By Apoorva Mandhani
The debate around the polarising subject of prostitution has almost always been characterised by a complex legal landscape, with policy experts taking contrasting stands on the most viable framework for protecting sex workers rights. However, all schools of thought share concern for the safety of sex workers. This necessitates a more holistic deliberation on the feasibility of such alternatives.
Models of legal reform
The debate around legal reforms for sex workers revolves around three models- criminalisation, legalisation and decriminalisation. Legalising prostitution involves regulation of the sex industry by the State. The rationale behind legalisation is that it would facilitate registration, inspection, issuance of licences and mandatory HIV testing. However, adoption of this framework has invariably led to an increase in the number of street-based sex workers in Victoria and Netherlands, thereby making the workers more vulnerable to police harassment and arrest. Moreover, the import of such a model to India has been discouraged on the premise that the licence raj has been ineffective, particularly in implementing social welfare legislations like labour laws and prevention of child labour.
The Swedish model criminalises the purchase of sexual services based on the belief that sex workers can be made safe only by ending demand. Feminist organisations have promoted this approach with the belief that sex work contributes to violence against women through male entitlement and objectification. But, sex workers believe that criminalisation puts their lives at risk and undermines their human rights.
The New Zealand Model
Legal reform in New Zealand represents a more comprehensive approach to decriminalisation. It focuses on empowering sex workers themselves, rather than the State, to have greater control over their work. The Prostitution Reform Act, 2003 shifts voluntary adult prostitution from criminal to civil law on both national and local levels. It also decriminalises all third party acts relating to sex work such as soliciting, living off the proceeds of prostitution and brothel-keeping. Immigration for sex work, however, remains illegal, thereby addressing the trafficking concerns. Besides, while it makes it illegal to have sex with a minor for commercial purposes, it does not make it illegal for a minor to practice sex work.
The legislation has improved occupational health for sex workers, allowing more workers to seek legal and medical recourse. The Act prescribes penalisation of brothel owners if they fail to promote safe sex practices in their brothels. It places the Ministry of Health in charge of inspection and enforcement of these laws. Academic evidence supports the New Zealand decriminalisation model as an ideal framework for defending the rights of the sex workers.
Challenges before India
It has been opined that decriminalisation in New Zealand is an effective model for legal reform in India, as it is rooted in the attainment of equilibrium between guaranteeing human rights to sex trade workers and addressing trafficking through a victims rights-based model. This is especially in light of the similarity between the legal positions of sex workers in the two countries during the British colonial rule when sex workers were viewed as common property under the colonial law. However, adoption of any of the models would require an analytical assessment of the socioeconomic and demographic contrasts between countries. For instance, as a wealthier nation, New Zealand is able to assert a discourse on sex work without the fear of cuts to NGO funding. It is, however, imperative that radical legal change must occur in order to address the marginalisation of sex trade workers.
It needs to be realised that what led to New Zealands legal reform was a social and political discourse that viewed the current laws as ineffective. These laws marginalised sex workers and impeded public health initiatives. Bringing about such social awakening in a country as diverse as India would be another ballgame altogether. Any attempts to bring in radical legal reforms would fail in the absence of a precedential change in the perception of the industry.
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