opinion
To Let / For Sale?
Legalising prostitution is not the answer. Nab the traffickers.
Ruchira Gupta
http://www.outlookindia.com/article.aspx?263361
When a problem is big and tends to profit a powerful group, there’s a
time-honoured temptation to sweep it under the rug by assuming it’s
natural and inevitable. This was true of slavery until the
abolitionist movement of the 19th century, and of colonialism until
the contagion of independence movements in the 20th century. Now these
same forces are at work in attitudes toward the global and national
realities of sex slavery.
The biggest normaliser of profiteering from the rental, sale and
invasion of human bodies is the idea that it is too big to fight, that
it has always existed, and that it can be swept under the rug by
legalising and just accepting it. Those who profit—in this case, the
global network of sex traffickers, sex tourism operators and brothel
owners—are the major force behind the argument to legalise and
increase profits that already rival those from the global arms and
drug trade.
What will diminish and end this injustice? Exposing its reality: the
lack of alternatives for those who are prostituted; the addiction and
inability to empathise among those who create the demand, and the
disastrous results wherever the selling or renting of human beings for
sexual purposes has been legalised and normalised.
In Australia and the Netherlands where prostitution has been
legalised, for instance, trafficking and the harms that come with it
have only increased. In Victoria, Australia, it not only allowed legal
brothels to proliferate, but illegal brothels increased by 300 per
cent in a year. A hospitable environment for sex tourists and other
buyers drove up demand local women and girls had too many alternatives
to becoming the supply, they had to be trafficked from Southeast Asia.
The same is true of Amsterdam where trafficked East European and North
African girls outnumber Dutch citizens in brothels. The mayor of
Amsterdam reports that the red-light district has become a centre for
illegal immigration and money laundering. In Germany and in an area
near Las Vegas where prostitution has been legalised, government
agencies tried to make applicants for unemployment benefits show they
had attempted to find ‘work’ in the so-called ‘hospitality industry’
of prostitution in order to become eligible for such benefits. This
was only defeated by massive organising by women’s movements.
In the few countries that have legalised prostitution—with the idea
that it would reduce harm to prostituted women, as is now being argued
by some in India—rates of assault and rape against the prostituted
have not dropped. There is also no corroborated evidence that
legalisation increases the use of condoms or women’s power to demand
such use. On the contrary, an official emphasis on condoms has often
made it possible for brothels to demand more money for unprotected
sex, while also causing them to conceal the number of prostituted
women and children who have lost their lives to AIDS.
In Calcutta, a group of women who had asked for the unionisation of
prostitution to guarantee workers’ rights admitted to facing violence
when they’re alone with the client. “They paid for it, we cannot stop
it.” A doctor working for this group said he left after having to
stitch up the vagina of a fifteen-year-old Nepali girl—for the third
time.
But there is some good news. It comes from countries where traffickers
have been pursued, and prostituted women and children have been given
services and alternatives. Sweden has gone after traffickers and
pimps, confiscated their illegal assets, and made them compensate for
damages while also decriminalising and offering services to
prostituted women and children. By imposing penalties on those who
create the demand and providing ‘John schools’ that address their
addiction to dominance, they diminish the problem itself.
The result has been a significant decrease in sex trafficking and the
commodification of sex. In ’99, it was estimated that 1,25,000 Swedish
men bought about 2,500 prostituted women one or more times per year,
before the law came into force. By ’02, this figure had fallen to no
more than 1,500 women.. The only truly effective way to curb
trafficking is to see it for what it is, an outrage to human rights;
one that can diminish, just as labour slavery and colonialism have
come to do. Prostitution has not existed in all societies: it is a
function of the inequality of women and the equation of masculinity
with domination. All men in the present are not dependent on
prostitution.
Commodification of human beings creates a separate class of people
whose bodies can be rented or sold—the very opposite of the universal
protection of human dignity enshrined in the body of the Indian
constitution.
--------------------------------------------------------------------------------
(The author is the founder and president of Apne Aap Women Worldwide,
an anti-trafficking organisation.)
Decriminalizing sex work
SHOHINI GHOSH
http://www.india-seminar.com/2008/583/583_shohini_ghosh.htm
ON International Women’s Day 2006, Delhi witnessed a historic rally
where about 200,000 female, male and trans-gendered sex workers from
across the country marched through the city. Witnessed by thousands of
bystanders, this extraordinary event got little attention from the
press. The rally was part of a nationwide campaign conducted by the
National Network of Sex Workers (NNSW) against the proposed amendments
to the Immoral Traffic (Prevention) Act (ITPA), 1956.
The NNSW represents millions of sex workers from all over India
including Durbar Mahila Samanwaya Committee (DMSC) that alone has a
membership of over 60,000 sex workers from West Bengal. Formed a
decade ago, the DMSC in Calcutta emerged out of the famous STD/ HIV
Intervention Project (SHIP) in Sonagachi that is now an
internationally acclaimed model sexual health project. Today, SHIP and
DMSC run HIV prevention projects in 49 districts of West Bengal and
have set up Self Regulatory Boards (SRBs) to prevent the trafficking
(forced entry) of adults and minors into the profession. The DMSC
considers sex work to be contractual sexual service negotiated between
consenting adults and demands decriminalization of adult sex work.
The debate determining the legal status of sex workers has been deeply
contentious in most countries. Before discussing the specifics of the
debate in India, it is important to understand that there are broadly
three policy approaches to sex work. The criminalization approach
considers sex work to be a social evil and demands its abolition.
Since criminalization makes the activity illegal, the profession is
driven underground thereby aggravating violence and exploitation in
the lives and work of sex workers. The decriminalization approach
believes that sex work is a personal choice made by two consenting
adults and removes it from the ambit of criminal laws and places it
within the scope of general laws. This approach makes a strong
distinction between trafficking (coerced or forced sex work) and
voluntary sex work between consenting adults.
The legalization approach, like decriminalization, acknowledges sex
work as lawful activity but subjects it to heavy regulation and
stringent state control through zoning (confining women within
demarcated areas), licensing laws and mandatory health checkups. It
has been found that jurisdictions that have introduced zoning and
licensing laws have been subject to excessive state control,
ghettoization of sex work, and stringent medical and health checkups
that are mandatory, rather than voluntary. It is common for sex
workers to regard legalization as legalized abuse because the state
takes on the role of the licit ‘middleman’.
In a country where corruption is rampant, legalization would only give
more power to law enforcers and aggravate the disadvantage that sex
workers face. Instead, sex workers prefer the repeal of all
legislation that are not ordinarily applicable to businesses. In
India, sex workers are demanding, not legalization of sex work (as is
commonly reported in the press) but decriminalization, that is, the
removal of sex work and all related activities from the purview of
criminal laws.
In India, sex work is regulated through the Immoral Traffic
(Prevention) Act (ITPA), 1956 and certain provisions of the Indian
Penal Code. The act is based on a 1949 UN Convention wherein
prostitution is not illegal but certain related activities are
considered to be criminal offences. The ITPA approaches sex workers as
victims who are in need of rescue and rehabilitation. The NNSW has
been demanding the decriminalization of all aspects of sex work
involving consenting adults so that sex workers can claim basic human
rights and civil liberties that the rest of us take for granted. For
instance, sex workers have been demanding the right to retain and
raise their children and be recognized as a legitimate family unit.
Because of the moral stigma that the profession carries, sex workers
are frequently denied the right to parent their children. The Juvenile
Justice Act for instance defines the children of sex workers as
‘neglected children’.
Presently, sex work is the major faultline along which feminists are
divided. Those who oppose decriminalization (or legalization) and
advocate abolition do not make the distinction between sex work and
trafficking. The notion that all sex work is synonymous with
trafficking stems from the conviction that women can never voluntarily
choose sex work as a profession and are therefore, necessarily
‘trafficked’ into it. Sex workers and sex-workers rights advocates
have repeatedly asked for a distinction to be made between trafficking
and sex work. Sex workers have tirelessly reiterated that trafficking
(that is, the induction into trade through force, coercion, fraud or
deception), is a crime whereas the exchange of sexual services between
two consenting adults is not.
Just as all sex work is not linked to trafficking, all trafficking is
also not linked to sex work. Jyoti Sanghera, formerly Advisor on
Trafficking at the Office of the High Commissioner for Human Rights in
Geneva, writes that the dominant discourse on trafficking is based on
a set of assumptions that flow, in large measure, from ‘unexamined
hypotheses, shoddy research, anecdotal information or strong
moralistic positions.’ While it is certainly true that many women (and
children) enter sex work under violent and exploitative conditions, it
is certainly not very different from that in other livelihood
occupations in the unorganized sector like agricultural work, domestic
work and industrial labour. In other words, there is no reason (other
than moralistic) for us to feel more outraged about trafficking in sex
work instead of say, trafficking in agricultural work.
Sanghera and many others have pointed out that the dominant
trafficking paradigm rests upon an absence of a critical distinction
between trafficking and prostitution on the one hand and trafficking
and migration on the other. Recent years, however, have witnessed a
shift in thinking and trafficking is increasingly being seen as a
problem of human rights violation and not a problem related to law and
order or public morality.
By refusing to create a distinction between trafficking and consensual
adult sex work, abolitionists argue that sex work is by its very
nature violent and exploitative. This notion is frequently removed
from what the sex workers consider to be violence. It is commonly
assumed that the violence that sex workers suffer is at the hands of
brutal clients, ruthless pimps (who I prefer to call ‘agents’) and
greedy madams. But ironically, the worst and systemic violence sex
workers face is at the hands of the police who routinely raid
brothels, make arbitrary arrests and unleash physical violence on the
women.
During brothel raids policemen, often accompanied by social workers
and NGOs, barge into the rooms of the women (that are also frequently
the living quarters of sex workers, trespassing on their property,
violating their privacy), drag them out (sometimes clothed, other
times not), beat up the men (who could be customers, husbands,
fathers, uncles or sons) and throw them in the lockup till they can
produce enough money for their release.
Stories of police raids in ‘red-light’ areas get reported very
differently in newspapers. The reports are usually about the rescue of
hapless victims, the bravery of policemen and the self-righteousness
of social workers. It is common for the police to harass and blackmail
sex workers using real and imagined provisions of the ITPA. Police
brutality and harassment of sex workers, using real and imagined
provisions of the ITPA, has remained largely unchallenged because of
the stigma that surrounds sex work. As one sex worker wrote, ‘It’s the
stigma that hurts, not the sex. The sex is easy. Facing the world’s
hate is what breaks me down.’
By conflating trafficking and sex work and therefore attempting to
eradicate both, methods like police raids have been relentlessly
deployed even though it has eradicated neither trafficking nor sex
work. We could legitimately ask whether the continued deployment of
this futile strategy is intended to improve the lives of sex workers
or impose a certain morality around women’s sexuality. For instance,
those who call for the abolition of sex work do not simultaneously
call for the abolition of domestic work despite the fact that
conditions, wages, working hours, lack of mobility, levels of physical
exhaustion of domestic worker’s around the world are far worse than
that of sex workers.
If the legislative objective of the ITPA was to end trafficking
through criminalization (of which police raids have been a part) then
it has been an abject failure as far as entry of minors and unwilling
adults are concerned. On the contrary, interventions by sex workers
themselves have been far more successful. In order to regulate
practices within the profession and combat the entry of minor girls,
the DMSC has set up 33 Self Regulatory Boards in different sex work
sites in West Bengal. The SRBs, comprising sex workers, government
officials and members of the civil society, interview and counsel new
entrants to sex work sites. It actively helps unwilling adults and
minors to opt out of the profession. So far about 524 women have been
taken back to their families or helped to start a career when their
families refused to accept them.
Similarly, SANGRAM which has worked with women in prostitution in
Sangli, Maharashtra since 1990 has ensured a rapid decline in the
number of minor prostitutes in sex work. Clearly, the remedy to
curtail entry of minors and unwilling adults lie in peer intervention,
education and community work. It is most important that the
communities themselves be empowered to combat violence and
exploitation and not be at the mercy of self-righteous interlopers who
hold the very profession in contempt.
Sex workers movements demand the right to work in safe, respectful and
healthy conditions as well as the right to organize and transform the
trade to meet their own needs. They urge that decriminalization, along
with the granting of legal rights and social recognition, will not
only help eliminate violence and exploitation from their lives but
also allow them to change professions if they so choose. It is often
asked whether the ‘choice’ that sexworkers exercise is at all valid,
given the exploitative situation they are in. Is it really consent in
the real sense or a false notion of choice? (Implicit in this query of
course is the assumption that sex work is such a terrible profession,
no one could ever choose it voluntarily!) The fact is that most people
in developing countries do not have innumerable choices or
opportunities. So the issue of choice is problematic for women who are
in domestic work, arranged marriages or hazardous industries and is
not exclusive to sex work.
In other words, as one climbs the caste, class and privilege ladder,
choices increase and vice versa. Poor and unskilled women often choose
sex work as a livelihood option from the limited options they have
available to them. Even in contexts that are exploitative and
disadvantageous, people do exercise choices despite options being
limited. Therefore, there is no reason why questions of choice should
become fundamental only in discussions around sex work. As sex worker
rights activist Margaret Baldwin says, If ‘no’ means ‘no’, ‘yes’
should also mean ‘yes’.
All people employed in worksites of the informal, unorganized and
invisible sectors of the economy have their rights routinely violated.
The more illegal or invisible the worksite, the greater its
exploitative character. This is the generic condition of the informal
economy and is not exclusive to sex work. But it is only in the case
of sex work that demands are made for the abolition of the trade. Sex
workers have repeatedly pointed out that it is not the trade but the
violence in the trade that has to be abolished. The International
Labour Movement urges the radical transformation of labour, not its
abolition. Similarly, sex workers also demand radical transformation
of their work in alliance with other political programmes like the
transformation of marital laws, land and property rights so that women
can exercise greater control over the terms and conditions of their
life and work.
In India, the ITPA places sex work in an ambivalent zone between
legality and criminality. The following activities are considered
criminal offences under ITPA:
* keeping a brothel or allowing a premise to be used as a brothel (section 3);
* living on the earnings of prostitution (section 4);
* procuring, inducing or taking persons for the sake of prostitution
(section 5);
* detaining a person in a premises where prostitution is carried out
(section 6);
* prostitution in, or in the vicinity of, public places (section 7);
* seducing or soliciting for the purpose of prostitution (section 8); and
* seducing a person in custody (section 9).
In 2006, the Ministry of Women and Child Development (MoWCD) moved the
Immoral Traffic (Prevention) Amendment Bill, 2006 in the Lok Sabha.
The bill was referred to a Parliamentary Standing Committee and is
presently being considered by a Group of Ministers (GoM). Based on the
182nd Report of the Parliamentary Standing Committee, the MoWCD’s
revised amendments have stirred a fresh controversy. In the existing
ITPA the sale and purchase of sex is not criminalized even though the
prohibition of soliciting, brothel keeping and street work is
tantamount to de facto criminalization.
The revised bill decriminalizes soliciting but overturns the good work
with other changes. First, prostitution is defined as ‘the sexual
exploitation or abuse of persons for commercial purposes for
consideration of cash or kind.’ Not only does this definition equate
all prostitution with ‘sexual exploitation’, it brings within its
ambit every kind of transactional sex. Here, commercial sexual
exploitation has been defined to ‘include the exchange of sexual
services or promise of the same with or without sexual contact or
intercourse for consideration in "cash or kind" through threat, force,
coercion, abduction, fraud, deception, abuse of power and position of
vulnerability.’
Second, the inclusion of phrases like ‘abuse of power’ and ‘position
of vulnerability’ leaves it open to diverse interpretations. For
example, a woman who, due to poverty or destitution, decides to become
a sex worker would be seen to be coming from a ‘position of
vulnerability’ and, therefore, ‘trafficked’. Third and more
dangerously, Section 5C of the proposed amendment punishes a person
who engages in commercial sexual exploitation and ‘(a) Induces a
person to engage in any activity related to commercial sexual
exploitation including negotiation for consideration in cash or kind
for commercial sexual exploitation; or (b) Identifies a person to
engage in commercial sexual exploitation; or (c) Takes or attempts to
take a person, or causes a person to be taken, from one place to
another with a view to the person carrying on or being brought to
carry on commercial sexual exploitation.’
Apart from being unwieldy, tendentious and obscure, the revised
amendments conclusively blur the distinction between trafficking and
adult sex work. In other words, if the new amendments are passed by
the legislature, the sex work, which under the new act would be
synonymous with trafficking and therefore illegal, would be completely
driven underground.
As an invisible and illegal trade, the sex workers would no longer
have any claims on protection from the law. In such a scenario the
violence and exploitation that the sex worker faces would increase
manifold and push back the gains of the sex workers rights movement.
Consequently, the impact on HIV AIDS prevention work would be
deleterious. On 5 November 2008, in a National Consultation on Sex
Work, HIV and the Law held in Delhi, a diverse group of scientists,
doctors, health workers, activists and advocates expressed grave
concern over the proposed changes in the ITPA stating that it would
‘undermine HIV prevention, increase transmission and endanger the
health of millions in this country.’
It is important to understand that the MoWCDs preoccupation with
trafficking is not propelled, however misguided, by only a desire to
combat exploitation. On 27 May 2003, George Bush signed a law that
prohibits any US funds from being used overseas ‘to promote or
advocate the legalization or practice of prostitution or sex
trafficking.’ It has also demanded that US aided HIV programmes have
policies ‘explicitly opposing prostitution and sex trafficking.’ This
dangerous and harmful policy was immediately challenged. More than 200
public health, human rights and community based organizations in the
US, Europe, Africa, Central Asia and Asia wrote in to demand the
repeal of this law. Apart from being reactionary in politics, the act
(which applies to organizations both within and outside the country)
raises issues of sovereignty and freedom of speech and expression.
Leaders of fourteen major American charities that received USAID funds
sent a letter of protest to Bush’s global AIDS coordinator. ‘We see
this as over-reaching government authority,’ wrote one of the
signatories. ‘We shouldn’t have to agree with administration policy in
order to do the work of saving lives.’
In May 2005 Brazil, where sex work is legal, turned down $40 million
of US funding rather than consent to such discriminatory clauses. The
country’s National AIDS Commissioner said, ‘Sex workers are part of
implementing our AIDS policy and deciding on how to promote it. They
are our partners. How could we ask prostitutes to take a position
against themselves?’ Brazil which funds 90% of its own AIDS programme
was able to reject US support but smaller HIV prevention initiatives
have had to comply. The Women’s Network for Unity in Cambodia, like
Brazil, chose sex workers rights over US funding. Most others fell in
line and made quiet changes in their policy guidelines.
The issue of sex workers rights continues to be a contentious one with
feminists split over whether the trade should be decriminalized or
eventually abolished. Many of us who support sex workers rights
believe that the struggle to empower sex workers involves us all. All
women who have fought battles for custody, rape or sexual harassment
know that the ‘whore stigma’ is used to regulate and discipline all
women. Victims of rape and sexual harassment continue to be told that
they ‘asked for it’. The sex workers movement demands that the right
to equality should have nothing to do with sexual conduct. That
unquestionably, is a major feminist issue.
* Shohini Ghosh has made the film ‘Tales of the Night Fairies’ on the
sex workers of Calcutta.
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