Sex work and the rights intersect with many social movements and the struggle regarding the agency of sex workers, perspective of sex work as a form of work and opposition against it has existed for many years. Although the clear and oppositional differences exist, the understanding of sex work and workers throughout in relation to consent, sexuality, gender norms, and the appropriate role to criminal law for any forms of violence sex workers is necessary. Today, sex workers’ movements and organisations exist in different countries allowing for the mobilisation and movement representing communities representing the interests of sex workers of all genders. In case of Nepal also, the movement is slowly surfacing but the challenge is still deeper.
Following the outbreak of the COVID-19 pandemic, the Nepal government-imposed months of lockdown starting April 2020 and a second lockdown followed from 20 September 2020 (76,257 confirmed cases and 490 deaths). In between the lockdowns, the government announced and put forward different mechanisms for prevention and control of spread of the virus. Even after the lockdown was eased, various measures were implemented to reduce physical crowding: such as using the odd and even number plates for vehicular mobility, allowing the private vehicles, opening of school in some places with the proper precaution, easing physical restrictions etc. Life in the country seemed to be crawling back to normalcy but the increasing number of infections as well as death rates gave a clear indication that the pandemic is to remain for few years. Things are changing slowly worldwide with the advent of the vaccine. The lockdown and life post the lockdown have been difficult all but it was especially hard on the poor and most vulnerable groups.
In this context, the COVID-19 pandemic exposed the inequality of social support systems worldwide, revealing the gaps that further marginalize vulnerable people. Among these vulnerable groups, sex workers are one. Sex work and sex workers are vulnerable work and vulnerable groups despite of any pandemic. Since, much early years, even before any pandemic or disaster the group is vulnerable and in the different situations the group becomes further vulnerable. The ability of sex workers to protect themselves depends on their 'work environment, the availability of community support, access to health and social services, and broader aspects of the legal and economic environment in general condition and in this pandemic situation things worsened with least supporting mechanisms. Sex worker-led organizations all over the world reported that sex workers are experiencing hardship, loss of income and increased discrimination and harassment due to the criminalization of sex work and this pandemic sex workers had to put their health and safety at risk because they are excluded from accessing social and health services, and may not be able to stay at home, physically distance, or stop work as they have to survive and are also bread winners of the family.
Introduction about the organisations and networks:
SWASA Nepal (Social Work Allies for Sustainable Approaches) is an organization that has been working since 2018 with the sex workers community in Nepal. SWASA is a South Asian network, which is now growing in 4 South Asian countries including Nepal. SWASA Nepal has been working toward strengthening the sex workers community and advocating for their rights in Nepal.
SWASA Nepal conducted this situation assessment to analyze the situation of sex worker community amidst the pandemic, to establish a pool of knowledge regarding sex workers community in context of Nepal and sharing it with wider community. Jagriti Mahila Mahasangh which is national network of sex workers which have 30 community based organization affiliation. NCS /SWAN is a sex worker's led organization who work for welfare of sex workers and district level partners working for the sex workers.
- Officially, there are around 55,000 women in sex work in Nepal. However, the actual population exceeds this figure.
- There is no specific law in Nepal that directly criminalizes sex work. However, many sex workers have experienced arbitrary detention by law-enforcement authorities. The Human Trafficking and Transportation (Control) Act, 2007 (HTTCA) criminalizes pimps and clients, but not sex workers directly. However, the Act often criminalized women engaged in voluntary sex work.
- The new Criminal (Code) Act 2017 criminalizes advertising and providing facilities for sex work in the section concerning crimes against the public good. These laws are used to prosecute sex workers. There is an emphasis on the importance of decriminalization, but there is no support in the legalization of sex work.
- A licensing system, if introduced under legalization, may exclude the most vulnerable sex workers, including housewives, migrants, and sexual minorities, who are secretly engaged in the business. Ongoing advocacy should seek to provide safe working environments for sex workers all over in Nepal. The privacy of sex workers are not maintained, while police arrest sex workers they insist calling family members although they are adults, to pay the bail which triggers the harassment and the ostracization from family when they know of their work.
- Chapter 14 of the Country Code 1963 that defines and provides for punishment for rape provides for differential punishment in case the survivor/victim of rape is a prostitute. The Supreme Court struck the provision down as unconstitutional, holding that providing lesser punishment for rape of a prostitute was discriminatory. The judgement observed that “prostitution is a profession or occupation irrespective of whether or not it is legal” and given the Constitutional right to choose one’s own profession and the Constitutional guarantee of equality, sex workers should not be discriminated against in the criminal law with respect to rape.
- The Constitution of Nepal has anti-discrimination provisions and protection against inequality. However, there is a major gap in implementation of these fundamental rights and the rights of women and girls to work in a safe and healthy environment have been largely neglected.
- Nepal guarantees the right to access justice and legal aid for citizens who are economically or socially unable to access their rights. For sex workers, the intersection of socio-economic status and gender is compounded by the stigma attached to their work which makes it difficult for them to access free legal aid. Self-stigma prevents sex workers from approaching legal aid centres. Organisations running legal aid clinics in districts are not willing to take up cases of sex workers who have been picked up by the police. Legal rights awareness programs do not include sex workers as participants or speak of the violations faced by sex workers.
- Women feel that their identity works against them when they approach legal aid services. The obstacles they encounter include the demand by officials for free sex and delays in their complaints being heard. “A sex worker in Rautahat district narrated that in 2015 when she went to the legal aid centre, a lawyer agreed to provide legal aid after she provided him sexual favours. Another sex worker from Sunsari district narrated that in 2017, she approached legal aid services, but she got recognised as sex worker by one lawyer who later humiliated her.”
- Legal provisions are often used against sex workers. This uncertain status coupled with social stigma leads to a high level of violence from state and non-state parties in Nepal. Sex workers report that once their identity is known in smaller towns and villages, they face daily harassment, ostracization and exclusion from social life. They bear the brunt of abuse from people ranging from family, neighbours, shopkeepers and other service providers. Verbal abuse, including gendered and sexualised epithets, threats and verbal intimidation are hurled by family, neighbours, clients and even members of the public. workers faced physical, mental and economic violence also from client as they deny to give money after the service received and also harass and abuse sex workers. Sex workers face sexual abuse by people posing as clients, as well as those seeking sexual favours in response to providing legitimate services.
- Women in sex work face a high degree of violence and abuse from law enforcement. A study conducted in 2011 found that 89% of the 75 sex workers surveyed, reported facing faced violence from law enforcement. The most common forms of abuse were threats, intimidation and abuse of power by the police, most often to extort money or free sex. Police officials used the possession of condoms to arrest and detain sex workers, extort money or free sex, abuse them and force them to pay heavy fines or deposits for their release. The police recorded video clips of sex workers in custody and used it against them. Police also called families of the sex workers to the police station, thereby revealing their work identity and exposing them to greater stigma and ostracization. Sex workers stated that they had to pay heavy fines to the police as a condition of release from jail.
- Nepal legalised abortion in 2002. A landmark judgment in 2009 established access to abortion as a human right. However, sex workers are discriminated against in the health-care setting when their identities are known, and they access abortion services in hospitals. Those who access services report that they are treated rudely, with judgemental attitudes.
- Accessing health services remains a challenge for sex workers. They access health care services for ailments ranging from simple illnesses to chronic diseases, menstrual problems, and also for regular cervical check-ups. They are vulnerable to judgemental attitudes and abusive behaviour of medical practitioners and support staff. Sex workers share that they don’t access services out of fear of their status being known to the service providers.
- The Right to Nationality without discrimination is guaranteed under the new Constitution of Nepal. However, sex workers are deprived of nationality. Sex workers who have been deserted by their husbands or do not have citizenship documents from their parents find it extremely difficult to obtain these documents. Sex workers are asked to produce proof of their husband or father when they apply for citizenship. Their children are denied education.
- Sex workers report entering into arranged marriages to obtain these citizenship documents. The ‘husbands’ desert the women, four or five months after such marriages and their ‘wives’ are often left pregnant and have to deal with bringing up another child single-handedly. Sex workers state that when they are unable to give proof of the father to the authorities, their child’s citizenship is made with the notation “father not known” against their name. This exposes their children to stigma and ridicule.
The State Party must
- Establish “one- stop centres” for women in sex work to access non-stigmatising legal and social services. The centre should provide legal support including regular awareness-raising events; legal aid, advice and support for women in sex work who experience violence, police detention and torture; and support to access nationality papers for themselves and their children.
- Ensure accountability of police personnel and ensure immediate legal action against law enforcement personnel committing acts of violence and abuse against sex workers.
- Ensure that sex workers can access affordable, non-stigmatising and quality health services to prevent and respond to violence.
- Ensure access to integrated services when faced with violence, including emergency shelter, comprehensive health services with privacy
- Ensure that care and support for sex workers who survive violence is integrated into services for HIV prevention or care and for sexual, reproductive and mental health care.
- Ensure adequate sensitization training of medical professionals on non-discrimination and patient rights and that sex workers can access health services without discrimination.
- Reform punitive laws, policies and law enforcement practices to protect sex workers’ rights, including the right to be free from violence.
- Decriminalise sex work and activities associated with it, including laws and penalties for the purchase of sex, management of sex workers and other activities related to sex work. There is need to decriminalize the clients as well as the agents of sex work to support this work.
- Public order laws or regulation should not be applied in ways that violate sex workers’ rights.
- Ensure the maintenance of confidentiality, especially where the identity cards and other identifiers are used by law enforcement agencies and health authorities to “track” sex workers.
- Eliminate the practice of confiscating condoms and using possession of condoms as evidence of sex work.
- Ensure that national laws differentiate between sex work and human trafficking; train law enforcement officials to understand and respect the distinction in order to ensure that anti-trafficking initiatives do not impinge on the rights of people in sex work.
- Implement the International Labour Organisation’s recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200) in relation to sex work.
- Ensure effective HIV prevention that ensures the availability of condoms; build social norms that encourage condom use by clients and supports sex workers to negotiate condom use.
- There are safe abortion issues, as many of the sex workers undergo abortion several times with difficulties and harassment. Sex workers are now to avoid the abortion, also taking emergency pill, which is severely harmful their sexual and reproductive health including uterine issues when used multiple times. The safe abortion accessibility to be increased.
- The mental and psychological health of sex workers is never talked about. The stigma and the insecurity related to the work do not let them open up leading them towards loneliness, depression and suicidal tendencies. The
- Ensure that citizenship provisions of the new Constitution guarantee the equal right of women to acquire, transfer and retain citizenship. Addition to citizenship, the all the vital documents that is not accessible to sex workers in convenient manner such as marriage certificate, birth certificate should be eased with dignity.
- Establish a comprehensive national data collection system on the number of female sex workers.
- Ensure that cases of violence against women sex workers are thoroughly investigated, perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that victims have access to effective remedies and means of protection.
- To lead the campaigns, the alliance building with the local level organizations, networks and the community should be expanded. That adds to the role of public and community awareness related to the works of sex workers and the suggestions to the policy level with the evidence.
Kathmandu Post, 'lockdown is officially eased with private vehicles allowed', 11 June 2020
CEDAW report submitted by SWASA / JMMS
Sapana P. Malla for FWLD v. HMG/Nepal, Publication of Judgments relating to Human Rights: Special Issue (Kathmandu: Supreme Court, 2002) at 144-151.
 Article 18, Constitution of Nepal.
 Nepal Legal Aid Act, 2054 (1997).
 JMMS data on legal aid support, 2018.
 JMMS, Orientation on CEDAW, Kathmandu, May 2018.
Sex work and violence in Kathmandu, Nepal: Understanding factors for safety and protection; UNFPA, UNDP 2014..
 Survey, JMMS; Blue Diamond Society (BDS).“Sex work and the law in Asia and the Pacific”, 2012, UNDP and UNFPA.
Supreme Court of Nepal. Lakshmi Dhikta v. Government of Nepal 2009. Writ petition no. WO -0757, 2067