Introduction
The regulation of sex markets has long been controversial, and the debate was recently re-ignited in 2015 when Amnesty International’s took a stand to support worldwide decriminalization of all aspects of sex trade including supplying, demanding, and mediating i.e pimping transactions.
On one hand, critics worry that decriminalization facilitates and boosts sex trafficking. On the other hand, voluntary sex workers argue that decriminalization helps all suppliers – voluntary as well as coerced – in that bringing the sex market out of the shadows improves their opportunities to get health check-ups and seek help from the police. Thus, while both sides condemn sex trafficking, there is little consensus on how to combat it.
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The 2 primary kinds of models are the Dutch model which decriminalises activities associated to commercial sex but instead regulates it. The other model is the Nordic model which criminalises sex trade but limits liability only on the purchaser, hence absolving the sex worker from any legal botherence. While the Dutch model aims at a safer work environment for both the consumer and the sex worker the nordic model aims at eradicating the practice by placing deterence on the purchaser and aims to eradicate human trafficking and prostitution itself.
(https://lsr.nellco.org/cgi/viewcontent.cgi?article=1303&context=nyu_lewp) (The discourse on prostitution policy has a long history (e.g., United Nations, 1959; Woolston, 1921). For a recent exposition of the main arguments in the public debate, see The New York Times (2012, 2015). For a broader discussion, see e.g., Chuang (2010) and MacKinnon (2011).)
India is amongst those countries that has lack lustre and inefficient laws regarding sex workers and their rights. It is a top destination for trafficking Asia and has not been able to curb such malpractices and abuse with the current legal provisions. In recent times a stark rise in more debates and emphasis on an enactment of new laws and policies on sex worker rights and curbing of human trafficking in India has been seen. In this research paper we discuss these 2 primary approaches towards prostitution and why the Nordic model outweighs the Dutch model in its application in India.
History and Expansion of the Nordic Model
On 1 January 1999 Sweden enacted a law that would not deem sex work illegal but purchasing sex would be illegal. Hence the law completely absolved the sex worker of any wrong and the offence was committed only by the purchaser of sex. The aim was to reduce trafficking and also ensure that laws do not encourage abusing the sex workers(who are already the victims of trafficking in most cases).
Shortly after Norway, Iceland and Finland followed suit by adopting the Sex Buyer’s law. More recently Canada after the high profile case of Canada (Attorney-General) v. Bedford SCC 2013 adopted the Nordic Model, France also became one of the more recent countries to switch from the decriminalised approach to the Nordic model and Ireland is the most recent country to have adopted it in 2017.
The rationale underlying the Nordic model entails discouraging buying sex and protecting women from violence and abuse and providing for them to be effectively brought out of sex work and be rehabilitated back into society.
Nordic Model vs Dutch Model
The main achievement of Nordic model has been that it has effectively reduced human trafficking and has also discouraged sex consumption. Prostitution and consequently human trafficking dropped significantly in Sweden after the law was enacted.
Its opposers however state that sex workers’ rights are compromised by the Nordic Model and that legalisation of Commercial sex instead regulates safer and better environments for sex workers. Further it has been stated that the legislation perceives every sex worker to be forced to work as a sex worker due to male oppression and not out of choice, this too has been disputed by various sex worker unions.
Additionally it has been stated that Sex Workers have to work in a more vulnerable and hazardous setting now as they have to function more secretively so that the purchaser is not detained as that would harms their business by reduction of their clientele and such actions have driven the business underground and that is more harmful for the sex workers specifically.
However statistics depicting trafficking are significantly higher in countries which decriminalise or prostitution such as the Netherlands state that these places are top destinations for trafficking and the countries which outrightly criminalise prostitution(i.e impose criminal liability on the sex worker too) e.g USA also fall under the same bracket as stated in the research conducted by New York University School of Law.
Hence, the Nordic Model is way better equipped at decreasing Sex Trafficking, while the Dutch Model and other decriminalisation models are better equipped at having better and safer working conditions as well more rights and better standard of living for sex workers.
Indian Laws on Prostitution
Currently Prostitution has been governed by the Indian Penal Code, 1860 and the The Immoral Traffic (Prevention) Act, 1986 or PITA. The current legal provisions governing prostitution in India are very ambiguous to say the least. Prostitution in India is not illegal per se, however the Penal Code states some of the activities which are integral to commercial sex as illegal, these include soliciting such services at public places, carrying out such activities in a hotel, kerb crawling, pandering, owning a brothel or even running one and pimping or mediating.
Though these laws are made for protection of sex workers and to reduce human trafficking it has had a very counterproductive effect. One of the primary issues originates from the provisions PITA, 1986 entail criminal penalties against sex workers if they are caught “seducing” or soliciting their services or if they make their contact numbers public or if any such activities are conducted by them as stated above.
This causes major problems for such sex workers as they become easy targets. Instead of being protected by such laws they are made more vulnerable as they are forced to operate in a more secretive and potentially hazardous environment. Furthermore exploitation by the authorities is also targeted towards sex workers.
According to an extract from 1997 National Commision on Women by Roma Debabrata “Police extorts money from traffickers, prostitutes and kotha malkeens and is even involved in trafficking. Bharatiya Patita Udhar Sabha (BPUS), a union of Delhi-based prostitutes, contends that the police are involved in a staged process of registering the victims. After a minor girl is brought into a brothel the kotha malkeen (owner of the brothel) calls on the local officer (sub-inspector (SI) or assistant sub-inspector (ASI) and beat officer (havaldar or constable) and requests them to make a new entry for a newly purchased minor girl for which she pays Rs 10,000 to the police. Reliable sources also revealed to the BPUS that the minor girls have to first satiate the sexual urges of these SIs, ASIs, havaldars and constables.
The BPUS also says that the police have designed a slab structure of protection money to be collected from kotha malkeens if they open a new kotha(brothel). The bribe rate of the police is as follows:
- Rs 50,000 for a brothel consisting of 10 minor girls.
- Rs 1 lakh for a brothel of 20 minor girls.
- Rs 3 lakh for a brothel having up to 50 minor girls.”
Hence such laws are fatal to the rights of a sex worker and instead make such workers easy targets for abuse consequently encouraging sex trade and human trafficking itself.
On November 8, 2014, a proposal to legalize prostitution in India was put before the Supreme Court. The Public Interest Litigation was filed by Bachpan Bachao Andolan which is primarily in favor for curbing child trafficking. A Supreme Court bench of Justice Dalveer Bhandari and Justice AK Patnaik asked the Solicitor General: “When you say it is the world’s oldest profession and when you are not able to curb it by laws, why don’t you legalize it?”
However the degree of lack of transparency in India has been clearly shown above which would mean greater risks for sex workers and huge incentives for traffickers if prostitution is legalised. In addition to that provision of rights as promised under Dutch model would be harder to attain due lack of awareness especially in the remoter areas of the country.
India and Human Trafficking
Human trafficking is the 3rd largest organized crime after narcotics and arms trade in the world. The New York Times reported that India is a major hub for sex trafficking. It stated that the Indian state of Jharkhand has major problems of sex trafficking while there is also import of young women as sex slaves from its neighbouring countries of Nepal and Bangladesh.
In its report it New York times stated that poverty and disadvantaged position in society made a woman the most vulnerable to the sex trafficking. Rapid urbanisation and people migrating to larger cities and increasing demand for commercial sex as well forced marriage due to gender selection while giving birth leading disproportionate number males and females were stated to be the leading factors fueling sex trafficking in India.
Why the Nordic model is more apt than the Dutch model in the Indian scenario. As has already been mentioned above, India is a hotspot for human trafficking especially for the purposes of sexual slavery. This is a common feature amongst the countries that follow the Dutch or legalised approach towards prostitution.
In addition to that the transparency in Indian system gets hampered due to unawareness of rights by the impoverished illiterate sections most vulnerable and affected by trafficking and forced prostitution. Efficacy of the Dutch model will also be questionable in the more remote areas of the country where application of the judicial system is not at par with that of large towns and cities. Other factors include lack of transparency in the system in dealing with sex workers and collusion of the authorities with the criminals. It must also be seen that the countries that have decriminalised prostitution are mostly developed countries with high literacy levels and more manageable sex worker populations and a stronger and more advanced aid system that ensures provision of certain level of rights and standards of living to the sex workers in these countries. Hence, results of the functioning of the Dutch model in those countries cannot be applied to or expected in a similar methodology in India.
It was found by a committee set up by the Apex Court in Gaurav Jain vs Union Of India {1997 (8) SCC 114} that “In terms of education level; 70% of them are illiterates while 4% only are literates. Only 24% of the prostitutes are educated at primary and secondary level while 1.4% have higher qualifications. Therefore, prostitution is primarily due to ignorance illiteracy, coercive trapping or scare of social stigma.”
In furtherance of this, legalisation of prostitution will give a huge incentive to traffickers for continuing and expanding their trade.
This compiled with the social and religious alignation of the country makes it definite that any sort of a dignified outlook to those forced into such trades would be a myth. Indian judiciary and Supreme Court itself has stated that it does not in anyway support legalisation of prostitution whilst discussed the matter due to the backlash it received.
In fact the Courts themselves have held the stance that prostitution should be run in secretive manner the Supreme Court in State Of Maharashtra & Anr vs Indian Hotel & Retaurants Assn.& … {S.L.P. (C) No.14534 of 2006} stated that “A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not so dangerous to public health or morals as a prostitute who lives in a busy locality or in an over-crowded town or in a place within the easy reach of public institutions like religious and educational institutions. Though both sell their bodies, the latter is far more dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones.” This again goes on to show that prostitutes are not seen as victims but dangerous elements to society showcasing the social perception at the practice and how the Judiciary may not take a favourable view towards sex worker rights.
The Apex Court in Shankar vs State Of Tamil Nadu {1994 SCC (4) 478, JT 1994 (3)54} “Prostitution is an activity bad in social sense as witnessed and is prohibited legally.”
This is clearly indicative of the social and cultural stance of India towards prostitution. It can be positively deduced that the country is not sensitised in regards to sex workers and their rights. The decriminalisation approach in such circumstances would not help sex workers, rather its application would be a huge conundrum from both the judicial as well as social point of view.
Thus, at least with regards to the current trends and problems faced by a developing country like India legalization of prostitution cannot be contemplated as the right move.
In contrast to the Dutch model in the Nordic model as stated above the primary emphasis is on depletion and eradication of trafficking and prostitution itself and the model has been successful in its application in that regard. As has been clear by the statistics the Nordic model has been more useful in providing protection and safety to women, in 2015 no sex worker was killed in Sweden while in Germany where it is legalised 70 were killed by pimps and buyers.
In regard to discouraging prostitution, though prostitution has not been completely eradicated in Sweden, it has dropped from 13.6% in 1996 to less than 7.4% in 2014. This in turn discourages and reduces trafficking.
While the sceptics of the Nordic model claim that its application may drive prostitution underground which would make it more dangerous for both the sex workers as well as the the buyers, it must be stated that the most of the sex business is already running underground in India. Various red light areas and brothels function without being backed by law. Application of the Nordic model would help lifting of the punitive measures against the sex workers which would significantly help them, as this would reduce the opportunity of them being targeted by authorities for exploitation. As has been stated above laws under PITA are usually used for counterproductive measures by the authorities and in fact are the biggest source of their exploitation. More often trafficked women have been arrested and penalized as ‘soliciting persons; The NHRC study shows that around 85 to 90 per cent of the arrested persons are women and most of them are victims of trafficking.
For this reason, the application of the Nordic model could be huge boon for sex workers in regards to their abuse and coercion through legal intimidation. This could very well also help breaking collusive rackets between pimps/traffickers/brothel owners and authorities as stated above in the excerpt from the National Commision on Women 1997.
Another argument that the opposers of this model state is that this would damage the business of voluntary sex workers. However it must be seen that such workers are a very small fraction of amongst those in the trade. A survey conducted in over 9 countries stated that 89% of sex workers wanted to escape prostitution but could since they had no alternative and that 68% met the criteria to be diagnosed with Post Traumatic Stress Disorder equal to that of treatment-seeking Vietnam veterans and victims of torture or rape.
Specifically looking towards the Indian scenario, NHRC in its report on trafficking mentions that according to a ‘CEDPA report states that in 1997, approximately 200 girls and women in India entered prostitution on a daily basis and 80 per cent were coerced into it.’
Hence the majority of the workers have suffered violence, sexual abuse and mental trauma and are a part of the profession by force not by choice and priority in law must be given to their security and rehabilitation.
Conclusion
According to me in the current position India cannot give to its sex workers an environment which gives them a basic standard of living with enforceable rights and a dignified taboo free life. On these current grounds the application of the Dutch model would inherently fail and would rather be counterproductive as it would lead to a increase in human trafficking. In the current scenario the application of the sex buyers law i.e the Nordic model would be more beneficial for sex workers as it would prioritise in rehabilitation of those who want to leave the profession and eradicate exploitative measures by removing all punitive measures against the prostitutes themselves.
The application of the Dutch model maybe the right direction at another stage in India, for that however the literacy, awareness, sensitisation of the society and the judicial and administrative tools for its efficient application in the whole country must be employed.
In order to achieve that, the first step in the right direction would undoubtedly be the adoption of the Nordic model as well re-training the authorities at the grassroot level with respect to their dealing with sex workers to avoid victimization of the victims themselves.
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