Wednesday, January 17, 2018

Proper Legalization of Prostitution to Prevent Ills

Stakeholders’ Dilemma with Prostitution in India
Background:
     There has been a continuing emotional debate in India about the oldest profession and the variety of problems it presents. This is a morally repugnant practice. But, neither moral pronouncements nor legal measures have been successful in eliminating the profession. Governments have been clueless in even controlling the profession.
     Subhashree Kishore [i] writes, “Prostitution per se is not illegal or criminalized in India but soliciting and trafficking is.” Kishore continues, “Prostitution as a means of livelihood is exploitative, repressive, and inhuman.” Kishore reports that India is considering whether the client — in effect the demand side — should be punished. 
     According to another report [ii] India has four million prostitutes and their number is likely to swell to 10 million in a few years, says a nationwide study conducted for the department of women and child development. About 35 percent of prostitutes forced into the trade in the country are below 18 years of age, reveals the study conducted between 2002 and 2004. Prostitution is shifting from red light areas and the number of brothels is coming down.      However the number of prostitutes is rising as they are operating under various covers. More details are available at the Human Trafficking web site. [iii]
     A United Nations Development Program (UNDP) sponsored study [iv] says that India has become a key destination and transit hub for human trafficking from East Europe and other places. 'Madhya Pradesh is prominent among the states where women get into sex work and thus get trafficked because of family traditions. Ninety five percent of the women in Madhya Pradesh in commercial sex are due to family traditions. So are 51.79 percent in Bihar.
     Police records since 1999 shows that 31 percent of the victims rescued from brothels in Delhi, Mumbai and Kolkata are of Nepalese origin with a high rate of Bangladeshi girls in Kolkata. [v] The study revealed the growing instance of sex tourism. It also said the factors responsible for the growing phenomenon of child sex tourism include the anonymity of tourists, easy access to trafficked children and lack of interest shown by law enforcement agencies. When international tourists arrive at an immigration point in India, they should be given a warning notice about the Indian law with respect to the need for a license to seek the services of a licensed prostitute and the severity of the punishments meted out by the Indian law.
     At the training program, [vi] organized jointly by the United Nations Office Drugs and Crime and Andhra Pradesh Police Academy, with the intention of creating awareness among the supporting officers like assistant sub inspectors, head constables and constables about various forms of human trafficking, the resource person for the program underscored the need for treating women and girls, who were forced into flesh trade as victims rather than prostitutes or sex workers.
     The Andhra Pradesh Mahila Samakhya [vii] has demanded launch of self-employment scheme of small trades each costing Rs.1 lakh by the government for the benefit of sex workers freed from dens in Pune and New Delhi, a majority of them belonging to the State.
     The Network Against Sexual Exploitation in Andhra Pradesh (NATSAP) [viii] and coordinated by the Tirupati-based Academy of Gandhian Studies (AGS) rejected the proposal to legalize prostitution through issue of licenses.
     Fali Nariman said, [ix] ” … you just cannot change chauvinist attitudes by making laws—this is only possible by a social consciousness and an enlightened understanding: in other words through meaningful education.”
A study by Harvard School of Public Health (HSPH) [x] has found that 38 per cent of girls and women trafficked to India and then repatriated were found to be HIV positive. The infection rate exceeded 60 per cent among girls, who are forced into prostitution prior to 15 years of age. An estimated 150,000 women and girls are trafficked annually within and across South Asia, with majority destined for major Indian cities like Mumbai, said the study, which was published in the August issue of the 'Journal of the American Medical Association' (JAMA).
     According to UNODC (United Nations Office on Drugs and Crime), [xi] approximately 150,000 people are trafficked within South Asia annually making the region the second only to South East Asia in prevalence of human trafficking. And India is an origin, transit and destination country for trafficking in persons. At a seminar organised by an NGO Apne Aap Women Worldwide (A2W2), Supreme Court lawyer Aparna Bhatt said, "The law regarding this crime is not holistic. There is no institutional mechanism in place to deal with such things and there's lack of concern for addressing its prevention."
     According to an Indian Express story, [xii] Jammu and Kashmir is the only state in the country where prostitution is legal. According to the Public Prostitutes Registration Rules, 1921, a prostitute can carry on her trade legally if she registers herself with the District Magistrate. She has to fill in a simple application form, file it in person and pay Rs 5 as fee.  The rules define a public prostitute as ‘‘a woman who earns her livelihood by offering her person to lewdness for hire.’’ The rules also allow for the role of a brothel keeper and defines him or her as ‘‘the occupier of any house, room, tent, boat, or place resorted to by person of both sexes for the purpose of committing sexual immorality.’’ However, the brothel keeper has to ensure that he does not keep the prostitutes who are not registered with the Government.
A report in The Hindu says, [xiii] “From selling themselves on roadsides to house keeping jobs in star hotels. Sex workers in the city are contemplating a shift in career, a ‘respectable’ and legal one at that.”
     A meet organized by an advocacy group `Mana Mythri,' on `Sexworkers Rights Day' demonstrated [xiv] the wide gap between the two existing views; One, the sex workers' plea to let them lead the profession decently, and the other on weaning them away from it with promises of rehabilitation.
Sex workers, under the banner of Godavari Mahila Samakhya and `Naari Sakshyam', [xv] have demanded statute for their `profession' (flesh trade) and welcomed DGP Swaranjit Sen's statement to issue licenses.
This problem has been studied widely and police action against the prostitutes, traffickers, and brothels is continually reported as seen in a constant stream of news reports. [xvi]

Analysis of the Problem: 
     Prostitution is a complex problem spanning the moral, human, political, and legal dimensions. As leaders, managers, administrators, officials, and citizens take extreme positions, the victims continue to suffer, the criminal and unscrupulous elements in the society add hordes of new victims to the trade, and finally, the patrons escape with small time pleasure and long term harm to themselves, their families and to the society at large. 
     Let us be dispassionate about it for a little while and conduct an analysis of the actors in this profession. Broadly speaking, prostitutes, patrons, pimps, traffickers, society, and government are the stakeholders and they play the following roles. A prostitute offers sexual pleasure or satisfaction to patrons and receives some money or other consideration for the services. The patron pays for the services he receives. There are the two main parties that constitute the supply and demand in this service. If there is neither money nor something of value exchanged, it is not called prostitution. So we may leave all other forms of sexual services out of the present discussion without passing any grades to those other services. The pimps are like marketers of the services for the prostitutes. In reality, these people also act as managers and owners of the establishments that employ prostitutes.
     Why do some women become prostitutes? Again, let us attempt a simple answer. Perhaps some women actually choose the profession as their principal livelihood lacking any other means of earning. Let us assume that some, a small proportion, choose it as they enjoy it and the income is considered easy and good. But the large majority of the prostitutes is forced into this profession by traffickers. Women who are destitute, or weak, or young, or otherwise helpless are duped into this profession by the traffickers as a means of making money for themselves.
     The rest of the society does not like the idea of the existence of prostitution for a variety of reasons. Many good citizens simply wish that it did not exist. Others feel offended when they are told that this profession exists in their society. Government is the last stakeholder in this area and exists as several sub-actors. The lawmakers make the laws. The courts enforce the laws. The police apprehend and book the law breakers.
     The society is on the receiving end of many of the problems borne out of this profession. Coming right after moral and human rights issues, the chief problems relate to health, both mental and physical. In the last three or four decades, HIV and AIDS are threatening large scale destabilization of societies. Public health care professionals are not able to get a handle on this problem as this sector is not organized, although it deals with the supply and demand of a service. Social workers, where they exist, also find it difficult to counsel prostitutes as it is mostly an under the radar service.
     Sections of the society want the government to ban the service while failing to realize that a public ban will have little or no effect when the trade is not in public and the market forces overwhelm the law enforcement and rehabilitation resources. In fact, historically, society made many missteps in this area. It excommunicated the prostitutes and their children. The poor children, who were a byproduct of the practice, were also deprived of the inheritance rights to their natural parental properties and titles. Unfortunately, those injudicious but harsh treatments by the society did not extinguish the practice, but they only created an underclass that was forced into a cycle of prostitution as a profession by birth.
     By and large, the society did not take stern action against the patrons as they are the drivers of demand and customers in the transactions. In some cases, the society even elevated them to an exalted status. Both the patrons and the prostitutes acted as sources of sexually transmitted diseases. Especially, the patrons brought these diseases back home and infected a wider cross section of the society. In the recent past, HIV AIDS are spread by these patrons in a variety of encounters.

Systems Analysis:
     Under these circumstances, what are the essential steps to an approach to a solution? When a system is undergoing a process and if the society wants to control the process, it has to prescribe boundaries and develop controls. The process parameters have to be measured and controls instituted to change the state of the system. What does this translate to in the current problem? Figure 1 shows a schematic representation of the players in the profession.




Figure 1: Traditional system with primary actors in the business
 
     Prostitution has to be defined and placed into a system, which means it has to be organized. Regardless of what our moral and spiritual compasses might point to, the society has to bring prostitution into an organized sector, be it in the metropolitan cities or remote tiny villages. The government has to pass laws on all aspects of prostitution. It prescribes certain parameters for the organized form of it and hands out extremely severe penalties for the unorganized sector. Legalizing the profession should not merely mean a free reign for all the current actors. It is not like letting the dogs loose! For example, the law has to require both the patrons and the prostitutes to carry licenses just like driving licenses to operate a vehicle on the road. Those that indulge in the exchange of these services without the licenses should receive penalties at three levels – counseling, monetary, and finally, incarceration. Like in any licensing operation, there must be certain preconditions for obtaining a license. These prerequisites may be in the areas of health, and mental competence. This means a patron obtains a medical certification that he does not currently suffer from sexually transmitted diseases and HIV AIDS. Once this is recognized as an organized sector, a list of those who have received licenses is published on a local and a national web site as a public service. The licenses are maintained by periodic (say quarterly) medical certifications based on the health statistics of the nation, the region, and the locality. Since the government has a responsibility to protect the family members, in general, communications with the patrons are conducted openly so that the family circle may take necessary precautions, be they from the point of view of health, finance, or morals.
     The prostitutes are similarly medically tested periodically (say monthly) as a condition for continued practice of the profession. Those that carry a sexually transmittable virus will not be given a license but will become eligible for medical treatment and financial support for living from a concomitant insurance or government’s social welfare scheme. There must be an age limit (perhaps between 21 and 50) for a woman to practice this profession. This restriction should eliminate the under-aged and the old.
An important criterion should be that prostitutes can only be in sole proprietorship or in a partnership with other practicing prostitutes. The proprietors should be their own marketing and sales professionals. This requirement disallows managers or other owners in this profession. In the first instance, it eliminates pimps. Any person offering the prostitution services of another person should be given a three level punishment. The first offence is treated with counseling, the second with a severe monetary penalty, and finally a long prison sentence. Prostitutes or partnerships employing pimps should be denied license renewals.
     The next category is the traffickers. These people entrap young children and transport them across state and national boundaries. Then they place these hapless victims into prostitution through established houses or pimps. These acts are already criminal under current laws. In order to have a greater impact in the future, these acts should draw extremely severe punishments including life term and capital punishment in certain defined cases.
     Prostitution as a family tradition should not be accepted. Prostitutes should not be allowed to enroll their Children into this service automatically. In fact, the practice of the profession out of homes of prostitutes where they bring up their children should be prohibited. In those cases, the children should be removed form those homes into child welfare hostels.
     Children born to prostitutes must be tested to prove parentage. Even when prostitutes have married partners, these tests should be mandatory. This is where a list of customers becomes vital. By scientific medical testing, parentage should be proven and inheritance rights of these children established.
     Traditionally, prostitutes and their children bore all the risks in the profession. The patrons got away with a nominal fee they paid for the service. All other rights are flushed down the drain. The patron’s family drew sympathy from the community for a negligent gentleman who visited these houses and reached home to a late night meal and a waiting wife. The patron’s children born in wedlock did not share inheritance rights with any other children born even though they shared the same genes.
     As stated earlier, some mature adults choose this profession voluntarily. When they make that choice, it is either out of a physical or mental urge or for the money offered by this profession. Usually, when women have no other skills or education joined this trade. Periodic counseling is prescribed in the licensing process in order to educate such women and open up other professional opportunities. At this stage, governments, philanthropic organizations, and other self help groups should be coming forth to offer educational and skill development opportunities to those who want to get out of the profession.
     Now let us take a look at the patrons and why they look for the services of this profession. Traditionally, “bad is cool” attitude encouraged young people to experiment with these services. Like all habits, it bends the victims and they become patrons no matter their socio economic group. There is also the prestige issue venerated by the culture or folk lore. In some cases, it is a physiological or psychological necessity, perhaps compounded by marital discordance at home. This is why periodic counseling of patrons is suggested as part of the legal framework. During these counseling sessions, the medical and social counselors may find out if medical or psychological, or social therapies can help the patrons from seeking these services. In the long term, the medical profession should look for cures, be they with conventional medicines or gene manipulations. Those with a history of violence should be denied the licenses as patrons. Those with HIV AIDS and other transmissible diseases should also be denied the licenses as patrons.
     In Western societies, with liberal attitudes towards sex prior to marriage and out of wedlock, people find outlets to their physical and psychological urges. But even in these somewhat casual encounters, investment of a lot of effort and time is necessary. Not willing to make such investments, some people buy their way into whorehouses. For these and perhaps for some other reasons, the Western society did not attempt to study the physiological and sociological aspects of this area in depth. There are no concerted attempts to eliminate this practice in the West. On the other hand, the pharmaceutical companies in the West have invented Viagra and other drugs and procedures to assist people’s urge and prowess rather than to curtail it even in cases where there are no ready partners. Hence the onus is on India to undertake the necessary medical and social research needed in this area.
     With the suggested regulation and licensing, the system will look as shown in Figure 2.


Figure 2. Proposed system and regulation

     In the proposed arrangement, the government separates the various actors and treats them differently. For example, the traffickers, pimps, and brothel owners are prohibited to have any part in this profession. They are treated severely to the extent of forfeiture of their complete assets and long incarceration. The prostitutes and patrons are brought into a licensed and regulated system.  The prostitutes are given every opportunity to get out of the profession and to rehabilitate. Finally, the patrons are expected to pay a heavy price at every step. Government officials, social workers, and human rights organizations are assigned affirmative roles to regulate and control the system. As exemplary monetary remunerations and penalties are proposed in the system, there should be enough funds to accomplish the assigned tasks.

Will the new System work?
     Perhaps, the proposed system has a greater chance of working. The critical steps are in breaking the connections between the traffickers, pimps, and brothels on the one hand and the prostitutes on the other. In any business, it is the financing, marketing, and training of service providers that make or break a business. These functions and functionaries are isolated and broken up. The penalties on traffickers, pimps, and brothel owners should escalate from counseling, to confiscation of all property, and to long criminal convictions in order to effectively snuff these operators. On the other end, the patrons traditionally paid a very small price in return for these services. Their reputation, property, civil and professional status, and family life are disrupted a little or none at all in the traditional arrangement. On the other hand, in the proposed arrangement, if the patrons do not register, they should be subject to harsh penalties progressively from counseling to confiscation of property to harsh criminal penalties. Those who register will go through separate counseling and healthcare processes, and pay a higher price for the services they receive in the form of license fees, health insurance, social notification, family influence, and financial care of children born to prostitutes.
     It is expected that the welfare of the prostitutes will be improved in many ways. Elimination of the presence of traffickers and pimps will make the prostitutes free from bondage. The fee for prostitution service will increase and thus their financial well being is improved. Periodic counseling by social workers and healthcare professionals will give them a chance to leave the profession altogether. Since the prostitutes are out of the bondage and the profession is out of the closets, the SHG’s can provide them economic and job counseling and training in alternate professions, which may also convince the erstwhile victims to leave the profession. Restrictions that they keep children away from their professional activities should make it safer for the next generation. Identification of fathers and grant of inheritance rights to the property of natural father patrons makes the next generation to pursue other professions.

Strategic Plan:
     Any steps Indian government and society take will lead to the rehabilitation of the existing four million or the anticipated ten million prostitutes in the next 5 to 10 years. The government has to develop a strategic plan, which has to take into account the human resources (administrative, police, legal, judicial, human rights, health care, social welfare, career counselors and technical personnel), and financial resources required to accomplish the goals. Here is a list of key tasks:
·         Enact necessary legislation
·         Allocate budgets
·         Appoint Program Execution Officer
·         Develop Memoranda of agreements between various governments and self help groups
·         Recruit and train officials and operatives
·         Prepare information and dissemination methods to reach most of the population
·         Develop standard operating processes (SOP) so that tasks pass on smoothly between various government officials and SHG’s
·         Develop the necessary hard and soft infrastructure to apprehend, bring to justice, and incarcerate the criminal elements speedily; and rescue, counsel, protect, and rehabilitate the victims; and to ensure that the rights of all parties are protected
·         Develop standards, metrics, and measures of performance and monitor the progress of the processes and systems
·         Provide review reports with feedback periodically for the government and society to take necessary corrective measures.

 Conclusion:
     It should be repeated that this proposal suggests a licensing and regulatory system for prostitution. But the aim is not to look for a flourishing system of prostitution. The goal is to break the nexus between the traffickers and brothels and the inhuman entrapment of young girls into depraved prostitution. On the one hand, it calls for extreme punishment meted out to traffickers and pimps. Of course, it also calls for punishing the prostitutes who work with these groups of criminals willingly. It then looks to rescue the girls and women who are forced into the trade by the unscrupulous elements. It emphasizes that the rescued women are given kind, considerate, and decent opportunities for them to leave the profession permanently. These efforts will cost significant amounts that governments may hesitate and shirk their full responsibilities and support. Through a strong system of vigilance, openness, and law enforcement, stiff monetary penalties can be imposed on patrons and compensate for part of the expenses. Finally, the society has to recognize that the males of the society have been patronizing this profession for some sociological, psychological, and medical reason and it has to begin path breaking research into the causes and cures for this behavior and demand. Perhaps, India will discover a practice or medical therapy to cure men of this ancient urge.



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