Rights And Issues Faced By Sex Workers And Their Displacement
Author: LawSphereX
Category: Labour & Employment
Published:
Updated:
RIGHTS AND ISSUES FACED BY SEX WORKERS AND
THEIR DISPLACEMENT
Priya Kushwaha, Trinity Institute of Professional Studies, Dwarka affiliated by Guru Gobind Singh Indraprastha University Ankita, Trinity Institute of Professional Studies, Dwarka affiliated by Guru Gobind Singh Indraprastha University
ABSTRACT
In India, sex work is legal, but it is associated with dishonor and authoritarianism that has persisted for decades in the lives of those who engage in it. Sex workers are a word that, whether used in Indian society or anyplace else in the globe, conjures images of low-status women who lack respect and dignity. The Indian Supreme Court ruled that sex workers should be protected from police abuse in May 2020. Article 15 of the Indian Constitution states that discrimination should not be practiced based on caste, creed, gender, race, sex, or place of birth. In contrast, Article 19 of the Constitution preserves the freedom to engage in any profession or occupation. But because of their line of employment, sex workers face discrimination. Their work is viewed as a filthy, characterless line of work.
Speaking of their rights, sex workers lack access to basic healthcare, safety, and education. Their communities suffer from numerous economic inequalities, and lack of sanitization, and are frequently placed on facilities deny lists. The Immoral Trafficking Prevention Act, of 1986, which forbids sex work and prevents trafficking in India, deals with sex workers. Even though this law's stated goal is to protect sex workers, it has sadly more frequently been used to harass them. The 1986 Immoral Trafficking Prevention Act has been guilty of crimes such detaining people with or without their agreement, which can lead to crimes like kidnapping or wrongful imprisonment. Sex workers are stigmatized as disease carriers and vectors because of HIV/AIDS. The Indian court must put the laws pertaining to the advancement of sex workers into effect and alter them, as necessary.
Sex workers also require a suitable institution that will educate and assist them in overcoming their own prejudices and societal expectations. Commercial businesses should become
involved so that they can fall under the protection of the law and be protected by it. Sex work is therefore more than just a job because everyone has the right to human rights, regardless of what their line of employment may be. Introduction As with any coin, there are two sides to every story, and the sex worker issue is no exception. When the topic of sex workers in India came up for discussion, many claimed that the practice was immoral and that it was unfit for human beings. “According to the definition of prostitution, it is the act of offering sexual services in exchange for cash. The individual who performs these services is referred to as a prostitute, and brothels are locations where prostitution takes place. ”1 “Criminal law is society’s strongest expression of disapproval of an action.
”2 Because prostitution is a job that may be both a lifeline and a death sentence for different people, it has complicated and contradictory. In the case of “Budhdev Karmaskar vs the State of West Bengal, the honorable Supreme Court of India held that sex workers have a right to dignity under Article 21 of the constitution, which ensures the right to life and livelihood. ”3 Hence, India granted them the status of human beings and declared that they also had the right to live with dignity without any kind of negative attention from the community. Let us examine this from a variety of angles and attempt to comprehend what their issues are, how society may help them, and if we uphold their rights and respect them as citizens of our nation. 1 UNAIDS, Global Network of People Living with HIV, et al. (2010). Making the law work for the HIV Response Available at: http://www. unaids.
org/en/media/UNAIDS/content-assets/documents/ priorities/20100728_HR_Poster_en-1. pdf. 2 Law and policies affecting sex work, New York USA, available at http://www. soros. org/topics/sexual-healthrights (18th April 2023) 3 Supreme Court order on sex work historic, but execution will be the real hurdle, The Print, available at https://theprint. in/campus-voice/supreme-court-order-on-sex-work-historic-but-execution-will-be-the-realhurdle/988049/? amp ( lasted visited 10th April 2023)
History of Sex workers Do you know the origins of prostitution and what the past has to say about it? “So, prostitution has a lengthy history of 4400 years. It was first established in the year 1530, and both then and now, young girls are still trafficked. ”4 The history of India shows that prostitution existed in India during the Vedic period as well. Prostitution, however, did not become legal in India until the later Vedic period, between 900 and 700 BC. At that time, society had made prostitution lawful. At the time of the Islamic invasion, the greatest ruler Akbar created a proper kotha for the prostitutes, whose job it was to amuse the king and keep him happy. At the time, they were known as Tawaf, and they were never accorded a social status or the respect that they truly deserved. “In other words, prostitution is the oldest vocation in Indian society.
Devadasi, an older kind of prostitution, was destroyed by the British, who also saw the women as objects of amusement”5 Therefore, it is crucial to educate the girls so they may live independently and respectably. Types of Prostitution What the history of prostitution can teach us about human trafficking, dressember. org, https://www. dressember. org/blog/what-the-history-of-prostitution-can-teach-us-about-human-trafficking (12th April 2023) 5 It is important to note that the devadasi practice is known by different names in different places. For example, devadasis are known as Muralis in Maharashtra, Basavis and Muralis in Andhra Pradesh, and Jogatis and Basavis in Karnataka. For the purposes of this paper, I refer to this collective group as devadasis
Issues Encountered by sex workers. The issues faced by sex workers are categorized as follows:- • Social problems • Economic problem • Pschyological problem • Health problem”6
1. Social Problems:
Sex workers are the most vulnerable group and are at substantial risk. They were viewed as worthless, characterless, and socially inept by society by virtue of the word "prostitution," and discrimination against them was evident in every town. Not only were the citizens denying them their rights, but police officials also disregarded the complaints of these sex workers regarding the violence that was occurring with them. Instead of providing them with protection and a sense of safety and security, police advised them to stop performing sex work and engage in work that would build their character. “The main social issues that sex workers face are violence and discrimination. Neighbors make disparaging remarks about them and their families, they are treated like slaves, and they are not allowed to participate in many religious ceremonies.
Community empowerment is crucial so that they can be considered equal members of society rather than property. ” 7 To provide their children with a first-rate education and a good life, poor women who are illiterate and lack any skills turn to work as prostitutes. This not only allows them to support a better lifestyle for themselves, but it also allows them to provide a better lifestyle for their children. 6 Rachel Marshall, “Sex workers and human rights: a critical analysis of laws regarding sex work”, volume no. 23 (2016-2017), issue 1, “William & Mary Journal of Race, Gender, and Social Justice, 51 2016 7 Dasgupta, S. (2018, December 17). Indian bill to ‘protect’ trafficking victims will have sex workers less safe. The Conversation, Retrieved from https://theconversation. com/indian-bill-to-protect-trafficking-victimswillmake-sex-workers-less-safe-104535.
2. Economic Problems –
Today, money is the ultimate motivator. Lack of education is a significant factor in people getting into this line of work since they do not know any other options and their families' financial situation forces them into it. “There have even been instances when families have sold daughters into prostitution to get money. No one wants to work as a prostitute against their will, but it is cruelly true that without any skills or education, women have no choice but to enter the world of sex workers. When a woman's family is in debt, she may occasionally be forced to perform certain types of work to help her family pay off the debt.”8
3. Psychological Problems –
Let us discuss some of the psychological or mental issues that sex workers encounter daily. - Stigma: - “The stigma, which implies not being able to live a regular life, is the key element affecting the mental health of these sex workers. People believe that nothing in this world is worse than sex labor and that it is something beneath. ”9 “According to a survey, 83% of prostitutes are affected by the stigma of society and are unable to lead normal lives. ”10 “Social stigma has a significant negative impact on the mental health of prostitutes. Sex workers are stigmatized in society as criminals who have received unfair treatment from the authorities.
”11 - Sex work criminalization: - Prostitution is now outlawed in nations including China, Egypt, Iran, Iraq, South Korea, and South Africa, sending the message loud and clear that prostitution is not a legitimate business but rather a crime. Therefore, criminalizing sex workers has had an extremely negative impact on prostitutes' mental health and made them feel like criminals. - Violence - In addition to their clients, the police have also been known to use violence -8 Chattopadhyay, M. , Bandyopadhyay, S. , & Duttagupta, C. (1994). Biosocial factors influencing women to become prostitutes in India. Social Biology, 41(3–4), 252–259 9 “Sex Work & Mental Health and access to services in Europe and Central Asia”, European sex workers rights alliance, October 2021 10 What drives a prostitute, sciencenordic. com, available at https://sciencenordic.
com/anthropology-culturedenmark/what-drives prostitute/1429294#:~:text=In%20a%20survey%20of%20prostitution,chose%20their%20line%20of%20work (last visited 15th April 2023) 11 Cecilia Benoit and Michaela Smith, “Prostitution Stigma and its effect on the working conditions, personal lives and health of sex workers, “The Journal of Sex Research”, November 2017
against sex workers. This is surprising considering that police are supposed to be the protectors of society, shielding us from harm. Sex workers never report crimes to the police because they fear being reevaluated.
4. Health Problems –
“This research examines numerous biosocial variables that may cause women to become prostitutes based on data gathered during a study of risk factors linked to cervical cancer among prostitutes in Demur, Howrah, West Bengal. Half of those infected with HIV are women, according to research, and up to 90% of sex workers in some communities have HIV infection, which makes the risks even greater for young girls whose genitals are still developing and more vulnerable to damage during sex. In 2005, an estimated 4. 9 million people worldwide were estimated to have HIV infection. ”12 In Andhra Pradesh, where most infections are sexually transmitted, the prevalence of HIV is larger than the number of pregnancies in India. According to estimates, 1% of adult women in India may be involved in sex work, the substantial majority of whom do not operate in brothels.
Additionally, it was observed that women are sometimes detained for wearing condoms for sex acts solely out of concern for their safety. Sex workers are not given access to health services or information, making it difficult for them to treat or avoid them. When they do seek assistance from health centers, they are often treated poorly and turned away due to discrimination. Primarily, they should not be treated unfairly by the law simply because they are sex workers. Crimes committed against sex workers. Sex workers may also endure emotional or psychological abuse, such as insults, being the focus of controlling behavior, and being "humiliated or belittled in front of others; threatened with loss of custody of one's children; confined or isolated from family or friends; threatened with harm.
" 12 Akwinder Kaur, “A sociological perspective on India’s journey of legalizing prostitution: an illicit to a lawful activity”, International Journal of Science and Research Archive, 2023, 08(01), 182–188, 24th December 2022
1. Offences committed to women.
Rape is described in section 375 of the Indian Penal Code as "sexual intercourse with a woman without her consent, by coercion, misrepresentation, or fraud, or at a time when she has been intoxicated or duped or is of unsound mind, and in any case, if she is under 18 years of age." In other words, it might be argued that a man deliberately entering another person's mouth, anus, or vagina without that person's consent constitutes rape. “But practically this provision is not for prostitutes to seek justice”13 The POSCO Act, Sections 3 to 10, deals with the provisions relating to sexual assault. Section
3 of the act defines penetrative sexual assault, which states that if a person inserts any object
or part of their body into a child's vagina, mouth, urethra, or anus to any extent, they are considered to have committed the crime of sexual assault against children. “Pramod Bhagwan Nayak vs State Of Gujarat on 22 February 2006 In this case the directions were given by the judge for eradicating the malady of child prostitution. To set up homes for rehabilitation of rescued sex workers including children so as to enable these rescued sex workers to acquire alternative skills in order to enable them to have an alternative source of employment.”14 Drugs are given to young girls to make them lose their senses, and they are then sold to anybody attempting to sexually abuse the girl without her knowledge.
2. RAPES AND OTHER OFFENCES AGAINST CHILDREN UNDER THE AGE
OF 13:
A 2007 Ministry of Women and Child Development research found that 53% of the kids had
experienced sexual abuse of some kind. “The Sexual Offences Act of 2003, sections 5 to 8, defines offenses against children under the age of thirteen, and section 5 of that act defines rape of a child under the age of thirteen, making it unlawful for a person to purposefully pierce a child under the age of 13's mouth, anus, or vagina with his penis.”15 The maximum term for a penetrative offense is life in prison, whereas the maximum sentence 13“ SC ruling that sex workers can’t cry rape is dictated by morality not legal reasoning”, first post.com, available at https://www.firstpost.com/india/sc-ruling-that-sex-workers-cant-cry-rape-is-dictated-by-morality-not-legalreasoning-3050044.html (last visited 22nd April 2023) 14Pramod Bhagwan Nayak vs State Of Gujarat on 22 February 2006, (2007) 1 GLR 796, IndianKanoon.org, https://indiankanoon.org/doc/1735887/ (last visited – 13th April 2023)
15 Sexual Offences Act, 2003
for a non-penetrative offense is 14 years. • Sexual offenses against children - Sexual offenses against children include sexual acts with children as defined in Section 8 of the Sexual Offenses Act 2003. Encourage sexual activity. It also includes engaging in or inciting a child to engage in sexual activity. Section 4 of the Sexual Offences Act 2003 states that a person engages in sexual activity without consent. The person does not agree to engage in the activity and the penalty for such violation is up to 10 years imprisonment.
In the case of “Gaurav Jain vs Union of India, the court held that this Court, after hearing the counsel, passed an order to set up an Advisory Committee to make suggestions for eradicating child prostitution and to point out social aspects of the care, protection, treatment, development, and rehabilitation of the young victims, children and girls prostitutes from the red light area and get them free from the abuses of prostitution. ”16 “Child prostitutes constitute 12 to 15% of prostitutes in any area. On account of the social sanctions, women are exploited by the monstrous customs of Devdasis, Jogins and Venkata’s is known by other names in different parts of the country. The committee was established to discuss to illegal child prostitution.
86% of the fallen women hail from Andhra Pradesh, Karnataka, Tamil Nadu, West Bengal, Bihar, Maharashtra, Uttar Pradesh, Assam, Gujarat, Goa, Madhya Pradesh, Kerala, Meghalaya, Orissa, Punjab, Rajasthan and Delhi, Delhi receives prostitutes from about 70 districts in the country; Bombay from 40 districts; Bangalore from 70 districts; Calcutta from 11 districts, Hyderabad from 3 districts etc. The child prostitutes rescued from the red light areas should be shifted into juvenile homes. Special police authorities should be established to coordinate with the social welfare officers of the State Government and public spirited persons, NGOs locally available, and see that the juvenile homes are entrusted to efficient and effective management, the child prostitutes or neglected juveniles are properly protected and psychologically treated, education imparted and rehabilitation succeeded.
”17 • Abuse of children through child pornography or prostitution - Child pornography and
16 Department of women and child development, ministry of Human Resource Development, Government of
India, “Report of the committee on prostitution andchildren of prostitutes and plan of action to combat trafficking and commercial sexual exploitation of women and children”, 1998 Gaurav Jain vs Union of India745-54,
AIR1997,
INDIAN
KANOON.ORG,
https://indiankanoon.org/doc/40881001/ (Last visited 21st April,2023)
prostitution are both pervasive and most juvenile prostitutes are between the ages of 11 and 18. Child pornography and child prostitution are inextricably tied to one another. Youngsters are sold to clients whom they are sexually and physically abused by them which could cause significant injuries or even result in the death of the child. Laws and rights related to sex workers. After World War II, millions of human rights emerged. After this massive destruction, the idea that human beings should have certain basic and inalienable rights is not unique enough. Rights have been given to humans since 1945. The United Nations General Assembly has already provided the right to life, liberty, and security. But do humans have the right to choose their profession and not to be judged? Laws varied from country to country concerning legalizing, criminalizing, or permitting it.
For instance, prostitution is legal in Wales and England, and in the USA, it is up to states who want to legalize or decriminalize sex work Article 19(G) of the constitution of India states that every person has the right to choose any profession as their career. But do these rights apply to every person? And if we talk particularly about sex workers, legal proceedings are not that satisfactory.
LAWS SEX WORKERS ALREADY HAVE
1. Laws related to prostitution in India.
The Constitution of India: - Article 23(1) prohibits human trafficking and in the context of prostitution it prohibits all kinds of sex trafficking that leads to the commercial sexual exploitation of an individual. - “Traffic in human beings means selling and buying people like goods including immoral traffic in women and children for immoral. Or other purposes. Though slavery is not expressly mentioned in Article 23, it is included in the expression ‘traffic in human being’ under Article 35 of the constitution, parliament is authorized to make laws for punishing acts prohibited by this article. In pursuance of this article, parliament has passed the suppression of immoral traffic, - “As per the reports, 75% of commercial prostitutes in India are the victim of sex
trafficking. ” - Most of the victims belong to poor families, they are abducted in the name of a job or marriage and then sold to pimps, brothels, or streets. - In the case of “State vs Haseena 2013”, the victim was a minor who was brought by a lady in Delhi on the pretext that she would secure a decent job for her. But she took her to Kotha and forced her to do prostitution and according to medical examination, it was proved that she has been sexually assaulted. The accused was convicted under section 5 of the Immoral Traffic Prevention Act. • Immoral traffic prevention act, 1956 - “This act was made to provide in pursuance of the international convention signed in New York on the 9th of May 1950 for the prevention of immoral traffic.
”18 - “The main objective of the act is to criminalize activities related to prostitution and establishment of protective homes and corrective institutions. - There are many sections provided in the act that is as follows: - - “Section 4 talks about the punishment for living on the earning of prostitution: - in this section, it is said that if any person over eighteen years old and knowingly living on the prostitution of another person is punishable with imprisonment for 2 years or a fine which extend to one thousand rupees. ”19 - And if the earning is of a child or minor then the punishment is more than seven years. - Section 5 talks about procuring, inducing, or taking people for prostitution.
- In this section, it is said that if any person procures or attempts to procure a person with or without consent for prostitution, taking a person from one place to another 18 “Convention for the suppression of the traffic in persons and of the prostitution of others”, General Assembly Resolution 317 (IV), dated 02nd December 1949
19 The Immoral Traffic (Prevention) Act, 1956, [Act No. 104 of 1956 dated 30th December 1956]
shall be punishable for 3 years. - Section 7 talks about prostitution in public places punishable by law. - Section 8 talks about seducing or soliciting for prostitution. - But the question of fact is how many sections there are protecting the rights of sex workers to choose their profession willfully with rights to the protection which is mentioned under article 19(G) of the constitution. In this act, sex worker does not have the right to choose this profession but if they are forcefully involved by any person, the person will be punished, but where is the living or source of income of a sex worker? - The basic intention of this act is clearly to criminalize prostitution in different spheres.
• INDIAN PENAL CODE
Indian Penal Code came into force in 1860 and was formed by Thomas Macauley in the British era. It is a statute of punishment defining various offenses, some of which apply to prostitution as well. - “Section 372 of the IPC talks about selling minors for the purpose of prostitution. -
A person who is under the age of eighteen years is employed or used for prostitution
with the intention of illicit intercourse with any minor for the unlawful purpose shall be punished with imprisonment of ten years. - For instance, if a minor female is sold or hired to prostitute to a person who manages brothels. So, it would be constituted as she shall be used for prostitution.”20 - “Section 373 of the IPC talks about buying minors for prostitution. - If any person buys a person who is under eighteen years(minor) intending to employ 20 Section 372 of The Indian Penal Code, IndianKanoon.org, available at: https://indiankanoon.org/doc/1735887/ last visited on 17th April,2023)
or use the person for prostitution”21 - Are these provisions enough concerning the protection of rights and issues faced by sex workers? - “According to the reports, the risk of HIV is more in women, and multilevel intervention targeting social, cultural, biological, and behavioral factors are urgently needed.”
2. Laws related to prostitution in the USA.
If we talk about the USA, it is up to states who want prostitution to be legalized, criminalized, or permitted. - “At present, Nevada is the only state to have legalized sex work recognizing brothels, because brothels are the safest and most justifiable from the prostitution. ” - But because of criminalization and the stigma, sex worker is considered a marginalized and backward population, especially concerning HIV and AIDS even in the USA. - “According to the report of the World Health Organization, criminalization of sex however actually perpetuates these issues by driving sex work underground, leading to unsafe sex practices, increased the risk of HIV transmission and acquisition. ” - “In New Zealand sex work model can be seen as a success primarily because of its inclusiveness. ”22 • New Zealand’s Prostitution Reform Act is categorized as a decriminalization model.
- "The act also implemented a number of regulations regarding who can exchange sex, 21 Section 373 of the Indian Penal Code, IndianKanoon. org, available at: https://indiankanoon. org/doc/530949/ 22 Basu, A. , Ketheeswaran, N. , & Cusanno, B. R. (2022). Localocentricity, mental health and medical poverty in communication about sex work, HIV and AIDS among trans women engaged in sex work. Culture, Health & Sexuality, 24(1), 125-137. Lack of health law report. Violence Against Women and HIV/AIDS: Critical Intersections, WORLD HEALTH ORGANIZATION 4–5 (2005), https://www. who. int/gender/documents/sexworkers. pdf [https://perma. cc/K4D3-DESZ]. Condoms
zoning requirements, and condom use. " - Street work is permitted but only occurs in three cities. - The prostitution reform act came to the conclusion that decriminalization and minimal regulation had mostly succeeded in achieving its objectives and that sex workers were now better off than they had been before the law's introduction. • Sweden’s Nordic Model - “This is Sweden’s approach which permits the selling but criminalizes the buying. ”23 The Nordic approach has unexpected repercussions, including attitudes among service providers and police, and is applicable to Norway, Iceland, Nepal, India, Korea, Finland, and Israel. The implications of the Nordic model are a lack of access to high-quality healthcare. The Nordic model was thus abandoned since prostitutes continued to suffer punishment and increased danger of abuse and violence.
• Nevada - Nevada is the only US state with legalized prostitution. Nevada’s brothel owner and sex worker must abide several rules and regulations including thorough background checks for the owners and health checks for the sex workers. - “No sex worker within Nevada brothel has tested positive for HIV since testing was mandated in 1985. ”24 v RIGHTS SEX WORKERS NEEDS
1. RECOGNITION OF SEX WORK BY THE GOVERNMENT
First, the government needs to respect sex workers and recognize their profession. The recognition will enable them to benefit from all of their fundamental rights and
23 HIV and the Law: Risks, Rights & Health, supra note 42, at 36.
24 WEITZER, supra note 2, at 87.
grant them protection under a third of India's constitution. - Their line of work needs to be included in the scope of Article 19(G) of the Constitution's right to select any profession. - They ought to be entitled to equality without prejudice. - They should be granted the freedom and right to life guaranteed by Article 21, which would allow them to work freely and independently. - They shouldn't be assessed based on their line of work. In order to receive protection against police abuse, they need be registered, certified, or have a license.
2. Health Laws
Health, hygiene, and sanitization are the topics of prostitution that receive the greatest attention. It is important to limit the spread of HIV/AIDS. The increase in customers that would result from legalizing prostitution as a profession strongly suggests that health legislation is also required. Therefore, the government should include the following measures in the health laws, Three monthly or every six months HIV screenings for all sex workers. Classification of condoms: Only use condoms of the highest calibre. Pregnancy tests at three or six months. In order to continue sanitization, the government should plan for inspections of sex workers' workspaces every three to six months. The government ought to establish standards for prostitution-related employment, The applicant must provide a medical fitness report.
A government-recognized document verifying the individual's age (which must be more than 18 years) is required.
3. Infrastructure
An adequate structure is necessary to ensure sanitization, cleanliness, and health. Prostitutes should be able to work as such in a safe environment. Taking government-approved brothels as an example. The government should create brothels as they are the most legalised, protected, and authorised type of prostitution
in the USA, England, and other countries. The government should create brothels as they are the most protected and lawful sort of prostitution in the USA, England, Wales, etc. Benefits of brothels: Environmental protection, Sanitation, Easy to inspect (as if the government had approved street sex, in which case it would be challenging for the government to examine each and every sex worker due to the sheer number of streets in India), Licensed (government recognized), Registered sex workers who have a license. So, these are the benefits of establishing brothels for both sex workers and the government to check and balance the system of prostitution.
4. Education
As per reports, the people or women are involved because they do not get good jobs, and this is because of a lack of education. - Most sex workers are usually from villages where the percentage of education is exceptionally low. - So, the government should make provisions to educate sex workers. As they should have a chance to change their jobs. - The basic education of their profession is also important.
5. Protection from the police
In India, police without any reports or information catch the sex workers and abuse them. - The prostitutes suffer from police violence and abuse. So they should be protected. Conclusion “Every individual should be treated with decency and respect, yet after several rights campaigns and rallies, sex workers are still unable to get their rights. To address the human rights abuses and lack of opportunity experienced by undocumented migrant sex workers, a
comprehensive approach is required.”25 The study may lead one to the conclusion that prostitution does not require any special treatment, such as criminalization, decriminalization, or sanctions. Regulation of prostitution will help prevent the exploitation of sex workers and their offspring. It will safeguard sex workers' rights in addition to their health and the health of society. 25 Jennifer S. Rosenberg and Denis Bakomeza, “ Let’s talk about sex work in humanitarian settings: piloting a rights-based approach to working with refugee women selling sex in Kampala”, tandfonline.com, 12th December 2017, https://www.tandfonline.com/doi/full/10.1080/09688080.2017.1405674