Call for Inputs. Links between “Prostitution” and Violence against sex workers

Submitted by Sex Workers and Allies South Asia (SWASA)^[1] Bangladesh, Nepal, Sri Lanka, India.

Email  swasa.southasia@gmail.com

Submission can be published on the UN website for public information purposes. 

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Background

Women who exchange sexual services for money or in kind reject the notion of “prostitution as violence”. The term prostitution stigmatizes women and gender diverse persons who provide sexual services. The Joint United Nations system has over the years, following discussions with communities, legal, health experts and activists; arrived at a consensual term “sex work (er) (s)”^[2][3][4] to denote adults who exchange sexual services for money or kind. Unfortunately, the SR–VAW’s call for inputs by using the term “prostituted women” is disrespectful to adult women in sex work. 

The violence of this discarded language must be immediately revised to use language more in consonance with the dignity of women and accepted UN language.   

The call runs counter to the recommendations provided by the UN system itself which, through policy positions and recommendations has called on countries to reform their approach towards sex work^[5][6], work towards decriminalisation of sex work^[7][8][9] including the management of sex work and related activities.^[10][11]

CEDAW General Recommendation 35 on Violence Against Women^[12] has recommended the repeal of all legal provisions that criminalise sex work as a measure to reduce violence against sex workers^[13]. The principle of progressive realisation and non–retrogression places a responsibility on those charged with protecting and expanding the application of human rights to desist from reducing or pushing back on those rights that have been recognised or guaranteed^[14].  

The conflation of adult women and girls ignores the fundamental tenet of International Human Rights- rights of women and girls must be understood and guaranteed through different legal frameworks. In the case of a minor, a protectionist framework of the best interest of the child has been developed in the CRC. In the case of the woman, this understanding is centred around agency of women.  In the context of sex work, such a conflation is harmful for girls who are likely to be conflated with women and ignored by corrupt officials. The conflation of women and girls in the context of “prostitution”, infantilises women whilst causing grave injustice to girls.

Health consequences 

Criminalization of sex work impedes access to health-care services, including effective HIV prevention, treatment, care and support services^{[15][16][17][18]}. Criminalization of any aspect of sex work, including the criminalization of the clients of sex workers, negatively affects sex workers’ safety and health, including reducing condom access and use, and increasing the rates of violence^{[19][20][21][22]}. 

Consent (Ques 8)

Every adult woman is guaranteed the right to exercise choice regarding decisions that impacts her bodily autonomy. Irrelevance of consent to establish offence of trafficking must not be extended to exclude the agency and consent of adult women on decisions regarding their livelihood choices. Consent of an adult woman must not be rendered void by forcible detention in protection homes and the like. 

The challenge to consent of sex workers emerges from governments, UN mechanisms, abolitionist groups and individuals that view their work as exploitation, trafficking, slavery and immoral. Despite State Parties in South Asia not criminalising sex work; this call seeks to treat sex work as exploitation and calls for criminalisation of third parties without any discussion with sex workers. This leads to an erasure of their consent and renders them victims who are forcibly rescued and rehabilitated as victims^[23]. Erasure of consent prevents sex workers from approaching law enforcement when they face violence. Women in sex work consent to providing sexual services like other workers who opt for different forms of work.  

Violence and Violations (Ques. 3, 4, 5)

Violence faced by sex workers is central to this call and it comes at an opportune moment. At a time when we call for greater State responsibility towards affirming, protecting and promoting the human rights of all, it is the abrogation of this State responsibility that has resulted in aggravated violence against sex workers. Sex workers in Bangladesh, Nepal, Sri Lanka and India have provided evidence that laws, especially provisions criminalising third parties, continue to be used indiscriminately against them as tools of harassment and violence^{[24][25][26][27]}. Crucial to the State abrogation is the non-recognition of the recommendations of national courts, UN bodies, Special Rapporteurs, CEDAW Committee observations International Commission of Jurists’ that call on nation states to recognise and act against violence against sex workers misusing existing legal provisions^[28][29], read down or repeal those provisions and laws and impose penalties on the police officers who misuse the law^[30], desist from conflation of sex work and trafficking^[31], decriminalise all aspects of sex work^[32] to ensure timely access to justice. 

Sex workers in India and Nepal reveal that client criminalisation has resulted in violence from clients, harassment by the law enforcement. In India, sex workers report that law enforcement officials have threatened clients with filing cases under anti – trafficking laws, if they do not pay hefty amounts as bribes.

When sex work is seen as exploitation, State agencies, police and anti-trafficking groups have used the provision to forcibly raid and rescue sex workers and incarcerate them in rescue homes for long periods of time without consent and often through violent measures^[33].  Many women who were released after long periods of forced detention reported being pushed into debt bondage and consequently forced to work under risky situations^[34]. This anti-trafficking practice of conflating sex work with trafficking was denounced by the Special Rapporteur on Violence Against Women, and recommended that laws de facto criminalising sex work, be reviewed^[35].  

Lessons Learned (Ques 13)

Criminalising demand or clients negatively impacts sex workers, increases violence and reduces access to justice.

Positive public health and human rights outcomes have been achieved in jurisdictions that have decriminalised sex work[36].

Organised collectives of sex workers have shown evidence of effectively combating trafficking through community-led empowering approaches. 

Involvement of sex workers in efforts to improve legal environments ensure better results. 

Recommendations (Ques 15)

Ensure the progressive realisation of Human Rights Principles through meaningful process involvement of sex workers. 

Implement recommendations of UN bodies, previous Special Rapporteurs, CEDAW recommendations, International Commission of Jurists to decriminalise all activities related to sex work. Repeal laws that prohibit provision and access to sexual services and ancillary laws that prohibit brothel keeping, living off the earnings of sex workers[37].

End the conflation of women and girls.  Provision of sexual services is an activity between two consenting adults and the threshold for consent is 18 years. The conflation of women and girls infantilizes women and is harmful for girls who are likely to be ignored by corrupt officials. 

End the conflation of sex work and trafficking. Ensure that anti–trafficking laws are targeted to prohibit and punish those who use force or coerce people into exploitation of sex work, through debt bondage, violence, deprivation of liberty[38].