International Journal of Law and Legal Jurisprudence Studies

LEGITIMIZING THE ILLEGAL: SEX TRAFFICKING ( Srishti Bose II Year, B.A. L.L.B(Hons) , Rajiv Gandhi National University of Law, Patiala, Punjab)

 

Abstract

Prostitution has been, for time immemorial, an indisputable reality. This essay aims to conceptualise the idea of legitimization of Prostitution and examine cases of countries which have chosen the legal path to control, if not curb, the problem of prostitution. Prostitution is a deranging and extreme form of gender discrimination. It not just affirms, but backwashes male supremacy. This essay focuses on the grounds of failure of legalization, and states the reasons as to why the law cannot, or has not yet, evolved a practically efficient concept of legitimate prostitution.

A major focus is made on the problem of ‘Pimps’ and sex trafficking that remains unchecked irrespective of the profession’s legitimacy. As has been construed from Germany’s case, the problem is hidden and only seems to flourish under the veil of legitimacy.

On the other end of the spectrum, this essay asserts that criminalisation of prostitution is the most practicable and reasonable way to curb and check it. A case study of Sweden is dwelled into in great detail in this regard.

Thereafter, the debate of ethicality and morality in Prostitution is upheld.

This essay stresses upon the retention of Prostitution’s status of Criminalisation and seeks to assert how Legitimization is a conspicuous failure of various governments in  addition to further glorifying the evil of prostitution.

Introduction              

The issue of legalisation of prostitution remains a highly controversial and debatable one. A lot many times the questions put forth demand to know whether legalisation will really stop the harm to prostitutes or the so-called ‘morally-secure’ society. A stronger element of agnosticism emerges in the proposals for legalisation when it’s on ground effect depicts a consternating increment in the very same issue it seeks to check- human trafficking.

Total legalisation makes prostitution, the epitome of human rights violation, as much of an occupation as any other, albeit it remains clearly distinctive from other low-status and abusive forms of employment by the vice of being the worst one. Legalisation indubitably renders the economically and socially decumbent and vulnerable position of prostitutes- bolstered.

It is true that the struggle for economic survival pushes people to extreme measures where in their choice of work appears justifiably consensual. But a deeper understanding reveals that the women engaged in prostitution for economic survival are in it by ‘coerced choice’ instead of a real one. In most cases, the prostitute is poor and traumatized even before she enters such a profession.

Prostitution is a deranging and extreme form of gender discrimination. It not just affirms, but backwashes male supremacy. A violation in its most characteristic forms, legalised prostitution is nothing but an infringement to the fundamental freedom and citizenship rights of women. It not just nullifies, but subverts a democracy.

According to Melissa Farley’s fact sheet[1], 75% of women working as escorts had attempted suicide. Prostitution causes to women, irrevocable mental and physical damage along with heinous emotional abuse due to a derogatory social standing of being a prostitute.

 

 

Thousands of women and young girls get trapped in the atrocities of sex work. They are exploited by pimps and brothels in order to reap humongous profits while continuously subjecting these women to exploitation, molestation, beatings, rape, confinement, drugs, alcohol, etc. Several hundred thousand women[2] are trafficked every year from Eastern Europe for sex industry centres all over the world.

Not only does prostitution nullify the objectives of international human rights and clash with its universal standards, but it also oppresses the people who engage in it. An ardent form of contemporary slavery, both physical and social, prostitution is predicted to only grow and expand in the wake of the 21st century. The question that arises, is, whether legalisation will really help check prostitution?[3]

Kant on Prostitution

The prostitute’s commoditisation necessarily leads to her objectification; she is reduced to ‘a thing on which another satisfies his appetite’[4]. Kant states that ‘human beings are not entitled to offer themselves, for profit, as things for the use of others in the satisfaction of their sexual inclinations. In so doing, they would run the risk of having their person used by all and sundry as an instrument for the satisfaction of inclination’ [5].Kant blames the prostitute for her objectification. He takes her to be responsible for sacrificing her humanity, in offering herself as an object for the satisfaction of the clients’ sexual desires.

Failure of Legalisation

In the words of famous feminist and anti-sexual violence activist, Donna M. Hughes[6]- “Legalization will not end abuse; it will make abuse legal.”

Thus, it boosts the motivation of men to buy women for sex in a much wider and more permissible range of socially acceptable settings. The biggest and the most important question put up while preconcerting or taking into account any legislation is whether it really stops the harm done to sex workers and consequentially contributes to the betterment of the society.[7]

Research carried out by noted professors from London School of Economics, German Institute for Economic Research and Heidelberg University; for an article titled “Does legalised prostitution increase Human Trafficking?[8],” reveals that of the 116 countries sampled globally, countries where prostitution was legalised displayed a higher inflow of human trafficking as regards those countries which deemed it illegal.

The authors of this article- Prof. Eric Neumayer (LSE), Dr Seo-Young Cho (GIER) and Prof. Axel Dreher (Heidelberg University) closely analysed the change towards legalisation in Germany, Denmark and Sweden in the past 13 years. While Sweden criminalised it in 1999, Denmark decriminalised self-employed sex work in 1999[9], brothel operation remaining illegal. Germany legalised prostitution in 2002 through a third party involvement, namely the Green Party.

These days, legalisation aims at renaming prostitution to ‘sex work’ in order to redefine the profession and establish a clean image of the same. Renaming, however, does not conceal the fact that the activity in itself is highly immoral; nor does it end the violence and exploitation that prostitutes are subjected to.  It does, however, encourage panderers and organised crime rings (brothels) to operate harmoniously with the state in marketing prostitutes under the camouflage of legitimate businessmen. For a clean name will never succeed in erasing the dirty work.

Difficulties in assessing impacts

Assessing the impact of the legislative approaches is difficult on four fronts[10]:

i.          Little evaluative research – Very little research was located that was designed to evaluate the impact of prostitution reforms. It was relatively easy to find articles on specific countries and their legal approach to prostitution, but these typically provided commentary, rather than evidence on the outcomes of legislation.

ii.          Variations in legal frameworks within approaches – Across the jurisdictions classified as having either a decriminalised or legalised approach, the specific legal framework varied greatly (for instance as regards different aspects of prostitution and the restrictiveness of the different regulations). These differences mean that even within one approach (legislation say), the impacts would not expect to be the same.

iii.          Validity of reports – There was often poor attention to identifying sources of information, or methodologies used. Even where methodologies were reported, there are inherent difficulties in assessing the impact of legislation as opposed to other factors such as broad social or economic policy, or other community-based initiatives. (Mossman,2005).

iv.          Conflicting results – There were also conflicting results about impacts attributed to an Act, frequently supporting different ideological views. In general, feminist and religious groups have tended to see few positive effects of decriminalisation or legalisation. Those in health organisations, human rights groups, and sex worker collectives have generally done the opposite.

Germany: A case study

In 2002, German Government (Bundestag) moved ahead with total legalisation of prostitution through the “Law for the regulation of prostitutes’” right. It allowed obtainment of regular work contracts to sex workers, recovery of debts from unwilling clients and made prostitution enforceable. It further amended section 180 (a) of the German Penal Code which allowed removal of prohibition on brothels or Frauenhäusers.

This legalisation[11] by Germany’s Green Party stemmed from the Prostitutes’ Movement in the 1990s demanding extirpation of discrimination against prostitutes and the oppression of women in general.  The main principle behind this enactment was to undo the social stigma of being a sex worker and take down the banner of an ‘immoral activity’ from the profession.

Latest research shows an escalation in sex trafficking by 70% over a five year period[12]. The same has been affirmed by the German Chief Police. Many eastern- European as well as African women were forced as well as coerced into harlotry as the German sex industry now allured traffickers from all over and across the continent. Another shocking report by the German police reveals that out of the 534 trafficking cases in 2009, 65 were those of child trafficking – 41 out of which were of children below the age of 14[13]. The underlining corollary is that Germany’s legalisation of prostitution has brought more exploitation to the women than liberty.

Thus, trafficking escalated instead of being checked and the prostitutes’ right to ‘sell their own bodies’ turned out to be irregular, erroneous and unfruitful as their living conditions still remained abominable and their life- subject to exploitation by pimps and panderers.

The social stigma attached to the profession remains unchanged as the Deutch society, unlike its law, could not bring itself to morally accept harlotry and therefore,  understandably discriminates against the ‘hookers’. Majority of sex workers prefer to carry out their profession in secrecy in order to avoid the social bigotry posed against them Furthermore, these sex workers are denied any special health insurance provisions, nor has the government provided for any re-training or alternative job allotment opportunities to help them leave the sex industry.

When the recession of 2009 dawned the country, its brothel owners, in order to cope with the daily-wages required to pay to the prostitutes regardless the number of customers, started offering ‘flat rate sex’ to the customers[14]. Thus, the women became cheap and despite their inhuman exploitation, the country’s laws couldn’t do anything to prevent it due to the umbrella of legalisation it had shadowed upon the sex industry.

The case of Germany exemplifies not just the need for women to realise that their personhood stands at a pedestal higher than mere sexual comodification but also that legalisation alone is not a solution to fight against sex trafficking- punitively criminalising the buyers as well as the panderers is.

Criminalisation

The vice of prostitution consumes several hundred thousand women every year. Most of these women are forced, tricked or coerced to overcome poverty and violence.

According to a United Nations survey[15]- 2.5 million people from 127 different countries were trafficked across international borders into 137 countries in 2008. As research in this field deepens, the concern about it’s insurmountable growth rises. Apparently, prostitution is closely preceded by drug trafficking in being the most profitable and criminal.

Infact, legalising prostitution under pressure will only turn places like brothels and sex clubs into legitimate venues. In turn, these places will be able to carry out carr activities deemed immoral in the name of ‘commercial activity’ with hardly any restraints.

The Swedish parliament in 1998, proposed a bill which criminalised the buyers of sexual services with a punishment of 6 months in jail, or a heavy fine or both. The bill stemmed from the lack of social acceptance for prostitution. The EUPROPAP states’ analysis of this bill depicts that the intolerance of Swedish Government towards prostitution and how it out rightly condemns it as an undesirable and blasphemous social phenomenon.

However, the Swedish government[16] does not deem reasonable, the punishment of the economically and physically weaker of the two parties engaging in the act since they are the ones who subject themselves to ruthless to exploitation at the hands of lustful buyers. It does not wish to make them accommodate to the draconian risk of punitive consequences because of their sex work. Instead, it seeks to blacklist the buyers of sexual services. In effect, this bill aims to help motivate prostitutes to leave behind their way of life. This legislation towards criminalisation of prostitution seeks to calculatively eliminate trafficking in the country.  The example of Sweden reinstates the protagonist role of the central government in formulating felicitous legal reforms and remedies that prosecute the perpetrators of the crime and rehabilitate the victims.

Every country is attacked by the menace of prostitution. Also, every country bolsters prostitution by being a place of either it’s origin, destination or passage.

Immigrant prostitutes, half of whom are illegal, constitute almost two thirds of the total sex workers in Netherlands. In 2000, Netherlands with about 25,000 sex workers in its vicinity, legalised prostitution and regulated brothels (banned in 1911)[17].  This move was contrived with the view of creating social circumstances such that diminishing However, legalisation along with regulation, according to Hughes, means creating a ballgame wherein a conditional umbrella is created within which exploitation and abuse of women becomes legal. In another report by the International Organisation of Migrants, 70% of the trafficked in Netherlands were from eastern and central Europe. The NGOs Thus, by sanctioning pimps and panderers, the government made them nothing but ‘legitimate third party businessmen’ by removing every legal barriers for controlling and checking their activities as well as and ended up abetting the exploitation of women.

Legalised prostitution enables women to ‘sell their bodies’, thereby objectifying the female body into second class citizens that can be bought (and also sold) for money. Permitting such a heinous shame to persist means consuming a substantial portion of young women from every generation in the name of ‘regulations’ under which prostitution is allowed to flourish.

Conclusion: The Question of Morality and Ethics in Prostitution

“Prostitution is not just a service industry, mopping up the overflow of male demand, which always exceeds female supply. Prostitution testifies to the amoral power struggle of sex, which religion has never been able to stop. Prostitutes, pornographers, and their patrons are marauders in the forest of archaic night.”                                                                        - Camille Pagilia[18]

The Stanford Encyclopaedia of Philosophy defines ‘Morality’ a code of conduct that, given specified conditions, would be put forward by all rational persons.[19]

Prostitution has been considered, for time immemorial, a morally inept and blasphemous activity. It subordinates women, both intellectually and physically to men. Despite being one of the world’s oldest professions, it has always found itself existing on the marginalised contours of the society though the toxic reaches out to the very core. It is frowned upon and considered a threat to contemporary moral images of women’s sexuality. It is therefore established in the world society that prostitution substantially and staggeringly controverts morality. It is a social stigma and thus, most laws pertaining to prostitution are based on the legislature’s assumption of the above said fact thereby banning this activity and usually criminalising women.

Most sex positive feminists are of the view that when sex is anything less than consensual, fair and safe- it is defiled and must be condemned. Liberals consider prostitution- ‘a barrier to social mobility’. During the civil war, the Spanish anarchists in Barcelona tried to induce the prostitutes to either leave their profession or provide them with welfare opportunities.  Spanish anarchist feminists in Barcelona during the civil war tried to get prostitutes to leave the profession (their circumstances were not those people either for or against would like) while modern anarchists focus on helping to improve prostitutes’ lives, which includes opposing laws against their work.

But when one moves beyond moralistic analysis and examines the background that forces women into such a profession along with their experiences, one is forced to question whether women really are the “immoral participants”. Active feminists and women’s right organisations emphasise that legal reforms should be based on the understanding that prostitution, despite being the wench’s profession, is a humungous form of violence against her. A prostitute’s experience will tell you that her prostitution or sex work, whatever you name it, will never cease to sexually exploit her.

The buyers of sex, according to Dworkin, are nothing but misogynists who in the pursuit of machismo exemplify despise for the female body.[20] Thus, the prostitute becomes a victim of male supremacy and is tangled in the chains of poverty, incest and exploitation.  He believes that prostitution is “contempt so deep, so deep, that a whole human life is reduced to a few sexual orifices, and he (the buyer) can do anything he wants.”

When it comes to civil rights for the prostitute, the views of Catharine MacKinnon put forth that the purviews and contexts in this regard are widened. Most nations and international organisations recognize as well as guarantee the legal right to be free from ‘torture and cruel and inhuman or degrading treatment’. However, it is a fact conventionally recognized that the profession of a sex worker subjects her to indomitable torture and repeated rape.

If morality condemns prostitution as immoral, it must not overlook the fact that the woman being bought and sold for sex is being subjected to treatment that goes beyond inhuman, brutal or even barbaric. The women who voluntarily opt for it are the ones who have no other economic option to overcome their poverty. In either of the cases, the woman’s modesty is not only outraged, but also degraded. Does she really deserve to be looked down upon by the society or punished by the law? [21]

 

 

Conclusion

Throughout his article titled Stolen Lives: Trading women into sex and slavery[22], Sietske Altink stresses upon the fact that the traffic in women is not a concern of a particular continent but a global problem. There is no country that can claim that traffic does not exist within its borders. A major criticism can be hauled at the legal system, which seems like an instrument of just and fair decisions, may be biased against women who escape sexual trafficking. The onus is placed on women to prove that they have been trafficked against their will and judges remain dubious of the veracity’s of women’s testimony. We can see this same problem in other issues related to violence, particularly sexual violence, against women. Women, and often children, have to prove that they were sexually assaulted and abused, proof that often can’t be corroborated scientifically if rape kits or other DNA or legal evidence wasn’t properly collected. Women are accused of overreacting or exaggerating their stories.

However, the truth is that International Organizations and donors are lot more aware of the problem and much more work is being done to prevent it. Raising awareness of the problem and making young girls aware of the danger of “informal work” abroad are making some difference. Still, the rampant poverty in so many parts of the world still creates very fertile ground for the expansion of sex trafficking.[23]

Every woman trafficked is a lifetime stolen in the name of a despicably forlorn livelihood; and legitimizing prostitution is not just legalising something innately illegal, but also glorifying the evil.

 

[1] http://prostitutionresearch.com/

[2] http://www.uri.edu/artsci/wms/hughes/mhvlegal.htm

[3]As retrieved from an article titled ‘Why Prostitution should not be Legalised’ by the author.

http://www.theunknownpen.com/why-prostitution-should-not-be-legalized

[4] Kant Lectures on Ethics, 165

[5] ibid

[6] http://www.uri.edu/artsci/wms/hughes/mhvlegal.htm

[7] http://www.theunknownpen.com/why-prostitution-should-not-be-legalized/

[8] http://www.sciencedirect.com/science/article/pii/S0305750X12001453?via=ihub

[9] http://www.lse.ac.uk/newsAndMedia/news/archives/2012/12/Legalised-prostitution-increases-human-trafficking.aspx

[10]http://prostitution.procon.org/sourcefiles/newzealandreport.pdf

[11] http://www.inter-disciplinary.net/ci/transformations/sexualities/s1/Dodillet%20paper.pdf

[12]http://www.examiner.com/article/german-s-legalized-prostitution-brought-more-exploitation-than-emancipation-to-women

[13] ibid

[14]http://www.telegraph.co.uk/news/worldnews/europe/germany/5922789/Recession-hit-brothels-offer-novel-promotions.html

[15] http://www.unodc.org/documents/human-trafficking/UNVTF_fs_HT_EN.pdf

[16] http://www.government.se/sb/d/4096/a/119861: Since 1999 it has been illegal to pay for casual sexual relations in Sweden. The penalty is a fine or imprisonment for a maximum of one year. This applies both to those who pay for sexual relations and those who take advantage of casual sexual relations paid for by another person.

[17]http://www.humanityinaction.org/knowledgebase/304-lifting-the-ban-the-oldest-profession-becomes-the-newest-market-sector

[18] Readings on Human Nature edited by Peter Loptson, pg 505

[19] http://plato.stanford.edu/entries/morality-definition/

[20] http://people.exeter.ac.uk/watupman/undergrad/aac/anti.htm

[21]As retrieved from an article titled ‘The Question of Morality and Ethics in Prostitution’ by the author.

http://www.theunknownpen.com/question-of-morality-and-ethics-in-prostitution/

 

[22] http://www.humantrafficking.org/publications/135-

Scarlett Press, London, pg 5- practical examples of this issue in Asia, Africa, USA, Australia and Europe

[23] “International Trafficking in Women in the United States: A Contemporary Manifestation of Slavery and Organizationd Crime” by Amy O’Neill Richard. April 2000

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