Female sex workers using drugs, need legal cover

By Rajesh Khongbantabam *

Sex work is clandestine in nature and illegal in most societies including India, which makes it difficult to gauge the numbers involved in this trade. This is how we perceived in Manipur with their underground nature and most of them doubling up as injecting drug users seeking solace from their hard work and drug users' turning to sex work to enable them to afford the bills of their newly acquired habits. However, as ITPA stands today, sex work is not a crime per se but the law regulating it is in itself ambiguous.

The mobility of their trade is being attributed to the brutalities of the people in uniformed and the humiliation inflicted by the self styled activists of civil society's organization. To formulate any policy/programming for them, a base line study has to be the basis for implementation and as such there are no viable data for the cited reason above.

Drug users

In the current climate of HIV/AIDS, driving them underground will not only weaken but cut off the links between this vulnerable communities and organization providing information about the virus.

While we have had enough of one act dealing with drugs', the female users doubling up as sex worker are now at the receiving end of another one, the ITPA (prevention) act. When introduced in 1956 as SITA (suppression of immoral traffic act), the law makers did not want to penalize women engaging in sex trade as they view them as victims but decided to penalize those who profited from or exploited these women.

Hence, sex work did not get defined as a crime. Yet, the circumstances and many conditions surrounding it got defined as crimes – soliciting, running a brothel and pimping. According to the UN protocol on trafficking, trafficking is a crime that takes place when a person is moved from one place to another against his or her will into a situation of exploitation.

The law makers are contemplating to amend the ITPA act and criminalize clients who visit sex workers. The bill is being adopted in the hope of containing human trafficking. Yet in trying to achieve this result, the government is turning against the very community whose support is critical in the fight against both HIV/AIDS and trafficking.

For the last years, organizations related with sex workers across the country have been protesting the proposed amendments to the ITPA act that will leave them worse off than they already are. But who is listening?

What are these amendments and why are sex workers against them?

If the clients have sex with a trafficked woman, then the client is automatically deemed to be a trafficker. Whether or not? The provision renders all clients liable to be charged until it is established that the sex worker was not trafficked. To put it simply, all customers and client could be treated as criminal.

This act is to help fill the coffers of those making money by looking at sex as a crime or a form of coercion. And it will help put more hush money in the hands of the already corrupted cops. But it makes little or no sense to workers who recognize adult sex as commerce rather than coercion, consensual rather than criminal.

The issue is – why should any consensual sexual activity between consenting adults – heterosexual, same sex, in exchange for money, within marriage or outside of it – be viewed within a criminal framework at all?

Drug users

Proper consent and Adult are the two key words and if these two conditions are met, there is no crime being committed. The new law regards sex work as per se exploitative enabling the cops to charge clients bargaining with sex worker for services. Even if the client offers gift, he still can be charged under the broad terms of the new law.

In order to escape the application of this provision, sex workers would have to render their services for free, Charity etc. Ridiculous!!! If ever it happens, our nation is going to be the one to create history. Even the Bhagwan Osho would be proud of it.

Also, it doesn't make any sense not to be able to solicit. It is almost akin to not giving permission to advertise your products. It's a fact that law keepers are using every means possible harassing sex workers on soliciting charges and enriching themselves by taking petty bribes. It will be a welcome move if the proposed lifting of ban on soliciting is mooted. But it still can continue to harass sex workers under the provision that criminalizes clients?

The government is putting a powerful weapon in the hands of the police – to extort money from both sex workers and clients. Both ITPA and the proposed amendments reflect a fundamental confusion about the role of law. What is the role of law in contemporary society? Is it to regulate public morality?

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* Rajesh khongbantabam is a key correspondent of HDN (Health & Development Network, Thailand) and writes about AIDS inflicted and help available for them. He is based at Imphal.
This article was webcasted at e-pao.net on 19th April 2009.

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