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VOLUME 2 : ISSUE 6 || January 2021 ||

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ABOUT US

WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.

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WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 LEGALISING : AN AGE-OLD CONTROVERSY -By Sofia Dash Table of Contents: 1.Abstract 2.Introduction 3.Analysis 4.Conclusion 5.Bibliography

5 www.whiteblacklegal.co.in ISSN: 2581-8503 ABSTRACT Prostitution is the business or routine with regards to taking part in sexual action in return for payment. Prostitution is now and again depicted as sexual administrations, business sex or, casually, snaring. It is in some cases alluded to metaphorically as "the world's most established calling" in the English-talking world. An individual who works in this field is known as a whore, and is a sort of sex labourer.

Feminists worked for 50 years, mostly through the Trafficking in Persons committee of the League of Nations between the World Wars to stop the traffic in women into prostitution.1 The result of their work was the 1949 Convention Against Trafficking in Persons and the Exploitation of the Prostitution of Others which is an anti-prostitution convention. It states that prostitution is against the dignity and worth of the human person. The convention requires states parties to penalise pimping and keeping. However, in the decades following the ’sexual revolution’ of the 1960/70s a rather different understanding of prostitution was developed. Some prostitutes’ rights organisations and entrepreneurs argued that prostitution should be seen as work, women’s choice and agency.

This paper dwells on the subject of prostitution with reference to its criminalisation and decriminalisation. We shall also dive deep into the of and its rather vague definition.

Towards the end, we shall analyse the different sides of this multifaceted case and draw a conclusion as to whether legalisation of prostitution is a pre-emptive step to securing the rights of sexual workers or simply a failed social experiment.

INTRODUCTION Prostitution happens in an assortment of structures, and its legitimate status changes from nation to nation (now and again from area to locale inside a given nation), running from being admissible however unregulated, to an upheld or unenforced wrongdoing, or a directed calling. It is one part of the sex business, alongside sex entertainment, stripping, and suggestive moving. Houses of ill-repute are foundations explicitly devoted to prostitution. In escort prostitution, the demonstration may occur at the customer's living arrangement or lodging (alluded to as out-call), or at the escort's living arrangement or a lodging leased for

1 Jeffreys, Sheila. The Idea of Prostitution. 1997

6 www.whiteblacklegal.co.in ISSN: 2581-8503 the event by the escort (in-call). Another structure is road prostitution. In spite of the fact that most of whores are female and have male customers, a whore can be, and have customers of, any sex or sexual introduction.

There are around 42 million whores on the planet, living everywhere throughout the world (however the greater part of Central Asia, the Middle East and needs information, examined nations in that huge locale rank as best sex the travel industry destinations). Estimates place the yearly income produced by prostitution worldwide to be over $100 billion.

Some view prostitution as a type of abuse of or viciousness against women, and children, that makes a supply of unfortunate casualties for human trafficking. Some faultfinders of prostitution as an organization are supporters of the Swedish methodology, which decriminalizes the demonstration of moving sex, yet makes the buy of sex illicit. This methodology has likewise been embraced by Canada, Iceland, the Republic of Ireland, Northern Ireland, Norway, and France.

HERE ARE THE TYPES OF PROSTITUTION: Independent Escorts: Independent escorts work for themselves in hotels and private buildings like houses, charge high prices, and stay away from the public eye. They likely advertise their services online, and they get to keep their profits since they're self-employed.

Escort Agency Employees: Like independent call girls, employees of escort agencies work in private locations or hotels and charge like relatively high prices. (Ex-New York Governor Eliot Spitzer slept with an escort agency employee, Ashley Dupré, for $4,300 a night.) Weitzer says these employees face "moderate exploitation" since they have to give a cut of their earnings to their agencies.

Brothel Employees: are dedicated locations where people pay for sex and can include saunas and parlours, Weitzer writes. The prices they charge are "moderate," and brothel workers endure "moderate exploitation" since they have to give part of their earnings to the brothel owners, he said. Licensed brothels are legal in parts of Nevada.

Window Workers: This type of prostitution is prevalent in Amsterdam, enticing passers-by to enter houses of prostitution by prominently displaying the women in windows. Here's Weitzer's excellent description of window work, which pays women a low-to-moderate wage.

7 www.whiteblacklegal.co.in ISSN: 2581-8503 Bar or Casino Workers: These sex workers make initial contact with men at a bar or casino and then have sex at a separate location. In bars in Thailand, the Philippines, and the Dominican Republic, guys pay "bar fees" to leave a club with a worker and spend several days with her, Weitzer writes. The guys (often foreigners) pay the women's expenses during that time, in an arrangement that often confers status on the prostitute. The women earn low- to-moderate salaries.

HISTORY OF PROSTITUTION:

18th Century BCE: The Code of Hammurabi Refers to Prostitution

The Code of Hammurabi was compiled at the start of the reign of the Babylonian king Hammurabi from 1792 to 750 B.C. It includes provisions to protect the inheritance rights of prostitutes. Except for widows, this was the only category of women who had no male providers.

6th Century BCE: Solon Establishes State-Funded Brothels

According to tradition, Solon, an ancient Greek politician, established government-supported brothels in high-traffic urban areas of Greece. These brothels were staffed with inexpensive pornai that all men could afford to hire, regardless of income level. Prostitution remained legal throughout the Greek and Roman periods, although Christian Roman emperors strongly discouraged it later.

AD 590 (ca.): Reccared Bans Prostitution

The newly-converted Reccared I, Visigoth King of Spain in the early first century, banned prostitution as part of an effort to bring his country into alignment with Christian ideology. There was no punishment for men who hired or exploited prostitutes, but women found guilty of selling sexual favors were whipped 300 times and exiled. In most cases, this would have been tantamount to a death sentence.

1161: King Henry II Regulates but Does Not Ban Prostitution

By the medieval era, prostitution was accepted as a fact of life in major cities. King Henry II discouraged but permitted it, although he mandated that prostitutes must be single and ordered weekly inspections of London's infamous brothels to ensure that other laws were not

being broken.

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1358: Italy Embraces Prostitution

The Great Council of Venice declared prostitution to be "absolutely indispensable to the world" in 1358. Government-funded brothels were established in major Italian cities throughout the 14th and 15th centuries.

1586: Pope Sixtus V Mandates the Death Penalty for Prostitution

Penalties for prostitution ranging from maiming to execution were technically in place in many European states by the 1500s, but they generally went unenforced. The newly-elected Pope Sixtus V grew frustrated and decided on a more direct approach, ordering that all women who participate in prostitution should be put to death. There is no evidence that his order was actually carried out on any large scale by Catholic nations of the period.

1802: France Establishes Bureau of Morals

The government replaced traditional bans on prostitution with a new Bureau of Morals or Bureau des Moeurs following the French Revolution, first in Paris then throughout the country. The new agency was essentially a police force responsible for monitoring houses of prostitution to ensure that they complied with the law and did not become centres of criminal activity as had historically been the tendency. The agency operated continuously for over a century before it was abolished.

1932: in

During World War II, the Japanese government abducted between 80,000 and 300,000 women and girls from Japanese-occupied territories and forced them to serve in "comfort battalions," militarized brothels that were created to serve Japanese soldiers. The Japanese government has denied responsibility for this to this day and has refused to issue an official apology or pay restitution.

1956: India Almost Bans

Although the Immoral Traffic Suppression Act (SITA) theoretically banned the commercial sex trade in 1956, Indian anti-prostitution laws are generally enforced – and have traditionally been enforced – as public order statutes. As long as prostitution is restricted to certain areas, it is generally tolerated.

9 www.whiteblacklegal.co.in ISSN: 2581-8503 India is subsequently home to Mumbai's infamous , Asia's largest red-light district. Kamathipura originated as a massive brothel for British occupiers. It shifted to a local clientele following Indian independence.

1971: Nevada Permits Brothels

Nevada is not the most liberal region of the U.S., but it might be among the most libertarian. State politicians have consistently taken the position that they personally oppose legalized prostitution, but they don't believe it should be banned at the state level. Subsequently, some countries ban brothels and some allow them to operate legally.

1999: Sweden Takes a Feminist Approach

Although anti-prostitution laws have historically focused on the arrest and punishment of prostitutes themselves, the Swedish government attempted a new approach in 1999. Classifying prostitution as a form of violence against women, Sweden offered general amnesty to prostitutes and initiated new programs designed to help them transition into other lines of work.

This new legislation did not decriminalize prostitution as such. Although it became legal under the Swedish model to sell sex, it remained illegal to buy sex or to pander prostitutes.

2007: South Africa Confronts Sex Trafficking

A semi-industrialized nation with a growing economy surrounded by poorer nations, South Africa is a natural haven for international sex traffickers eager to export their prey from poorer nations. To make matters worse, South Africa has a serious domestic prostitution problem of its own – an estimated 25 percent of its prostitutes are children.

2016: Where Prostitution Is Legal and Where It Is Not

Prostitution is legal in almost half of all countries worldwide: 49 percent. It is illegal in 39 percent of all nations. The remaining 12 percent of countries make prostitution legal under limited circumstances or by individual states.

10 www.whiteblacklegal.co.in ISSN: 2581-8503 PROSTITUTION LAW: Prostitution law varies widely from country to country, and between jurisdictions within a country. At one extreme, prostitution or sex work is legal in some places and regarded as a profession, while at the other extreme, it is a crime punishable by death in some other places.

In numerous locales, prostitution – the business trade of sex for cash, merchandise, administration, or some other advantage settled upon by the executing parties – is illicit, while in others it is legitimate, yet encompassing exercises, for example, requesting in an open spot, working a massage parlour, and pimping, might be unlawful. In numerous wards where prostitution is legitimate, it is controlled; in others it is unregulated. Where trade of sex for cash is condemned, it might be the sex specialist (most ordinarily), the customer, or both, who are liable to arraignment. Prostitution has been denounced as a solitary type of human rights misuse, and an assault on the pride and worth of individuals. Different schools of thought contend that sex work is a real occupation, whereby an individual exchanges or trades sexual represents cash and additionally products. Some trust that ladies in creating nations are particularly helpless against sexual abuse and human dealing, while others recognize this training from the worldwide sex industry, in which "sex work is finished by consenting grown-ups, where the demonstration of moving or purchasing sexual administrations isn't an infringement of human rights." The expression "sex work" is utilized reciprocally with "prostitution" in this article, as per the World Health Organization2 and the United Nations.3

ANALYSIS AFRICA: Prostitution is illegal in the majority of African countries. HIV/AIDS infection rates are particularly high among African sex workers. In any case, usually, determined by the far reaching neediness in many sub-Saharan African countries, and is one of the drivers for the predominance of HIV/AIDS in Africa. Social breakdown and destitution brought about by common war in a few African nations has created additional increments in the rate of prostitution in those nations. Hence, some African nations have likewise progressed toward becoming goals for sex the travel industry. Long distance truck drivers have been identified as a group with the high-risk behaviour of sleeping with prostitutes and a tendency to spread the infection along trade routes in the region. Infection rates of up to 33% were observed in this group in the late 1980s in Uganda, Kenya and Tanzania.

2 WHO 2001; WHO 2005 3 UN 2006; UNAIDS 2002

11 www.whiteblacklegal.co.in ISSN: 2581-8503 AMERICA: Legality of prostitution in the Americas varies by country. Most countries only legalized prostitution, with the act of exchanging money for sexual services legal. The level of enforcement varies by country. One country, the United States, is unique as legality of prostitution is not the responsibility of the federal government, but rather state, territorial, and federal district's responsibility.

ASIA: In Asia, the main characteristic of the region is the very big discrepancy between the laws which exist on the books and what occurs in practice. For example, in Thailand prostitution is illegal, but in practice it is tolerated and partly regulated, and the country is a destination for . Such situations are common in many Asian countries. In Japan, prostitution is legal with the exception of heterosexual, vaginal intercourse. Advertisements that detail what each individual prostitute will do (, , etc.) are a common sight in the country, although many prostitutes disregard the law. In India, prostitution is legal only if carried out in the private residence of a prostitute or others. is a serious problem in this region. Past surveys indicate that 30 to 35 percent of all prostitutes in the Mekong sub-region of are between 12 and 17 years of age.

EUROPE: The most common legal system in the European Union is that which allows prostitution itself (the exchange of sex for money) but prohibits associated activities (brothels, pimping, etc.). Prostitution remains illegal in most of the ex-communist countries of Eastern .In the United Kingdom, it is illegal to pay for sex with a prostitute who has been "subjected to force" and this is a strict liability offence (clients can be prosecuted even if they did not know the prostitute was forced), but prostitution itself is legal. In Germany prostitution is legal, as are brothels.The enforcement of the anti-prostitution laws varies by country. One example is Belgium, in which brothels are illegal, but in practice, they are tolerated, operate quite openly, and in some parts of the country, the situation is similar of that in neighbouring Netherlands.In , prostitution was outlawed by the former communist regimes, and most of those countries chose to keep it illegal even after the fall of the Communists. In Hungary and Latvia however, prostitution is legal and regulated.

PROSTITUTION IN INDIA: In 2007, the Ministry of Women and Child Development reported presence of 2.8 million sex workers in India, with 35.47 percent of them entering the trade before the age of 18 years. The number of prostitutes has also doubled in the recent decade. A quarter of the total number of prostitutes are minors, in over 1,000 red-light districts all over India. Every day, about 200 girls and women in India enter prostitution, 80% of them against their will

12 www.whiteblacklegal.co.in ISSN: 2581-8503 (CEDPA and PRIDE, 1997). A survey by the Ministry of Human Resource and Development reveal that 4.9 % of the prostitutes in Kolkata born within the city. Mumbai, the largest flesh market in the country has reached the figure of 1.5 lac (150 thousand) prostitutes. Mumbai’s major red light areas count up to 75,000 prostitutes, out of which almost 50% carry the HIV infection.

According to a 1994 report in Asian Age there are at least 70,000 women sex workers in Delhi, Madras, Kolkata, Bangalore and Hyderabad. 30% of these women are under 20 years of age. 40% are 20-30 years of age, and approximately 15% of them became prostitutes as children under the age of 12. About 7,000 sex workers cross over from Nepal into India every year. 66% of the girls are from families where the annual income is about Rs 5000. They may be sold by their parents, deceived with promises of marriage or a lucrative job or kidnapped and sold to brothel owners. Between 40 – 50% are believed to be under 18, the age of consent in India, some are as young as 9 or 10 years old.

Furthermore, after the dreadful gang rape case of 16t h December 2012, various cases started coming out of the closet. And not surprisingly, rape to sex workers is highly unreported. You see people think that person’s choice of profession decides whether they deserve basic human rights or not, which in reality is as atrocious as the very act of rape. Sex workers have the right to say to ‘NO’ forced sex, says the law. It seems that it is our prejudice surrounding the sex and not the sex work itself that is the root cause of the issue. Bottom line, a person’s line of work has nothing to do with his/her ability to consent and his/her right to not get sexually assaulted. It'sdifficulttotrustthatprostitutionisaUSD8.4billionindustryworldwideandstill doesn't get acknowledgment. In India alone, there are around 1.2 Crore sex laborers. Perhaps this is the reason the Supreme Court of India recommended that prostitution is legitimized. It is just intelligent that it be done in light of the fact that authorizing wouldn't just make it managed yet additionally help control the unethical practices that contaminate this industry. Maladies like HIV/AIDS can be brought levelled out by avoiding perilous sex rehearses and giving guide to the individuals who are influenced by the ailment the nation over. The court says that there are roughly 20 – 31 Lakh individuals in the nation who have HIV. This number can be cut down significantly if legitimization of prostitution is realized.

13 www.whiteblacklegal.co.in ISSN: 2581-8503 CONCLUSION As per the Indian context, prostitution is not explicitly illegal as it is not specifically expressed prostitution to be punishable by law but few activities related to prostitution such as running brothels, soliciting, trafficking and pimping are all punishable offence in India under THE IMMORAL TRAFFIC (PREVENTION) ACT, (1956).

 Section-34 of the act prescribes a punishment for keeping a brothel or allowing premises to be used as a brothel. ‘Brothel’ has been defined in section 2(a) of the act which states that it can be any house, room or place which is used for prostitution.  Section-45 of the act penalises any person who is living on the earnings of prostitution. This section does not even exclude the family members.  Section-56 of the act penalises the , inducing or taking person for the sake of prostitution. This section targets the pimps, brothel owners and traffickers.  Section-67 of the act penalises the people who detains a sex worker in the brothel or any premises where prostitution is carried on. This section specifically targets the middle men and the brothel owners.  Section-78 of the act penalises the prostitution when it is carried out in or in the vicinity of public places. Public places include any densely populated area, hostel, public religious worship, educational institution, hospital, nursing home or any other place which is notified by Commissioner of police, Magistrate and the state government. Vicinity refers to as two hundred meters.

4 https://indiankanoon.org/doc/69064674/#:~:text=(1)%20Any%20person%20who%20keeps,t he%20event%20of%20a%20second 5 https://indiankanoon.org/doc/91704683/#:~:text=(1)%20Any%20person%20over%20the,bot h%2021%20%5Band%20where%20such 6 https://indiankanoon.org/doc/120962339/#:~:text=Section%205%20in%20The%20Immoral %20Traffic%20(Prevention)%20Act%2C%201956&text=(b)%20in%20the%20place%20to,t o%20take%20him%20is%20made. 7 https://indiankanoon.org/doc/172962030/ 8 https://indiankanoon.org/doc/139656816/

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 Section-89 of the act penalises the sex worker for seducing or soliciting a person for purpose of prostitution. According to this section a sex worker cannot do any gestures to invite someone for the purpose of prostitution.

This section is discriminatory as it prescribes different punishment for the same offence to the man, as the punishment is half of what is prescribed for the female.

Prostitution or sex workers are not banned or punishable by this Act but surrounding activities are made punishable in this act. All the third parties involved in this profession are made punishable, making it difficult for the sex workers to carry out prostitution. In my opinion it is in direct violation of Article 19 and Article 14 of the Constitution of India as this Act purposefully makes it difficult for the sex workers to carry out their profession without the fear of being caught.

For a moment just imagine a situation where a sex worker is looking for a client without such restricting laws. She can talk with the client in open without any fear of being caught by police. Here, the woman is safe and free to approach the police if something goes wrong, be it forceful act by the client or not paying the professional fees to her.

But now come to the reality where laws are restricting. Here, the system has instilled the fear of punishments in the clients by making such laws. The clients instead of meeting the sex- worker in an open or public place prefer to meet at a dark and alone place to avoid the police. It is very easy for the client to commit a crime in such circumstances. Now decide, which laws are better for the sex worker?

9 https://indiankanoon.org/doc/27208336/#:~:text=(b)%20solicits%20or%20molests%20any,fo r%20a%20term%20which%20may

15 www.whiteblacklegal.co.in ISSN: 2581-8503 BIBLIOGRAPHY

1. https://www.antiprostitutie.ro/docs/Legalisation.of.Prostitution.a.failed.social.experim ent.pdf 2. https://indiankanoon.org/doc/69064674/#:~:text=(1)%20Any%20person%20who%20 keeps,the%20event%20of%20a%20second 3. https://indiankanoon.org/doc/91704683/#:~:text=(1)%20Any%20person%20over%20 the,both%2021%20%5Band%20where%20such 4. https://indiankanoon.org/doc/120962339/#:~:text=Section%205%20in%20The%20Im moral%20Traffic%20(Prevention)%20Act%2C%201956&text=(b)%20in%20the%20 place%20to,to%20take%20him%20is%20made. 5. https://indiankanoon.org/doc/172962030/ 6. https://indiankanoon.org/doc/139656816/ 7. https://indiankanoon.org/doc/27208336/#:~:text=(b)%20solicits%20or%20molests%2 0any,for%20a%20term%20which%20may 8. https://allthatsinteresting.com/history-of-prostitution 9. https://www.speakingtree.in/allslides/prostitution-a-brief-history 10. https://www.amsterdamredlightdistricttour.com/history-of-amsterdam/history-of- prostitution/ 11. http://www.fondationscelles.org/fr/tribunes/134-international-law-defines- prostitution-as-a-human-rights-violation 12. https://blog.ipleaders.in/legal-aspects-related-to-prostitution-in- india/#Definition_of_prostitution 13. https://prosandcons.org/wp-content/uploads/newzealandreport.pdf

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