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Decriminalising sex work: Will India lead the way?

By Mridula Shankar
on October 23, 2015

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.
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