Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Switzerland (Ratification: 2000)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use or procuring of a child for prostitution. In its previous comments, the Committee noted that section 187 of the Penal Code penalizes any person who commits a sexual act with a child under 16 years of age. In this respect, it noted that, in its report and message of 20 September 1999, the Federal Council indicates that section 187 establishes the age of sexual consent at 16 years, and that young persons between 16 and 18 years of age may engage in prostitution, provided that they do so of their own free will. The Committee also noted that section 195 of the Penal Code punishes any person who induces a young person (that is a person who has not yet reached the age of 18 years) to engage in prostitution. The Committee considered that section 195 of the Penal Code covers the prohibition of the procuring of a child under 18 years of age for prostitution, in accordance with the Convention. However, it observed that, with regard to the use of a child under 18 years of age for prostitution, Swiss penal law is not fully in conformity with the Convention because section 187 of the Penal Code only punishes those who have committed acts of a sexual nature with children under 16 years of age. The Committee emphasized that it is necessary to make a distinction between the age of sexual consent and the freedom to engage in prostitution. Indeed, the freedom of sexual activity accorded to a young person by the law cannot include the freedom to engage in prostitution without being in violation of one of the objectives of the Convention, namely the prohibition of the worst forms of child labour.

With regard to the consent of a young person between the ages of 16 and 18 years of age, the Committee referred to the preparatory work for the adoption of the Convention (ILC, 86th Session, 1998, Report VI(2), pp. 52–53) in which the Office indicated that “this provision [Article 3(b )of the Convention] would still prohibit the use, engagement or offering of a person under 18 for prostitution. A child’s consent to a sexual act would not preclude it from the prohibition”. The Committee also referred to the message of the Federal Council of 11 March 2005 in which it indicated that “it should be noted that, in the view of the working group, the agreement of the child is not sufficient to exempt prostitution from any penalty” (see p. 2656 of the message). The Committee therefore considered that, when adopting Convention No. 182, the ILO also intended that the consent of a young person would not affect the prohibition in Article 3(b).

Moreover, with regard to the meaning of the expression “use of a child for prostitution” the Committee referred to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000. Under the terms of Article 2(b) of the Protocol, child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration. Accordingly, the Committee considered that, in the context of Convention No. 182, the use of a child for prostitution applies to a person, in this case a client, who engages in a sexual act with a child under 18 years of age for remuneration or any other form of consideration.

The Committee therefore considered that, although the national legislation (section 187 of the Penal Code) recognizes that a child of over 16 years of age may lawfully consent to a sexual act, the age of consent does not affect the obligation to prohibit this worst form of child labour. It also considered that the act of engaging in a sexual act with a child under 18 years of age for remuneration constitutes the use of a child for prostitution, whether or not the child consents. Accordingly, section 195 of the Penal Code does not give full effect to the prohibition set out in Article 3(b) of the Convention.

The Committee notes the Government’s indication that the issue of extending the culpability of persons who have recourse to the prostitution of young persons under 16 years of age to those who have recourse to the prostitution of young persons between the ages of 16 and 18 years is currently under discussion. This question will be examined in the context of the possible adhesion of Switzerland to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201) following which, and in the light of the responses received by the cantons, the Federal Council will decide on the action to be taken. The Government adds that parliamentary interventions have already been submitted on the subject, in which the Federal Council considered that the prostitution of young persons under 18 years of age may be prejudicial to their sexual development, traumatize them and result in their psychological and social destabilization. The Federal Council, however, noted that it would not be wise to anticipate the results obtained in the cantons from this hearing. The Committee reminds the Government, however, that, under the terms of Article 1, each Member which ratifies the Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee therefore urges the Government to take the necessary measures to ensure that the discussions on the culpability of persons having recourse to the prostitution of young persons between the ages of 16 and 18 years results in the adoption of legal provisions prohibiting and penalizing the use of children under 18 years of age for prostitution as soon as possible. It requests the Government to provide information in its next report on any developments in this respect.

The Committee is raising other points in a request addressed directly to the Government.