Prostitution

This article is written by Aashna Nahar, from Amity Law School, Delhi. The article discusses the issues surrounding trafficking and prostitution, the different models of legislation and a critical analysis of the Immoral Traffic (Prevention) Act.

Introduction

Prostitution has been a part of our society since time immemorial. This is because its existence has been acknowledged in historical texts such as the Vedas and even the Arthashastra written by Chanakya. Over the years it has evolved and developed new meanings and in the present day is regarded as “modern-day slavery”. Many resort to working in the sex work industry due to their poor socio-economic conditions, others are victims of trafficking.

To know more about the laws for protection against human trafficking in India in brief, please refer to the video below:

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Economic, health, and legal issues relating to prostitution and trafficking

Health and economic issues

In addition to the physical issues, it has also been shown that prostitutes sometimes experience psychological trauma. This is because of certain incidents that they may go through and the repetition of the same. They often suffer from feelings of “low self-worth, shame, and guilt” due to certain experiences. This adversely affects their personal relationships and future relationships with their children as well. 

Besides, since the activity is considered criminal in many jurisdictions, its enormous revenue is not taxed and hence the state misses out on hundreds of millions of dollars of undeclared earnings. 

Legal issues

The legal issues surrounding prostitution revolve around the ambiguity concerning the consent of the sex worker. It is often very difficult to identify whether a person has been trafficked or is working consensually. In addition to this, studies suggest that majority of the sex workers are sometimes subjected to traumatic violent experiences. In this event, they do not have access to legal remedies as they are afraid of being ostracized or arrested.

Different types of legislation models

Usually, governments and various NGOs classify legislation models regulating sex work into the following 5 categories:

Prohibitionism

Under the prohibitionist system of legislation, all aspects of prostitution are criminalized. It is usually seen as immoral and against public policy. An example of a country with a prohibitionist system is Russia. 

Abolitionism

Abolition is also referred to as tolerance. Countries like India and England practice this type of system. In such cases, private work between the prostitute and the client is allowed. However, the moment it enters into the public sphere, it is criminalized. This means that solicitation and the presence of brothels or pimps is criminalized. 

Neo-abolitionism

Countries like Sweden and several other Nordic nations follow the neo-abolitionist model. They believe that people entering into the sex work industry, do so out of compulsion and not their free choice. Therefore, they only affix criminal liability on the involvement of third parties and not the prostitute.

Legalization

The legalization of the sex work industry means that there is a legislation in place to govern and regulate the industry. The systems and degree of control may vary in each country. However it essentially includes granting of work permits, registration, demarcation of red light zones, etc. A classic example of a country with such a system is the Netherlands or the historically famous 17th-century Japanese district of Yoshiwara.

Decriminalization

In this type of legislative model, sex work does not attract criminal liability. This means that there is less social exclusion and stigma involved in the sex work industry which in turn creates a healthy and safe work environment for the people involved in the industry. For example, New Zealand.

The effects of legalizing prostitution

Legalization or regulation is an important paradigm in connection to the ‘sex work’ industry. This type of system believes that the sex work industry always existed and is here to stay for the future. Thus, instead of banning or criminalizing it, it must be governed and regulated as per the laws of the state. 

This can mean compulsorily registering brothel houses and taxing their revenue. More importantly, requiring the prostitutes to mandatorily get themselves registered with the local authorities, after a medical checkup for venereal diseases which provides clearance to work. The registration by the authorities must only be done upon checking the age and medical examination results of the applicant. 

The areas where they work must be designated and they must only operate in those specified areas with proper licenses. In case an unregistered prostitute is caught working, they can be held liable. In addition, some of the other benefits of legalization, may also mean proper legal redressal of instances of rape/sexual assault and legal status of children born out of prostitution.

Example: In France, this is controlled by moral police or the police des moeurs. These are police officials dressed in plain clothes who roam in the demarcated areas or red light zones where these activities are permitted. They ensure that everything is in order and the regulations are being complied with. This model is popular in other countries of Europe like Germany, Austria, Switzerland, etc. 

In conclusion, legalizing or regulating prostitution may lead to a safer and healthier work environment for the people working in the sex work industry. This in turn will help in the containment of diseases and instances of violence.

Effect of legalization of prostitution on trafficking

There is no conclusive data on trafficking or prostitution as both are regarded as criminal activities in most countries. Hence, the people that are involved in these activities remain hidden and hence not much accurate information is available in the public domain.

However, research conducted in 2012 by a group of researchers from the United Kingdom, Germany and Switzerland studied the impact of legalisation of prostitution on the trafficking inflow in various countries. They used two theories called the scale and substitution theories. According to the scale theory, legalisation of prostitution would actually expand the market for prostitutes leading to an increase in trafficking. The substitution theory on the other hand showed that upon legalisation, the demand for trafficked prostitutes will be replaced by a demand for the legal ones. This in turn will shrink the trafficking of women.

As per the data collected from this study, the scale theory seems to outweigh the substitution theory. This means that areas, where prostitution is legalized, show a greater inflow of trafficked sex workers. In addition to this, from the law enforcement point of view, if prostitution is legalized, it would be extremely difficult for the police to distinguish who is a trafficked prostitute and who is a consenting one. This will be challenging in terms of making rescues and providing trafficked victims with aid especially because workers from this industry are afraid of identifying themselves in front of law enforcement officials for fear of being prosecuted. 

Law on prostitution in the USA

Prostitution has mostly been declared as illegal in the USA other than a few counties in the state of Nevada. Regulations concerning prostitution are not in the hands of the Federal Government. It is thus the prerogative of the states to prohibit, abolish, decriminalize or regulate prostitution under the tenth amendment to the US Constitution except the Congress can legislate on it under the Mann Act insofar as interstate commerce is concerned. Prostitution is considered a misdemeanor in most states of the USA as a public order crime.

Nevada is the only state in the US to have legalized prostitution. Eight counties in Nevada have regulated brothels. These are licensed and prostitution outside of these is illegal. Prostitution remains illegal in major areas like Carson City, Reno and Las Vegas. Louisiana is the only state where prostitutes that have been convicted are required to be registered as sex offenders. Also, Rhode Island, where prostitution was permitted during 1980-2009 due to the absence of a law defining and outlawing it, signed a bill outlawing it in 2009.

The situation in developing vs. developed countries

According to the United Nations Convention on Drugs and Crime (UNODC), people in developing countries fall prey to trafficking more than their counterparts in developing countries. They are then trafficked as sex slaves to other developed countries, especially in Europe. This is because developing countries often have a lack of education and due to the bad economic situation, traffickers prey on victims by making false assurances of providing them a better life. In many instances, these countries do not even have the requisite anti-trafficking laws thus, the perpetrators have to be booked under a different charge.

Current laws governing prostitution and trafficking

In India, prostitution and trafficking are governed by the Immoral Traffic (Prevention) Act, 1986. 

Section 2(f) of the Act defines prostitution as “misuse or sexual exploitation of anyone for business purposes.” Under the act, prostitution is allowed privately but any third party involvement such as pimping or organized brothels is illegal. Also, soliciting customers in public is criminalized. In addition to this, prostitution cannot take place within 200 meters of public activity. In addition, if someone owns or permits another to use their premises for prostitution work, they may be held liable.

Key points of the ITPA Act

  • Sex workers: They are allowed to conduct their business privately however call girls are banned from advertising their phone numbers publicly. If violated, they can be arrested for up to 6 months.
  • Clients: Prostitution must not take place within 200 meters of public activity. If violated, offenders can be arrested for up to 3 months.
  • Pimps: An adult male may be charged for living off the money of a prostitute or permanently residing with the prostitute.
  • Trafficking: If a person attempts to traffick someone else, they shall be held liable and punished.
  • Brothel: The person who owns or manages a brothel will be imprisoned for up to 3 years if found guilty.

Laws to prevent forced prostitution and trafficking

In addition, the Indian Penal Code, 1860 covers the offenses of child prostitution under Section 372 and Section 373. It also punishes other offences related to trafficking such as the importation of a girl from foreign for sex under Section 366B, exploitation of a trafficked person under Section 370A and procuration of a minor girl under Section 366A.

Punishments and penalties 

The activities mentioned above attract huge penalties. Even at the first instance of conviction, one can be sentenced to rigorous imprisonment. Mentioned below are the offenses and their corresponding punishments under the IPC and ITPA:

  • Punishment under Section 370A of the IPC for sexually exploiting a minor is five to seven years in prison. 
  • The punishment for owning or managing a brothel is one to three years plus a fine of rupees two thousand.
  • Procurement of a minor girl attracts rigorous imprisonment of a minimum of seven years but can exceed up to a life sentence.
  • Soliciting clients for prostitution can invite penalties of over five hundred rupees as fine and up to six months imprisonment upon the first conviction and five hundred rupees fine and up to a year in prison upon the second conviction.

Proposed amendment of 2006

An amendment was proposed in 2006 to the Immoral Traffic (Prevention) Act. This proposes decriminalization of solicitation of customers by the prostitutes. It also introduces punishment of up to three months and a fine of over Rs. 20,000 for visiting a brothel for the purpose of exploiting a victim of trafficking, sexually. This act was earlier not criminalized. It also aims to constitute authorities at the state and central level to help in the fight against trafficking.

Landmark judicial pronouncements on prostitution and trafficking

In a recent case, the Bombay High Court ordered the release of three sex workers who had been detained in a corrective institution against their will. It did so while observing that women possess the right to choose the work they wish to do and that, the Immoral Traffic Act does not penalise prostitution, only its solicitation in public or exploitation for money. The court was of the view that since the victims are not undergoing prosecution, they are not required to be detained in a corrective institution. 

The Court observed that the Immoral Traffic Act does not allow the magistrate to place victims in custody for more than 3 weeks. Under Section 17(5), after completion of its inquiry, the magistrate may order the victim to stay in a protective home for 1-3 years and the reasons for the same must be recorded in writing. Sub-section (5) states that a panel of five persons including 3 women must assist the magistrate in this regard. 

Kumari Sangeeta v. State of Delhi and Ors.

In this case, the Court observed that there is no provision in the Immoral Traffic Act which penalises the act of prostitution. It is only the sexual exploitation or the involvement of pimps trying to make money out of it which is punishable. Under Section 7, conducting prostitution activities in public and under Section 8, soliciting clients is punishable.

State of Uttar Pradesh v. Kaushalya

In this case, the constitutionality of the Immoral Traffic (Prevention) Act was challenged before the High Court in Allahabad. A group of prostitutes was asked to vacate the premises of a house in Kanpur for the purpose of maintaining public order. The same was challenged before the court. It was contended that Section 20 of this Act is a violation of Article 21 and Article 19(1)(d) and Article 19(1)(e). The Supreme Court however held that the act is constitutionally valid as there is an intelligible differentia between a prostitute and someone causing public nuisance. It noted that the act aims to suppress trafficking and prostitution in women and to rehabilitate them back into society. 

Vishal Jeet v. Union of India

In this case, the Supreme Court, while taking into account the number of women and children that have been trafficked, ordered a study to be conducted into finding out what the causes and effects of this vice are. Especially since this is not a social problem but a ‘socio-economic’ problem. Also, it put the onus of responsibility on the State and Central Government to form advisory committees which can help in the fight against trafficking. It also emphasizes on the need to have preventive action instead of punitive. It invited various persons to become part of these advisory committees and make suggestions on how to eliminate child prostitution.

Munni v. State of Maharashtra

In this case, the police had raided a red light district and rescued several minor girls. The Bombay High Court discussed the importance of protecting young children, especially girls, emotionally and psychologically so that they do not fall prey to the vicious trap of trafficking. In this regard, it emphasized the importance of the Child Welfare Committee to play a significant role in aiding the rehabilitation and protection of ‘children in need of care and protection’. It stressed the importance of child-friendly remedial measures in case a child strays and needs to be brought back into the safety net.

Legal protection and assistance provided to sex workers 

Under the Immoral Traffic (Prevention) Act, sex workers are not protected but they can avail the right to seek rehabilitation and rescue if they desire to do so. In addition to this, the apex court in the case of Budhadev Karmaskar v. State of West Bengal observed that under Article 21 even prostitutes deserve to live a life with human dignity. They enter into this field not for physical pleasure, but because of extreme poverty. The Supreme Court suggested the establishment of rehabilitation centers by the state and central government which can teach these women vocational skills. Using these means, they can earn a decent living and they would no longer have to work as prostitutes.

In furtherance of this, Section 21 was added to the Immoral Traffic (Prevention) Act. This section made a provision under which “protection homes” were to be established by the state governments. This had to be done by obtaining a license. These licenses were non-transferable and a designated authority was to conduct its due diligence while issuing the license. 

During the ongoing Covid-19 crisis, a Supreme Court bench of Justices Nageshwar Rao and Hemant Gupta directed the Central and State Governments to provide the sex workers with food, sanitizers and soaps without urging them to produce identification proofs. 

Critical analysis

An analysis of the Immoral Traffic (Prevention) Act shows that it is not as extensive and far-reaching as a legislation governing trafficking and prostitution should be. It encourages prostitutes to work alone as it classifies two or more women working together as a ‘brothel’ which is criminalized. In addition to this, there is a provision which states that prostitution must take place at least 200 meters away from public places. This forces women to conduct these activities in isolated areas. It is safe to state that the act has completely overlooked the safety and interest of sex workers. In effect, it has forced them into dark corners so that it is invisible to the public eye. 

In case the prostitutes are abused by pimps or their clients, legal recourse is hardly an option for them. This is because they avoid approaching law enforcement officials owing to the fear of being harassed or arrested. Besides, the victims of the sex work industry are afraid of seeking rehabilitation in ‘protection homes’ set up by the government. It feels like a new prison to them as more often than not they are confined to this place for long durations until they are deemed ‘fit’ to be rehabilitated back into mainstream society. Offering counselling and various forms of therapy should constitute an intrinsic part of rehabilitation. This would tremendously add to their recovery and wholesome growth. All in all, what is required is a more empathetic approach by the authorities in every step of the way. 

Conclusion

There are two types of people in the sex work industry. One, who are working by choice and the other who have been forced or trafficked into this industry. While enacting a law to govern them, it is important to understand the difference between the two groups and take both of their needs and interests into account. The people who are in this industry by their own choice must not be made to feel marginalized. They should be provided with a safe and healthy environment for work wherein they have access to birth control, medical facilities, etc. On the flipside, the people who are victims of trafficking must be rescued and safely rehabilitated back into the society. 

References

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