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Criminal Law & Criminalization Of Sex Work

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Aim And Introduction

The main aim of the research paper is to identify different arguments which are for and against the criminalization of the sex work and subsequently would reach to a conclusion. Then the Researcher would identify the status quo of Indian law regarding sex work through the analysis of ITPA. Criminalisation of sex work is a debatable topic all across the globe. Many countries have tried to legalise sex work by legislating acts which sometimes have been able to impact economic aspect of sex workers but have left a social stigmatisation on sex workers.

India has also enacted Immoral Traffic Prevention Act 1956 which although tried to legalise sex work and banning commercial sex work, has left many loopholes which has paved way for illegal sex work and trafficking which leads to human rights violations and gender inequality. This is a pivotal reason why some scholars argue that sex work should totally be banned as it is inevitably going to harm sex workers, against which some argue that sex work is a profession can never be suppressed as it is coterminous with the human existence. There are numerous arguments and point of views and this research paper would reflect the same.

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Arguments For Decriminalisation Of Sex Work

Initially, criminalisation of an act can be defined as “process of attaching a penal sanction to a given conduct. By doing so, the conduct enters the realm of criminal law”[footnoteRef:1] and Decriminalization can similarly be referred to as removing those sanctions. If we talk in judicial terms, Prostitution or sex work is defined as “the practice of offering the body for promiscuous or indiscriminate sexual intercourse with men, and this for the purposes of hire or payment”.

This definition, according to the Researcher identifies the prejudice against the fundamental morality of the profession of sex work as being ‘indiscriminate’ and ‘promiscuous’ which neglects the fact that some females are indulged in sex work by their own choice. One such example can be taken from an interview in Gauntlet Magazine of one Victoria Monet, who said (quoting relevant excerpt): ‘We chose sex work after we did a lot of things we couldn’t stand. Sex work is better. For me, sex work isn’t my first choice of paying work. It just happens to be the best alternative available. It’s better than being president of someone else’s corporation. It’s better than being a secretary. It is the most honest work I know of.’

In an article by J. Burchell, it was argued that apparent criminalization of sex work has lead to the general deterrence of women who otherwise would have engaged in sex work by their own will. They further argued that broadening the spectrum of punishment on activities to clients rather than to female sex workers would apt as a deterrent for the ill activities of clients rather than ‘victims’ i.e. sex workers, which has otherwise being sex worker centric. This argument was further reiterated by Kristie Trifilo is who argue that women’s human rights will be protected as enactments would lay down proper procedure regarding the rights and liabilities of customers of sex industry and sex workers.

Further, it was argued that not only sex work should be decriminalized, it should be included in the labour rights to facilitate human rights within the domain of sex work. This idea was discussed Martha Nussbaum that sex work is laborious as it involves erotic and singular labour of the sex worker.[footnoteRef:9] The argument regarding sex work being laborious is clearly comprehensible as the essence of sex work is sexual labour. Secondly, it is singular as require “parts of our bodies for which we receive a wage in return.” Therefore, providing sex work under labour rights is legit and will provide a perfect base for its decriminalization and regulatory aims simultaneously.

Sion argued that those who support decriminalization of sex work know that it is impossible to make it extinct and hence they take up the root of ‘partial’ decriminalization or under the garb of ‘regulation’ to deal with its harmful effects. Therefore, decriminalisation is often looked upon as “legitimisation of prostitution as one form of work”. Sweden was the first country to introduce the legal framework of ‘partial criminalization’ of sex work under “Swedish/Nordic Model”.

Richard Card also strengthens the above argument when he stated that decriminalizing sex work makes sex work an act of non-criminal nature and law has every right/duty to still proscribe the required behaviour related to it. In order to prevent ‘occupational hazards’ related to sex work like health issues, social stigmatisation and boycott/seclusion, insecurity regarding economic well-being and ordinary rights of the citizens.

In order to reduce economic exploitation of sex workers as if it is managed under the Govt. which will lay guidelines and salary mechanism (although taxation on salary can work as a deterrent for registration). Decriminalization, according to him can lead to a weakened relation between prostitution/sex work and organized crime as it comes under Govt. surveillance. Some of the examples which illustrates Govt. can be found in New Zealand’s Prostitution Reform Act 2003, where it is overtly expressed that “safeguard the human rights of sex workers and protect them from exploitation,” as well as to pursue public health goals for persons above 18 years of age.

It was also argued that criminalization of sex work stigmatizes sex workers as criminals and moulds the public view to a negative frame of mind towards sex workers. This criminalization of sex workers often leads to justification of the abuses occurring to them among the public. Also, in an interview, it was identified that because of criminalization of sex work, the prosecutors are reluctant to take the cases of the victim sex workers. Due to this inactivity on the part of legal fraternity, sex workers are threatened and are afraid to report cases.

Further, A.J. McGinn argues that states have tried registrations of prostitutes with the reason concern of the spread of STD’s like AIDS. There are countries’ legislators believe that legalizing and regulation of sex work will be beneficial for public health good as well as for sex workers. Three prominent instances include state of Nevada, Senegal and Germany. In Nevada, legislators made it mandatory to use condoms, regular and mandatory medical tests to find out any STD’s which will ensure public health. Similarly, in Senegal, medical check-ups are mandatory for women over the age of 21, they have to be registered in order to practise sex work legally. There success rate to curb HIV and STI’s have been highest in whole of Africa.

By registering sex workers, they are able to restrict underground sex work and illegal trafficking. It is like an employment and they can leave whenever they want. Germany also did the same things. Thus, main argument from these examples is that, by legalizing sex work, health of sex workers and public safety can be maintained, along with regulating sex workers and preventing underground business by abolishing sex work altogether.

In an article by DR. Geetangali Gangoli took the point of view of feminist and highlighted their concerns and arguments. She identified three issues in which feminist identify prostitution i.e. silence, hurt and violence along with a potential choice and liberation. Firstly, Dr. Gangoli argued that where feminist raised the issue relating to sex work, it was a critique of anti-sex work laws which impacted those females which weren’t indulged in sex work per se. She pointed out an incident where a women was threatened of soliciting for sex a policeman who went to buy a cigarette and was harassed for the same for no reason.

This questioned, according to her the public patriarchal morality and how sex work has affected their morality of treating a lady out night like a whore. This argument is further taken up in two rape cases where leaders question the alleged rape and victim female. In 1990, an activist named Sanghatana from Bombay was raped and CPIM women didn’t condemn the rape and denied that rape took place. They questioned ‘character’ of the women and refused inquiry. Second case was in Bengal where three refugee Bangladeshi women were raped the same year. CPIM ruled it as a problem in law and order and the leader said “the women stayed in unauthorised hutments and many women of that area were involved in foul profession and such honeymoons of these were an open secret with anti-socials and that day’s events are sequel of their rivalry”.

There are basically two types of feminist which argue for decriminalization of sex work i.e. Radical Feminist and Liberal Feminist. While Radicals argue that sex work is exploitative, poverty stricken occupation which reinforces/reassures male dominance and patriarchy over women. Even scholars like Catherine believe that in sex work, male has the upper hand. They believe that it defies basic human rights principle, an activity which causes mental and physical agony to sex workers. It considers, Radicals argue, sex worker’s sexual pleasures absolutely irrelevant which leads to objectification of sex workers which can be equated metaphorically to slavery.

While Liberals argue that its not all about oppression and claims held by Radicals and that it did involve some voluntary consensual sex workers and that their choices should be recognised and respected. They follow the path somewhat similar to that Swedish approach of partial decriminalization and argues that sex work done for a consideration and is consensual shall be decriminalize while non-consensual sex work should be criminalize, therefore following a rights-based approach in decriminalization. It was further argued that sex work is not the only problem, but the social stigmatization and legal status of the work is one of the main causes. Therefore, it was recommended that rather than criminalizing or looking down on sex work as oppressive for females, one should looked at as a larger socio-economic context i.e. observe and regulate the institutions which create unsafe, coercive (both physically and mentally),to which both groups of feminist agree. Debabrata Roy has laid down many positive sides of legalizing sex work in India. She argues that legalization of sex work would protect minors as only willing, consenting adults will be allowed to do this profession and trafficked children can be protected.

Immoral Traffic Prevention Act, 1956

There is an important legislation named ITPA 1956 in India which deals with sex workers in India and it is important to discuss the shortcomings of this act which has led to deterioration of its aim to regulate sex work in India. The initial point of consideration was the insertion of the word “immoral” as this introduces an element of morality standards in the act itself rather than making it fairly legal. Also, the words “women and girls” with persons to make it gender neutral in order to include transgenders and other categories who are trafficked. While in an article, Dipika Jain argued that ITPA has conflated and that too erroneously sex work and sex trafficking. She elucidate this by citing the example that “ITPA includes a blanket criminalization of solicitation for sexual services without exempting those who do not wilfully engage in sex work”. Hence, it can be argued that ITPA can have contrasting effects which it intends to reach if does not make the abovementioned distinction. Therefore, the Researcher argues that decriminalisation of sex work under ITPA and related laws to it can help in avoiding unfortunate arrests of sex workers and victims of sex trafficking.

Further, Section 2, sub-provision (a) characterizes brothels as a place for the pick up of prostitution and brothel being unlawful agreeing in the act, it fundamentally criminalizes intentional and consent based sex work in India, which is violative of section 19 of the Indian Constitution relating to freedom of employment as well as against the basic premise of ITPA which aimed only to abolish commercial sex work in India, and not the private practice of sex work. Section 2(f) here can be alluded again keeping in mind the end goal to comprehend the intention of ITPA.

The definition incorporates “abuse” and “sexual exploitation”, which makes it clear that sex work is illicit in light of the fact that it isn’t legitimately conceivable to support an abuse as lawful, regardless of whether private or business. Therefore, it is unclear what is the thinking and the intention of the legislators as if they are not sure or not bias themselves, it bound to happen that their prejudices might leave an impression on the articulation of an act. While act overtly does not state that sex work is illegal per se, it prohibits living off the earnings of a sex worker, maintaining a brothel, and procurement of a sex worker and detaining as criminal acts. Therefore, this assumption of legal/decriminalize sex work is misleading.

Goel further argued that even though sex work for money and consensual basis is permitted, the activity cannot be separated from transactions made criminal and hence it becomes impossible to practice sex work without attracting criminal liability under ITPA. It was argued that the number of sex workers arrested was disproportionately higher than pimps, brothel owners or procurers by clients under the same law while penalties attached to sex workers are higher than those associated to the occupation of sex work. This exploits make police officers use ITPA more over any other penal provision due to its shortcomings, harsh trial procedure, lack of proof requirement which makes it difficult to convict the pimp.

Section 15 of ITPA allows police to raid brothel without cognizance (no warrant required) and this can be based on mere belief or doubt that an offence might have been committed under ITPA which becomes the reason of threat and harassment as they are founded (sometimes) while brothel owners disown their responsibility or evade or not present there. Section 4 of ITPA not takes into account living on the earning of a sex labourer, it appears that it only assumes that living on the cost of sex worker is against the will of the sex worker every time. In any case, it must be understood that if the lawmakers are not against the private routine with regards to sex work, the sex workers will inevitably utilize that cash for the sustenance of the family as well, consequently they ought to give an exemption statement which must take into consideration the aim and the utilization of the financial pick up that enhance other.]

Arguments For Criminalization Of Sex Work

There are few who make the argument that sex work should be criminalize, in this part, the Researcher will only point out the main arguments which favour this idea of criminalization or states why decriminalization cannot serve the purpose it is being argued for or seen as. It is a fact that more than 100 nations have criminalized sex work.

One of the things the Researcher found that approach of judiciary and other Govt. bodies have not been fully comforting when it comes treating well with the sex workers. One such example is In Sahyog Mahila Mandal & Another v. State of Gujarat & others[footnoteRef:64], a group of sex workers were encompassed by police in Surat under sections 7(1)(b), 8 and 14 for honing sex work close to instructive foundations. It was outstanding that these ladies were working there for a long time and that the city, as it grew, definitely brought these organizations close them. They were hence charged by the judge under section 20 of ITPA while not educating them about its provisions and cautioning the landowner to deny their entrance. This case demonstrated the genuine character of legal authorities towards the sex workers.

Therefore, even after we legalize/decriminalise the sex work, we can only serve their economic purpose unless we take it on ourselves not to discriminate sex workers socially, politically etc. This further supports the argument that sex workers should be presumed as ‘victims’ in the whole scenario rather than illegal propagators of sex work/accused. In Uttar Pradesh v. Kaushaila Justice Subba Rao distinguished between women and women sex workers for the applicability of article 21 and 14, which is clearly a breach of fundamental rights for sex workers, as it is crystal clear that sex workers are treated differently by judiciary and double standards are clearly visible.

In a South African case of R v. Kamcham where the court defined sex worker as ‘one who habitually hires her body out to sexual intercourse for gain’ and further stated that ‘the isolated instances of intercourse for gain do not establish that the girl before the court was a prostitute. Feminist Scholar Rajeshwari Sundar Rajan argues that existence of sex work is not possible as it is embedded in a system which is fundamentally criminal as it involves pimping, human trafficking, human rights violation, etc. therefore, by legalizing sex work, we are essentially paving the legal way to promote these activities. She did not stipulate for hire, but merely received presents of money’.

The present (reward) as such was not capable of turning the conduct into a criminal offence. This approach of law had no good impact on sex work as it promotes total criminalization of sex work, is discriminatory, and didn’t presume victimize nature of sex worker. Sanlaap questioned the distinction between free and forced sex work and argues that it will become difficult for a woman to ‘prove’ that she has been coerced into the profession of sex work and it is non-consensual in nature and further argues that structure and composition of sex industry is quite complex and different than western countries. McGinn has argued that there are negative effects of registration of sex workers under Govt.

Stereotyping of sex workers as a degraded group of individuals.Failure in demarcating among various professionals, part-timers, amateurs, etc.Hard for a female sex worker to un-register herself of the tag and registration as sex worker.Stigmatization of sex worker which leads to difficulty for him/her to find new job which end up getting them caught in vicious cycle.Above point leads to isolation both in terms of social and caste based. While it is observed that main arguments for criminalization is often related to health of sex workers and stigmatization, Sion proposes various doubts or questions on this system through some statistics.

The number of sex workers under medical observation are negligible (not more than 12%) and those working on discretion are never inspected. Secondly, visits of those registered sex workers are often missed (more than 50% of times) because women who know they have disease but due to various reasons given by McGinn, they try to hide it and avoid detection. Thirdly, the omission of male clients from these medical check-ups defeats the purpose of medical care as clients might be the source of new disease rather than receiver in every case, which is both discriminatory and further stigmatizes sex workers. Fourth reason is rather a unique one which proposes that ‘regulation can further contribute to the increment of these diseases as all sex workers are not included, therefore client assume sex worker to be hygienic and hence the possibility of venereal disease increases.

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