Controversies traced out in the definition of prostitution in the Moldovan legislation

• Author: Vitalie Stati, Gheorghe Renita
• Pages: 402-435

Controversies traced out in the definition of prostitution

in the Moldovan legislation

Associate professor Vitalie STATI1

Lecturer Gheorghe RENIȚĂ2

Abstract

Practicing prostitution in the Republic of Moldova is an administrative offence.

Thereat, any attempts of enticing, coercing or facilitating engagement of a person into

practicing prostitution is regarded as an offence of pimping. Likewise regarded as an

offence of pimping is the case when the offender is taking advantage of recruiting certain

persons into practicing prostitution. In October 2018, the Parliament of the Republic of

Moldova proceeded to pass a law giving the following definition to the notion of

“prostitution” – gratification of sexual desire of a person by any method and/or means in

return for money, including such as the use of information technologies or electronic mea ns

of communication. Thereat, one could derive that dissemination of the erotic webcam

performances via the Internet for certain category of website visitors against payment

might constitute prostitution. Clearly highlighted in present article was the fact that the like

activities co nstitute pornography rather than prostitution. Prostitution require a physical

contact. The authors have d emonstrated that the definition of prostitution provided by the

law contravenes to the case law of the Constitutional Court of the Republic of Moldova as

well as to some of the regulations passed under the auspices of the Council of Europe and

European Union. Finally, the authors suggested a new wording for the notion of

prostitution, i.e.: engaging in sexual activity with different individuals benefiting on the

services provided by female or male prostitutes, the latter th us pursuing to acquire the

means of subsistence or the main source of livelihood.

Keywords: prostitution, cyberprostitution, pornography, erotic video- chat, erotic

shows, sexual services online, case law divergences, predictability.

JEL Classification: K14, K19, K38

1. Introduction

Proliferation of information technologies and communications has fuelled

the emergence and expansion of such a phenomenon as video-chat. According to

Florin Marcu, the “chat” should be understood as the “software that allows for

online conversations accompanied by (almost) instantaneous transfer of messages;

conversations per se”.3 According to Wikipedia, “a video-chat is a web service that

allows Internet users to communicate using video (+ audio) mode in addition to

1 Vitalie S tati - Department of P enal Law, Faculty of Law, Moldova State University, Ch isinau,

Republic of Moldova, stativitalie71@gmail.com.

2 Gheorghe Reniță - Department of Penal Law, Faculty of Law, Moldova State University, Chisinau,

Republic of Moldova, renitageorge1490@gmail.com.

3 Florin Marcu, Marele dicţionar de neologisme (Big Dictionary of Neologisms), Saeculum I.O.,

Bucharest, 2004, p. 181.

Juridical Tribune Volume 9, Issue 2, June 2019 403

text messaging. Separately standing is the erotic video-chat, also called cam girl –

an activity implying exposure of a model (female or male) for a certain period of

time in front of the webcam, in return for money or free of charge”.4

Back in October, and accordingly, in November 1995, appeared on a website

hosted by one of the United State of America servers were the very first erotic

video-chat performances (the so-called “live nude video teleconferencing”).5 Since

that time, the things kept scaling up. The like activities are no more rara avis.

Anyway, the erotic video-chat is a relatively new “business” creeping into the

market of “services” offered in the Republic of Moldova. The agencies dealing

with the aforementioned services are grooming girls by placing online

announcements while promising them impressive financial rewards in exchange to

exposure of their “beauty.” Online announcement panels are plagued with appeals6

inviting girls to provide erotic services on the internet (i.e. to go nude in front of a

webcam, to stimulate one’s own genitals, etc.) in exchange for money. This

phenomenon has long since drawn public, mass media and researchers’ attention.

Some consider it as a kind of “masked prostitution”7 or “prostitution in second

life”,8 while others consider it to be “cyberprostitution”,9 “online prostitution”10 or

“virtual prostitution.”11

4 Video-chat. Available at: https://goo.gl/dVY1yS (accessed at 12 December 2018).

5 Donna Hughes, The Internet and the Global Prostitution Industry. In: Susan Hawthorne and Renate

Klein (eds.), Cyber Feminism: Connectivity, Critique and Creativity, Spinifex, North Melbourne,

1999, p. 175-176.

6 One of such appeals (placed on one of the most visited Moldova sites at the onset of 2011)

contained the following message: “we recruit video chat models at the domicile. Benefit on a

generous commission and forget abou t your financial problems by earning from 500 to 2000 USD.

Work from home was never ever that pro fitable; do not hesitate to contact us for more information.

Announcement valid across th e country!”*. Yet another case: ap peared on a number of sites under

the heading “Work and study”, subheading “Jobs, vacancies”, were the announcements reading as

follows: “Erotic video chat – 80 to 100% guaranteed!” and “We are looking for video chat models

– we offer a 300 bonus upon employment!”** (it is unclear what the 300 means: Euro, USD, etc.).

* Apud: Masked prostitution: erotic video chat. Available at: https://goo.gl/D7XjXs (accessed at 19

January 2019).

** Apud: Judgment of the Supreme Court of Justice of the Republic of Moldova of 29 May 2018.

Casefile no. 1ra-813/2018. Available at: https://goo.gl/QCz1Ti (accessed at 19 January 2019).

7 Masked prostitution: erotic video chat. Available at: https://goo.gl/D7XjXs (accessed at 19 January

2019).

8 Susan W. Brenner, Fantasy Crime: T he Role of Criminal Law in Virtual Worlds, Vanderbilt Journal

of Entertainment and Technology Law, 2008, vol. 11, no. 8, p. 68.

9 Chris Ashford, Sex Work in Cyberspace: Who Pays the Price? Information & Communications

Technology Law, 2008 , vol. 17, no. 1, pp. 37-49; Chris Ashford, Male Sex Work and the Internet

Effect: Time to Re-evaluate the Criminal Law? “The Journal of Criminal Law”, 2009, vol. 73, pp.

258-280; Bela Bonita Chatterjee, Pixels, Pimps and Prostitutes: Human Rights and the Cyber-Sex

Trade. In: Mathias Klang and Andrew Murray (eds.), Human Rights in the Digital Age, Glass

House Press, London, 2005, pp. 11-26; Brooke Campbell, Is Cyberprostitution Prostitution? New

Paradigm, Old Crime. Available at: https://goo.gl/vEj25E (accessed at 19 Janu ary 2019); Matthew

Green, Sex on the Internet: A Legal Click or an Illicit Trick? California Western Law Review,

2002, vol. 38, no. 2, pp. 527-546; D. James Nahikian, Learning to Love “Te Ultimate Peripheral”

– Virtual Vices Like “Cyberprostitution” Suggest A New Paradigm to Regulate Online Expression,

Journal of Computer & Information Law, 1996, vol. 14, pp. 779-815; Nicolas Suzor, The Role of

404 Juridical Tribune Volume 9, Issue 2, June 2019

Back in 2011, a number of representatives of the like “enterprises”

(managing erotic video-chat activity in the Republic of Moldova) have stated to

one of the daily news reporters that they do issue employment cards to their

employees and so there are no grounds to set at doubts the “lawfulness” of the

“webcam models’ activity.” In a comment, a functionary from within the Ministry

of Labour and Social Protection of the Republic of Moldova proceeded to highlight

that the “webcam model” activity does not appear in the Occupational Classifier of

the Republic of Moldova12, and therefore, it is illegal. Ad similis, a prosecutor from

within the Chisinau Municipality Prosecutor’s Office shared his opinion on that the

activity in question is illegal, while failing to explain why.13 Four years later (in

2015), when the phenomenon in discussion took the alarming proportions,14 the

Prosecutor’s Office of the Republic of Moldova attempted to investigate cases of

“sexual services offered online.”

Thus, it is essential to note that the video-chat activity (especially, such as

erotic video-chat) does not have the socialization connotation alone but also means

a way of gaining certain income. In such circumstances, it would be appropriate to

question ourselves as to what extent this type of activity is legal.

2. Regulatory framework concerning video-chat activity

Conditions created in Romania pursued the objective of bringing the video-

chats into the “legislative environment.” So, the following definitions were

included in Article 2 of the Law of Romania no. 196 of 13 May 2003 on prevention

and combating of pornography15 (hereinafter referred to as the Law of Romania no.

196/2003): “For the purpose of this law, pornography is regarded as the acts of

obscenity as well as any attempts of reproducing or disseminating such products”

the Rule of Law in Virtual Communities, Berkeley Technology Law Journ al, 2010, vol. 25, pp.

1817-1886; Robin Fretwell Wilson, Sex Play in Virtual Worlds, Washington and Lee Law Review,

2009, vol. 66, pp. 1127-1174.

10 Donna M. Hughes, Prostitution online, Journal of Trauma Practice, 2004, vol. 2, iss. 3-4, pp. 115-

131.

11 David Cardiff, Virtual Prostitution: New Technologies and the World’s Oldest Profession, Hastings

Communications and Entertainment Law Journal, 1996, vol. 18, no. 4, pp. 869-900; Litska

Strikwerda, When Should Virtual Cybercrime Be Brought under the Scope of the Criminal Law? In:

Marcus Ro gers and Kathryn C. Seigfried-Spellar (eds.), Digital Forensics and Cyber Crime: 4th

International Conference, ICDF2C 2012, Lafayette, IN, USA, October 25-26, 2012, Revised

Selected Papers. Springer, Heidelberg, New York, Dordrecht, London, 2013, p. 133.

12 Classification of occupations in the Republic of Moldova, enacted by th e Order of the M inister of

Labour, Social Protection and Family no. 22 of 3 March 2014, published in the Official Gazette of

the Republic of Moldova No. 120-126 of 3 March 2014.

13 Are erotic video-chats legal? Available at: https://goo.gl/3sHjo1 (accessed at 19 January 2019).

14 Rather surprisingly but more persons ended up in hosting erotic video chat activity in pub lic

libraries. See: Judgment of the Supreme Court of Justice of the Repu blic of Moldova of 21 June

2016. Casefile no. 1ra-805/2016. Available at: http s://goo.gl/W5CuFk (accessed at 19 January

2019).

15 Romanian Law no. 196 of 13 May 2003 on the prevention and combating of pornography,

published in the Official Gazette of Romania no. 342 of 20 May 2003.