Sex work law reform - Eyes on GOM

 

Sex workers protesting Amendments to ITPA, 2007

 

In May 2006, Renuka Chowdhury, Minister for Women and Child Development (MoWCD), Government of India introduced Amendments to the Immoral Traffic (Prevention) Act, 1956 ("ITPA"), ostensibly to address trafficking in persons for commercial sex. Formulated without public consultation, the Amendments drew widespread protests among sex workers, AIDS service organizations and other civil rights groups. As a result, the Immoral Traffic (Prevention) Amendment Bill, 2006 was referred to a Parliamentary Standing Committee ("PSC") for review. After hearing views of concerned groups including the Lawyers Collective, the PSC submitted its findings to Parliament in the 182nd Report. Subsequently, MoWCD revised the ITPA Bill, which came up for Cabinet approval on 6th September 2007. Owing to a lack of consensus, the Union Cabinet referred the Official Amendments to a Group of Ministers (GOM) for further consideration.

Chaired by the Home Minister - Shivraj Patil, the GOM comprises Kapil Sibal (Minister for Science and Technology), Meira Kumar (Minister for Social Justice and Empowerment), Anbumani Ramadoss (Minister for Health and Family Welfare) and Renuka Chowdhury herself. Since its inception, the GOM has met once - in November 2007. One of the main issues that it is deliberating is if and how the proposed amendments will affect HIV prevention among sex workers and clients under the National AIDS Control Programme. Instructed by ideology rather than evidence, the ITPA Bill fails to redress lacunae in the existing response to trafficking. Worse still, it threatens to squander hard won victories in mobilising sex workers against disease and disempowerment. With the HIV epidemic concentrated among key populations, particularly sex workers and their partners, India can ill-afford to overlook public health implications of sex work law(s). This article questions the logic behind ITPA Amendments with emerging public health findings.

Intensifying criminalization The last 50 years have brought failings of the ITPA to the fore. The Act has been disproportionately applied against sex workers while failing to prevent forcible entry of young persons in sex work. Yet, despite demands for repeal or revamp, MoWCD chose to make patchy, fractional changes. Of specific concern are suggested definitions for Prostitution and Trafficking in Persons for Prostitution, which will, now guide application of the law. Together with the proposed provision to penalise clients of sex workers, the ITPA will effectively criminalise all sex work.

• Definition of Prostitution: Until now, ITPA did not criminalize sex work per se. In doing so, the Legislature adopted a conscious public policy not to punish sale and purchase of sex, which is the basis of commercial sex. However, the proposed amendments define prostitution u/s 2(f) as - "the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind". The words "or for consideration in money or in any other kind" widen the scope to cover all transactional sex including that which is consensual and non-exploitative.

• Definition of "Trafficking in Persons for Prostitution": The proposed definition under Section 5A includes the expression "position of vulnerability" - a vague term, without any meaning in criminal law. Many persons, especially women, engage in sex work for economic reasons since the State offers little or no material assistance to the poor. Under the proposed Section 5A, those who enter sex work because of poverty or difficult economic circumstances, will be seen in a "position of vulnerability" and considered "trafficked". As a result, every recruitment in sex work will be construed as ‘trafficking' and ‘trafficked' sex workers will be subjected to coercive ‘exit' measures.

It may be pointed out that the impugned term is adapted from the definition of Trafficking in Persons in the U.N Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the U.N Convention against Transnational organized Crime, 2000. Commentaries on the Protocol admit to the ambiguity in language and advice signatory States to adopt a clear definition in domestic law. Importantly, common law countries like U.K, Canada and Australia (which the Indian legal system follows) have not included terms such as "position of vulnerability" in their anti-trafficking legislation.

• Penalty for visiting Brothel - Contrary to legislative intent, the new Section 5C seeks to punish persons found in or visiting a brothel for sexual exploitation of trafficked victims. While sexual exploitation is synonymous with prostitution u/s 2 (f), any sex worker engaging in sex work for money (to escape poverty) will be considered trafficked u/s 5A with the end result of criminalizing all clients of sex workers. In its review, the PSC found the provision ambiguous and incapable of application, especially since it provides no guidance on distinguishing a trafficked sex worker from a non-trafficked one. It recommended that the Section be redrafted so as to avoid harassment and punishment of all persons in a brothel.

Non compliance with PSC recommendations Though non-binding, governments usually follow suggestions of legislative bodies to avoid conflict. Further, reports of PSCs merit consideration as they are informed by public views and consultation. Strangely, revisions to the ITPA Amendment Bill, 2007 ignore many important prescriptions by the PSC. (See table)

 

Section	Original Amendment, May 2006	PSC Recommendations, November 2006	Proposed Revision, 2007
2(f) Definition of Prostitution	"Sexual exploitations or abuse of persons for commercial purposes or for consideration of money or in any other kind"	Redraft in view of purpose & intent of legislation	No Change
4 Punishment for Living on the earnings of prostitution		Decriminalise voluntary spending by sex workers through appropriate amendment	No Change
5(A) Definition of Trafficking in persons	"Whoever recruits, transports, transfers, harbours or received a person for the purpose of prostitution by means of :- (a). Threat or use of force or coercion, abduction, fraud, deception; or (b). abuse of power or a position of vulnerability; or (c) giving or receiving payments or benefits to achieve the consent of such person having control over anoter person, commits the offence of trafficking in persons"	(i). Noted concerns over se of terms with no clear legal meaning (ii). Redraft to include "inducement of religious or social nature"	“Whoever recruits, transports, transfers, harbours, receives, induces or dedicates a person for the purpose of prostitution by means of, — (a) threat or use of force or coercion, abduction, fraud, deception; or (b) abuse of power or a position of vulnerability; or (c) giving or receiving of payments or benefits to achieve the consent of such person having control over another person, (d) in the pretension of any religious, social, cultural, customary practices or sanctions”
5(B) Punishment for Trafficking in Persons	Any person who commits trafficking in person shall be punishable on first conviction with rigorous imprisonment for a term which shall not be less than 7 years and in the event of a second or subsequent conviction with imprisonment for life	Introduce discrete penalty for trafficking in children with 10 yrs imprisonment	Provided that where the victim of trafficking is a child, on conviction the term of rigourous imprisonment shall not be less than ten years and in the event of second or subsequent conviction with imprisonment for life
5(C) Punishment for persons visiting or found in a brothel for sexual exploitation of victim of trafficking	Any person who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in person shall be on first conviction be punishable with…..	(i) Noted concerns over prosecution of all clients; w/o knowledge & intention (ii) Redraft with clear definitions for victim of trafficking & sexual exploitation	No change
8 Penalties for solicitation for prostitution	Delete Section	(i) Approved (ii) Insert provision to penalise soliciting by pimps & agents	Remove entire section as actions of pimps, middlemen are already punishable u/s 3,4,5 of ITPA
10 (ii) Detention in corrective home	Extend stay of female offender in corrective home from 5 to 7 yrs	Rejected; advised rehabilitation of sex workers	No change
13(2) Police authorised to implement Act	Lower rank of Special Police Officer from Inspector to Sub- Inspector	Rejected	Amendment dropped
Sec 13 (A) & (B) Nodal anti-trafficking authorities	Set up nodal authority to combat trafficking at centre & states	i) Make setting up of authority obligatory (ii) Set out constitution & functions in Act (iii) Ensure mixed composition incl sex workers	(i) Central/State Government to provide Authority with necessary human personnel (ii) Composition & functions to be set out in Rules
16 Rescue of Person		Provide safeguard against prosecution of minors in sex work, who must be treated in accordance with Juvenile Justice Act & not arrested under ITPA	16 (3) “where a victim is found to be a child, the child shall be produced before the Child Welfare Committee constituted as under Juvenile Justice Act, who shall give necessary directions for the care and protection of the Child”.
22 (ii) Trials	Allow ‘incamera’ trials	(i) Agreed with incamera proceedings to protect victim’s identity (ii) Insert provision allowing presence of person trusted by victim	“Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of the proceedings under this Act shall be conducted in-camera and the court shall allow a person of victim’s choice and trust to be present during the proceedings”

 

Importantly, MoWCD has rejected the PSC’s suggestion to re-examine ITPA in its entirety. This would have been apposite; especially as the Act has little to show for itself.

Public health considerations vis-a-vis sex work Epidemiologically, unsafe commercial sex is the key driver of HIV especially in the four out of the six high prevalence states in India. High rates of partner change, sexually transmitted infections (STIs) and unprotected sex make sex workers susceptible to contracting and transmitting HIV infection. Men who resort to unprotected paid sex are at risk of acquiring HIV and further infecting their sexual partners including spouses. Thus, there is a strong public health rationale for prioritizing health over punitive interventions in sex work.

Since the detection of HIV in a sex worker in Chennai in 1986, the Ministry of Health through the National AIDS Control Organisation (NACO) has been actively pursuing programmes aimed at arresting the spread of the epidemic among persons in sex work. These ‘targeted interventions’, which form the mainstay of the National AIDS Control Programme (NACP), reduce risk of HIV in commercial sex through behaviour change communication, treatment for sexually transmitted infections (STIs) and condoms. Since 2003, targeted interventions in sex work have been scaled up to cover over 200,000 sex workers in Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh through the AVAHAN India AIDS Initiative of the Bill and Melinda Gates Foundation. As a result of these programmes, condom use between sex workers and clients has gone up considerably.

There are growing findings that interventions in commercial sex implemented at scale can not only reduce HIV prevalence among sex workers and clients but also among the general population. High rates of condom use resulting in low HIV prevalence among sex workers in parts of Kolkata, notably, the Sonagachi red light are well known. Experts have now confirmed that Tamil Nadu, a state that has implemented large scale and rigorous condom promotion in sex work is witnessing a decline in HIV infection rates among young, antenatal women. Similar trends are emerging in other sites in southern India, which have seen intensive HIV prevention among sex workers and clients. The potential impact of sex work interventions on the HIV epidemic is too significant to be ignored.

Principles of effective interventions Reaching individuals at risk with services involves a number of difficult but essential steps to identify, make contact, gain trust and encourage use of prevention services. The task is harder where sex work is hidden, invisible or underground. It is here that peers step in – tracking, communicating and influencing practices amongst each other. Programme assessments show that mobilizing communities is critical to HIV prevention, which requires sex workers to collectively refuse unsafe sex and insist on condom use. The NACP rightly builds on this strategy, aiming to reach one million sex workers through community led programmes.

Effective participation of sex workers in anti- HIV campaigns is showing promising results. One such programme is run by Ashodaya Samithi, a sex workers’ organization that has been implementing HIV prevention in Mysore since 2004. Among other outcomes, the involvement of sex workers has improved health seeking, resulted in a decline in STIs and increased condom use

It is evident that sex workers are the best deliverers of HIV prevention programmes. Accordingly, any change or measure that drives sex work underground will weaken contact with community and diminish use of HIV services, particularly condoms .

Law can’t remain unmindful of public health While existing law has done little to inhibit trafficking, community led targeted interventions are proving effective in containing and even reducing STIs and HIV. That this has happened despite an unfavourable legal environment is due largely to strategies that are pragmatic, non-judgmental and respect rights of sex workers. Regrettably, the proposed ITPA amendments take no notice of these vital lessons; instead, they threaten health and safety of sex workers. Clients, wanting to avoid arrest will go underground and so will those selling sex, hampering attempts to promote safer sex. With sex work becoming invisible, health workers will find it difficult to identify, contact and supply condoms to persons engaged in commercial sex. Sex workers will themselves avoid broaching protection, let alone persuade clients to use condoms, for fear of violence and more importantly, losing the client itself. With fewer patrons and diminishing earnings, sex workers will be driven to despair, desperation and subsequently, disease. Escalating STIs and HIV among sex workers will, undoubtedly, imperil the nation’s health.

Spotlight on ‘demand’ Recent years have seen growing attention on ‘demand’ side factors that are seen to fuel trafficking for sex work. Notwithstanding lack of research, responses to ‘eradicate’ demand for commercial sex are being avidly advocated, mostly on ideological grounds. The proposed Section 5C is a result of such thinking that places blame for human trafficking, not on the State’s failure to secure women’s rights but on men willing to pay for sex.

While the ‘spotlight on demand’ is relatively new to anti-trafficking, health experts have long known that male clients play an important part in HIV prevention as the decision to use condoms is mostly theirs.

Intervention programmes have positively influenced male sexual practices, as seen in Thailand, where intensive HIV education not only resulted in increased safer sex but also led to a decline in men visiting sex workers.

Similar results have been seen in India among truckers who are one of the identifiable populations patronising sex workers.

 

Behaviour Sentinel Survey Trends in Tamil Nadu

Indicators	1996 (%)	2003 (%)
Truckers reporting having sex with non-regular partners	48	26.1
Truckers reporting having paid sex	38	22.1
Truckers reporting having casual sex	16.4	7.61
Condom usage with non regular partner	44	83.3
Condom usage with paid non regular partners	55	90.9
Condom usage with casual partner	19	68.8
Perception of risk among non-users of condom	38	66

Source: BSS-APAC (Wave VIII-2003 data), Tamil Nadu

 

Already, public messages on HIV are aimed at encouraging individuals, especially men to limit sexual partners including paid sex. NACO’s ABC campaign - Abstain, Be faithful or use Condoms is a clear strategy in this direction.

According to the Commission on AIDS in Asia, “men who buy sex, most of whom are from mainstream society, are the single biggest driving force in Asia’s epidemic and constitute the largest infected group”. Reiterating public health implications of sex work, the Commission recommends that “the most sensible way to prevent HIV infections in women is to prevent their husbands from becoming infected through paid sex …” This warning must not be lost on policy makers in India.

It is possible to address demand through male engagement on sexuality, gender and rights, ultimately fostering respect for women. Punishing men soliciting sex does not come close; it simply stifles the livelihood of poor, voiceless women. The GOM and indeed, the MoWCD, must respond with vision and ingenuity, rather than push imprudent reforms to sex work law.

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Post script: According to reports, the GOM met on 19th March 2008 and decided to drop the term ”position of vulnerability” from Section 5A. It is also believed to have agreed to restrict penalties under Section 5C to persons soliciting underage sex workers in brothels.

Tripti Tandon is the Senior Technical and Policy Advisor, Lawyers Collective HIV/AIDS Unit, New Delhi