BEP/PATRICK GHERDOUSSI/LA PROVENCE Illustration sur la prostitution

This article was written by Gopika Pillai, a student of Jindal Global Law School.

As human beings evolved, so did their work: from hunters, gatherers, soldiers, housemakers, doctors, etc. Professions evolved as according to the developments of humans. As humans demanded it, the society worked to supply it. One such profession that emerged due to the need of human beings- but somehow got condemned to the back of the society- is sex work.

Sex work, although having a huge prevalence within most societies, was easy for people to banish to shady undergrounds and red light districts due to its “obscene” nature. Having done this, everybody thus declared that sex work was unethical and immoral; that people doing such work- women in particular-were ‘whores’ or ‘sluts’, seemingly not worthy of their empathy. Marginalization, they assumed, was better than acceptance.

The argument that they too deserved the same basic rights available to other people in different professions, to this day, is still not fully accepted. While countries debate on whether to decriminalize ‘sex work’ and human rights conventions aim to promote their equal treatment, normal people are still coming to grips with accepting sex workers as part of the working class. The point of this research paper is to establish the changing views of society on sex workers and also its influence in a legal aspect.

But to understand their struggle, there first needs to be an understanding of what such work actually entails. Sex work can be defined as, “the performance of sex acts for hire; prostitution”[1].  Under such a definition, only prostitution-that is- soliciting sex for money could be considered as sex work. However, in order to truly capture the umbrella of events and participants that come under ‘sex work’, the definition would have to be broadened.

Another definition of the term can be as follows, “the exchange of money or goods for sexual services, either regularly or occasionally, involving female, male, and transgender adults, young people and children where the sex worker may or may not consciously define such activity as income-generating. There is a widespread view that occasional engagement in transactional sex, or sexual barter, constitutes sex work”[2]

Such a definition would help include acts of all genders, and those who don’t conform as such, children as well as adults and help question whether or not the act of solicitation is involved. The placement of sex workers within the strata of society could never be described as high. During older times, they were mostly from low income backgrounds with negligible education or were introduced into it young.

Even when considering, that the act of prostitution has existed for centuries within the sex slave trade of China and Africa, the notion of accepting it as just another profession is still too hard for people to digest.

Mid-20th century, feminist movements swept the world; women entered the workforce and into more powerful aspects of society. However, the chasm between the societal understanding of ‘sex work’ and what it actually meant still stayed the same.  Radical feminists[3] did not regard prostitution or sex work as degrading work exactly, but rather that the patriarchal system had been ingrained so fully within society, that sex work was just another extension of male sexual fantasy. “They see the existence of sex work as undermining the respectability of all women”[4]. And so, continuation of this practice would just mean that the society was further constraining women. The same radical feminists- that had insisted women take control of their work, passion and sexuality did not open their arms for women employed as sex workers, who were hoping to express the same. [5]

However, there were many other facets of feminism that condoned such a radical view. As stated in Sex worker’s rights: (almost) Everything You Wanted To know but Was Too Afraid to ask, “Some feminists also point to the stigma around sex work as an example of societies unwillingness to recognize women’s sexual and reproductive rights, including the right to choose one’s sexual partners, to choose whether to have sex at all, and to enjoy sexuality and pleasure”. [6]

Such feminists believed that the same principles that allowed men to express their innate sexuality, restricted women from expressing theirs. The same qualities that society used to uphold the strength and sexual vitality of a man; they branded shameful when expressed by a woman. They supposed that this perception of female sexuality lead to the victimization of women and other minorities. They said it lead to the perpetuated idea that the people working in such a profession were ‘victims’ and hence required saving by a stronger force.

While it was true that there was a percentage of individuals involved in the trade who were minors and who were true victims; many others were just doing a job that they had fully consented to.  The liberal thinking of people and their activism was what started the conversation about protecting the dignities and right of sex workers. A conversation, that although began decades ago, has still not reached a conclusion.

The basic reason why sex work has continued to thrive till today is the continued increase in demand for it. Even with the rise of the internet and pornography, the no of sex workers and customers they receive are yet to decrease. (A report from Foundation Scelles estimated that there were nearly 42 million people involved in active prostitution to this day). Considering that such a trade would never really die down (in 2007 Atlanta’s sex trade was worth nearly 238 million dollars), was it fair to deny the millions of people in that trade of their basic rights?

The problems of ‘sex trade’ and trafficking can only been solved by stronger legislations and more societal acceptance. Activists believed that the law should be strengthened to protect minors as well as adults, in particular, from acts that they had not consented to and further exploitation.

Most countries had at first insisted on prohibiting any form of sex work: be it prostitution, soliciting, or even human trafficking. The main dilemma that countries now faced were: whether the trafficking of humans- of all genders- would really end if sex work is decriminalized.

The first thing to do would be, to create a distinction between ‘sex work’ and human trafficking. The key distinction between the two should be that sex work is done purely as work with full consent of all individuals that are participating. The reasons why the worker has decided to partake in such activities shouldn’t be an influence. Their own reasons may be lack of availability of other jobs or even supporting themselves through a degree. However, such reasons shouldn’t have any bearing unless their own consent has been violated.

Any use of coercion which forces an individual into a sexual act, in exchange for money, or even sold for the purpose of sexual exploitation should come under human trafficking. Not making such a distinction when creating a legal framework could be dangerous to both sex workers as well as victims of human trafficking.

The second would be to find an appropriate plan to tackle the decriminalization of prostitution and sex work. The main arguments against decriminalization are:

  • Once decriminalized, since lack of regulation on sex work, there would be an increase in trafficking of humans and exploitation of individuals.
  • That instead of full decriminalization, they should decriminalize the sex work but criminalize the buying of sex i.e. criminalize the clients and brothels paying for the sex.

The validity of both these arguments can be questioned using the findings of a study published in 2012 in World Development. [7]The study found that, “Countries with legalized prostitution are associated with higher human trafficking inflows than countries where prostitution is prohibited.” However, it was also found that once the substitution effect was considered that, “This share of trafficked prostitutes is likely to fall after legalization.”

The theory is that everyone involved within sex work would want to take advantage of the new legislation and so would actually reduce the number of individuals it recruits illegally. That is, the brothels or ‘pimps’ or the sex workers themselves, would not endanger their newly found legal status in favor of say, getting unpermitted foreigners trafficked in order to continue a sex trade. [8]

Legalization of sex workers has also found to reduce instances of unreported rapes, STI’s and unwanted pregnancies. The reasoning behind this is that, legalizing of the work would allow sex workers the option of approaching concerned authorities regarding their problems without any fear of imprisonment. Legalizing also provides sex workers the option of having their own networks of support and availing medical services which would help reduce the spread of sexually transmitted diseases and infections. It would also help them in affirming their own rights, as they would be able to stand up against exploitation by manager or clients; something that they wouldn’t be able to do if sex work is criminalized, again, due to the fear of their own imprisonment as well as the discrimination they would face due to the stigma associated with such work.

The argument that partial decriminalization of sex work may fare better in the long term is also a questionable argument. Research has shown that instead of reducing human trafficking, it actually put the sex workers themselves in bigger danger. If brothels and ‘pimps’ were decimalized then, the main amount of sex work would have to be done on the streets, which again increases chances of danger. Criminalizing clients would force sex workers to work within unsafe environments and practices rather than reduce the number of people looking to ‘buy sex’.

This reasoning was held in the judgement of Canada vs Bedford.[9]The judge held that criminalizing brothels and ‘pimps’ would lead to a violation of an individual’s right to personal security and safety. The decision was considered a landmark judgement as it struck down a part of Canada’s prostitution laws.

The above examples would suggest that there is a wider scope for the argument that sex work should be legalized while also providing different legislations for human trafficking. However, most countries of the world are still hesitant to pass laws that would help in empowering sex workers and reduce the trade of human trafficking. Some of this hesitancy may be caused by the societal stigma still surrounding sex work and sexual activities in it.

This stigma further showed itself, when Amnesty International announced its full backing for legalization of sex work. Their decision caused uproar from society, while critics lauded them for such a ‘risky’ move.

Regardless of the stigma surrounding the issue of sex workers, the reasons for supporting it are increasingly becoming more and more valid. The fundamental idea that put the wheels in motion for modern day democracies was that of equality for everyone regardless of gender, race or profession. Continuing to discriminate a class of hard working people on the basis of one of those aspects would be hypocritical of the entire system.

[1] The American Heritage Dictionary of the English Language (4h ed. 2006)

[2] The UNAIDS Inter-Agency Task Team on Gender and HIV/AIDS, HIV/AIDS, Gender and Sex Work, in Resource Pack on Gender and HIV/AIDS, (2005)

[3] Not representative of all types of feminism nor feminists

[4] Goldenberg, Gunter et al. Sex Worker Rights: (almost) everything you wanted to know but were too afraid to ask, (The American Jewish world Service ed. 2013)

[5] In most publications, sex workers are generally referred to as female, however cis male as well transgender females and males are also active in this field.

[6] Id.

[7] Cho, Seo-Young et al. Does Legalized Prostitution Increase Human Trafficking? (World Development, 2013 )

[8] Id, p26, “However, such a line of argumentation overlooks potential benefits that the legalization of prostitution might have on those employed in the industry. Working conditions could be substantially improved for prostitutes – at least those legally employed – if prostitution is legalized.”

[9] Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII)

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