Abstract
This article sets out a women’s human rights approach to the legal regulation of sex work developed through an analysis of feminist perspectives, international human rights standards—in particular, the approach of the Committee on the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)—and the voices of female sex workers within India. It categorises sex work into four legal models, namely, prohibition which criminalises all aspects of the sex trade, partial decriminalisation which criminalises only those who force women into sex work and those who trade in under-age sex workers, social control legalisation which decriminalises but regulates the sex trade with the aim of containing through (often punitive) restrictions, and finally pro-work which approaches sex work as valid employment by extending the legal and human rights of other workers to sex workers. The article places India’s current regulatory framework into the prohibition model and argues that the legal response to sex work that most closely accords with a women’s human rights approach is partial decriminalisation coupled with a pro-work model. Although the introduction of this model in India poses considerable challenges, it has the greatest capacity to first, reduce the crime and corruption that surrounds the sex trade; second, to enhance, promote and protect public health and third, provide appropriate legal and human rights protection to sex workers as international obligations require.
Introduction
There are an estimated 3 million female sex workers across India consisting of those who are providing services voluntarily, those who have been forced or coerced into sex work and children (Ministry of Women and Child Development, 2008). While commentators have identified a range of possible legal responses to sex work, this article categorises such measures into four models, namely prohibition which criminalises all aspects of the sex trade, partial decriminalisation which criminalises only those who force women into sex work and those who trade in under-age sex workers, social control legalisation which decriminalises but regulates the sex trade with the aim of containing through (often punitive) restrictions and finally pro-work which approaches sex work as valid employment by extending the legal and human rights of other workers to sex workers.
Sex work is lawful in India only if soliciting is conducted in private spaces. All other aspects of the sex work industry are criminalised placing India’s regulatory approach squarely within the prohibition model. This article argues, however, that the legal response that most closely accords with a women’s human rights approach determined through an analysis of feminist perspectives, international human rights standards—in particular, the approach of the Committee on the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)—and the voices of female sex workers within India, is partial decriminalisation coupled with a pro-work model. This approach has the greatest capacity to first, reduce the crime and corruption that surrounds the sex trade industry, second, to enhance, promote and protect public health and third, provide appropriate legal and human rights protection to sex workers as international obligations require. However, the replacement of India’s prohibition model with a partial decriminalisation and pro-work model which implicitly accepts sex work as morally ‘neutral’ and legalises it as a form of valid employment poses considerable challenges. The prohibition model is supported by beliefs that the sex work industry is a ‘threat to the marriage-family institution’, a ‘social evil’ and apposite to Indian womanhood (Law Commission of India, 1975). Additionally, India’s low standard of employment protection for workers generally, the dearth of occupational health and safety regulations, and lack of discrimination protection for women workers limit the capacity of a pro-work model to deliver decent working conditions to sex workers. A decriminalisation and pro-work law reform proposal therefore must be pursued in tandem with employment law reform and the strengthening of human rights protection overall.
This article begins by identifying, to the extent possible, the numbers of female sex workers and the reasons why they are working in the sex work industry. The next section overviews the four main legal models of sex work, and, after situating India’s legal framework within the prohibition model, outlines the key features of the Immoral Traffic in Persons Prevention Act 1956. Through an examination of feminist perspectives, the evolving approach of the CEDAW Committee and other international institutions and declarations the next section argues that partial decriminalisation and pro-work are the models most consistent with a women’s human rights approach. The concluding section considers the challenges both in law and practice to the introduction of a ‘women’s human rights’ approach to regulating sex work.
Mapping Sex Work: Incidence and Motivation
The extent and number of sex workers in India—voluntary, coerced and under-age—is difficult to ascertain because of a lack of research and data, although there have been several estimates. The Ministry of Women and Child Development estimated in 2008 that there were three million female sex workers across India of which approximately 40 per cent were girls and 35.47 per cent had entered the sex trade before the age of 18 years (Ministry of Women and Child Development, 2008). Human Rights Watch estimated the figure at 15 million in 2012 (Rani & Belser, 2012); however, other reviewers have set the figure much lower at between 300,000 and 700,000 (Gisselquist & Corren, 2006). There is certainly a perception, reflected in the media, that there has been a sharp rise of sex work in recent years (Bhat, 2006; Satyarthi, 2014); however, this may only reflect increasing visibility. Regardless of the exact number of sex workers, it is a thriving industry. Women may sell sex full time, part-time or occasionally to meet specific economic needs such as education costs or to deal with a family budgetary crisis.
The reasons why sex workers enter the profession in India are numerous and varied. All child sex workers, since they do not have capacity to consent, are forced. Women and children are trafficked in India or across India for commercial sex exploitation either by deception or coercion (Patel, 2013; Saggurti et al., 2011). Some women and girls are sold by family members or family friends into sex work, typically in the context of rural poverty, food insecurity and large families (Patel, 2013). Most sex workers, however, enter into sex work because of conditions that, although deplorable, do not involve direct coercion and/or deceit by another. For example, a recent research project in Kolkata revealed that most women interviewed entered sex work in a context of constrained choices. Participants reported economic insecurity combined with limited alternative work opportunities as influencing their entry into sex work through either migration to search for work, or direct entry into sex work (Swendeman, et al., 2015). There were many causes of economic insecurity recorded by the participants including familial poverty or loss of a male breadwinner, violent and dysfunctional marriages, early marriages and dissolutions, illness or death of relatives and the low status of widows (Bowen et al., 2011; Mohindra, Haddas, & Narayana, 2012). Economic opportunities are limited in India, generally and in particular, for women (Saggurti et al., 2011). Overall, only 36 per cent of women participate in the paid labour market and only 15 per cent are employed in the formal sector (Klaveren et al., 2010). If they are employed in the formal sector, it is most likely providing community, social or personnel services (Patel, 2013). A woman living in rural India has a 30 per cent likelihood of finding employment, while a woman in urban India has only a 20 per cent likelihood of finding employment. In rural areas employment is in agricultural activities while in urban areas women are mostly employed in the informal sector engaged in household work such as cleaning, cooking or doing laundry. Indeed, many of the sex workers who were interviewed in the Kolkata research project provided extensive detail about their former occupations, typically domestic service, construction or factory work. Such work experiences were often exploitative and coercive, including expectations of sexual exchanges for work assignments, and did not provide enough money to meet their own and their families’ needs (Sahni & Shankar, 2013).
For some women, therefore sex work provides a flexible occupation, open to unskilled women and potentially lucrative (Saggurti et al., 2011). It can provide substantially more opportunities for financial independence including independence from male partners (Sahni & Shankar, 2013), the ability to provide for family members struggling with poverty, the opportunity to acquire material assets and resources (such as a house or a loan), the ability to gain agency and control over their bodies and to receive compensation for the sexual labour they are already expected to perform (Agustin, 2007).
Legal Models of Sex Work
This article categorises legal responses to sex work into four broad categories, namely prohibition, partial decriminalisation, social control legalisation and pro-work legalisation. It should be noted, however, that many countries have adopted hybrids of the four categories and other commentators use different models of categorisation and organisation. 1 As Scoular (2015) notes, inevitably, ‘such neat classifications are problematic [as]…considerable gaps inevitably exist between [the stated] objectives and the modes of intervention utilized to implement them’.
The first model, prohibition, criminalises all aspects of the sex trade and is the model currently adopted in India, as more fully discussed further. There are, however, two disparate approaches to the prohibition model. The first is the ‘public nuisance’ approach which ‘tolerates’ sex work provided it is located away from residential areas, churches, schools and hospitals. It is characterised by the criminalisation of all aspects of the sex trade but with relatively minor penalties, regardless of whether the sex worker is working voluntarily, has been forced or coerced into sex work or is an under-age worker. This approach is underscored by moral beliefs that sex work undermines the integrity of the family unit, is undesirable in residential areas and that it impacts negatively on public health. It accepts, however, that sex work is a reality.
The second form of the prohibition model adopted more recently in some countries and implemented largely because of radical feminist pressure is the exploitation approach. It is characterised by the imposition of serious penalties on all participants in the sex work trade, particularly those who are found to have coerced or forced others into sex work and those trading in under-age workers. This approach is underscored by a view that ‘prostitution [is] a form—a serious form—of male violence against women’ (Hernandez-Truyol & Larsen, 2006) and that in any context it is a breach of civil and political human rights as either a form of ‘modern day slavery’ (Halley et al., 2006) and/or an institutionalised practice of sexual violence and gender inequality (Hernandez-Truyol & Larsen, 2006). Sweden, for example, adopted this model in 1999, becoming the first country in the world to criminalise the client but not the sex worker. Sweden’s approach accordingly is based on the view that sex work is a form of violence, committed by men against women and that sex workers are (always) victims of exploitation who lack agency and therefore have no genuine consensual capacity (Sullivan, 2007).
The second model is partial decriminalisation. In this model, although there are serious criminal offences for any person who coerces or forces women into sex work or who trades in under-age sex workers, the sex work industry is otherwise decriminalised. Selling sex, soliciting, keeping of brothels and procuring are not therefore criminal offences if the sex worker is adult and is working voluntarily. This model relies on existing regulations and laws that govern all workers and businesses for the appropriate protections needed to ensure the industry operates safely. The rationale underscoring this approach is that decriminalising voluntary sex work creates positive stereotypes, reduces the criminal activity and corruption associated with the industry, enables sex workers to access law enforcement agencies and legal remedies, and decreases the risk of physical and sexual violence as sex workers are more able to negotiate conditions with clients and employers (Crofts & Summerfield, 2007).
The third model is social control legalisation. In this model, targeted laws and regulations actively regulate the industry through zoning restrictions to keep brothels and sex work out of residential areas and away from schools, hospitals and places of worship, through licensing requirements and through public health measures such as mandatory health checks and sometimes identification cards (Prior & Hubbard, 2015). Its rationale is largely drawn from the prohibition model, accepting or ‘tolerating’ the presence of sex work but viewing it as an undesirable reality however, with containment rather than criminalisation as the primary objective and method adopted.
The final model is pro-work characterised by measures which ensure that sex workers (like workers in other service industries) receive the full protection of employment law, occupational health and safety legislation, and have access to the protection of the criminal law and other human rights protection. This model typically requires operators of brothels to register the business and provide facilities that meet designated standards. In some countries this has manifested through the extension of generic laws regulating businesses to the sex trade with the additional inclusion of targeted provisions relevant to the industry such as age limits on workers and constraints on who can operate or manage a sex work business, a requirement that employers supply condoms and ensure that clients use them, targeted health and safety regulations such as fire safety measures, requirements for hot and cold water, proper toileting facilities, and safety measures such as alarm buttons in rooms. Penalties for failures such as fines or revocation of licences are imposed for failing to meet requirements such as in any other business (Masselot, 2015). The rationale underscoring this approach is that sex workers have the right to work and the right to self-determination guaranteed by both human rights instruments and internationally guaranteed labour rights and should receive full entitlement to the rights and protection of the law.
A Prohibition Approach to Sex Work
A Brief History of Sex Work Legislation in India
The primary legislation regulating the sex work industry across India is the Immoral Traffic in Persons Prevention Act 1956 (previously the Suppression of Immoral Traffic Act, 1956) enacted to a significant extent, in accord with the prohibition rationale of the UN International Convention for the Suppression of Traffic in Persons and of the Exploitation of Women, 1950 (the Convention) which, soon after independence, India ratified. The Convention calls on States parties to suppress both trafficking and ‘prostitution’ regardless of the age or consent of the person involved. The preamble to the Convention states that
[P]rostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community
The Convention requires State parties to criminalise procuring for another (Article 1) and to criminalise the keeping or managing a brothel or renting knowingly a premise for prostitution (Article 2) regardless of the age or consent of the person involved. However, the Convention is silent in relation to the criminality and regulation of the sex worker and the client, apart from prohibiting the registration of sex workers (Article 6). The Convention also requires States parties to take or to encourage, through their public and private educational, health, social, economic and other related services, measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution (Article 16).
The irrelevance of consent appears to support a prohibition model of regulation while the failure to require the criminalisation of the sex worker or the client could be interpreted as recognition of the autonomy of the worker. It is likely this was an intentional ambiguity enabling states with divergent views on the regulation of sex workers to adopt their preferred framework and therefore obtain the widest possible ratification. Despite the ambiguities, the Convention is clearly primarily moored in the prohibition camp, given the requirement to criminalise most aspects of the sex trade.
The original enactment to regulate sex work across India, the Suppression of Immoral Traffic Act, 1956, can be situated within a prohibition ‘public nuisance’ framework. In part the adoption of that framework was driven by (conditional) financial assistance from the US to the Indian government, NGOs and government contractors contingent on India’s commitment to a prohibitionist stance (Chuang, 2010). Additionally, however, a prohibition stance was in accord with ideological notions of the time. As stated in the Law Reform Commission Report of 1975: ‘prostitution is a threat to the family as an institution and as a means of exploitation of females, prostitution is a social evil which leads to social injustice’ (Para 1.3). The Act has been amended twice, first in 1978 and then more extensively in 1986 when it was renamed the Immoral Traffic in Persons Prevention Act 1956. The amended Act extended coverage to males who are exploited sexually for commercial purposes, and the goal of suppressing traffic and prostitution was replaced by the weightier goal of prevention. The focus of the legislation shifted therefore from a (prohibition) public nuisance model towards a (prohibition) exploitative model, but still firmly moored in the general prohibition framework. In 2006, a Bill was submitted to Parliament proposing amendments that would anchor the legislation even more firmly in the prohibition ‘exploitative’ model. The Bill repealed provisions that criminalise soliciting and inserted new provisions that penalised any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. A Select Committee examined the Bill and interviewed a number of sex workers and organisations representing sex workers who stated that criminalising clients would threaten their very livelihood and obfuscate efforts to prevent HIV/AIDS (Standing Committee on Human Resources Development, 2006). The Bill has subsequently lapsed.
Sex workers are also regulated and criminalised outside of the Immoral Traffic in Persons Prevention Act 1956 by many state-level police and municipal laws and statutes related to beggary, railways, public decency, health and public nuisance (Goyal & Ramanujan, 2014). The Penal Code also has a number of offences which are routinely utilised in relation to the sex industry (usually sex workers). Chapter XIV contains offences related to public health, safety, convenience, decency, morals and public nuisance which are broadly defined offences that police regularly utilise to intimidate and harass sex workers often to exploit or extort money. Sections 269 and 270 create offences for spreading of infectious disease, which brings a sex worker under its purview, typically when there is an increase in sexually transmitted diseases in the community.
Immoral Traffic in Persons Prevention Act 1956: Key Features
The key features of the legislation as it is currently framed include the following. The legislation defines ‘prostitution’ as the sexual exploitation or abuse of persons for commercial purposes, and states that ‘the expression “prostitute” shall be construed accordingly’ (Article 2). Although this could be argued to exclude voluntary adult sex work, since it is arguably not exploitation or abuse, the legislation has been interpreted to mean that any transactional sex is exploitation.
Sex workers commit an offence if they carry on prostitution in any premises ‘within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind’ with a penalty of up to three months’ imprisonment (Section 7). They also commit an offence if they seduce or solicit for purpose of prostitution ‘in any public place’ ‘by words, gestures, wilful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way’ (Section 8). The penalty on first conviction is imprisonment up to six months, or a fine up to five hundred rupees, or both, and for a subsequent conviction the penalty is imprisonment up to one year and a fine up to five hundred rupees (Section 8). The ‘moral’ undertones are evident. Soliciting should not be in the view of the ‘respectable’ community and it is sex workers and not the client who must be regulated and criminalised.
Those who participate in the business structure of the sex trade (pimps, brothel owners, managers and those who aid and abet prostitution) also commit criminal offences. Any person who ‘knowingly lives, wholly or in part, on the earnings of the prostitution’ commits an offence (Section 4). It is presumed a person is knowingly living on the earnings of prostitution of another person if the person is over 18 and lives with a sex worker, if the person is habitually in the company of a prostitute or exercises control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution or is acting as a tout or pimp on behalf of a ‘prostitute’ the penalty is imprisonment for a term of up to two years imprisonment or a fine up to one thousand rupees, or both (Section 4). Additionally, any tenant, lessee, occupier or person in charge of any premises, who uses, or knowingly allows any other person to use the premises as a brothel, commits an offence. A first offence attracts a penalty of imprisonment up to two years and a fine up to two thousand rupees. For a subsequent conviction, the penalty is ‘rigorous imprisonment’ for a term up to five years and also a fine (Section 3). The legislation does not distinguish between voluntary and forced prostitution in relation to adult sex workers, perpetuating a view that sex work, in general, is the problem rather than the exploitation of women who are forced into it. The penalties become much harsher in relation to children. If earnings relate to the prostitution of a child the penalty is seven to ten years’ imprisonment (Sections 5 and 6) in line with the exploitation model of prohibition.
In sum, therefore, although sex work is formally legal because the sexual act itself is not unlawful, because all acts leading to the sex act are criminalised, the only way that a woman can legally sell sex is in a private home and only when there is just one woman on the premises. Since the activity itself cannot be insulated from other related transactions it is impossible to engage in consensual sex for money without attracting criminality. However, most Indian states have an informal system of zoning that sustains the unofficial practice (enforced by the police) of allowing discreet, indoor or brothel-based prostitution in accord with the prohibition ‘public nuisance’ model of sex work.
Women’s Human Rights Approach to Sex Work
This article argues that the legal model that accords most closely with a women’s human rights approach to sex work is partial decriminalisation coupled with the pro-work model. In substantiating that position, this section begins by considering the two broad feminist positions in relation to sex work (Simm, 2004). It considers those perspectives in light of the CEDAW 2 and its evolving interpretation by the CEDAW Committee and other international declarations, statements and findings and concludes by recommending a third, more nuanced feminist approach which, the authors argue, represents an authentic version of a women’s human rights approach to sex work.
Key Feminist Approaches
There are a range and continuum of feminist perspectives on sex work but the two primary, ostensibly polarised, broad feminist positions are as follows. 3 The first school of feminist thought, drawn from the work of three influential feminists in the early 1980s (Barry, 1979; Dworkin, 1981; MacKinnon, 1983) is consistent with the ‘exploitive’ prohibition model described previously (also known as the abolitionist position, a label invoking an analogy to the 19th century campaigns to abolish the transatlantic slave trade) (Chuang, 2010) and part of an unusual alliance with neo-conservatives and evangelical Christians. While the conservative branch of the alliance views sex work as a ‘social evil’, the feminist perspective views sex work either as a form of ‘modern day slavery’ (Halley et al., 2006) and/or as an exploitative, degrading, form of violence against women (Hernandez-Truyol & Larsen, 2006). Consent under this model is irrelevant as sex workers, proponents argue, are the victims of rape and exploitation who lack agency and therefore have no genuine consensual capacity (Sullivan, 2007). This model is further associated with the view that all aspects of the sex work industry must be condemned uncompromisingly and never equated with acceptable practices such as work or consent. This translates legally to a refusal to distinguish voluntary sex work and immigration for sex work from forced sex work and trafficking (Hernandez-Truyol & Larsen, 2006). This feminist position also, since it does not recognise sex work as work, does not recognise the validity of international guarantees of the right to work in this context.
The Convention on the Elimination of Discrimination against Women (CEDAW), known as the international Bill of Rights for women, mirrored in Article 6 the prohibition approach of UN International Convention for the Suppression of Traffic in Persons and of the Exploitation of Women 1950 when initially adopted in 1979. Article 6 specifically sets out the obligations of State parties in relation to sex work calling for State parties to ‘take all appropriate measures including legislation to suppress all forms of traffic in women and exploitation of prostitution of women’. Although the wording of Article 6 implies that prostitution is not inherently exploitative, since it is only the exploitation of prostitution that State parties must prevent, the origins of Article 6 are clearly situated in the context of the prohibitionist position (Hernandez-Truyol & Larsen, 2006). Article 6 therefore can be argued to support the ‘exploitive’ prohibition model advanced by this feminist perspective.
However, the interpretation of Article 6 has evolved since the adoption of CEDAW, along with the perspective of other international institutions, away from the prohibitionist approach to one more closely aligned to the partial decriminalisation and pro-work model. An increasing acceptance of a distinction between voluntary and forced sex work which implies some forms of sex work and trafficking are acceptable by human rights standards is evidenced by the Declaration on the Elimination of Violence against Women 1993, which refers only to ‘trafficking in women and forced prostitution’ (Article 2), the observation of the former UN Special Rapporteur on Violence against Women that ‘some women become prostitutes through the exercise of rational choice, others become prostitutes as a result of coercion, deception or economic enslavement’ (Coomaraswamy, 1997), the condemnation of only forced prostitution in the Beijing Platform (Para 123), and the CEDAW Committee statement in General Recommendation 19 that ‘prostitutes are vulnerable to violence and are marginalised when their status is unlawful’ (Para 15). Further, in all recent Concluding Observations the Committee refers only to either the prevention of trafficking and forced prostitution 4 or the ‘alternate income opportunities for women and girls wishing to leave prostitution’. 5 Finally, in 2013 the CEDAW Committee requested India to report on the ‘measures taken to guarantee the rights of women engaged in prostitution’, 6 a further indication of a significant shift away from the prohibition model. Although ultimately the position of the human rights system and particularly the CEDAW Committee is not definitively stated, it appears to have moved away from a prohibition approach to sex work.
The second feminist position, consistent with liberal, libertarian, postmodern or materialist feminist discourse, is that adult voluntary sex work and migration for work purposes including sex work, is, or at least can be, a free choice to engage in a viable employment opportunity even if made out of economic necessity (Hernandez-Truyol & Larsen, 2006). Women around the globe, supporters of this perspective argue, have great need combined with few economic opportunities and should have the freedom to market their resources, including the sale of sexual services (Hernandez-Truyol & Larsen, 2006). Advocates of this position rely on the right to work and the right to self-determination guaranteed by both human rights instruments including CEDAW and internationally guaranteed labour rights. Articles 2 and 11 of CEDAW require the elimination of discrimination against women in employment. Article 11(1)(c) of CEDAW specifically obliges States parties to guarantee women the right to free choice of profession and employment. Article 23(1) of the Universal Declaration of Human Rights 1948 declares that ‘everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment’ and Article 6(1) of the International Covenant on Economic, Social and Cultural Rights 1966 provides for ‘the right to work which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’. Accordingly, advocates of this feminist position argue sex workers should have the right to choose sex work as valid employment, the right to enter and enforce employment contracts, the right to advertise, the right to insist on appropriate and safe working environments and the right to (non-discriminatory) protection by, and remedies from, all state institutions such as the police and the courts. For feminists supporting this approach, sex work is unexceptional valid labour chosen by adult individuals exercising agency through the negotiation of their sexual autonomy. Some Indian feminists have countered this position, however, by arguing that while sex work for the Western woman ‘is an occupational choice’, for an Indian woman entry into prostitution is ‘a consequence of … all-encompassing … poverty’ so much so, ‘that the very possibility of choice or agency is negated’. Therefore, while ‘“Western” women can cope with legalisation … [Indian] women need to be rescued and rehabilitated’ (Kapur, 2007). Finally, the Supreme Court decision in State of Maharashtra & Anr. v Indian Hotel and Restaurants Association & Ors, 7 although not based on the Immoral Traffic in Persons Prevention Act 1956, is also arguably supportive of the right of women to choose a profession in the sex industry, free from moral condemnation, based on rights given by the Constitution of India 1950 (‘Constitution’). In this case, the Supreme Court of India struck down the Maharashtra government’s state-wide ban on ‘any type of dancing’ in an ‘eating house, permit room or beer bar’, with an exception made for dance performances in three star hotels and above, and other elite establishments. The Maharashtra government had justified the ban by asserting that bar dancing corrupts morals, fuels trafficking and prostitution, and causes the exploitation of women bar dancers. The ban resulted in unemployment for 75,000 women workers 68 per cent of whom were sole bread earners of their families. In overturning the ban the Supreme Court held that the prohibition on dancing violated the right to carry on one’s profession guaranteed by Article 19(1)(g) of the Constitution, and that banning dances in some establishments while allowing them in others infringed upon the right to equality under Article 14 of the Constitution.
Partial Decriminalisation and Pro-Work: A Women’s Human Rights Approach
A third (preferred) approach to sex work which draws on both feminist positions described previously is that both exploitation and empowerment punctuate sex work marked by a complex interplay of occupational arrangements, power relations, coercion, choice and worker experiences. Although binary conceptualisations of sex workers as either universally victimised or criminally deviant persist they obscure structural factors that shape and constrain both the agency and the exploitation of sex workers (Kapur, 2002). Legal responses to sex work would benefit from a more nuanced understanding of sex workers’ lived experiences. On the one hand, sex work leaders have proclaimed that they are citizens entitled to earn their livelihood who did not want to give up their work but rather to do it with ‘dignity and respect’ (Kotiswaran, 2014). On the other hand, accounts of the exploitation and victimisation of sex workers abound. The most effective response to the dual reality of exploitation and empowerment is, as this article suggests, the adoption of the partial decriminalisation and pro-work model. It is the combination of these two models that aligns itself most closely to a women’s human rights approach to regulating sex work, punishing and preventing exploitation and supporting and recognising empowerment and autonomy. Replacing the current framework with this model would require the following concrete modifications and face the following challenges.
The first modification is the imposition of harsh penalties for the (incontestably) exploitative aspect of the sex-trade industry, namely the forced participation of adult women in sex work and the use of under-age workers in any capacity. This accords with both major feminist positions; the conservative position as prohibitionist and pro-work feminists alike agree that those who force or coerce women into sex work and those who deal with under-age sex workers in any circumstances should be vigorously prosecuted. This position is also in line with other international standards such as Article 1(1) of the International Labour Organization (ILO) Forced Labour Convention which requires members ‘to suppress the use of forced or compulsory labour in all its forms within the shortest possible period’ and Article 34 of the CRC which requires States parties to ‘protect the child from all forms of sexual exploitation’.
The second modification is the decriminalisation of all aspects of the sex trade in relation to adult voluntary sex work. The decriminalisation of soliciting may be acceptable to those who view the sex worker as a ‘victim’ (e.g., the feminist prohibitionist perspective) and may also resonate with those who see sex work as immoral (e.g., the conservative perspective). However, the decriminalisation of those involved in the management and organisation of the sex trade is likely to be resisted by both feminists and conservatives alike. It will be resisted by those who benefit from it and by those who see the sex work industry as a ‘social evil’. Many in the community view sex work as a social evil, antithetical to decency and morality and it is rarely openly discussed. It is associated by many with organised crimes such as drug dealing and human trafficking, the spread of sexually transmitted infections including HIV/AIDS and crimes such as acts of violence and rape. The prevalence of such attitudes including the denial of the existence of sex work by some and a belief that prohibition (and eradication) are the only appropriate responses to sex work creates a significant barrier to shifting the focus of the legal framework from prohibition to decriminalisation and pro-work. Nevertheless, such attitudes can be changed by the educational measures which should accompany law reform. For example, in the early 1990s, Dutch attitudes did not support decriminalisation. After decriminalisation, and a major public awareness campaign, in a 1997 survey, 73 per cent of Dutch citizens favoured the decriminalisation of brothels, 74 per cent said that prostitution was an ‘acceptable job’, and by 1999 a similar poll found 78 per cent considered sex work ‘is a job like any other job’ (Outshoorn, 2012).
Additionally, explaining the actual impacts of decriminalisation on sex work, as supported by research, to the public is critical. For example, decriminalisation has the potential to reduce the crime and corruption that surrounds the sex trade. According to research, illegality heightens the crime associated with the sex trade by driving the sex industry underground and shielding business practices from scrutiny by ordinary legal standards. As a result, domination by criminal networks increases and with this there is greater scope for racketeering, bribery and blackmail in the police force and other state agencies. This is evidenced across India by research that indicates that crime, against a range of related actors and in a range of forms, surrounds the sex trade. Police brutality, corruption and harassment are often unchallenged and studies have found ‘that police interaction with prostituted women … frequently serves the individual interests of police officers under the guise of ‘discretionary’ police power’ (Scoular, 2015). Sex workers rarely report violations by clients, pimps and brothel keepers (Kotiswaran, 2014). The criminalisation of tenancy agreements with premises used for sex work prevents sex workers from challenging any arbitrary rise in rent or eviction. Additionally, in a prohibition environment, sex workers are more likely to be exposed to sexual abuse and violence from clients, brothel owners and the police (Kotiswaran, 2014).
Decriminalisation also has the potential to improve safe sex practices in a range of ways. First, research suggests that sex workers are much more willing to disclose the nature of their occupation to their doctors in decriminalised regimes, thus improving their access to information and health initiatives. Second, decriminalisation makes public health intervention easier by placing the sex worker population in reach of services that can provide information on health, safety and treatment. Third, sex workers have much greater power to negotiate safe sex in an environment of legality. Fourth, research suggests that sex workers are less likely to be vulnerable to HIV and other STDs in decriminalisation regimes because stigmatisation, discrimination and fear of prosecution are much reduced or even absent, enabling them to access health care. Finally, the prohibition funding restrictions themselves have resulted in collateral damage to sex worker populations—ranging from self-censorship to withdrawal of basic social services, including those targeting HIV/AIDS prevention. Many organisations have purged prohibited words such as ‘sex work’ and ‘harm reduction’ from their materials for fear of being seen as ‘promoting’ sex work. Some organisations have withdrawn legal and social services from sex workers to avoid any appearance of support for sex worker collectives.
The final modification is the extension of employment and human rights protections to sex workers. Working conditions for sex workers are inevitably poor in the absence of state-set standards leading to constant change of ‘hidden’ locations. Sex workers are unable to access any of the employment rights of other workers and are exploited and victimised by actors inside and outside the sex trade as a result. The pro-work ‘discursive strategy … opens up a space for the formation of new identities not based on passivity, or sexual exploitation and sexual victimhood’ (Sullivan, 2003, p. 78). Many sex workers are capable of making strategic choices that benefit themselves and their families. ‘By denying prostitution the status of work, criminalisation patrols the boundary between the sexual labour routinely assigned to and expected of women within marriage and practices deserving of the financial and status rewards of “work”’ (Zatz, 1997, p. 287).
The pro-work model is contrary to and challenges a conceptualisation of sex workers as powerless and static victims in need of rescue and rehabilitation (Overs & Hawkins, 2011) and sex work as inherently coercive and a form of human trafficking (Cavalieri, 2011). While this may be an accurate portrayal for some sex workers in some situations there are many sex workers, however, who have campaigned against legal discrimination while resisting accounts which cast them as mere victims. In the Netherlands, where the pro-work model has been introduced, there has been a dramatic improvement of the physical working conditions of sex workers and a closer conformity with the standards that are required in other industries. Although the aim of the model is not the prevention of sex work but rather the protection of the rights of sex workers, since the introduction of the pro-work model, both the demand and supply of sex work services have declined (Outshoorn, 2012).
The expansion of employment rights to sex workers would be undeniably difficult in the Indian context since there are few employment rights for workers generally, and minimal protection for women, in particular. There are no legislative guarantees of equal working conditions or equal access to social security for women, no equal treatment for work of equal value provisions and no guarantees of state or employer funded childcare. Specific reforms would be required to ensure not only that sex workers are afforded the rights of other workers but that women’s rights in employment more generally are strengthened.
Conclusion
This article has argued that the legal response to sex work that most closely accords with a women’s human rights approach determined through an analysis of feminist perspectives, international human rights standards, in particular the approach of the CEDAW Committee 1979, and the voices of female sex workers within India, is partial decriminalisation coupled with a pro-work model. Although the introduction of this model in India poses considerable challenges it has the greatest capacity to first, reduce the crime and corruption that surrounds the sex trade; second, to enhance, promote and protect public health and third, to provide appropriate legal and human rights protection to sex workers as international obligations require.