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

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

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,... (see full summary)

 
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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.

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