Supreme Court Clarifies the Definition of Prostitution

In a judgment published today, the Supreme Court of Estonia held that the term "prostitution", as used in the Estonian Penal Code, refers exclusively to sexual intercourse provided in exchange for payment and does not extend to other sexually oriented activities.

The case concerned the owner of a strip club and two barmaid-administrators who had been charged with pandering (procuring). According to the indictment, dancers employed at the club offered private striptease performances and services described as massages, which allegedly constituted sexual services intended to sexually arouse clients. However, no sexual intercourse took place during these activities. Both the County Court and the Court of Appeal found the defendants guilty of pandering, but the Supreme Court acquitted them.

Under the Estonian Penal Code, pandering includes facilitating prostitution, assisting or inducing prostitution, as well as owning or managing an establishment engaged in prostitution. However, the Penal Code does not define the term "prostitution," nor is it expressly defined in any other legislation.

The Prosecutor's Office argued that prostitution should be understood as paid sexual partnership, encompassing either sexual intercourse or any other act of a sexual nature. The County Court and the Court of Appeal sought to interpret the concept of prostitution by relying on case law concerning sexual offences and legal scholarship.

The Supreme Court held that such an approach amounted to an impermissible expansion of criminal liability. According to the Court, extending the definition of prostitution beyond paid sexual intercourse to include other sexually oriented acts unlawfully broadens the scope of punishable conduct. The Court further noted that sexual offences concern unlawful sexual acts and are fundamentally different in nature from prostitution, making them an inappropriate basis for defining the latter.

Although one purpose of criminalising pandering is to protect the personal autonomy of individuals engaged in providing sexual services, the offence is not, at least directly, linked to the use of force or coercion. Conduct such as forcing a person into prostitution, non-consensual sexual violence, or exploiting a victim's helplessness or minority is punishable under separate provisions of criminal law. Consequently, the Court held that the need to provide greater protection to victims cannot justify an expansive interpretation of the concept of prostitution.

The Supreme Court also observed that, in ordinary language, prostitution is generally understood as selling one's body for sexual intercourse or earning money through sex. Likewise, the term "sexual intercourse" is commonly understood to refer to sexual relations in their various forms. Accordingly, the Court concluded that only sexual intercourse provided in exchange for payment constitutes prostitution within the meaning of the Penal Code.

Source: https://www.riigikohus.ee/et/uudiste-arhiiv/riigikohus-selgitas-otsuses-prostitutsiooni-moistet