Should India Legalize Sex Work?
By Kandathil Sebastian
09 November, 2014
A recent remark made by Lalitha Kumaramangalam, chairperson of the National Commission for Women in India about the need for legalization of sex work invited a huge controversy. Currently a special panel appointed by the Supreme Court of India is preparing potential amendments in the existing Indian laws to make sex work safe.
Many activists and NGOs want changes in the existing laws by distinguishing ‘sex work’ from ‘trafficking’. They feel sex work should be made legal, sex workers should be able pay tax on their income, enjoy labor rights including right to form trade unions, and above all to live with dignity. These activists feel that such measures stop forcible trafficking, respect choice of women who want to voluntarily pursue sex work, improve hygiene among sex workers and clients, and thereby limit the spread of HIV/AIDS and other diseases.
There are many Indians - not just the moral right wing extremists but even the socialist feminists expressed concern about legalizing prostitution in India. This essay will examine their concerns and arguments to finally arrive at an opinion on what should be the best possible option ahead to protect the human rights of this hugely marginalized section of Indians.
CAN ANYONE ELIMINATE SEX WORK?
Sex work or prostitution is as old as human culture itself. To answer the question whether we could eliminate prostitution or not, we should understand the historical and social roots of the prostitution as well as the interests which increase both the demand and the supply of women in prostitution.
Anthropologists trace the origin of sex trade to the ‘transactional sex’ which was initially controlled by women themselves. Chris Knight in his book ‘Blood Relations’ argues that women's granting of sex in exchange for meat was the basis for establishing homes as permanent bases of living, a unique innovation that led to agriculture and civilization. However, with the growth of agriculture and industry, patriarchal men altered this commanding position enjoyed by women and thereafter the practice of prostitution has evolved in ‘form’ and ‘content’ along with various religious rituals in temples, performances in farmlands and exploitative commercial interests in markets.
Women priests in the temples of Mesopotomia, Egypt, and Greece provided sacred sexual services to both the people and the kings. In ancient India, Nagar Vadhus and Devdasis have been engaged in religious prostitution. Besides offering sexual services, Nagar Vadhus also performed as singers and dancers just as Devadasis took up responsibility for the care and maintenance of the temple. The higher status enjoyed by these ‘sacred prostitutes’ declined later due to several reasons. Temples losing their patron kings, after the west Asian invasion was one reason; subsequently the Devdasis turned to prostitution for a living. In the Islamic world, the elites maintained harems of concubines for exclusive sexual services.
Commercially run brothels which we see in the Indian cities originated along with the rise of the Christian Europe. Though sex outside marriage was considered as sinful and prostitution became a prosecutable offense, brothels proliferated into the European colonies along with the expansion of colonialism. In the late 16th and 17th centuries, Portuguese brought Japanese slave women to Goa for serving their traders. Brothels in Mumbai and Kolkotta can be traced back to the ‘comfort zones’ set up by the British in the late 18th and early 19th centuries for sexual gratification of the British troops.
Religious and political restrictions on prostitution through enacting moral codes and public health regulations became a common practice in the colonies. Britain passed the Contagious Diseases Act to check the spread of venereal disease and compulsory physical examination of prostitutes was legally enforced. It is well known that during the Second Indo-china War (1963-1973), thousands of Thai women were officially used by the US forces for "Rest and Recreation". Thailand’s successful HIV/AIDS prevention program among commercial sex workers and its continuing status as a sex tourist destination of the world is well known.
Throughout the history, sex work persisted and continues to persist, in the face of moral and legal condemnations. Sex work contributed to the origin and growth of families, religion and commerce, though the ideology of patriarchal family which came into existence in later years which enslaved women for accentuating its power through commerce and military aggression. In the new dispensation, man emerged as the head of the household while woman as the ‘natural care giver’ for the family. Monogamy was enforced to control women’s sexuality within the confines of marriage in order to pass on private property through the male line, while men were free to seek sex outside marriage, though there were moral proscriptions which were not implemented rigorously.
It is unlikely that sex work will be eliminated at any point of time in future till the patriarchal systems exist. It will continue despite the moralistic but hypocritical positions and measures taken by its individuals and institutions from time to time. Thus a ban on sex work will remain as an impractical moral cry for many more years.
WHAT IS THE CURRENT SCENARIO?
There are around three million women in the sex industry in India today. Whether we call them by the politically correct term ‘sex workers’ or by the labelling term ‘prostitutes’ which implicate them as ‘dirty evil whores’, they lead an extremely marginalized life. Many of them were pushed into this profession by traffickers who sourced them from Dalit, Adivasi and poor households of interior India, Bangladesh and Nepal. The growth of the sex industry in the country has coincided with the growth of the ‘beauty industry’. The beauty industry promoted a distorted notion of sexuality that limited women as objects, their bodies as consumable commodities, and as targets of male sexuality, needs and desires. Corporate media’s pushing of the objectification of women and the commodification of women’s bodies normalized the buying of sex. Today the sex industry in India is characterized by high levels of violence against women.
Strictly speaking sex work by adult women is not illegal in India though living off their earning, soliciting and running a brothel are illegal. The law which is dealing with sex workers is the Immoral Traffic (Suppression) Act (SITA), enacted in 1956 and subsequently amended twice in 1986 and in 2006. According to this law, sex workers can practice their trade privately but cannot legally solicit or 'seduce' customers in public. The 2006 amendment has included some provisions to protect sex workers from harassment.
However we could see brothels in most of the big cities and in many of the small towns of India. Sex workers are being routinely arrested and subjected to high levels of police brutality. The judicial process which follows the arrest is a destabilizing and traumatizing experience to them. Those sex workers who are rehabilitated in rescue homes are routinely beaten, raped, and even denied access to timely medical care. Sex workers face a lot of violence by clients and many sex workers are afraid to report crimes against them knowing that police may arrest them or may not take their report seriously.
UNDERSTANDING THE NUANCES OF SEX WORK
In order to understand what needs to be done to change this pathetic situation, we should understand the nuances of the sex work in the context of many arguments for and against those nuances. There are people who argue that ‘sex work’ should not be equated with ‘sexual exploitation’ or ‘sex trafficking’ which should be dealt with separately. They further argue that sex work is in fact a kind of ‘social service’. To them, sex workers are neither ‘victims to be rescued’ nor "dirty, evil whores" to be punished and eradicated. Such arguments are against “free sexual expression and autonomy of women who dare to have sex in ways that offend conventional moral sensibilities” and are coming from the ‘patriarchal religious fundamentalists’. They emphasize that women are not always dreaming about being sexually chaste to save themselves for marriage.
Sex for pleasure and sex for money are also realities of life. More importantly sex is a basic human urge and everyone needs human intimacy and touch, and sex has significant physical and mental health benefits. People in sexless marriage may like to use services of sex workers. Many people have difficulty in finding a sexual partner. Sex workers through their labor deliver a necessary health-care service to such clients.
Those who are against the above viewpoint argue that viewing prostitution as a social service is a conservative and ultimately patriarchal view of sexuality. The difference between selling one’s labor and selling one’s body lies in the fact that buying someone’s body is an extreme expression of power. They ask why is it that women in sexless marriages are not prime clients for the sex industry. To them, it is an example of sex viewed through a patriarchal prism in which sex is something that men always want and desire and that women reluctantly submit to it. It also views sex as a right, as opposed to something that should always be engaged in consensually. To them the psychological harm experienced by men in sexless marriages is much less than the psychological scarring of selling the body by women. It is harmful, not only to those who work in the industry, but also to women in general. Sex industry reflects and perpetuates sexism and patriarchy.
Another view point is that most women do sex work out of their ‘choice’. This is not as per data available. Rather the sex industry all over the world, especially in India employs women who do not have any other choice. Sex trafficking is modern day slavery; choice and consent are nonexistent in this trade. Quite often it is ‘reluctant submission’ which is the rule and there is a difference between consent and reluctant submission.
CAN LEGALIZATION BE THE ANTIDOTE?
Globally, countries can be classified as those who declared sex work illegal (many), legal (e.g. Norway), partially legal (e.g. Australia) or ambiguous on legality of sex work (e.g. Bulgaria). Those who made sex work legal expected to de-stigmatize sex work, protect sex workers from violence, exploitation and lack of access to health and welfare services and to ensure their human rights. They wanted to eventually reduce the number of brothels and pimps. Evidence from countries which legalized sex work does not fully support materialization of such expectations.
For example in Germany legalization of sex work was followed by huge expansion of the sex industry with about a million men buying sex every day. Thousands of black and Latin women have also been trafficked into Germany. Such unanticipated expansions could be because of the impression of acceptability of buying sex which such legislations might have unintentionally created. Though there is a report about the partial success of New Zealand which passed a law in 2003 to effectively decriminalize prostitution, the evidence of empowering sex workers is not fully convincing.
A key argument of those who want to fully legalize sex work is its enabling potential of forming sex workers’ trade unions. Considering the extreme power structures exist in the sex industry and the difference between sex work and other types of work, organization within sex industry to give voice and agency to sex workers is not a definite means. Some of the sex workers’ organizations already existing in countries like US and Australia are not unions at all, as they promote the sex industry and in doing so, aid the profiteering agenda of their masters.
DECRIMINALIZATION OF SEX WORK INSTEAD OF FULL LEGALIZATION
Sex workers should never be criminalized in the eyes of the law and they should be free from hassle, coercion or harassment of any kind either from the state or from moral policing or even from the moralistic judgments of the larger society. In India ‘soliciting’ is illegal, which generally contributes criminalization of prostitutes. This provision may be changed.
However, everyone who profit from the business of prostitution, the ‘pimps’, as well as traffickers should definitely be criminalized. Criminalizing the buyers of sex is also a progressive measure as buying sex is a reflection of and a contribution to sexism and patriarchy. Financial and other penalties should be imposed on buyers of sex. Laws to fine buyers of sex should be accompanied by immediate corresponding welfare services and assistance for sex workers. Such selective decriminalization and criminalization measures do not amount to full legalization.
These measures should be supplemented through orientation trainings of police and awareness generation among general public to result in reduction of stigma and discrimination of sex workers. This will enable them to report any abuse or violence to authorities. Thus a progressive government should be thinking about decriminalizing women in prostitution and provide them safety exit services while criminalizing men who buy sex.
Installing such innovative measures to regulate the exploitative environment of sex work and protecting the health and human rights of sex workers are of course temporary solutions. The ultimate objective of any institution or individual aiming at ensuring the human rights of sex workers should definitely be demolishing the entrenched patriarchal power structures and practices that disempower and dehumanize women.
(Kandathil Sebastian is an international development consultant, public health researcher and author of the novel Dolmens in the Blue Mountain)
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