Legality of Prostitution

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Margaret Cho exclaimed: where do people get off telling people, what to do? 

It is their body. If you legalized sex work and legally protected sex workers, you wouldn’t see anything like human trafficking. All of that would be obliterated!

Prostitution, the practice of engaging in relatively indiscriminate sexual activity, in general with someone who is not a spouse or a friend, in exchange for immediate payment in money or other valuables.

Prostitution is often said to be the oldest profession in history. Episodes throughout history illustrate that even in the oldest records of the practice there is evidence that the profession was believed to be an inevitable component of the economy, but not one that could go without some form of regulation. The first records of the profession date back to 2400 BC, at which time there was an association between sex work and temple service in Sumer. It was noted as a form of worship and a sacrifice to the gods of fertility

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 Perceptions of prostitution are based on culturally determined values that differ between societies. In some societies, prostitutes have been viewed as members of a recognized profession; in others, they have been shunned, reviled, and punished with stoning, imprisonment, and death. In Europe during the Middle Ages, church leaders attempted to rehabilitate penitent prostitutes and fund their dowries. Nevertheless, prostitution flourished: it was not merely tolerated but also protected, licensed, and regulated by law, and it constituted a considerable source of public revenue.

In most Asian and Middle Eastern countries, prostitution is illegal but widely tolerated. Among predominantly Muslim countries, Turkey has legalized prostitution and made it subject to a system of health checks for sex workers, and in Bangladesh prostitution is notionally legal but associated behaviors such as soliciting are prohibited. 

In some Asian countries, the involvement of children in prostitution has encouraged the growth of “sex tourism” by men from countries where such practices are illegal. Many Latin American countries tolerate prostitution but restrict associated activities. 

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In Brazil, for example, brothels, pimping, and child exploitation are illegal.

During the 1980s, attitudes toward prostitution changed radically through two major developments. One was the worldwide spread of AIDS, which increased concern about public health problems created by prostitution. A second influential development was a renewal of feminist interest and the perspective that prostitution is both a consequence and a symptom of gender-based exploitation.

Previous literature finds that, according to the available data, countries in which prostitution is tolerated or legalized have considerably lower rates of AIDS than countries where prostitution is illegal (Shuster 1992).

According to (Brents and Hausback 2005): 

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Studies show that where prostitution is legal, the government can regulate and license prostitutes, requiring mandatory health check-ups and STD screenings.

If we legalize prostitution, it will give rights to prostitutes to ask the police for protection against violence (Brents and Hausback 2005). In the case of illegal prostitution, prostitutes are unable to seek police help if they feel threatened or have been endangered; however, in legal brothels, if customers become rowdy, there is often a panic button and, if necessary, the owners can call the police to handle the customer. The ability to go directly to the police provides an extra safety measure, reducing assaults and rapes. 

Not legalizing prostitution is one of the major infringements of human rights according to section 23.1 of the universal declaration of human rights which states that:Everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.

When we talk about the Scenario of India,Prostitution in India is an age-old profession. There are in fact, mention of sex workers in various Hindu mythological inferences referred to as apsaras. During the pre-colonial period, there existed the devadasi system where it was a prevalent practice among Hindus to give away their female child as a sign of their devotion towards God. Devdasi in a literal sense means devoted to the god, that is they were married to God and were not required to marry any mortal being.

Before contending on the legalization of prostitution, one must acknowledge the existence of it and the need for it in society, and especially, the Indian one was talking about sex is still a major taboo. 

The constitutionality of ITPA was challenged in the landmark judgment of The State of Uttar Pradesh vs. Kaushalya. The facts enumerated in this case are that a few of the prostitutes were asked to be removed from their place to maintain the decorum of the city of Kanpur.

The High Court of Allahabad made the pronouncement that section 20 of the act abridged Article 14 and sub-clauses (d) and (e) of Article 19(1) of the Indian constitution. The Act was held to be constitutionally valid as there was an intelligible difference between a prostitute and a person causing a nuisance.

Closed-door prostitution is somewhat inferred to be allowed but the law does not prescribe any legal safeguards or regulations and responsibilities for the protection of the sex workers.

In the case BudhadevKarmaskar v State of West Bengal

In this case, it was held that sex workers are human beings and should be treated with humanity and dignity. Nobody is entitled to physically assault them. The judgment also highlighted the problems faced by the sex workers and their plight. The court is of the view that these women are compelled to indulge in prostitution not out of choice or pleasure but merely out of economic and social causes.

There has been a lot of discourse regarding giving them legal status to prostitution in India. It is observed that it is best to regulate prostitution since the chances of its abolishment are negligible. Various countries like Canada, France, Germany, Denmark, Wales, etc. have regulated and legalized prostitution.

In Germany, the profession is not only legal but taxed as well where the brothels are allowed to advertise and send job offers through HR companies. Germany had also passed the latest legislation in 2016 which purposed to protect prostitutes by requiring a permit for all prostitution trades and a prostitute registration certificate.

This sort of system where the profession is regulated and the safeguards of the sex workers are taken into consideration tends to do less harm to the sex workers and better implementation of laws protects the system from abuse and exploitation. These sex workers are not only exposed to dangerous sexually transmitted diseases like HIV AIDS but they also, suffer from police brutality, a dip in income, harassment, etc. In 2009, Supreme Court itself suggested prostitution to be legal.

Reasons for Legalization Of Prostitution:

The legalization of prostitution will protect minors from being vulnerable to sexual exploitation. There are almost around 10 million children who are pushed into prostitution, worldwide. Child prostitution is a bitter reality of almost all countries but in Asia and South America, the situation is worse. Strict regulations in the industry can ensure the prohibition of minors from the system.

  • Regulated health check-ups of the sex workers will ensure the curbing of sexually transmitted diseases especially, AIDS which is just so common among the sex workers. Adequate birth controls will ensure unwanted pregnancies and curbing of other health hazards. Regular health check-ups and strict guidelines will ensure cleaner and hygienic working conditions. A compulsory provision of condoms will also, be beneficial for the sex workers and the customers.
  • The legalization of prostitution will enhance and upgrade the system. There will be a removal of middlemen and pimps from the system and the sex workers will have more wage-earning and the criminal and exploitative factors would be reduced to negligible.
  • It will reduce sexual violence, rapes, and other sexual assaults as people will resort to a legal and easier alternative to satisfy their sexual urges. An example of Queensland can be taken where the region experienced a 149% increase in rape rate after the closing of brothels.
  • Eradication of forced prostitution
  • Prostitution in India constitutes around the 8.4-billion-dollar business. Legalizing and taxing the process will be like an incentive for the government.
  • The rights of the workers will be protected. Even though the sex workers do not come into the ambit of usual labour laws still, they should get all the rights of a citizen and a labourer.

Conclusion:

In a society, where prostitution has been an age-old profession and is continuing to flourish as a business area, it will be ignorant to put a blind eye on it and pretend the nonexistence of the system and its flaws. Decriminalizing sex work with proper rules and regulations and making it legal will ensure a better life for sex workers with better wages, health security, and protection.

Not only this but as a society, it will be a progressive step that shall eliminate many social evils from the society like child prostitution, rape, etc. The sex trade is a very evident reality of our country and by recognizing it as a legitimate profession with certain rules and safeguards all the involved parties can receive guaranteed benefits. A better and inclusive legal framework and implementation of all the safeguard methods will only cater to the betterment of society.

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