Beyond the allures of Criminalization: Rethinking the regulation of sex work in India

Abstract

This article explores the shifting trends in prostitution law and policy in the postcolonial context of India. Indian law has since the 1950s criminalized several aspects of the commercialization of prostitution rather than the sale of sex for money per se. Of late however, following international trends around human trafficking and the relatively popular Swedish model, the Indian state has been keen to criminalize further the demand for sexual services. The competing prerogative of HIV prevention has however powerfully helped counter this trend towards increased criminalization. The Indian sex workers' movement has also attempted to shift the policy terrain by reframing prostitution as a form of livelihood, in other words, sex work. While the counter-vailing logic of pandemic control has offered sex workers some respite, the article argues that Indian sex workers' intertwined claims to both recognition and redistribution, to draw on Nancy Fraser, can only be realized by acknowledging the increasing disutility of the policy vocabulary around sex work and reassessing the materiality of law in all its forms, particularly its relationship to the political economy of sex markets.

Why Decriminalise Prostitution? Because Law and Justice Aren’t Always the Same

“…Harm features prominently in discussions around the legitimacy of laws to repress, restrict or integrate prostitution (Östergren 2017). We do not intend to rehearse these arguments here (for in-depth discussion, see Bernstein 2012, Kotiswaran 2014Scoular 2015). Rather, we draw attention to the fact the lack of consensus around what constitutes harm in sex work means that, as Harcourt observed, the harm principle no longer provides 'a bright line' to signal a clear justification for the application of criminal sanctions (1999,138).…”

On the edges of the law: sex workers’ legal consciousness in England

“…Under the abolitionist framework in England, street-based and brothel-based forms of sex work are criminalised, while independent indoor sex work is tolerated (Scoular and Carline, 2014; Levy and Jakobsson, 2014). In contrast, the model of legalisation seeks to regulate the sex industry by providing specific sets of rules for indoor as well as outdoor workers, commonly including toleration zones, licensed brothels or the mandatory registration of sex workers (Kotiswaran, 2014; Weitzer, 2011). Under decriminalisation, the sex industry is treated like a legitimate industry and regulated under existing general legislation, including occupational health and safety, planning and workers’ protection law (Crofts, 2010).…”

Sorting victims from workers

“…(United Nations, 2000 Article 3, paragraph (a))As Stephen Legg’s (2009, 2012) careful genealogical research on the evolution of law and policy related to trafficking for sexual exploitation in the 20th century has illustrated, earlier moral panics around ‘the white slave trade’ were intimately related to the attempted extension of European power through the strategies of the League of Nations (precursor of the United Nations) and national governments, which both reinforced and disrupted scalar hierarchies of colonialism. The contemporary significance of modern slavery and trafficking as political and policy issues is associated with a flurry of legislative and juridical activity in the last several decades and the efflorescence of civil society groups and campaigns worldwide, with similarly contested scalar politics involving debates about criminalization, international legal norms, colonialism and feminism (Doezema, 2001; Kotiswaran, 2014; Lee, 2006). The extent, type and scope of regulatory activity, and the complex interactions of legal and political institutions, make a rich area for the study of jurisdiction as process.…”

“…The 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, is supplementary to the UN Convention against Transnational Organized Crime, which has arguably shifted political-legal approaches to unfreedom in the direction of criminal (as opposed to labour or human rights) law (Fudge and Strauss, 2014) – not least because, in countries like Canada, there is no domestic stand-alone offence of forced labour or modern slavery, which can only be prosecuted as labour trafficking. The expanded criminalization of forced labour and trafficking, characterizes those who experience exploitation as victims rather than workers (Kotiswaran, 2014; Shamir, 2012) and can provide fertile ground for anti-immigration politics that advocate the exclusion of foreign workers rather than enhanced rights and equal treatment (Strauss, 2014; O’Connell Davidson, 2006).…”