CEDAW/C/64/D/67/2014
work (legally a grey area, in which women do not rely on sex work as a primary
source of income, such as in massage parlours, where women may offer sexual
services clandestinely). The author claimed that where sexual behaviour is not
visible in public, it is not commercial but rather private life. The author submitted
that the above was confirmed repeatedly in the jurisprudence of the Constitutional
Court and the Administrative Court. 1 Furthermore, these forms of sex work need to
be clearly distinguished, on the one hand, from an unconventional sex life (which
may have a commercial appearance but no commercial substance) and, on the other,
from trafficking in and criminal exploitation of prostitutes. In theory, an
unconventional sex life is protected, as it is private life. However, in the case at
issue, the State party had distorted both these distinctions.
2.2 The author submitted that in 2007, the Lower Austria police began an
undercover investigation to uncover the author ’s sex life for the sole purpose of
prostitution control. On 19 February 2007, at 8 p.m., an undercover officer entered
the home of the author under a false pretence. This was unlawful, as section 131 of
the Code of Criminal Procedure explicitly prohibits the police from entering a
private home under a false pretence.
2.3 The author later learned that, between 19 January and 19 February 20 07, the
police had been conducting an undercover investigation against her with the purpose
of proving that she was engaged in illegal prostitution. The police collected sexually
explicit mail and pictures of the author, although it was clear that such inf ormation
was of no use in fighting serious crime (illegal prostitution is not a crime, but rather
an administrative offence).
2.4 When the undercover officer entered the author ’s home, he had already made
sure through previous e-mail correspondence and a telephone conversation that the
author would receive him almost nude in sexy lingerie, by pretending to be a
swinger friend who shares her unconventional sex life. He intended to use her
nudity to undermine her and prove that she was engaged in illegal pro stitution.
2.5 At 8.20 p.m., the officer revealed his true identity and hurried to the entrance
to allow two more officers to enter against the will of the author, without giving her
an opportunity to dress. He wanted his colleagues to witness her nudity, in order to
obtain evidence of illegal prostitution. The author perceived this intrusion as a kind
of rape and subsequently suffered from post-traumatic stress. A few minutes later, a
fourth officer entered the home. The officers were armed. The author ma intains that
the police may not intrude into private homes unless justified by a judicial order
(in accordance with sections 119 and 120 of the Code of Criminal Procedure) or in
the case of an emergency (as defined by sections 33, 38a, and 39 of the Securi ty
Police Act). Neither was the intrusion into her home justified by a judicial order
(judicial orders to search a home are not issued to enforce administrative laws), nor
was there an emergency. Rather, the police entered the home in order to pressure the
author and obtain from her a false confession that her unconventional sex life
constituted illegal prostitution. The police did not leave her home until 10.15 p.m.
The officers’ superiors had confirmed their approval for the intrusion in order to
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16-13831
The author referred to rulings by the Constitutional Court: VfSlg 15.632 of 14 October 1999,
VfSlg 8.272 of 1978, 8.907, 10.363 and 11.926 and to Administrative Court decisions VwGH
2004/09/0219 of 20 November 2008 and VwGH 2005/09/0181 of 22 November 2007.
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