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Legalisation or De-criminalisation? Sex workers speak their mind

Dec 12, 2014

Sex work has traditionally been seen as a form of violence against women. Over the last two decades, however, the global sex workers’ rights movement has consistently argued that while there is violence within sex work, consensual adult sex work does not constitute violence. While the present law is meant for prevention of trafficking, it does not really apply to adults voluntarily working as sex workers. After all, there is no relation between solicitation and being forced into the trade. In fact, when these women have to evacuate their ‘homes’ and forcefully go to ‘rehabilitation centres’ or undergo medical tests it amounts to violation of their basic human rights.

It’s precisely for these reasons that the recent statement given by Lalitha Kumaramangalam, Chairperson of the National Commission for Women (NCW), openly advocating legalising sex work in India to regulate the trade and ensure better living conditions for women engaged in commercial sex work, has created quite a stir among women sex workers as well as the rights activists who have been fighting with them for decades. According to the NCW chair, legalisation will not just bring down trafficking it will also lower the incidence of HIV and Sexually Transmitted Diseases (STDs).

“But will that really happen? And has anyone bothered to ask what women in the trade feel about this issue?” asks Meenakshi Kamble, a sex worker associated with the Veshya Anyay Mukti Parishad (VAMP - Prostitutes Against Injustice) for almost 15 years. She highlights the plights of sex workers saying, “On the one hand the police use force and violence against us. On the other, the society discriminates against us because of our profession. Will the violence and discrimination end once our profession is legalised? What if when we get identity cards and we have to migrate? What will be the process? Will I get rid of corrupt police officials and pimps then? I want to know what will benefit me more - decriminalisation or legalisation.” Even as she voices these valid concerns Kamble is clear about one thing. “If there is a law to be created to benefit us, then it has to be made with our participation,” she states.

It’s a common tendency to view sex work through a binary lens – if it is done out of necessity then it is ‘legitimate’ otherwise no. Kamble has outright objection to this attitude. “Why is it okay to do sex work for survival but not for luxuries like a lipstick?” she asks. “Everything around prostitution has been so maligned and stigmatised that violence around it is very high. Violence exists in both marriage and prostitution, but marriage is not itself seen as violence while sex work is. Neither are married women maligned the way sex workers are,” she points out.

Kamble also feels that sex work and trafficking are not synonymous. “The fact that a majority of adult women in sex work are in it by consent is conveniently dismissed or ignored. The understanding that trafficking is not synonymous with prostitution has also dodged the policy makers, who insist that all women in sex work are victims of trafficking. Newsflash - not all the women in sex work are trafficked and not all trafficked women are in sex work,” she argues.

Whereas she is happy that the NCW is taking interest in the welfare of sex workers, she wants the institution to include them in the dialogue as well. “We do welcome the interest of the NCW towards our betterment. But we are aware that legalisation will lead to regulations, which would mean more control over our community,” she says.

Kokila, a sex worker from Tamil Nadu, agrees with Kamble’s analysis. She says, “Legalising voluntary commercial sex work would mean more regulations, which would make it mandatory for us to get licences. This would mean that we won't be allowed to work from multiple locations. This is clearly in violation of the right to freedom of movement given to me by the constitution of India.”

Dr S. Jana, the man behind the formation of 65,000-strong sex workers' forum, the Durbar Mahila Samanwaya Committee (DMSC) in Kolkata, strongly feels that “sex work should be treated as work and consequently be included under the Work Schedule of the Labour Department. Sex workers from both the brothels and the streets should be recognised as workers and Immoral Traffic Prevention Act (IPTA) should not be applied to them.”

Feminist-activist and founder of SANGRAM, an organisation based in Sangli, Maharashtra, that has helped sex workers become AIDS educators for their community as well as others, Meena Seshu concurs, “Within the Indian context, sex work is ‘dhanda’, a business. It is an exchange of a sexual service for monetary benefit. Legalisation of this business will not help the women involved in it. It would mean that the State would have more control over the mobility of the sex workers and also increase their vulnerability to mandatory testing of HIV and STD.”

Laws and government policies in India have failed to protect sex workers, as ambiguity in the law has made them vulnerable to abuse. “And in recent years this abuse has only been exacerbated because of the increased visibility of sex workers. The government needs to disassociate voluntary sex work from trafficking and amend laws criminalising those in the trade accordingly. A legal status would unleash a horde of regulations on the sex workers. We need to amend or repeal all laws, including the Prevention of Immoral Trafficking Act, which criminalises them and the supporters of their cause,” she says.

Sex workers insist that legalisation would not be the right way to go. If the ‘criminal’ tag is removed, these women will automatically be able to access services meant for any ordinary Indian citizen. Currently, they do not trust the police and fear approaching any legal or government institution if they have to report any matter.

Decriminalisation will actually make sex work safer, they say. Punitive laws that criminalise and punish sex work act as instruments through which sex workers are harassed by law enforcement agencies, health authorities and clients. In many countries, sex workers are a primary means by which the police meet arrest quotas, extort money, and extract information. Police wield power over sex workers in the form of threats of arrest and public humiliation and use condoms as evidence of illegal activity, undoing years of effective public health promotion and campaigning around STIs and HIV.

Forced testing for HIV is commonplace, along with breaches of due process and privacy. Decriminalisation will help sex workers organise and address all forms of exploitation, including abusive, sub-standard or unfair working conditions instituted by both State and non-State actors. Sex work must not be equated with sexual exploitation or sex trafficking. Moreover, it’s crucial to understand that decriminalising sex work is not an attempt to legalise pimps, nor does it increase exploitation of sex workers. Such arguments are made with a limited understanding of the sex trade and undermine sex workers’ struggle for the right to health and justice.

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