- About HHR
Tripti Tandon, Gabriel Armas-Cardona, Anand Grover
Sex work and its relationship to trafficking is one of the more divisive policy issues of our times, as seen in the ongoing debate in Canada over a bill that views prostitution as inherently dangerous, affecting vulnerable women and offending their dignity. At the risk of over-simplification, the two perspectives on sex work are: i) it is seen as a cause or consequence of, or akin to, trafficking, exploitation, and violence: ii) it is seen as consensual sex between adults for money or other valuable consideration, distinct from trafficking. Although there has been an impasse resulting from the divergence of these views, there is increasing recognition that the reality is complex and individualized; people experience sex work across a spectrum between compulsion, constrained decisions, and choice.
Influences on sex work policy
Sex work itself has been a complicated policy issue. The evolution of English law is instructive, not only because it has been adopted in most common law countries except the US, but also because it highlights the shifting rationales for prostitution policy based on temporal notions of what constitutes public “evil” and “good,” to be repressed and preserved, respectively.
Unlike sodomy (as it was then known), where the act itself was condemned and criminalized, sexual intercourse for money was not the focus of the law. Victorian society was primarily concerned with its public manifestation and accordingly controlled the prostitute by forbidding “soliciting,” “loitering,” “communicating for the purpose of prostitution,” and the premises where prostitution occurred by making it illegal to “keep,” “manage,” “let out,” or “occupy,” a “brothel or bawdy-house.”
In the mid-19th Century, fear of the spread of venereal disease led to surveillance of prostitutes under the Contagious Diseases Acts (1864-1886). By 1885, public health was overshadowed by a moral panic over the recruitment of young women into prostitution, resulting in legislation against “procuring,” “pandering,” “detaining,” and “living off earnings of prostitution.” Calls for “saving” prostitutes led to provisions for “rescue” and “rehabilitation” in criminal law. In 1956, the Wolfenden Committee approved the status quo in British law by concluding that “the public interest in keeping prostitution out of sight outweighed the private interest of prostitutes and clients.” Sex workers’ voices did not count; legislation was determined by what was perceived to be a larger public interest.
This model of proscribing activities incidental to sex work but not sex work received much criticism from the Supreme Court of Canada, which, in a recent constitutional challenge, observed that though sex work is legal, penal provisions prevent sex workers from working safely, thus violating their right to security of the person.
Association with trafficking
The intertwining of prostitution and trafficking began in the late 19th Century with sensational narratives of English women working as prostitutes outside Britain and the resulting outcry against “white slave traffic,” a metaphor that labeled prostitutes as “victims” and third parties (pimps and procurers) as “villains.” While prostitution was a matter of domestic law, the movement of women and girls for prostitution was a subject of international concern. Agreements between States followed, culminating in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) which connected sex work with “the accompanying evil of the traffic in persons for the purpose of prostitution” and cast policy in the victim-predator mode by requiring criminalization of those who “exploit the prostitution of another person, even with the consent of that person.”
Since traffic is synonymous with trade, public policies came to be framed around market dynamics of ‘supply’ and ‘demand’, and lately, ‘business’ and ‘profit’, that operate along gendered lines. While previously brothels were identified as the source of demand, the locus has now shifted to ‘men who buy sex.’
Whether the object is containment, regulation, or eradication, States have predominantly relied on criminal law to address sex work. Today, trafficking is the most dominant driver of prostitution policy, displacing, though not entirely, earlier influences of public order and health. Sex workers’ rights have been a non-issue. Can the application of human rights standards change that?
The human rights framework
The international human rights framework ensures respect for the rights of everyone, including sex workers, and limits legislative, administrative, or policy choices that violate an individual’s rights. All human rights apply to sex workers, and States have the obligation to respect, protect, and fulfill these rights. While all rights are “indivisible, interdependent, and interrelated,” the enjoyment without discrimination of the particular rights to health, to gain one’s living from work, and safe working conditions are important for the well-being of sex workers. Each of these rights includes freedoms and entitlements, such as the right to health freedom “to control one’s health and body, including sexual and reproductive freedom.”
The freedoms and entitlements that are particularly relevant here are the most fundamental and underlie all human rights. The specific freedoms are those based on the classical understanding of liberty: respect for autonomy and consent. The meaning of consent has been well developed in the right to health framework and in the right to be free from torture, but it is foundational to all rights. Policies that discriminate on the basis of sex perpetuate stereotypes of women, such as that no woman wants to sell sex and those who do must be dissuaded at all costs, reinforcing the idea that women lack agency and require protection. These freedoms, combined with entitlements such as participation of affected communities in decision-making and access to remedies for rights violations, form the core principles of a rights-compliant system.
Applying this system to adult consensual sex work requires that at every stage and transaction in sex work, autonomy and consent are respected by the State without discrimination, and that the State ensures participation and access to remedies.
Further still, all UN treaties must be interpreted and implemented in a way that complies with international human rights law. Otherwise, States may be in the impossible position of either having to violate human rights to fulfill their treaty obligations or violate the treaty to fulfill their human rights obligations.
Policy conflict and human rights implications
Divisions appear in the understanding of what constitutes trafficking and who is trafficked, responses to support trafficked persons and the role and scope of criminal law.
Polarization was at full play in the negotiations leading up to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) (
“the Protocol”), which resulted in a convoluted definition of “trafficking in persons.” Relevant parts, relating to adults in sex work, are reproduced below:
(a) “Trafficking in persons” shall mean … [movement] by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation. (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
States are required to criminalize the above conduct as well as “attempt, participation, organizing or directing” others to commit the offense of trafficking in persons. This admittedly “subjective and circular” definition, especially on the question of consent, has important human rights implications for sex workers, who, depending on how legislation is framed, may be treated as perpetrators or ‘victims’ or be kept out of the purview of criminal law.
The Protocol makes the victim’s consent to the intended exploitation irrelevant, when the means set out in a) are used. This is tautological, as the existence of threat, coercion, fraud, and so forth, itself signifies lack of consent. Some sex workers may have experienced forms of coercion or compulsion initially, but by the time they are apprehended, may have decided to continue sex work. The interpretative commentary to the Protocol indicates that consent to an initial act cannot be construed as consent to subsequent acts that the person did not assent to. The UN Office on Drugs and Crime (UNODC) clarifies that “the consent of the victim at one stage of the process cannot be taken as the consent at all stages of the process, and without consent at every stage a trafficking offence has taken place.” Conversely, and in keeping with human rights standards that require specific consent for specific acts, lack of consent at an earlier stage must not negate consent or the right to consent at a later stage. Importantly, the victim’s consent has been made inconsequential in determining the liability of offenders. Indeed, a human rights approach would require respect for the person’s [victim] consent in all future decisions concerning themselves, including the decision to continue sex work.
Consent is also invalidated when there is “abuse of position of vulnerability,” which, according to the commentary, refers to “any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.” UNODC guidance on what the expression could mean does not clarify its relation to poverty and/or lack of alternatives. For poor, unskilled people, particularly women, sex work is often a survival strategy or a better-paying option. Should poverty or constrained choice be deemed a position of vulnerability and vitiate consent, workers in most occupations would be considered trafficked. Additionally, sex workers may be accused of encouraging trafficking if they speak of their positive experiences in sex work to others.
The expression “exploitation” that includes “exploitation of the prostitution of others or other forms of sexual exploitation” has also posed problems. Though the terms are undefined and, “therefore without prejudice to how State Parties address prostitution in their respective domestic laws,” it is not unusual for States to broad-brush all sex work as sexual exploitation. Such a categorical position undermines autonomy, as sex workers would not be able to contend that they are engaging in consensual work when the work in question is exploitation in the law.
Measures to assist trafficked persons
Disagreement is also evident in interventions to identify and assist trafficked persons. Those that conflate sex work with trafficking rely on the police to raid and remove sex workers, who are seen as victims of trafficking. Whether a person seeks to be rescued or not is considered immaterial. That apart, sex workers are deported or housed in shelters against their will. Though well-meaning, such “protective custody” violates the rights to liberty, freedom of movement and prohibition on arbitrary detention. Given that women constitute a vast majority of those detained as victims of trafficking, such detention also constitutes discrimination on the grounds of sex.
Some sex workers are responding to trafficking through community oversight and outreach. Sex workers are the first to recognize and make contact with peers in areas where they live or work. This approach, which evolved in the context of HIV programs to identify new sex workers, has also been followed successfully to counter trafficking. Ironically, it is the fear of arrest and prosecution for a sex work or trafficking-related crime that dissuades sex workers from reporting trafficked persons to authorities.
The role and sweep of criminal law is also contested. Some advocate for the criminalization of all sex work because of its semblance or association with trafficking, exploitation, and violence against women (often ignoring men and transgender people who engage in sex work). Third parties have always been considered blameworthy; recent policy has extended criminal liability to persons who pay for sexual services. Some may not support punitive actions against sex workers, provided they cooperate as victims and accept the “help” offered to give up sex work. Sex worker rights’ advocates support the application of penal laws only where it relates to conduct that infringes autonomy, such as non-consensual and underage sex work.
Criminalization of sex workers and/or their forced detention as victims is not compatible with international human rights. Legislation penalizing the purchase of sexual services but not sale was also found to negatively impact sex workers’ health, safety, and earnings, besides compromising privacy and fair trial standards.
Policy choices that respect human rights
Policy rationales change over time; aspects of sex work that were once considered most problematic may cease to be viewed as problems at another time. The overriding concern of public nuisance that prompted blanket bans on soliciting in the past is now giving way to the idea that solicitation should be decriminalized. In 2006, the Indian Government proposed a law that lapsed that would have removed penalties for seducing or soliciting for prostitution while simultaneously strengthening offenses around trafficking. Similarly, while brothels have been considered dangerous places, the Supreme Court in Canada concluded that they enhance safety for sex workers. The shift in perspective often depends on whose perspective is being considered in the first place.
Reducing the harms arising out of sex work may be a laudable objective. However, sex workers are typically excluded from the process of identifying what the harms really are. This is where human rights principles, especially of participation and remedy, become relevant. Sex work policies that take into account sex workers’ experiences and perspectives will contribute to an effective and rights-informed approach.
The practice of community empowerment has promoted participation by encouraging sex workers to speak about their experiences, both positive and negative, and to organize for social change, including in decision-making processes. Such an approach has consistently improved the health and safety of sex workers through increased condom use and reductions in HIV and sexually transmitted infections (STI). But community empowerment alone is unable to provide legal remedy—this requires legislative action.
Minimally acceptable policy regarding both sex workers and people who are trafficked are those that respect human rights. Pertinently, the UN Special Rapporteur on violence against women noted that “measures to address trafficking in persons do not overshadow the need for effective measures to protect the human rights of sex workers.” Of all policy options, decriminalization of sex work does both.
Decriminalization is the removal of criminal laws without creating a special regulatory system for adult consensual sex work. The removal of criminal laws that intrude into private consensual transactions respects individual autonomy and consent. Decriminalization also promotes community empowerment and allows sex workers to seek remedies when their rights are violated. In New Zealand, where sex work has been decriminalized, sex workers are able to access health services without police interference, and can negotiate workplace rules like any other worker, individually or through organizations. Sex workers have also been able to bring legal action—and win—against police that threaten them to obtain free sex and against a brothel manager for sexual harassment at the workplace. Decriminalization is predicted to reduce HIV infections of sex workers more than any other policy choice. Even legalization, where sex work is legal but tightly regulated, has led to rights violations such as mandatory registration and HIV/STI testing. Decriminalization discharges the State’s human rights duty to respect and creates a framework that enables the State to comply with its obligations to protect and fulfill.
While the Protocol requires States to criminalize trafficking, the same must be interpreted in conformity with human rights, especially respect for autonomy and consent. The UN Special Rapporteur on trafficking clearly states “that all aspects of national, regional and international responses to trafficking should be anchored in the rights and obligations established by international human rights law.”
Conflated responses have been unhelpful and produced unintended consequences, frustrating both sides. Policies that lack clarity on fundamental principles of autonomy and consent end up targeting the wrong people in both punitive and welfare interventions. A legal regime that balances the concerns of all sides would contain the selective criminalization of underage and non-consensual sex work, with appropriate anti-trafficking mechanisms.
Developing policy on sex work and trafficking is complex. The painful divisions that have marked the process so far could, however, be avoided. Policies aimed at eliminating trafficking in sex work could also safeguard the rights of sex workers. And policies that promote sex workers’ interests can contribute to anti-trafficking. Human rights principles offer guidance on how to address the two distinct but not contradictory policy objectives. Employing these principles is how we may be able to find a way out of the impasse.
Tripti Tandon is a practicing lawyer and Deputy Director at the Lawyers Collective, New Delhi, India. Please submit correspondence to the authors c/o Tripti Tandon at email@example.com.
Gabriel Armas-Cardona, Esq., is a Legal Officer at Lawyers Collective.
Anand Grover is a Senior Advocate practicing in the Supreme Court of India, director of the Lawyers Collective, and the former UN Special Rapporteur on the Right to Health.
Competing interests: None declared.
Copyright: © 2014 Tandon, Armas-Cardona, and Grover. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any
medium, provided the original author and source are credited.
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