Articles

Decriminalising sex work: Will India lead the way?

By on October 23, 2015

Research Fellow, Judith Lumley Centre, La Trobe University.

In August this year, Amnesty International (AI) took an important stand to promote and protect human rights by endorsing an internal policy to support the decriminalisation of sex work. In the lead up to this decision, public debate on the buying and selling of sex raged on in a battle of open letters and online petitions, praising and condemning AI’s stance on the issue. What is the significance of this decision, and why is it the correct one? Drawing from a human rights and public health perspective and exploring experiences and evidence from India, I attempt to answer these questions.

The legal landscape governing sex work is complex. Broadly speaking, countries have one of four regulatory environments addressing sex work. Complete criminalization in countries such as India, South Africa, and many parts of the USA render most aspects of sex work – the buying, selling, living off earnings, running commercial sex establishments etc., illegal. Partial criminalization penalises the buyer (Sweden & Norway – ‘the Nordic model’), and/or the person selling sex, and/or those monetarily benefitting from others’ sex work (Brazil).  Legalisation (in Austria & Senegal for example), allows sex work under certain conditions, often in a heavily regulated environment involving mandatory registration and testing. Decriminalization, the least popular model, currently adopted only by New Zealand and New South Wales (an Australian state) involves the reform of laws to make sex work legal, and subject to regulation under occupational health and safety laws. The ‘Sex Work Law Map’, a new interactive mapping resource developed by the Sexuality, Poverty and Law Programme at the Institute of Development Studies provides deeper insight into the nuances of the legal landscape around sex work with data from 75 countries.

Laws determine the rules by which societies function, and are generally designed to protect people from harm and deter behaviour that is harmful to others. Yet, in some instances, the law and its implementation are in contradiction to human rights, and can pose a serious impediment to certain populations living a safe and healthy life.  Laws that criminalise sex work fall in this category. Every person is entitled to fundamental human rights. However, sex workers face considerable abuses of their human rights, particularly in criminalised environments, including the right to equality and non-discrimination (harassment and abuse by police), the right to privacy (forced HIV testing), and the right to the highest attainable standard of health (sexual violence, discrimination in access to health services) amongst others1.

In India, the ‘Immoral Traffic (Prevention) Act of 1956 criminalises activities necessary to perform sex work such as running commercial sex work establishments, living off earnings earned through prostitution, soliciting etc. The law is ‘implemented’ primarily through street-level policing, subjecting sex workers (largely, but not only women) to considerable financial, physical and sexual harassment. The police physically assault and publically shame sex workers during raids, demand bribes or sex to avoid arrest, and look for condoms (as evidence of sex work) and confiscate them. A study with female sex workers in Andhra Pradesh indicated a significant association between police abuse and increased risk of STI transmission, including HIV, and inconsistent condom use2. In such an environment of discrimination, clients, partners and managers of sex workers can physically, verbally and sexually abuse them with impunity, knowing that there is little recourse to justice.

Due to their disproportionately high risk of acquiring HIV, sex workers are a key population for HIV prevention and treatment services. However, a restrictive legal environment can be a critical barrier for the provision of and access to health services (including HIV and sexual and reproductive health services), with serious negative health consequences. Focus group discussions with female sex workers, men who have sex with men (MSMs), and transgender people in Karnataka revealed poor quality of care such as discriminatory attitudes by healthcare workers including denial of treatment, refusal to conduct medical examinations, verbal insults and presumptions of HIV positive status on the basis of their occupation3. Among other things, structural barriers to accessing health services included fear of imprisonment or arrest, requirement of an ID card to receive services, and the payment of ‘bribes’ to receive free services. Such research into the experiences of sex workers in India and elsewhere indicates that a criminalised environment exacerbates human rights abuses, restricts the effectiveness of HIV programming, and prevents sex workers from accessing public benefits, entitlements and receiving state protection from harm.

Groups that oppose decriminalisation such as the ‘Coalition Against Trafficking in Women’ (CATW) take the stand that the sex work industry is inherently exploitative of disenfranchised women and their bodies; and that such ‘businesses’ promote the trafficking of young girls and women from poor regions/countries, subjecting them to long-term abuse and trauma. These arguments are problematic as they fail to adequately differentiate between sex–trafficking, a gross human rights violation, and adult consensual sex work; do not acknowledge that there are a considerable number of women (men and transgenders) who enter the business as adults, to earn a livelihood, often in socially and economically deprived contexts. In India, for example, studies that have explored the pathways to sex work amongst Indian female sex workers indicate that only a minority (between 3%20%) entered the business through force and coercion4-6. Finally opponents to decriminalisation fail to recognise the agency that even marginalised individuals (especially women and sexual minorities) exercise in their decision to sell sex as a livelihood. In a context where the sex market is thriving and always will, this is a choice, though a limited one for individuals to obtain work, and earn a livelihood. It provides an opportunity for marginalised individuals to better themselves in a context where intersecting structural factors (poverty, gender, inequality etc) collude to discriminate against them.

The alternative model advocated for by CATW and others, (popularly called the Nordic Model, as currently implemented in Sweden & Norway) prohibits the buying of sex, and profiting from others’ sex work (brothel owners, pimps etc). While the law does not penalise sex workers per say, it has driven the sex work business underground resulting in health and safety hazards similar to fully criminalised environments1. Sex workers report having to conduct business with clients covertly and quickly to evade police detection, and are fearful of being charged with abetting criminal behaviour.

Despite adverse legal environments, sex worker organizations have and continue to play a critical role in facilitating a) social participation through autonomous, self-governing collectives; b) recognition as important civil society stakeholders, c) effective HIV interventions around safer sex, and negotiating condom use with clients; d) access to monetary institutions and resources, and e) legal and policy reform, and changes in police practices. In Andhra Pradesh, female sex worker led community advocacy groups have been successful in increasing access to social entitlements (such as ration cards for food subsidies), and sensitising police and improving police behaviour towards sex workers7.  The Sonagachi project in Calcutta’s red light district (a ‘best practice’ model) uses a peer led community development approach, focusing on occupational health and safety (STI/HIV prevention), improved civil society participation, and collective action to increase access to social and monetary resources. Additionally, the sex worker collective (Durbar Mahila Samanwaya Committee) has responded to underage and coerced women entering sex work through community vigilance and action8. Among other things, this intervention has played a pivotal role in preventing an HIV epidemic in the state, and responding to issues of human trafficking within the trade.

Over the last five years, there has been a mix of positive and negative outcomes related to amending Indian law to counter discrimination on the basis of sexuality. In 2009, a Delhi High Court ruling decriminalised adult same-sex sexual acts in private. However, the Indian Supreme Court reversed this decision in 2013. In 2014, in a landmark ruling, the Supreme Court recognised transgender people as a third gender. While Amnesty International’s stance on supporting decriminalisation will not change laws around sex work in India or elsewhere overnight, it is an important step. As more organisations such as AI, WHO, UNAIDS, the ILO and others formally call for amending laws to be in line with human rights standards, governments will be pressured to honour their obligation to protect and promote human rights for all.

 

References

  1. Decker MR, Crago AL, Chu SK et al (2015). Human rights violations against sex workers: burden and effect on HIV. Lancet: 385(9963):186-99.
  2. Erausquin JT, Reed E, Blankenship KM (2011). Police-related experiences and HIV risk among female sex workers in Andhra Pradesh, India. J Infect Dis. 1;204 Suppl 5:S1223-8.
  3. Beattie TS, Bhattacharjee P, Suresh M, Isac S, Ramesh BM, Moses S (2012). Personal, interpersonal and structural challenges to accessing HIV testing, treatment and care services among female sex workers, men who have sex with men and transgenders in Karnataka state, South India. J Epidemiol Community Health. 66 Suppl 2:ii42-48.
  4. Saggurti N, Verma RK, Halli SS, et al (2011). Motivations for entry into sex work and HIV risk among mobile female sex workers in India. J Biosoc Sci. 43(5):535-54.
  5. Devine A, Bowen K, Dzuvichu B, et al (2010). Pathways to sex-work in Nagaland, India: implications for HIV prevention and community mobilisation. AIDS Care. 22(2):228-37.
  6. Gupta J, Reed E, Kershaw T, Blankenship KM (2011). History of sex trafficking, recent experiences of violence, and HIV vulnerability among female sex workers in coastal Andhra Pradesh, India. Int J Gynaecol Obstet. 114(2):101-5.
  7. Punyam S, Pullikalu RS, Mishra RM et al (2012). Community advocacy groups as a means to address the social environment of female sex workers: a case study in Andhra Pradesh, India. J Epidemiol Community Health. 66 Suppl 2:ii87-94.
  8. Jana S, Dey B, Reza-Paul S, Steen R (2014). Combating human trafficking in the sex trade: can sex workers do it better? J Public Health (Oxf). 36(4): 622-8.
Leave a reply
Print Friendly, PDF & Email


3 Responses to “Decriminalising sex work: Will India lead the way?”

  1. Mary M. Michonnot

    Sad to read such arguments. In France we had discussions in the National Assembly on a proposed law with decriminalize ‘solliciting’ and criminalizes the client, the buyer.
    It was incredible to have such a wide array of agreements from far right to far left, from conservatives to communists, from many NGO, from the big movement ATTAC. The law was passed. Thirty years of arguments to ‘legalize sex work’ under cover of combating HIV. !! As a Trans militant friend was telling me: provide decent jobs for ‘sex workers’ male, female or trans, and no one will refuse : It is a world of violence, pain and disease. A modern form of slavery. Yes we should not persecute the prostitute, we should fine and jail the clients. How can be talk of GENDER, or women’s rights and propose that women continue to be used as sex toys? In Europe we have had 500 000 under aged girls coming from the East to the West in the 90s.. Do you think that a girl of 12 or 16 should be raped and put at the service of old dirty men? Sex workers who come testify how free they are at the United Nations are paid by pimps to do so…. Any well informed journalist in NYC can explain that to you… Germany legalized the business, so now they have 24/24 7/7 ‘hostel’s where girls’ passports are taken away and they many not leave the building… You make me angry.

    Reply
    • Mridula Shankar

      Hi Mary,

      Our disagreement on how to address human rights abuses of people engaged in sex work is a reflection of the diversity of views on this complex topic.

      I want to reiterate the distinction I made earlier between adult consensual sex work, and sex trafficking. The latter is defined in Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons adopted by the UN General Assembly in 2000, and is as follows “Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” The situation you describe (“In Europe we have had 500 000 under aged girls coming from the East to the West in the 90s.. Do you think that a girl of 12 or 16 should be raped and put at the service of old dirty men?”) falls under the purview of human trafficking for sexual exploitation, which is a human rights violation and all states must take appropriate measures to suppress and prevent such exploitation.

      However, conflating human trafficking with adult consensual sex work does a major disservice to both groups. First, while a proportion of individuals enter sex work through coercion, this does not reflect the experiences of a significant number of women, transgenders and men who have entered sex work to make a living, often in constrained social circumstances, but in the absence of coercion. When these individuals are targeted (for example through police raids) in the fight against human trafficking, it contributes to further discrimination, violence and abuse of an already marginalised and stigmatised population. Second, labelling all individuals engaged in sex work as “victims” de-legitimises the agency that many sex workers exercise as they advocate to be recognised as citizens and individuals who have rights (including the right to work and enjoy just and favourable conditions of work), that must be protected and promoted by the state through reforming laws and their implementation. The open letters and petitions in support of Amnesty’s policy on decriminalisation signed by sex workers, and groups representing sex workers is testament to these efforts. Third, while sex work and human trafficking often co-exist, equating them to be one and the same can seriously hamper efforts to address the latter. Rather than using broad punitive measures, interventions that involve engagement with and collective action of sex workers show promise in sensitively identifying and rehabilitating individuals trafficked into the business.

      Sex workers have and continue to be an important population for HIV prevention, diagnosis and treatment efforts globally; however they face substantial barriers to protecting themselves, and accessing HIV related services. The environmental risks that contribute to their vulnerability include adverse legal conditions under which they work. By punishing sex work and pushing sex work underground through partial and full criminalisation, the health, safety and well being of this population is placed at serious risk. Research published in the Lancet in 2014 modelling the role and impact of structural factors on the HIV epidemic indicate that decriminalisation alone, can avert 33-46% of HIV infections amongst sex workers and their clients. Such data should not be taken lightly or summarily dismissed.

      Finally, partial criminalisation by way of penalising the clients of sex workers, rests on the premise that such a punitive measure will stem demand, and reduce sex trafficking. There is no rigorous or substantive evidence that this is the case. However, such measures have instead pushed sex work underground with harmful consequences to the population that the law strives to protect. In Sweden, sex workers have found it harder to report client violence to the police for fear of harassment and persecution, and have had to engage in sex work in riskier environments to evade police detection. In Ireland and France, sex workers have opposed and rallied against laws that criminalise their clients. Shouldn’t their voices and opinions be given foremost importance in tackling this complex problem?

      Reply
  2. From abortion to sex work, why the state shouldn’t control women’s bodies | New Statesman International

    […] Similarly, police have been shown to disproportionately target migrant and drug-using sex workers. Increasing law enforcement – for instance, by criminalising the buying of sex, as Northern Ireland has done – has been condemned by leading human rights organisations around the globe. In neither Norway nor Sweden, pioneers of the “end demand” model, has trafficking decreased. The inverse relationship between safety and police involvement is felt more keenly still in the Global South and East. […]

    Reply

Leave a Reply