This article is authored by Ms. Kishita Gupta, a student of United world School of Law, Karnavati University, Gandhinagar. The article has discussed various different approaches followed by varied legislation around the globe with respect to prostitution. The article will also cover the debate surrounding the legalisation of prostitution.
This article has been published by Rachit Garg.
Why is it immoral to be paid for an act that is perfectly legal if done for free? – Gloria Allred
Prostitution is the act of engaging in generally indiscriminate sexual contact with someone who is not a spouse or friend in exchange for immediate monetary or other valuable remuneration. Prostitutes can be female, male, or transgender, and prostitution can be heterosexual or homosexual, although traditionally, the majority of prostitutes have been female, and the majority of clients have been men. Because so much of what we know about prostitutes comes from studies of poor and less-privileged people, persons who are more likely to come into touch with courts and government agencies, it’s impossible to make broad generalisations about their backgrounds or conditions.
While the act of prostitution is considered immoral and illegal in some countries, it is actually considered legal in others. In this article, the author will be dealing with the different prostitution policies of various countries.
Percentage of the legality of prostitution
Fig 1 : Percentage of Countries with Legal, Illegal, and Limitedly Legal Prostitution
(of the 100 countries)
Fig 2 : Population (total # and % of total) of Countries with Legal, Illegal, and Limitedly Legal Prostitution (of the 100 countries)
Out of 100 countries that were covered in the above-mentioned study, 53 countries have laws that legalise prostitution which makes it a total population of 2.93 billion (51%) of population, while there are 12 countries where the act of prostitution is limitedly legal which makes it a population of 698.87 million (12%), whereas, there are in total 35 countries where the act of prostitution is considered as an illegal act, constituting the population of 2.13 billion (37%).
Different legislative approaches towards prostitution
Prostitution becomes illegal under the terms of a national Criminal Code when it is criminalised. Criminalization aims to make prostitution less accessible by outlawing the activity of some or all participants participating in the trade. Prohibitionism, abolitionism, and neo-abolitionism are the three sub-categories of criminalization.
Prohibitionism uses criminal law and law enforcement to eradicate all types of prostitution. Prostitution is viewed as a humiliating occupation that goes against the basics of human dignity in this perspective. The majority of states in the United States, as well as countries in the Middle East, have accepted prohibition.
Abolitionism tries to reduce prostitution by criminalising any connected activities that are not prostitution, such as pimping, brothel-keeping and procuring. This technique calls for a prohibition on public solicitation, recognising the harmful social consequences of practising the profession openly.
Neo – abolitionism
Neo-abolitionism, often known as the Nordic/Swedish model, is akin to abolitionism. By criminalising the purchase of sex services, the neo-abolitionist stance departs from abolitionism. The premise behind neo-abolitionism is to reduce prostitution demand by focusing on the customer. This strategy, which has been applied in Martinique, Belize, Canada, Iceland, Northern Ireland, and Ireland, assumes that lowering the demand for sex work will reduce the availability of sex services. Even so, a reduction in demand can force women to lower their fees or enlist the help of third parties to expand their clientele. Also, under this paradigm, a prostitute’s client is reduced to those ready to break the law, potentially resulting in high-risk or violent interactions between the buyer of the sexual activity and the seller of it.
Prostitution is only considered a lawful profession under state-specified parameters after legalisation. Only certain laws imposed by labour law, criminal law, and other legislation allow prostitutes to give sex services. Mandatory health checks, job licences, and adherence to licensing/tolerance zones are all common regulations. The Netherlands, Germany, Austria, Greece, Turkey, Senegal, the state of Nevada in the United States, and various Australian states have all legalised the act of prostitution.
Prostitution is treated as a lawful profession under decriminalisation, which means all laws criminalising prostitution and other parts of the trade are repealed. The absence of prostitution-specific regulations and laws is the key contrast between legalisation and decriminalisation. Prostitutes, like other workers in other industries, are subject to conventional norms and laws, such as the requirement to pay taxes. Decriminalization aims to prevent sex work from becoming illegal by giving prostitutes the same rights as other workers. In countries like New Zealand, Cape Verde, and several Australian states, decriminalisation has been introduced.
Prostitution policies in different countries
In the current article, the author has attempted to cover the prostitution policies of some countries. This section of the article will cover the countries where prostitution is illegal, legal and partly legal.
Countries where prostitution is illegal
In this section, the author has discussed some of the countries where prostitution is illegal.
Both administrative and criminal law apply to sex work in China. Buying and selling the act of prostitution, as well as enticing, sheltering, or initiating a person to prostitution, are all illegal under the Law on Penalties for Administration of Public Security 2005 (Article 66) of China. It is prohibited to organise, force, or induce prostitution.
In Croatia, the Misdemeanors against Public Peace and Order Act was passed in 1977 and incorporated into Croatian law with minor changes in 1990. As per the Act, there are majorly two types of offences: allowing for the use of one’s premises for prostitution or enabling or helping a person to engage in prostitution (Article 7), and engaging in or falling into the act of prostitution (Article 12).
According to Article 9 (c ) of Law No. 10/1961 on the Combating of Prostitution, prostitution is considered illegal in Egypt. The same statute makes purchasing sexual activity unlawful, but lower court convictions have been reversed by higher courts.
Sex work was tolerated in limited red-light districts until 1979. These were razed following the Islamic revolution, when laws were enacted prohibiting brothels, procuring prostitutes, and selling sexual activities, as well as harsh punishments such as imprisonment, flogging, and execution. Thus, making prostitution illegal under Articles 637 and 638 of the Penal Code.
1988 Combating Prostitution Law No. 8 (Arabic) of Iraq made it illegal to organise male or female prostitutes and established, in theory, a system for prostitute rehabilitation. The Revolutionary Command Council enhanced the penalty for individuals guilty of organising or indulging in prostitution. Article 2 of the above-mentioned Act makes the act of prostitution illegal in Iraq.
Article 4 of Act No. 7196 of 2004 on the Punishment of Procuring Prostitution and Associated Acts makes prostitution illegal in South Korea. Human trafficking is defined by this Statute as any sexual activity conducted in return for money or goods. Sex workers in South Korea must establish that they were pressured into giving sexual services in order to avoid punishment.
In South Africa, the Sexual Offenses Act of 1957 makes it illegal to engage in unlawful carnal intercourse with another person or perform an act of indecency for monetary gain. It also makes it illegal to keep a brothel, to recruit someone to work as a sex worker or in a brothel, to facilitate sex work, to knowingly live off the revenues of sex work, to solicit in public areas for immoral purposes, and to engage in public indecency. Paying or otherwise rewarding someone above the age of 18 for a sexual act, whether such act is committed, is illegal under the Criminal Law Amendment Act of 2007.
United Arab Emirates
Articles 363-368 of Federal Law No. (3) of 1987 on the Issuance of the Penal Code make prostitution illegal in the United Arab Emirates.
Countries where prostitution is limitedly legal
In this section, the author has discussed some of the countries where prostitution is limitedly legal.
In Australia, depending on the state, the law on prostitution ranges from decriminalised to legally regulated to criminal. The Coalition Against Trafficking in Women Australia prepared a report where they compiled all the different laws on prostitution in Australia. The report mentions key provisions of various legislations such as Sex Work Act 1994, Summary Offences Act 1988, Restricted Premises Act 1943, Prostitution Act 1999 Amended 2010, Prostitution Act 2000, Summary Offences Act 1953, Sex Industry Offences Act 2005, Prostitution Act 1992, Prostitution Regulation Act 2004.
In Canada selling sex is considered to be a legal activity, but buying sex is illegal following the implementation of House Government Bill C-36 of 2014. The Protection of Communities and Exploited Persons Act superseded Canada’s previous prostitution regulations in December 2014. Purchasing sex, benefiting materially from another’s prostitution (unless there is a legitimate relationship, which was undefined in early 2015), and anyone other than sex workers advertising sex businesses and communicating for the purposes of prostitution near schools, playgrounds, and community centres are all prohibited under the new law.
The adoption of Law No. 2016-444 Aiming to Strengthen the Fight Against the Prostitution System and to Assist Prostituted Persons made selling sex a legal activity, but buying sex is illegal in France. Sex workers can be penalised with public order and traffic violations, and anti-trafficking and immigration laws are strictly enforced for migrant sex workers. Across the country, law enforcement varies, and discreet brothels are recognized in towns and cities. Police brutality and a lack of enforcement of legislation that may protect sex workers, particularly against transwomen, have been reported by sex workers.
The Prostitution Prevention Law of 1956 makes it illegal to conduct “unnamed intercourse for payment with an unspecified person.” ‘No one may either practise prostitution or become a customer of it,’ according to Article 3 of the above-mentioned Act. However, only prostitute solicitation, arranging prostitution, operating brothels, soliciting or inducing an individual for prostitution, coercing a person into prostitution, and profiting from the sex activity of others is punishable as per the Statute. As a result, buying sex isn’t absolutely unlawful. While other forms of commercial sex, such as massage parlours and ‘soaplands,’ which are known as ‘fuzoku’, are allowed because the concept of prostitution is limited to vaginal intercourse. The Businesses Affecting Public Morals Regulation Law of 1948 governs these businesses in Japan.
In North Ireland, buying sex is completely illegal but selling sex is legal as per Article 15 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. Further, the following activities are illegal in the UK:
- Using phone booths to promote your business.
- Crawl the kerbs (approach people in public to ask them for sex)
- Rent or allow a brothel to operate on your land.
- Use of force, threats, fraud, or other forms of compulsion to get access to someone selling sex.
- Trafficking people to the UK or around the UK for sex.
According to the House of Commons Home Affairs Committee, “Prostitution: Third Report of Session 2016–17,” published on July 1, 2016, The sale and purchase of sexual services are allowed in England and Wales, but various related actions are illegal. This covers exploitation-related activities like controlling prostitution or maintaining a brothel, as well as public nuisance activities like purchasing or selling sex in public.
United States of America
The United States is a federal system in which each state has its own sex work legislation. All parts of buying, selling, and organising sexual services are prohibited in most states. For example, pandering, procuring, promoting prostitution, soliciting, and agreeing to engage in a prostitute act. The act of prostitution is considered illegal in the USA with an exception of the state of Nevada, which legalises licensed brothels and is subject to strict regulations that include mandatory HIV and STI testing along with curfews for employees.
The Mann Act of 1910, as revised in 1986, makes interstate or international transportation for sexual activity illegal. Despite the permission of the claimed victim, many state and federal anti-trafficking rules make prostitution-related actions illegal.
Despite the fact that buying sex is not illegal everywhere in the country, gender-neutral rules against soliciting for prostitutes, as well as other laws and policies, are utilised to criminalise and/or deter males who buy sex. This involves violations of public order and decency regulations, as well as embarrassing clients in public.
Countries where prostitution is legal
In this section, the author has discussed some of the countries where prostitution is legal.
Germany is a federal system in which each state has its own interpretation, enactment, and enforcement of federal legislation. Prostitution in Germany is legal, organised, and taxed, making it one of the most progressive systems in the world. Germany also permits brothels, ads, and the use of HR companies to process prostitution jobs. In 2017, Germany introduced the Prostitutes Protection Act, which aimed to protect prostitutes’ legal rights. All prostitution trades must have permission, and all prostitutes must have a registration certificate, according to the Act.
Prostitution is permitted in Mexico under federal law. Each of the country’s 31 states has its own prostitution legislation, with 13 of them allowing and regulating prostitution. There are “tolerance zones” in several cities that operate as red-light districts and allow for regulated prostitution. In most places of Mexico, pimping (the practice of controlling prostitutes and arranging clients for them, taking part of their earnings in return) is prohibited.
The Immoral Traffic (Prevention) Act of 1956 (ITPA) does not criminalise prostitution in India per se, rather it makes it illegal to keep a brothel as per Section 3, live off a prostitute’s earnings as per Section 4, procure, induct, or detain a person for sex work as per Section 5 and 6, prostitution near public places and notified areas as per Section 7, and solicit prostitution as per Section 8.
Sex workers are arrested and detained for public order violations. They routinely accuse police and detention centre guards of brutality, rape, and extortion, claiming that law enforcement is corrupt or inconsistent. Although HIV and STI testing is often voluntary and with informed permission, there have been reports of violations. Although it is not unlawful to buy sex, clients who engage in prostitution-related activity in public areas may face penalties.
The Indian Penal Code, 1860, also addresses prostitution, however, it focuses on kidnapping and child prostitution. Under Sections 372 and 373, it is illegal to buy, sell, or import minors for the purpose of prostitution.
Under Article 23(1) of the Indian Constitution, trafficking of human beings, beggars, and other similar forms of forced labour are prohibited, and any violation of this provision is a crime punishable according to Article 23 (2).
The Indonesian Penal Code makes it illegal to profit from others’ obscenity (Article 296), trade-in women (Article 297), and live off the revenues of a female sex worker (Article 298). (Article 506). These statutes are rarely invoked. In practise, a variety of sub-national, local laws, ordinances, and by-laws govern the sex industry. These range from outright bans on all forms of sex labour to legally sanctioned brothel complexes known as ‘lokalisasi’. Tolerated brothels are on the decline, with ‘Dolly’, one of the most well-known lokalisasis, being shut down by police in 2013.
The Prostitution Reform Act of 2003 repealed prior laws that prohibited the operation of brothels, escort agencies, and solicitation in favour of a mix of rules and criminal penalties aimed at reducing unsafe sex and the involvement of minors, migrants, and non-consenting persons. Thus making prostitution a legalised act in New Zealand. However, the Summary Offenses Act 1981 is still in effect, allowing sex workers who act rudely in public areas to be punished with a crime.
While offering sexual services in exchange for money is not illegal in and of itself, many sex work-related actions are punishable. These are as follows:
- According to the Miscellaneous Offences Act, Article 19, it is illegal to solicit sex work in a public location.
- Article 146 of the Women’s Charter prohibits people from living on or trading in prostitution. Two additional changes to Article 146 were adopted in 2016, making it illegal to use “remote communication services” to advertise sex work. Independent sex workers who run their own websites are basically criminalised as a result of this.
- Owning a brothel is also punishable in Singapore as per the Women’s Charter, Article 148.
- Furthermore, migrant sex workers are classified as “prohibited migrants” under Article 8(e) of the Immigration Act.
Convention on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others
The UN General Assembly passed the Convention on the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others, which states that “trafficking in persons for prostitution is incompatible with the dignity and worth of the human person.” The General Assembly adopted it on December 2, 1949, and it went into force on July 25, 1951. There were 74 states parties to the convention in 2007, and the convention applied to 74 countries.
Member States that have signed, ratified and implemented the Convention are preventing prostitution through moral education and civics training, both in and out of school, increasing the number of women among the State’s personnel who have direct contact with the populations concerned, eliminating discrimination that isolates prostitutes and makes their reintegration into society more difficult, limiting the pornography industry and trade in pornography, and penalising them verifiably.
Debate on legalisation of prostitution
As people’s access to health care becomes more dependent on their working status (or lack thereof), it’s critical to examine conflicting perspectives on ‘sex work.’ If prostitution is simply an immoral activity, healthcare benefits management should discourage it completely. However, if prostitution is a freely chosen line of employment motivated by economic incentives and individual choice, disability insurance and the healthcare system should include prostitutes. Finally, policy choices will be drastically different if prostitution is a sign of subordination that cannot be freely ‘chosen.’
The conventional morality view
Regardless of the beliefs and desires of people who participate, a prevalent and enduring perspective of prostitution is that it is a societal evil that should be condemned for the good of society. These traditional concerns are frequently implicated in the stated governmental interest in regulating prostitution, whether it is to prevent the commercialization of sex, defend the sanctity of marriage, or protect prostitutes from degradation. Even less moral explanations, such as reducing the transmission of sexually transmitted illness, deterring prostitution-related criminality, or eliminating a “public nuisance,” are motivated by a desire to eradicate prostitution.
Although the vast majority of the population does not express this conservative viewpoint overtly nowadays, it is crucial to understand that conventional, moralistic social attitudes and ideas frequently impact public policy in the area of prostitution. When politicians explore proposals to enhance the lives of prostitutes by extending public benefits, legalising or decriminalising the practise, opponents argue that it will encourage women to participate in ‘immoral’ behaviour. Traditional moralists oppose reform efforts that may legalise the ‘immoral’ act of prostitution, even if the end goal is to prevent secondary crime, the spread of illness, or community ‘blight.’
Diverging views of the feminist debate
Feminist scholars have been at the forefront of the most outspoken and detailed debates about prostitution in recent years. As a result, it’s useful to divide various perspectives on prostitution into two ‘strands’ of feminism: radical feminism and liberal feminism.
Radical feminist approach
Prostitution, according to radical feminists, is nothing more than a disguised form of female subjugation. They compare prostitution to other forms of subordination such as rape, domestic violence, and sexual harassment, and contend that prostitution is a human rights violation even when there is no physical violence. Men have promoted the cultural myth that women actively seek prostitution as a pleasurable economic alternative to low-paying, low-skilled, monotonous labour, conveniently ignoring the conditions that ensure women’s inequality and the preconditions that make women vulnerable to prostitution, according to those who follow the radical feminist approach.
Radical feminists debunk this myth, claiming that within a system of subordination, ‘choice’ is never truly available: women “choose” to engage in prostitution only because they are forced to do so, either coercively or due to economic circumstances. Those prostitutes who assert that they selected their employment freely are misled by a false consciousness that assures their subjugation if this viewpoint is correct.
Prostitution should not be legalised, according to radical feminists, because state regulation, taxation, and licencing would legitimise women’s subjugation and objectification. Some radical feminists, on the other hand, see partial decriminalisation as a necessary step toward completely abolishing prostitution, rather than an opportunity to legitimise prostitution as a respectable occupation. As a result, they advocate for the removal of laws prohibiting the sale of sexual services but feel that other related acts such as pimping, advertising, and recruitment should remain illegal.
Liberal feminist approach
Liberal feminists, prostitutes’ rights organisations, and many prostitutes content, on the other hand, that labelling prostitution as servitude ignores women’s ability to choose whether or not this line of work is in their best social, personal, and economic interests. They believe that women should be able to utilise their bodies for whatever reason they see fit. They argue that prostitution strengthens women rather than denigrates them, claiming that women can freely select this line of work after assessing the costs and rewards. Prostitution, in this view, is not an intrinsically coercive system of subordination, but rather a legal and respectable occupation.
The liberal feminist approach acknowledges the systemic undervaluation of women’s contributions to the labour market but contends that prostitution is one of the few occupations in which a woman can earn an equal wage to a male, work on her own schedule, and choose her clients. As a result, liberal feminists advocate for the full legalisation of prostitution so that women can freely express their sexual and economic liberty.
Debate related to health hazards
We should be concerned as a society about every woman’s access to decent health care. All women are susceptible to a wide range of physical and mental illnesses. Prostitutes, on the other hand, have significant health-care concerns. The work environment of a lower-tier prostitute constantly exposes her to health dangers that many other women do not, such as violence, emotional stress, communicable disease, and exposure to the elements.
Encounter to violence
Prostitutes, particularly those on the street, face abuse and harassment from pimps, customers, and police, who “take advantage of the prostitutes’ fear of authority, low social position, and financial fragility.” Unfortunately, regulations intended to protect women from physical and sexual assault do not often protect prostitutes. The most typical example is when pimps, disgruntled customers, police, and even strangers rape prostitutes, which is trivialised by law enforcement officials or the criminal justice system itself.
Risk of infections
Prostitutes are exposed to a variety of viruses and bacteria as a result of their close contact with customers. While this may raise the risk of tuberculosis, influenza, and other respiratory illnesses, venereal disease is the most common occupational hazard for prostitutes. Even though prostitutes use condoms at a higher rate than any other category of sexually active women, this is true. While recurring infections with some sexually transmitted diseases (“STDs”) may cause only little discomfort, infections like syphilis, hepatitis, gonorrhoea, and herpes have far more serious health implications. More concerning is the fact that, as heterosexual intercourse becomes a more common route of HIV transmission, female prostitutes are at an increased risk of death as a result of their employment.
The act of prostitution is prevalent throughout the globe, whether legal or illegal. While some arguments speak in favour of legalising prostitution which would further provide various rights and remedies to the persons involved in the act. Further, if the act is legalised and taxed it may even help a country’s economy. The conventional feminist argument against legalising prostitution is that it will exploit women by increasing sexual inequity. The human rights argument for it is that it will improve and protect people’s lives. The sex worker’s rights movement is a protest against punishment and humiliation in this conflict over whose voices to listen to, who speaks for whom, and when to utilise the authority of criminal law. It demands respect for a group that has rarely received it, emphasising that respect is the only way to truly help people.
- Oleksandr Eduardovich Radutniy, ‘Legalization of Prostitution and Decriminalization of Related Activities in Ukraine’ (2016) 133 Probs Legality 152
- Anannya Bera and Krishna Bhattacharya, ‘Legalization of Prostitution in India’ (2018) 3 Supremo Amicus 84
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