2013

Dhruv Yadav 20131220; BA LLB Section D

[LEGALISING PROSTITUTION]
This paper argues that the state needs to play an active role in helping sex workers secure their right to carry on their occupation. This positive approach would involve legalizing brothels, and allowing people to profit off anothers sex work. This contrasts with the negative approach of completely decriminalizing sex work, which relies on the active participation of bona fide NGOs by providing safe environments, healthy conditions, and regular health checkups to sex workers. By comparing models from different countries, this paper propounds a comprehensive approach which would legalize prostitution, and use the help of NGOs in order to differentiate between trafficking and legitimate sex work to help sex workers secure their right to occupation, and effectively target sex-related trafficking.

Legalising Prostitution
INTRODUCTION Prostitution in India is regulated by the Immoral Trafficking Prevention Act, 1956 (ITPA). Although paying another in exchange for sexual activity is not strictly prohibited, it is abhorred by the public in India. This abhorrence is best highlighted by the wording of the statute itself; prostitution is defined as the sexual exploitation or abuse of persons for commercial purposes1. This wording reflects the stigma that is attached to prostitution in India. Unlike other countries, India attempts to maintain an ambiguous position in controlling prostitution. The ITPA does not expressly promote prostitution, nor does it prohibit prostitution. The ITPA conforms itself to a partially negative perspective of prostitution by refusing to criminalize it. The ITPA prohibits persons from earning off the prostitution of another person2; bans brothels3; and restricts prostitution in public places4. Thus, the complete decriminalization of prostitution is conditional and dependent on the provisions promulgated in the ITPA. These provisions exist to deter the trafficking of sex work. However, the reality is that there are 20 to 65 million people trafficked in India, out of which most are forced into sex trafficking, and other forms of labour. According to the US Department of State, sex trafficking of women in India is widespread (Department of State). The ITPA provisions have failed to reduce trafficking: women all over India are forced into prostitution. The largest hurdle faced by sex workers, aside from the dearth of effective law enforcement, is that all sex workers are subsumed to be trafficked into their field of work, and repeatedly prohibited from carrying on their occupation. Police often raid brothels, and arrest sex workers, basing their arrests on apocryphal provisions of the ITPA, thereby making sex work in India illegal de facto (Ghosh). The provisions that ban brothels and profiting off anothers prostitution are based on the presumption that all sex workers employed in a brothel, or availing the services of an agent are necessarily being trafficked. It overlooks the fact that many peoples livelihood depends on sex work, and many may need to work in brothels, or avail the services of an agent to secure a regular income. Although we should strive to suppress trafficking of sex workers in India, it would be rash to believe that the provisions of the ITPA can achieve this. While some argue that complete decriminalization is the only way to assure that sex workers

1 2

Immoral Trafficking Prevention Act, 1956 (ITPA). Section 2(f). ITPA. Section4 3 ITPA. Section 3 4 ITPA. Section 7

Legalising Prostitution
receive their rights, this paper suggests using a mix of effective legislation and decriminalization to solve the problems faced by sex workers. THE MORAL ISSUES SURROUNDING SEX WORK In 2011, Ed Goedhart, a member of the Nevada5 state legislature publicly opposed banning prostitution. He stated that Nevada was one of the last, best, free places, and that Nevadans should embrace the heritage of freedom and libertarianism that will bring people to Nevada. This statement was surprising to many Americans, because Goedhart was, arguably, the most conservative member of the Nevada state legislature. However, citizens of the state of Nevada were not shocked, because Nevada has achieved a profound moral understanding of prostitution. It has separated immorality from prostitution with relative success (Love). Prostitution is illegal in all states of the USA, except in certain counties of the state of Nevada. Prostitution in Nevada is defined, under the Nevada Revised Statutes (NRS), as engaging in sexual conduct with another person in return for a fee, monetary consideration, or other thing of value. 6 This definition is straightforward, and manifests the disinterested manner in which Nevadas legislature views prostitution. To rid sex work of the social stigma attached to it, Indian legislators need to use a less caustic tone in defining prostitution. Although the legislature merely reflects the views of the Indian people, the reverse is also true. Enacting legislation that views sex work as an ordinary business transaction would have a profound impact on how Indians view sex work. Given enough time, and aid from NGOs, the statutory legality of prostitution could lead Indians to separate sex work and immorality. The role of NGOs is crucial in helping the Indian people, and the legislators, comprehend and alleviate the plight of sex workers in India. In India, and many other countries around the world, sex work is equated to depravity. In Gaurav Jain v. Union of India, the Supreme Court referred to prostitutes as fallen women. It scrutinized the Convention on the Elimination of All Forms of Discrimination Against Women and stated that the eradication of prostitution is integral to social welfare and the glory of womanhood (Gaurav Jain v. Union of India & others). These statements manifest the

intransigent reluctance of all authorities of the state to recognize the legitimacy of sex work. The social stigma imputed to sex work is the most significant obstacle that sex workers currently

5 6

Nevada is the only state in the United States of America that allows prostitution. Nevada Revised Statutes. Chapter 201. Section 295.

Legalising Prostitution
face. Unless society stops disparaging sex workers, their legitimate field of work will continue to be subsumed within the category of illegal trafficking. If this continues, sex workers will be denied the right to work in safe environments and under healthy conditions. Since prostitution was legalized in Victoria, Australia, perceptions towards the sex industry have become more acceptable; these perceptions are largely shaped by the media (Bindel and Kelly). Therefore, it is necessary for the state to positively promote sex work to alleviate the conditions which prostitutes work under, and simultaneously eradicate the belief that all sex work is immoral. THE IMMORAL TRAFFICKING PREVENTION ACT, 1956 The ITPA follows an abolitionist approach towards prostitution. Paying another for sexual activity is not prohibited, but various related activities are prohibited to discourage prostitution. Many categorize this approach within criminalization of prostitution, because due to various restrictions, prostitution is nearly impossible (Mossman). This approach is analogous to the approach followed by England, under the Sexual Offences Act, 1956 (SOA). Prostitution is not defined under the SOA; R. v. McFarlane (R. v. McFarlane) established that merely offering to provide sex in return for money amounts to prostitution. Section 4 of the ITPA is identical to section 30 of the SOA: it punishes any adult who knowingly lives on the earnings of the prostitution of any other person. Both acts, the SOA and ITPA, make it an offence to keep, or allow ones premise to be used as a brothel. A brothel is defined under section 2(a) of the ITPA as any house, room, conveyance or place which is used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. Section 6 of the ITPA is analogous to section 24 of the SOA: they both prohibit detaining a person in a premise where prostitution is carried on, or any other premises. The primary difference is that the wording of the ITPA effectively bans prostitution in India. The ITPA overlooks the importance of consent of the sex worker, thereby making all clients guilty if they intend have sexual intercourse with a person who is not their spouse. This ambiguous provision can also lead to cases which are completely unjustified. It prevents two individuals from having consensual sexual intercourse just because they are not married; it also suggests that a detainer may detain a detainee for any reason except to have a sexual relationship with the detainee. Section 6 of the ITPA is one of the many ambiguities found in the act, which are perpetually used by the police forces to make unfair arrests.
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Legalising Prostitution
DECRIMINALISATION AND LEGALIZATION OF PROSTITUTION In her article, Decriminalizing Sex Work, Shohini Ghosh argues that completely decriminalizing sex work is in the best interest of the sex workers (Ghosh). By completely decriminalizing sex work, the state can effectively distinguish between trafficked and voluntary sex workers. Decriminalizing involves removing all laws against prostitution and treating it like any other business interaction. This would involve removing brothels from the ambit of the act, allowing prostitutes to mutually benefit by using any premises to carry on their work. This is a sensible demand, because there is nothing illicit about brothels per se. This is an important step to make prostitution tantamount to any other business interaction. To prevent the misuse of brothels, Shohini Ghosh demands that laws governing sex trafficking become more stringent. However, the complete decriminalization of brothels, without state regulation, could lead to brothels functioning under unsanitary conditions. Brothels also may not have the requisite health checks, and may hire sex workers with STDs. Unregulated brothels could increase the prevalence of HIV in a country like India, where a large proportion of sex workers are unaware of the dangers of HIV due to their lack of education, or choose to ignore the risks of HIV due to their need for money. New Zealand is the quintessential example of a country that has decriminalized prostitution. However, even New Zealand uses legislation to control brothels by allowing only certified brothels to function. The certification system in New Zealand7 requires all brothels to be certified by the state, but exempts street-based sex workers. Certification of brothels is necessary to prevent brothels from exploiting unknowing sex workers who may enter an unfair contractual relationship. Advocates of decriminalization also demand the removal of section 4 of the ITPA which prohibits another adult to earn off the prostitution of another person. This provision indicates that a sex worker cannot avail of another persons services to augment her earnings, thereby severely restricting sex workers right to work. It also implies that a sex workers family member who is above the age of 18, unable to earn money through employment, and therefore lives off the workers earnings, is guilty of an offence under this provision. Excluding this provision from the ITPA might give sex workers the liberty to use the services of agents to increase their earnings, but it could also incentivize poor families to sell off their daughters into the sex trade to send money back to them. Clearly legislation is a prerequisite to

Prostitution Reform Act, 2003. Section 14.

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prevent ambiguities from discriminating prostitutes. Section 320 of Chapter 201 of the NRS prohibits a person from earning off anothers prostitution if he or she does not provide consideration to the sex worker. Using such a contractual provision allows sex workers to avail the benefits of agents in order to increase their business. However, even the provision in Nevadas statute prevents prostitutes from supporting adult family members if they wish to do so. Such discrepancies exemplify the importance of enacting unambiguous statutes, instead of simply decriminalizing existing provisions in the ITPA. Proponents for decriminalizing sex work often, highlight the subsistence of a two-tier system of legal, and illegal acts. If an action is not legal, it then becomes illegal- prostitution is pushed underground, which can subsequently lead to a sex workers rights being violated. The alternative, which is decriminalization, focuses on the eradication of sexual abuse, sexual coercion, and the use of children in prostitution. This approach presumes that sex workers will be able to work under safe conditions without state guidelines. In its article, Trafficking Reforms (Centre for Feminist Legal Research), The Centre for Feminist Legal Research highlighted how mass raids, by the police, in the Bombay red light districts have been unsuccessful in reducing the number of sex workers infected with HIV/AIDS. It also mentions the rights-based approach, which involves NGOs playing an active role in improving sex workers lives. The World Bank acknowledged the Sonagachi Project as a model project in helping decrease the population infected with HIV/AIDS. However helpful the NGOs have been, their success should not preclude the states duty to uphold the rights of its citizens. NGOs are often underfunded, and their presence is localized, unlike the government. Also, many sex-work related NGOs are divided among themselves on the issue of criminalizing or legalizing sex work. By legalizing prostitution, the government could standardize laws governing prostitution, and then use its sovereignty to ensure that sex workers rights are not being violated. New legislation needs to be created giving the National AIDS Control Organisation more power and funding. Legalization will only be effective if the government stops placing fear in the minds of sex workers and instead focuses on peer consultation, education, and community work (Ghosh). Thus the government should start cooperating with NGOs to effectively target the problems faced by sex workers. CONCLUSION
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Legalising Prostitution
Legalization and regulation of prostitution should allow sex workers to work without excessive constraints. Decriminalizing and legalizing prostitution both have many shortcomings. To safely govern prostitution Indian legislators need to create laws that borrow from both ideals. The legislation should consider the plight of sex workers and allow for differential treatment in legislation. It should allow sex workers personal liberty, and the right to retain their child. It should include criminal and civil remedies to prohibit the abuse of sex workers by clients. Sex workers should receive health care, and a welfare fund for other medical expenses. Finally, the state should stipulate a minimum wage for sexual services. In Peoples Union for Democratic Rights v. Union of India (People's Union for Democratic Rights v. Union of India), the Supreme Court stated that paying a labourer below the minimum wage amounts to forced labour. Including prostitution under the minimum wages act could significantly increase the standards under which prostitutes work. Recently, the Supreme Court of India overruled a statutory provision in the Bombay Police Act, 1951 which banned dancing girls from performing in dance bars, but allowed them to dance in 5-star hotels (State of Maharashtra v. Indian Hotel and restaurants assn.). The Supreme Court exposed the double standard that the legislation created by allowing upper-class bars to allow dance girls. It then overruled the provision, stating that the women had the fundamental right to practice any profession. This decision exemplifies the liberal approach the Supreme Court has recently adopted, and shows that there remains some hope for sex workers to secure their rights.

Bibliography
n.d. Bindel, Julie and Liz Kelly. "A Critic al Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden." Routes Out Partnership Board (2003): 17. Document. Centre for Feminist Legal Research. "Trafficking Reform: An Analysis of the Protection of the Rights of Positive People, Children, and Sex Workers." (2006). Department of State, USA. "Trafficking in Persons Report." 2013. 6

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Gaurav Jain v. Union of India & others. No. AIR1997SC3021 . The Supreme Court of India. 30 3 1998. Ghosh, Shohini. "Decriminalizing Sex Work." SEMINAR-NEW DELHI 583 (2008). Love, Dylan. "I Walked Into A Nevada Brothel And My Expectations Were Shattered." 5 Novmber 2013. BussinessInsider. Document. 20 November 2013. Mossman, Dr. Elaine. "International Approaches to Decriminalising or legalising Prostitution." Government Publication. 2007. People's Union for Democratic Rights v. Union of India. No. 1982 AIR 1473. Supreme Court of India. 18 September 1982. Document. R. v. McFarlane. No. [1994] Q.B. 419. Court of Appeal (Criminal Division). 20 December 1993. State of Maharashtra v. Indian Hotel and restaurants assn. No. AIR2013SC2582. Supreme Court of India. 16 July 2013. Document.