Justice to Sex Workers: A Protracted Struggle for Identity

Paper Details 

Paper Code: AIJACLAV3RP062023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Nabanita Sen, “Justice to Sex Workers: A Protracted Struggle for Identity", 3, AIJACLA, 49, 49-55 (2023), <https://www.aequivic.in/post/justice-to-sex-workers-a-protracted-struggle-for-identity>

Author Details: Nabanita Sen, Research Scholar, Bankura University

Download PDF

Abstract

In the context of social protection, justice embosoms a committed approach towards ensuring equality and empowerment in enriching life and livelihood. This implies the right to access justice, intend unchallenging legal assistance, protection from arbitrary unlawful activities, social reintegration and freedom from any form of brutality. Unfortunately, sex work where disdained remains unhitched from principles of morality and ethics, rarely confines its horizon to moral choice rather compels to be embraced as profession by choice insisting dignity and opposing disrespect. Sex workers exposed to a slew of scornful abuses are disparaged and often society casts aspersions on them. Being subjected to demeaning treatment as victims as well as when being charged with crime, along with discerned unequal provisions resulted in discrimination in socio-economic status while paving a rugged pathway to secure justice. Furthermore, the vulnerability of any system aggravates susceptibility to social subjugation and stigmatization. This calls for co-ordinate effort of institutional obligation, judicial response, societal structural changes and perception variation. Recently, sex worker community breathes a sign of relief when the Apex Court of India acknowledged sex work as profession. The chapter magnifies sex worker’s needs for justice, sex worker’s access to justice and the existing gaps in the justice delivery mechanism. It seeks to identify and explore the intersection of sex work associated stigma and the quest for justice along with proposing interventions that might focus on right-based holistic approach avenues for marked realization and policy framing meanwhile addressing enslavement and exploitation that sex workers encounter.

Keywords

Sex Workers; Social Justice; Stigmas; Victims; Vulnerable

Introduction

Referring to the present state of victim justice in India, the Government Notification constituting the Criminal Justice Reforms (Justice V S Malimath Committee) reported:

“…People, by and large, have lost confidence in the Criminal Justice System… Victims feel ignored and are crying for attention and justice…there is a need for developing a cohesive system, in which, all parts work in coordination to achieve the common goal”[1].

The criminal justice system embodying agencies involved in enforcing law, adjudicating crimes and regulating conduct of criminals with an inherent objective to deliver justice enfolds the egalitarian principles of a progressive community. The genesis of crime in India with its ramifications over society and economy has mushroomed in magnitude and variety. In order to control unlawful behavior by preventing commission of crime and dispensing fair, impartial, timely justice to the victims of crime seeks to promote and maintain law and order in the society. This accords an elevated status to the honourable judiciary and inevitably gains credulity to its decisions. Unlikely, victims happen to be the marginalized population and victim justice relates to the mode through which victims seek justice and safeguard rights.

Sex industry driven by choice, circumstances and coercion concomitant of stigma and discrimination which a sex worker is often compelled to be confronted with.  However, sex work involves activities physically dangerous[2], emotionally damaging[3] or intrinsically sexist and classist[4] in nature. Women and girls engaged in sex work are often condemned and blamed for commercially trading sex in which sexuality happens to be exploited. Women, the marginalized segment of the society are compelled to be engaged in flesh trade that pose varied threat to their life and livelihood. Sex workers bearing the brunt of social stigma, lack of healthcare facilities and limited access to social welfare schemes are more vulnerable to the context of human rights. The variation reported within sex-working population[5] as a result of social policies, structural factors and power relations emulates inequalities[6] regulating occupational health and safety norms[7]. Sex industry devoid of human dignity and decency often viewed as socially taboo professions incidentally exploits vulnerable population comprising of women and children majorly trafficked for commercial functionality.

Background: An Endless Loop of Vulnerability

Female sex workers are identified as women in transgression[8]. Rights of victims when recognized identifies the methods of enforcement. Right to dignity extends to guarantee a dignified life to every citizen irrespective of the status or position they hold in the social hierarchy. It has been asserted that women’s rights depend on the degree of women’s ability to accomplish their responsibilities as consumers, caretakers and contingent workers and categorically purchase their autonomy at the price of social conformity[9] and good behavior. Sex workers are exposed to the daily endangerment of client violence and sexual assault[10]. Needless to say, when a sex worker proceeds with complaint and police while enforcing anti-trafficking laws adheres to stringent and harsh action that includes lawful and unlawful repressive policing activities which attempts to drive voluntary sex workers guilty of being involved in illicit activities. The vicious circle of vulnerability for sex workers leading inexorably to a deteriorating state that aggravates their plight and intensifies their pain. Sex workers are demeaned and stigmatized as immoral deviants likely to be scarred by deliberate inculpation from the society. Criminalization of sex work would further ingrain multiple levels of associated stigma and escalate sex workers risks of associated insecurities including violence[11], access to food, shelter and associated health risks. However, with ongoing involvement they happen to experience cumulative vulnerability exhibiting deep-rooted imperilment implications.

The Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power[12], 1985 adopted by the General Assembly of the United Nations cynosures on rights of victims, methods to enforce and secure these rights. This encompasses victim’s access to free trial, compensation for damages suffered, procedural assistance and restitution of rights. Gradually in 2006 another declaration on Victim Rights for Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law[13] was adopted by the General Assembly of United Nations to safeguard the rights of victims. India has not ratified and never adopted the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 which affirms the neglected and deplorable existence of victims in the criminal justice framework. Article 14 and Article 21 of the Indian Constitution has drastically widened the scope to include the concept of victim justice within its ambit. The Immoral Traffic (Prevention) Act, 1956 along with Indian Penal Code (IPC) and Juvenile Justice Act lays down provisions governing trafficking and prostitution in India. Criminal law equally applicable in all cases eventually model sex workers to be entitled to equal status and equal protection of law dismally frames gender equality on gendered dimensions of ethics or morals.

In Buddhadev Karmakar v. State of West Bengal[14], the Apex Court asserted that sex workers have a right to dignity and recently the Supreme Court of India on 19th May 2022[15] involving three-judge Bench of Justices of L. Nageswara Rao, BR Gavai and AS Bopanna recognized sex work as profession directing police of all States and Union territories not to interfere in the work of sex workers and restricted any criminal action to be initiated against consensual sex workers. ‘Age’ and ‘consent’ of sex workers has been advocated as decisive points relating to anti-sexual activities. Sex workers, their profession and their children like every other person and profession is protected under Article 21 of the Indian Constitution that seeks to ensure right to life and livelihood. This implies that every individual has a right to dignified life and since voluntary sex work is not illegal, the sex workers are free from being arrested, tortured, penalized and victimized by police authorities. Perhaps the major stumbling block to justice for sex workers often observes dereliction of duty on part of police officials coupled with brutal, violent and derogatory attitude towards the marginalized segment while exacerbating their existing impoverishment. However, the Supreme Court of India in interpreting Article 21 in its wider perspective issued this order under Article 142 of the Indian Constitution for the welfare and wellbeing of sex workers. A list of directives issued by the Apex Court to protect rights of sex workers is a holistic attempt of structuring and healing the existing inequalities prevalent in the distinct group.

Realizing Justice for Sex Workers: A Need-Based Analysis

The need to realize justice for sex workers entangles two-fold spectrum of either ultimately abolishing the sex work or by recognizing sex worker’s human rights. Abolitionist approach postulates criminalization of sex purchase intending to obliterate the social malady percolating through the social matrix. In contrast, acknowledging human rights of sex workers approves to uphold dignity discarding abuse. Criminalization provokes stigma[16] and escalates vulnerabilities, by designing commercial sex as illicit and immoral, while depriving sex workers of their rights. Stigmatized people are often imputed as “spoiled identity”[17] with enhanced probability of social discrimination paving way to social exclusion. This results in exacerbating the trauma[18] and associated health issues which leads to anxiety, restlessness, fear and lack of self-confidence. Criminalization along with the presence of stigma act as hurdles to effectual interventions[19] for socio-economic and community empowerment.  In addition, researchers have reviewed that stigma and criminalization drive to widen the existing gap[20] between wretched sex workers and prevailing health service stipulations. Sex workers are subjected to practices, procedures, regulations and legal provisions that discriminate against them[21] either directly or indirectly. Through social lens, embedding the needs, circumstances of choice and experiences collectively focus on a wide range of issues as gender including deliberate neglect of girls[22], racism, equality, rights, migration, governance and legislations.

Sex workers are subjected to harassment from their clients, family members, pimps, brothel keepers, community as well as from custodians of law who are supposed to safeguard and uphold legal sanctity of criminal justice administration. Being differentiated at all level of the justice delivery system. In the court system unjust rulings by judges while prejudice in police administration by police officials contribute extensively to the issue of denial of justice. Vague legal provisions further expedite the harassing of marginalized population constituting gender-based discrimination in the societal matrix. Sex workers, lack protection against discrimination at workplace, are prone to experience harassment or acts of violence. Majority of sex workers are unaware of legal system, legal information, legal rights, legal aid and legal literacy programmes that raise the concern of equal accessibility in legal domain paving way to accelerated vulnerability relating to breaches of human right. Due to lack of adequate information about available legal aid and support services that sex workers are entitled to restricts their access to justice while paving way to varied threats in terms of violation of their entitled legal rights.

Identified Gaps in Accessing Justice

Access to justice accounts to be a fundamental human right as recognized in international human rights law and indispensable to the actualization of human rights of sex workers. Right to be protected under law has been regarded as one of the eight fundamental rights sketched in the NSWP Consensus Statement on Sex Work, Human Rights and the Law.[23] Impediments encountered by sex workers in accessing justice entails less reporting of crimes to police on account of related discrimination and marked stigma; failed prosecution; deferred and improbable conviction of perpetrators; retarded and inadequate victim compensation and debilitated support endeavors. The fear psychosis of being charged for the crime of sex work that generates in the mind of a sex worker often acts as an encumbrance in reporting occurrence of crimes to police. This in turn violates rights to protection of sex workers from arbitrary violation while seeking access to justice. The UDHR[24] (Universal Declaration of Human Rights) affirms the cardinal aspects of the right to access justice. The International Covenant on Civil and Political Rights (ICCPR)[25] extends effort to elaborate on right to due process. Furthermore, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[26] attempts to define torture and imposes obligations on member states to restrain such conduct. The UN General Assembly and the UN Treaty monitoring bodies have also dealt and focused on access to justice. The Committee on the Elimination of Discrimination Against Women (CEDAW[27]) addresses to abolish discriminatory criminalization in all judicial systems. However, in India, sex work being governed by the Immoral Traffic (Prevention) Act does not attempt to abolish prostitution but pursues to prevent trafficking in women and girls for commercial sex.

Especially for migrant sex workers[28], in case of rehabilitation of rescued sex worker the anti-trafficking laws often act as a snag to justice. The intrinsic threat of criminalization, legal sanction, deportation and detention connotes that customarily sex workers violation of rights goes unreported to police officials[29] compellingly disproving the access to justice of the deplorable segment. Sex workers are reported to experience abuse (verbal, physical and sexual), coercion, arbitrary arrests, unlawful detention and extortion from law enforcement authorities which prevent them from reporting crimes committed against them. Amnesty International reports to mention that police officers’ threat and coerce sex workers for false confessional statements, mislead and misinform the charges imposed against them, lengthy interrogation, unlawful detention and inadequate services so as to inform about the available rights[30] of sex workers. Without strict vigil, the police officials exploit the poor sex workers eventually being vulnerable to violations of justice.

Prospective Steps

Once Benjamin Franklin, the Founding Father of the United States observed:

“Justice will not be served until those who are unaffected are as outraged as those who are.” 

This calls for a blueprint in the shape of interventions for achieving restorative social justice with focus on recognition through the process of policy practice and safeguarding rights. Access to justice implies associated risks in multiple forms of threats as abuse of power, police harassment and violence, arbitrary arrest and disrupting support services fabricating the journey to justice arduous. An attempt to reduce biasness through conducting sensitivity trainings especially designed for law enforcement officials in the legal system. The unintended consequences related to sex industry should explore to reframe and reimage the challenges unfolding from equality to social inclusion. Subsequently, community empowerment interventions through issuance of identity proofs to sex workers would be an appreciable initiative to end the cycle of distress while ensuring dignity and equal protection under law to the vulnerable population. Designing and executing anti-stigma training initiatives designed by professionals focusing the mental health of sex workers affecting their audacity and tenacity in the struggle for dignified life and livelihood. Extending quality support services through counselors and therapists to cherish and preserve the intrinsic human values of sex workers for safe working conditions and better lifestyle. Promote community-based legal literacy campaigns to disseminate knowledge of legal rights and services that marginalized groups are qualified to avail.

Lived experiences of sex workers through participation in policy framing and processes needs to be recognized and ensured. Full decriminalization of sex work would be an appreciable prioritized provision in Favor of sex workers. Laws and policies that treat sex workers as criminals or exploited needs to be addressed reviewed and amended ensuring their rights in defense of their down casted standing. Proposing a framework of right-based agenda to recognize sex workers human rights while acknowledging violation of their rights subject to unjust work exposure and exploitation experienced in the context of enduring inequality.

Conclusion

With the rapid global growth of organized crimes and their pernicious impact has raised cause of considerations for varied interventions in the democratic fabric of the land. Ensuring justice to victims of crime implies assuring preservation of rights. Social and restorative justice extends to protect and empower sex workers while enabling rehabilitation of convicts through reconciliation and restoration of the state of being of victims with society. Achieving recognition for sex workers through collaborative and transformative approach tends to safeguard their liberties and freedoms through empowerment, protection and services while embracing realization of justice that might had been a remote thought for the forlorn segment. Judgmental attitude and societal stigma introduce potential threats negatively persuading the mental health of sex workers experiencing trafficking, exploitation and abusive behavior from society that unfortunately restricts and curtails their rights. Paving way towards a holistic system to empower marginalized and traditionally criminalized[31] victims in order to ensure fair justice while reinforcing socially sensitizing behaviour to deter potential perpetrators of crime. Recognizing and strengthening the system of justice along with promoting the rights of the victims through empowerment marks significance in justice protection and delivery aspect. This raises to initiate and outline a victim-oriented notion of justice as pressing priority in a realm of threat to justice.

[1]Malimath Committee, Reforms of Criminal Justice System (GoI 2003, 75- I).

[2]Melissa Farley, ‘Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know to Keep the Business of Sexual Exploitation Running Smoothly’ (2006) 18 Yale J Law Fem 101.

[3]Ibid.

[4]Ibid.

[5]P.G. Macioti and others. ‘Briefing Paper: Sex Work and Mental Health’ (University of Leicester 2017).

[6]Kathleen N. Deering, Avni Amin A and Kate Shannon, ‘A Systematic Review of the Correlates of Violence Against Sex Workers’ (2014) 104(5) American Journal of Public Health <https://ajph.alphapublications.org/doi/abs/10 .2105/ AJPH.2014.301909?journalCode=ajph> accessed 12 July 2022.

[7]Gillian M Abel, ‘A decade of decriminalization: sex work ‘down under’ but not underground’ (2014) 14 (5) Criminology & Criminal Justice <https://scholar.google.com/ scholar_lookup?journal=Criminol+Crim+Justice& title=A +decade+of+decriminalization:+sex+work+%E2 %80%9 8down+under%E2%80%99+but+not+undergroun&Author=GM+Abel%volume=14&issue=5&publication_ye ar =2014&pages=58092&#d=gs_qabs&t=1657462467988&u=%23p%3DDOudQSyXRKEJ> accessed 12 July 2022.

[8]A Ryan, ‘Sex Work, Justice and Decriminalisation: Beyond a Politics of Recognition in Promoting a Social Justice Response to Women’ in Julia Buxton and others (eds), The Impact of Global Drug Policy on Women: Shifting the Needle (10 Emerald Publishing Limited 2020) <https://doi.org/10.1108/978-1-83982-882-92020001 5> accessed 10 July 2022.

[9]Nancy D. Campbell, ‘Using Women: Gender, Drug Policy and Social Justice’ (1st edn, Routledge 2000) <https://doi. org/10.4324/9780203800324> accessed 10 July 2022.

[10]Melissa Farley, Jacqueline Lynne and Ann J Cotton, ‘Prostitution in Vancouver: Violence and the Colonization of First Nations Women’ (2005) 42(2) Transcultural Psychiatry 248.

[11]Michael Rekart, ‘Sex-Work Harm Reduction’ (2005) 366 (9503) Lancet 2124.

[12]United Nations Office on Drugs and Crime, Compendium of United Nations standards and norms in crime prevention and criminal justice, A/CONF.144/INF.2 (United Nations 1990).

[13]United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN Doc A/Res/60/147 (March 21, 2006).

[14]C.R.A No. 487 of 2004.

[15]‘Explained: The Supreme Court Order on Sex Work, How It Changes Things, And Laws on Sex Work’ Outlook (2 June 2022) <www.outlookindia.com/national/explained-the-supreme-court-order-on-sex-workers-laws-on-prostitution-how-sc-order-changes-things-news-19 8865/amp> accessed 12 July 2022.

[16]Ine Vanwesenbeeck, ‘Sex Work Criminalization Is Barking Up the Wrong Tree’ (2017) 46(6) Archives Sex Behavior <www.ncbi.nlm.nih.gov/pmc/articles/PMC5529480 > accessed 9 July 2022.

[17]Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (1st edn, Simon & Schuster 1963)

[18]Kate Shannon and Joanne Csete, ‘Violence, condom negotiation, and HIV/STI risk among sex workers’ (2010) 304(5) Jama 574 <doi:10.1001/jama.2010.1090> accessed 11 July 2022.

[19]cf Vanwesenbeeck (n 16).

[20]Linda Gail Bekker and others, ‘Combination HIV protection for female sex workers: What is the evidence?’ (2015) 385(9962) Lancet 72 <doi:10.1016/S0140-6736(14)60974-0> accessed 9 July 2022

[21]NSWP Global Network of Sex Work Projects, ‘Case studies: How sex work laws are implemented on the ground and their impact on sex workers’ (December 12, 2019) <https://nswp.org/resource/nswp-briefing-papers/ca se-studies-how-sex-work-laws-are-implemented-the-gr ound-and-their> accessed 11 July 2022.

[22]Charlotte Watts and Cathy Zimmerman, ‘Violence against women: global scope and magnitude’ (2002) 359 (9313) The Lancet 1232 <www.sciencedirect.com/science/article/pii/S0140673602082211> accessed 12 July 2022.

[23]NSWP Global Network of Sex Work Projects, ‘NSWP Consensus statement on Sex Work, Human Rights, and the Law’ (December 16 2013) <www.nswp.org/resource/nswp-publications/nswp-consensus-statement-sex-work-human-rights-and-the-law> accessed 11 July 2022.

[24]Universal Declaration of Human Rights, 1948 <www.un.org/en/about-us/universal-declaration-of-human-rights> accessed 12 July 2022.

[25]United Nations (General Assembly). (1966). International Covenant on Civil and Political Rights. Treaty Series, 999,171<www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights> accessed 12 July 2022.

[26]UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol.1465 <www.ohchr.org/en/instruments-mec hanisms /instruments/convention-against-torture-and-other-cru el-inhuman-or-degrading> accessed 12 July 2022.

[27]CEDAW Committee, General Recommendation 33: On Women’s Access to Justice (CEDAW/C/GC/33, 2015) <https://tbinternet.ohchr.org/_layouts/15/treatybodye xternal/Download.aspx?symbolno=CEDAW/C/GC/33&L Lang=en> accessed 12 July 2022.

[28]NSWP Global Network of Sex Work Projects, ‘Briefing Paper: Migrant Sex Workers’ (February 5, 2018) <www.nswp.org/resource/nswp-briefing-papers/briefing-paper-migrant-sex-workers> accessed 12 July 2022.

[29]NSWP Global Network of Sex Work Projects, ‘Briefing Paper: Sex Worker’s Lack of Access to Justice’ (May 20, 2020) <https://nswp.org/sites/default/files/bp_sws_lac k_of_access_to_justice.pdf> accessed 12 July 2022.

[30]Amnesty International, China Harmfully isolated: Criminalizing Sex Work in Hong Kong, ASA 17/4032/2016, (May 26, 2016) 27-30 <www.amnesty.org/en/documents/asa17/4032/2016/en/> accessed 11 July 2022.

[31]Ryan (n 8) 91.