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Issue No.: 571 | January 2015
 

Legalise Prostitution: Shift the Onus on the State

Hina Manerikar
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Just because prostitution is legal, is exploitation going to end, or are pimps going to disappear or are they going to be arrested by the police who are admittedly in nexus with them.

That prostitution is thought to be the oldest profession is not reason enough to legalise it. Prostitution is a socio-economic problem and not one of legality or illegality. Our typical response to any problem in this country is to turn to the government, our "maai-baap”, rather than the civil society seeking a solution for the problem. The ultimate goal should be to eradicate this scourge and not sweep it under the carpet by legalising it and patting our backs that we have done our bit. As Elizabeth Rosen argues (Freedom First, Dec. 2014), "The State would reinforce its role as a guardian in seeing to it that sex workers fall within the ambit of social security, so that their health care needs are met, and alternate forms of livelihood could be sought for them.” 

The question is how much interference do we want in our lives from the government? Do we want the government to ‘regulate’ the profession? Even if the women feel exploited the State is now telling them that what they are doing is legal, whereas she may want the State to provide her with alternative employment so that she does not have to sell her body to survive. 

Legalisation is not a solution

Vijay Raghavan, Professor at TISS thinks that legalisation could lead to a spurt in trafficking of women instead of reducing it. He thinks that once legalised, it would be difficult for police to enter premises that have been granted licences to rescue those held against their will in those premises. 

The assumption that sex workers would willingly register is flawed thinking considering the social stigma attached to this kind of work. As Vijay Raghavan points out these women are cut off from the families and communities. They are made to serve the clients in many undignified ways. "One cannot understand how legislation will improve their lives”, he says. Raghavan further adds, "Licensing cannot be construed as a genuine programme of women’s emancipation, but only as half-hearted attempt to provide economic legitimacy to poverty-stricken families…”

Another important area not talked about much is the question of male prostitution which is far more widespread than we think; should that also be legalised?

Advocates of legalisation argue that legalising prostitution would improve the life of the women in prostitution by reducing harassment of the police and ensuring medical care. Just because some western countries are trying the route of legalisation does not mean that we should also take the same route, or that it will work for us. Our socio-cultural milieu is different. The class and caste factors play a role in India, which probably are absent in the west. The class of clientele is also different. The more sophisticated and educated class that use the service of ‘call girls’ or euphemistically called ‘escort service’ do not need State protection because that trade is carried on mostly voluntarily. There are enough examples of girls from well-to-do families and even married women indulging in this trade either to earn some extra pocket money or in the latter case ‘bored housewives’ looking for ‘satisfaction’ or ‘fun’ which they do not find in their marriages. 

Elizabeth Rosen in her article in Freedom First argues that "Legalisation negates the role of the police as a willing accomplice to the perpetuation of the trade, and cuts off the nexus between them and the ringleaders of the trade”. But in the same article in an earlier section, she herself admits that "this, (legalisation) on the face of it, looks welcome or even respectable. However, such interference by the State tends to allow prostitution to survive and thrive, on the side-lines. We are referring to the gaps in law enforcement, wherein the police, aided by the ringleaders, collaborate with one other to keep the trade flourishing”. Isn’t legalising interfering? Will legalisation change the attitude of the police overnight? So we are back again saying it is a social problem. 

The second argument is that legalising will eliminate pimps. I fail to understand how just legalising can make this happen. Just because prostitution is legal, is exploitation going to end, or are pimps going to disappear or are they going to be arrested by the police who are admittedly in nexus with them. 

As far as education of the children of the women in prostitution is concerned, the children should get their rights under RTE. There is no provision in the RTE which says that only children whose parents are in a legal profession have a right to education. If they are not in school, it is again a social problem where the society shuns them. This cannot be corrected by legislation. 

Experience of Western Countries

Examples of legalisation in other countries are put forward to advocate similar measures in India. Before we think of imitating the west, we should study the experience of these countries. For instance the education levels of women; second the awareness of these women about the general political situation in the country and what actions are they to take if they are being exploited. Most of these women are cowed down to begin with. It is assumed that they will have the courage to approach the police or some designated agency in case of exploitation. It is also assumed that the police will help them just because their work is now legal! 

Let’s take the case of Sweden and their experience with the outcome of their legislation. Sweden has a strange law. While prostitution is legal, buying sex and paying a prostitute is not. Women (or men, for that matter) can sell sex, but it is illegal for a man to pay for it. The buyer is criminalised, not the seller. In Sweden, the government evaluation naturally considers their legislation a success, reporting that street prostitution has reduced. All Swedes, including feminists, agree that this is not the answer to the problem of women’s exploitation. "Even the (prostitution) law’s supporters acknowledge that drops in street prostitution, which countries without similar legislation have also seen, are more likely related to the advent of the internet, where it’s easier than ever to offer or find sexual services, than to the power of the Nordic model.” They in fact admit that the jury is still out on the benefits of their legalisation of prostitution. "In fact, on almost all fronts, ‘it’s very hard to tell’ how well the law is working, said Kristina Ljungros, of the Swedish Association for Sexual Education (RFSU).” "We don’t have enough evidence.”
(http://www.buzzfeed.com/jinamoore/in-sweden-being-a-prostitute-is-legal-but-paying-one-isnt)

A study by Swedish researcher Gabriella Scaramuzzino found that the law inspired buyers to organize themselves to leverage a kind of collective bargaining power. They used the internet to review their experiences, in chatrooms that function like a Yelp for transactional sex, and they banded together to demand "consumer rights,” like a money-back guarantee.

Conclusion

We have a plethora of laws in India without the machinery or the will or resources to implement them. It makes no sense to add to these laws but instead the civil society has to seek a solution to the problem by accepting that this exploitation is due basically to our patriarchal society and the importance given to male progeny and neglect of the female child. It is for the parents and educational institutes to inculcate values in children where they learn to respect all individuals, and for the government to play a pro-active role in formulating policies and schemes for the rehabilitation of women leaving their sex work. In old West Bengal even a small female infant was called "ma”, thus inculcating respect for the female from infancy. 
 
If at all we have to consider legislation, then buying sex should be made an offence like Sweden but keeping silent on the question of selling sex, is just like asking for a bribe is a crime but not giving of a bribe. We need to be very careful before we consider legalising sex work.

Hina Maneikar
hina.manerikar@gmail.com
 
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Reflections

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Some Thoughts on Our Judiciary and the Media

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DEATH WASN’T PAINFUL: STORIES OF INDIAN FIGHTER PILOTS FROM THE 1971 WAR

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Educating Adults

Legalise Prostitution: Shift the Onus on the State

Hina Manerikar
 

Review of the Right to Information (RTI)

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