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Prostitution: Beyond the Stigma: Exploring the Arguments for and Against Legalization

Prostitution is one of the oldest professions in the world. It is essentially a form of trade that involves rendering sexual services for payment either in money or other valuables. It is also referred to as commercial sex or, more colloquially, as hooking. It is sexual engagement with someone who, in most cases, is not a partner or spouse.

There is no specific gender associated with prostitution. They can be male, female, or transgender people and homosexual or heterosexual. However, if we see from a historical perspective, almost all prostitutes have been women, and men as their clients. There were three distinct kinds of prostitutes described in the ancient Greek literature, namely Pornai, who were slave prostitutes, freeborn street prostitutes, and Hetaera, who were educationally qualified and had social influence. Pornai and freeborn street prostitutes were always male or female, whereas Hetaera always female.

There is a massive disparity between how prostitution is perceived across diverse cultures around the world. It is seen with different lenses depending upon cultural and social dynamics. While some societies harp on viewing it as a legitimate way of carrying out one's profession, other societies consider it a blot on their cultural practices. In some communities, prostitutes are treated with due respect. In contrast, in most societies they are shunned, vilified, tarred, and feathered, sanctioned with imprisonment, lapidation and ultimately death.

This behavior by the societies is mainly towards the prostitutes only and not the clients. Only a smattering of societies has been seen to be exercising the same stringent rules towards clients too. Clients to the prostitutes are adjudged with different lens systems both socially and legally. They undergo very few, if any, legal backlash, and social repercussions.

This difference in the way people look at prostitution as a profession, condemn the prostitutes and turn a blind eye to their clients calls for a debate to legalize Prostitution. Although, some countries have laws regarding prostitution like the Netherlands, Australia has already legalized prostitution, but there is more to this legal tale of prostitution.

Advantages of legalizing Prostitution:

Prostitution as a profession has already been withstanding the worst of social stigma for years now. What puts those who are into this profession to a higher risk is its status of illegality. One of the ways in which all the social condemnation that is thrown towards prostitutes is reduced is through making laws. These laws regulate the functioning of the profession just like any other profession.

There have been umpteen number of arguments put forward by pro-legalization advocates.
  1. Legalization of prostitution will lead to a reduction in the number of sex trafficking that takes place for this purpose. There have been reports published by several NGOs which say that most of the women are trafficked from different countries since these are poor women and cannot bear the cost of their own migration. Legalizing prostitution will reduce importing and forcing women by increasing availability of legal prostitutes.
  2. This way the sex industry could be regulated legally and there can be a legitimate way of keeping a check on client-prostitute relationship in prostitution activities. Legalization of prostitution could be instrumental in protecting women from violence and abuse. They can have their right to free choice in choosing the profession of their choice. Child prostitution would eventually come to an end by the virtue of legal prostitution availability.
  3. Legalization or Criminalization of prostitution will ensure women safety and improved work conditions for them to a very greater extent. It would certainly protect women from violence and harassment which they face socially and in private. Since now they will no longer be forced into the profession and will engage in commercial sex activities voluntarily.
  4. It would promote better health environments for the women involved. There have been instances highlighting that most men wanted prostitutes to have sex without using protections like condom. On refusing to do so they often faced physical assault. Unprotected sexual intercourse leads to greater risks of infections and STDs. Legalization would enforce compulsory usage of condoms and protections in brothels, thus encouraging better health and reduce transmission of STDs.
  5. Another major issue that illegal street prostitutes encounter is violence. They are prone to a very unhealthy and unsafe work environment. Brothels if legalized will in return provide a safer work environment for prostitutes by providing a safer work environment vis a vis illegal bordello. They will have greater access to police which would keep a check on violent clientele. Legalization would help in keeping a check on the conditions under which they work.
  6. A lot of studies (like in Queensland) have found that legalizing prostitution would lead to reduced number of crimes such as rapes.
  7. Prostitution is as moral or immoral a job as cloth selling. The illegalization of trade makes it difficult for the prostitutes to gel well within the society. Society's perspective towards them somewhere works as a hindrance for them to lead a quality life with dignity. Legalizing prostitution will improve their position in the society.
  8. Even though prostitution is not a legalized trade, yet there is a lot of capital that goes into this business. There have been estimates of prostitution industry generating nearly 21 lakh crores in India. A lot of income generated is termed illegal and thus categorized as black money. If legalized, this money can be brought into overt economic dynamism and taxed for generating revenue.
  9. Legalization of prostitution would improve the capital access to the ones involved in business. They will be able to reach out to banks and other public authorities for loans and funds in order to function in a more stable manner. Thus, providing job security.
One of the strongest rationales behind legalizing prostitution is the fact that prohibiting it would further push it underground and make prostitutes more vulnerable.

Disadvantages of legalizing Prostitution:

Most of Human rights and feminist activists have been opposing the very idea of legalizing prostitution. Following are their concerns:
  1. The very idea of prostitution objectifying women is problematic. This affects their status in the society as a whole.
  2. The entire idea of selling one's body for monetary exchange can be refuted by the fact that it is immoral and unethical. An act should not be justified and legalized just because a lot of people do it or have been doing it.
  3. Legalizing Prostitution comes with its own kettle of fish which is that it actually leads to a surge in sex industry. Ground level surveys and statistics show that there has been no reduction in human trafficking, rather an increase is seen because it can be done legally now. Thus, promoting sex trafficking. In Netherlands, legalizing pimping contributed to almost 25% increase in sex industry. They have now sorted ways of organizing sex associations and promoting prostitution in a more open and fearless manner. It is not only prostitution that is promoted but also other forms of sexual exploitation such as phone sex, peep shows, child pornography etc.
  4. A lot of people are of the view that legalized prostitution could eradicate hidden prostitution. However, it is quite the opposite because those involved in the profession do not really want to undergo strict checks and surveillance. They tend to avoid formalities of getting health checkups and even registering for that matter because they want to remain anonymous for obvious reasons. Thus, pushing them to opt hidden ways or street prostitution largely to avoid getting exploited by rich sex traders. Another disadvantage of legalizing prostitution is that it will increase child prostitution as well.
  5. It is often argued that legalizing prostitution would provide health benefits to women involved. However, surveys have reported that it is their clientele i.e., men who force them to have sex without protection. It is men who do not want to use condom and if women insist on using protection, they get abused. Sex with multiple partners is anyway risky for health.

Prostitution Laws: Worldwide Position:

There have been instances of different approaches undertaken by different countries of the world. These approaches of legislative position differ from being completely criminalized to being decriminalized and legalized.
  1. Countries where prostitution has been Criminalized are the ones where punishments for indulging into prostitution is codified in laws. Criminalization tends to make prostitution a crime and thus illegal. They are criminalized on grounds of moral and ethical beliefs. Most states of USA and parts of Middle East have totally prohibited prostitution. Another form of prohibition can be seen in other countries like England and Canada which allow prostitution only to some extent. They have abolitionist approach towards other related activities involving soliciting sex trade, operating brothels etc. Their major focus is to minimize other related activities which have a negative impact in the society. Thus, penalizing other ancillary activities, criminalizes prostitution in these countries.

    While many countries focus majorly on regulating and criminalizing sale of sex, there are a very few countries which advocate penalizing buyers of sex. Infact there is only one such country which regulates buyers of sex instead of sellers, which is Sweden. Their approach is different because they saw it as a gender equality issue and a form of violence against those involved in sex works.
  2. Another approach in complete contrast to the aforementioned is Decriminalization approach. Countries like Australia and New Zealand follow this approach. Decriminalization of Prostitution is about doing away with all the laws and regulations which control activities revolving around prostitution. They advocate removal of provisions penalizing those involved in sex activities. However, the very fact that not all women enter prostitution with their own choice should not be forgotten. If they are made to make such choice involuntarily or in a forced manner then these countries have penalizing provisions for such perpetrators. Likewise, child prostitution.

    Thus, even though voluntary prostitution can be decriminalized and freed from legal penalties, yet forceful or coerced prostitution and child prostitution can be legalized. This is so because in decriminalization the greater emphasis is on safety and health, rights and working conditions of the sex workers. Decriminalization can be a better option in certain aspects like it tends to do away with the underground, illegal, street prostitution while still allowing those involved in this profession to make their ends meet without penalizing them.
  3. Other is a legalized regime in which buying and selling of sex is legalized. While the term 'legalized' seems fancy at first sight, it essentially means that prostitution is controlled and regulated by the government and is legally allowed to be carried out only under specified settings or conditions set out by the state. These states have specifically prostitution-oriented regulations and controls such as registering, licensing and mandating health check-ups. They have a legalized way of reducing crimes associated with prostitution such as sex trafficking, child prostitution and bringing an end to organized crimes by criminally penalizing those who do not have necessary permits. Many countries such as Iceland, Switzerland, Germany etc. have legalized prostitution. Legalization can be differentiated from decriminalization on the basis that latter has no specific regulations aimed at prostitution.
Apart from these approaches where prostitution is regulated in some or the other manner, there are jurisdictions which have no regulations whatsoever. These regimes neither prohibit nor allow prostitution I.e., there is absolute absence of regulating laws. Examples of such unregulated regimes are Kyrgyzstan, Kazakhstan, Slovenia etc.

We have examples of a lot of countries categorized on approaches as under (I) Criminalized prostitution (ii) decriminalized prostitution and (iii) Legalized prostitution. Another way of categorizing prostitution apart from legislative approaches, is considering distinct aspects of it to which laws apply. They can be categorized as:
  1. Laws which apply to prostitutes or sex workers,
  2. Laws which are aimed at regulating organizers and managers of sex workers e.g., pimps,
  3. Laws for buyers of commercial sex.

Legal Position in India:

The 'issue' of prostitution in India does not have as easy a legal fix as it seems. There is a whole trajectory of culture, laws and social situation that needs to be traced back. Prostitution in India is subject to several moral and ethical undertones. The major assumption of people in India is that it is illegal and thus many of them happen to demand legalize sex work while others strongly oppose. However, if we see through historical point of view, there is little evidence which suggests that sex work was ever completely illegal in India. We have been witnessing terminologies like Vaishya, Devadasi for women who offered sexual services.

There are certain legal provisions of the Indian Penal Code which have always been there since the era of modern legislation like sections 372 and 373 of the IPC, 1860 which criminalized sale of minors for prostitution. There are acts like the SITA and ITPA (Immoral Traffic Prevention Act) which talk about issue of prostitution in India. There were tribes like Bedia in which women had to traditionally engage in sex work. Thus, all these instances from the past show us that prostitution was never outrightly illegal in India.

The legal position has been quite unclear and changing in its perspective of definition of prostitute. Prostitute as defined in SITA is different from that in 1986 amendment in IPTA. Women engaged were now seen as victims of sex trade. However, there is a debate among advocate of decriminalization and those who advocate Legalization. What needs to be understood and what has been widely agreed upon by scholars and legal experts is the interpretation aspect of law. One's very act of entering sex work or prostitution in lieu of cash or kind is not illegal per se by the law. What shall be penalized is the other activities related to sex works like soliciting, organizing sex trade, brothels, trafficking, carrying out business by seducing women for this purpose.

Which essentially boils down to the fact that, as per acts like SITA and IPTA, woman who is a prostitute can very well engage in sex works at individual level. However, what is more surprising as a matter of fact is that prostitutes have in fact borne the brunt of these acts the most. Even though prostitution is not completely illegal, they can still be evicted by a magistrate on grounds of public interest. Thus, this variegated stance creates a lot of space for debates to occur in public forum.

One thing that is clear so far is that there is no one voice that contents all. Different countries have different stance to take and many others remain in a very vague position. Thus, it becomes extremely important that we know the difference in terminologies like criminalized, decriminalized, legalized and unregulated prostitution. A criminalized regime would have regulations against sex works where as a decriminalized regime is more concerned about rights of prostitutes but at the same time penalizing certain other related activities and prostitution in a legalized regime is controlled by the state.

There are a lot of pros and cons of legalization of prostitution concerning social, moral, ethical, legal and health aspects. Nonetheless what seems most viable for prostitutes is decriminalization of prostitution because these are women mainly coming from rural areas who are in dire need of financial resources. Thus, they need to be protected from gross violation they are prone to, unless regulated while simultaneously giving them reasonable social and head space to carry out their chores.

However, this can be one side of the coin but at personal level what comes as a greater shock is the fact that we have only been talking about or questioning the 'supply side.' What about the 'demand side'? How about controlling and regulating men who buy sex and act violently, in an inhumane manner and compel women to subside to this behavior. It is time we stopped patronizing this patriarchal approach and make laws more friendly for women who are into sex works due to any of their helplessness.

"Paying the woman to appear to resist and then surrender does not make the sex consensual; it makes pornography an arm of prostitution. The sex is not chosen for the sex. Money is the medium of force and provides the cover of consent."

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