings novelistic knowledge on this subject, houses of prostitution work just like any other trade.

A client interested in satisfying a desire of his – in its broadest form, not just a sexual desire – enters the place, chooses someone and buys a service. This service is provided, paid and the customer follows his course.

When a prostitute – or sex worker – chooses to go to a prostitution house and does not carry out her activities on the street or alone, she is not only looking for practicality, but also, an essential factor: security.

There is no filtering process for people who will become customers for this type of service. Anyone can be.

If we currently see innumerable cases in the media of women who have suffered all kinds of violence within their family, what about women who are daily stigmatized by society itself?

From this reasoning came my interest in developing a research – still under construction – on the logic of the market of prostitution and how the law addresses these issues.

And the first question that came up was: Is it a crime to keep a house of prostitution, frequented by women over the age of 18, who have not been forced or influenced?

I began my analysis from the reading of the penal code provided for Chapter V – From pimping and trafficking in persons to prostitution or other forms of sexual exploitation – Article 229 of the Penal Code:

Art. 229. To maintain, for their own account or third party, an establishment in which sexual exploitation occurs, whether or not for the purpose of profit or direct mediation of the owner or manager:

Penalty – imprisonment, from two to five years, and fine.

Penalty - imprisonment, from two to five years, and fine.

 

The core of the type is to maintain establishment in which sexual exploitation occurs. Sexual exploitation is a genre from which prostitution is extracted. However, prostitution itself is not a crime in Brazil, and is also an activity recognized by the Ministry of Labor and Employment (MTE) through the Brazilian Classification of Occupations (CBO).

However, the legislator, while not criminalizing the prostitute, intends to punish in some way who favors her. A famous case in the media was the Bahamas Hotel Club in which the owner of the establishment was convicted in first instance for keeping house of prostitution but acquitted in the Supreme Court (STJ).

The point is that without the houses of prostitution – or commercial establishments turned to this practice – prostituted women are totally helpless. This is because they would have to exercise their trade exclusively in apartments or rented houses, or worse, on the streets. What would these women do if a client decided to commit some kind of violence?

Following the very correct understanding of Guilherme de Souza Nucci (2018), the legislator “does not see that the marginalization of the prostituted person only brings greater dramas. Without the legal shelter, the prostituted person falls into hiding and it is precisely at that moment that the profiteers appear. “

The existence of an organized place, with security everywhere, ends up becoming in a certain way a public policy that the State is not worried about exercising. In addition to the issues of stigma and prejudice, prostitution poses a number of risks to women’s health because women are inevitably exposed to sexually transmitted diseases (STDs) due to their activity.

Health experts estimate a 5% incidence of HIV infection among prostitutes in the country. This is a relevant fact that should move the State to elaborate more campaigns aimed at raising women’s awareness of the importance of using condoms, for example.

The conclusion that I draw from this brief analysis – as I said before, still under construction – is based on the article published in the Folha de S.Paulo newspaper by the illustrious Attorney General of the Public Prosecutor’s Office of the State of São Paulo Dr. Luiza Nagib Eluf,

Crime is to keep people in the condition of exploited, sacrificed, forced to do what they do not want. To explore is to put in a situation similar to that of slavery, to impose the practice of sex against will or, at least, to induce it, under the worst conditions, without remuneration or freedom of choice. Forced prostitution is sexual exploitation, a harsh crime, deserving of severe punishment, even more so if it is practiced against children. The rest does not deserve the attention of criminal law. A sex worker, at her own option, over 18 years of age, should be left alone, regulating the activity. In my view, with the recent amendment introduced by the new law, prosecution cases for the crime of “house of prostitution”, if they do not involve sexual exploitation, should result in acquittal, since the conduct of keeping house for libidinous purposes, by itself, no longer configures crime. Surveys under the same conditions will result in filing and many people being processed will be exempt from the investigation.

Criminal law is not an instrument to create more stigmata, but rather a means to protect juridical goods relevant to the survival of society. Using moralistic discourses to justify the permanence of criminal types as in the article on canvas does not deserve to prosper.

Finally, we understand that this is a controversial issue that in fact divides society, but we must not forget that the women we are discussing are human beings, like any other human being, deserving respect and welcome, as well as all women in our society .

In addition, I continue with my research, in spite of being aware that this will not be an easy task.

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