Decriminalisation of prostitution – now called “adult consensual sex work” – is a hotly debated topic worldwide. Prostitution is a consensual sexual activity in exchange for remuneration between two consenting adults. Citizens have every right to engage in sex for fun, to have children, to deepen intimacy, to earn a living or such other purposes. However, there is no consensus worldwide on how the countries should address prostitution. Prohibitionism, decriminalization, legalization, abolitionism, etc., are some of the legislative approaches adopted by nations to deal with the issue.
In India, there are around 3 million prostitutes; unfortunately, many of them are children below 18. Prostitution in private is not a punishable offence in India, but organised prostitution – like running brothels, pimping and forced prostitution – is illegal. That means, a woman engaging in sex work behind closed doors is not unlawful but it turns into an unlawful act, if anyone else is benefiting from it or runs it as a business or conducts it in public space. Child trafficking in India – an illegal act – is also on the rise. India also has the third largest population suffering from AIDS, a problem associated with sex work. These issues demand our attention to have a fresh look at the laws governing prostitution.
Prostitution, in its unrefined form, is slavery. It objectifies women. It is not essentially a profession. Many women choose it for money: their involvement in it is not voluntary but are trap in most instances. Prostitution in essence is violence – of the man over the woman. It involves selling of women’s body. It is rather nobody’s first choice, but happens to be an alternative available.
Despite having many negative impacts, prostitution remains as an organic part of any society existed ever. Sexual needs of everyone in any society are not equal. Some are sexually hyperactive. Prostitution is a good way out for such men and women to bridle their sexual needs. If prostitution does not exist, they will experiment their sexual adventures with others, causing havoc around. Legalized prostitution, on the other hand, will serve as a societal shock absorber sparing unwilling ones from sexual maladies. Legalized prostitution will help many avoid sexual extravaganza elsewhere.
In India, like many other countries, it is quite impossible to curb sex trade by prohibiting prostitution. No legislation anywhere in the world had successfully managed to stop the sex trade. Prostitutes work in a dehumanizing condition, which the existing laws cannot alter. Therefore, the two-judge bench of the Supreme Court, while hearing a case in 2012, suggested the government to consider regulating it. The court clarified that it was not to encourage prostitution, but to enable the government address the perpetual problem realistically. The United Nations (UN) also wants the countries around the world get rid of “punitive” laws against prostitution terming them as “bad laws”. A UN report in 2012 on the issue says 116 countries and territories, where punitive laws against sex work existed, could not reduce trafficking or sex work by criminalizing clients. The laws increase sex workers’ vulnerability to violence. Eighty countries in the world now have some sort of legal protection for sex workers. Recognising and legalising prostitution as a profession may reduce the illegalities that come with it. If the seller of sex is decriminalized, the sex workers can seek protection of the law when there is any abuse. Legalising prostitution, as the court says, may help authorities to “monitor the trade, rehabilitate and provide medical aid to those involved”. It will make prostitutes comparatively free from diseases and legal tangles. The incidents of rapes and harassments may also decrease.
State regulated prostitution existed at the time of Arthasasthra. It says providing sexual entertainment to the public using prostitutes (Ganika) was an activity controlled by the State. Now, prostitution has been legal in many countries like the USA, the UK, the Netherland, Germany, Mexico, Argentina, South Korea, Greece etc., with more or less similar provisions. In Phillipines, bargirls, called “Customer Relations officers”, are required to have checkups for sexual diseases. New Zealand enacted a comprehensive decriminalization law, which even made street hookers legal, in the year 2003.
The Netherlands, a good example for a case study, legalized prostitution many decades ago. In the 1980s, the sex work was recognized as a legally permissible profession. Sex industry comes under labour laws and prostitutes are registered workers. Ban on brothels and pimping was lifted in October 2000. Municipal authorities can formulate by-laws governing safety, hygiene and working conditions in brothels and conduct searches. Brothels are being operated under the license of municipalities. It is unlawful to force prostitutes to consume alcoholic drinks with clients, or engage in unsafe sex. The health services or interest groups have the right to access to their premises for ensuring transparency. Brothels can employ prostitutes who are above the age of consent. Nevertheless, exploitation in any form in sex industry such as trafficking, forced prostitution, involving a minor in prostitution, forcing a person to prostitution and forcing one to surrender the income from prostitution, are crimes. Street prostitution is restricted to some zones. The legalization is to protect minors, eliminate forced prostitution and combat human trafficking or other vices.
If we treat prostitution illegal and prosecute the sexual work that harms no one else, the brutality towards sex workers will continue. Sex workers too have the right to get a dignified life. Therefore, they need improved working environment and opportunity for rehabilitation. If we legalise prostitution, the prostitutes and brothels will get registration; the sex industry will come under the sphere of legal control. Regulated prostitution can protect the rights of sex workers better than otherwise. It will enable law enforcers to detect instances of forced prostitution and support the victims. It will ensure better, cleaner and safe working environment for both the sex workers and client. If legalized prostitution comes into force, people having extra sexual urges will take recourse to prostitutes rather than stalking or harassing other women for their sexual gratification. Once the trade is legalized the service of pimps or intermediaries is no longer required. Consequently, sex workers can escape the criminal behavior of such persons and get better income. It will help control the spread of sexually transmitted diseases. However, legitimizing prostitution may not change the social attitude towards it, nor does it dignify prostitute women who will face stigma and other harms even in legal prostitution regime.
There is definitely a danger in legalizing prostitution. Prostitution may become an easy money making option for some lazy women. It will increase the casualness of people towards sex and women. A report in 2012 by Professor, Eric Neumayer at London School of Economics, claimed that legalisation of prostitution in the Netherlands, Germany and New Zealand had led to increases in human trafficking and coercion of people into the industry. He called it “the dark side of globalisation”. Many fear that the legalization does not control the sex industry but will expand it. It may promote the motivation of men to buy sex in a much wider way. This fear is valid for India too particularly because India has the largest population of poor in the world. They are vulnerable to any economic offers and may increasingly turn into sex trade in preference to remaining in hunger. The weak law enforcement and regulatory exercises here is yet another problem. The regulation on prostitution may lisp or limp when it confronts powerful people. Indian non-poor section, willing to ape anything from outside uncritically, may use the decriminalization as a way to move on to a state of sexual anarchy.
No doubt, the decriminalization of sex work or legalizing it is not a solution to every problem the sex industry faces, but it seems to be a better option for India when the present scheme hopelessly fails to contain the problem. When prostitution becomes a visible legal activity, there is a better chance to address its problems and abuses. To make it work well, the legal framework in India must have clarity, precision and effectiveness. Revitalization of our democratic and enforcement institutions – legislature, judiciary and policing – is also a need for the purpose.
K Rajasekharan is a law graduate from Kerala Law Academy at Thiruvananthapuram. He also holds M Lib Sc., M.A. (Sociology) & M.A. Politics, and currently works at the Kerala Institute of Local Administration in Thrissur. Rajasekharan is well versed in topics like decentralization, local governance and related areas at the national level.