SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

every person “the right against exploitation” and states further that a person shall not be
exploited in the “name of custom, tradition and practice, or in any other way” or be subjected
to trafficking, slavery or bonded or forced labour. 533 Sri Lanka’s Constitution provides that
no person shall be subject to “torture or to cruel, inhuman or degrading treatment or
punishment” 534, which could be interpreted to include exploitation of varying kinds including
trafficking. In the context of sexual exploitation, these provisions overlap with the rights to
life, to equality and the rights of women and children.
This paper attempts to distinguish sexual exploitation and trafficking laws from those related
to sex work as these have typically been conflated in national and international laws and
treaties. At times the same law may have provisions related to all these matters. In so far as
they deal with sexual exploitation and trafficking they are referred to here. Where the
provisions or laws relate to sex work they are examined in Chapter 8 below.
Trafficking laws and provisions: Among the research countries Thailand and Indonesia have
enacted new anti-trafficking laws that are broad in their scope whereas the primary focus of
anti-trafficking laws of the other countries is on the regulation and control of prostitution –
the provisions related to trafficking are highlighted below. The Thai and Indonesian laws
trafficking are based on the on the Protocol To Prevent, Suppress And Punish Trafficking In
Persons, Especially Women And Children, Supplementing The United Nations Convention
Against Transnational Organized Crime. 535 Anti-trafficking provisions are also located in
general criminal laws.
In 2008, Thailand amended its decade old anti-trafficking legislation. The Anti-Trafficking in
Persons Act B.E. 2551 (2008) marks a significant departure from the previous Thai law and
indeed the trafficking laws of the other research countries. Unlike the previous law which
was specifically focused on women and children, the 2008 anti-trafficking law is gender
neutral. It defines exploitation as, “seeking benefits from the prostitution, production or
distribution of pornographic materials, other forms of sexual exploitation, slavery, causing
another person to be a beggar, forced labour or service, coerced removal of organs for the
purpose of trade, or any other similar practices resulting in forced extortion, regardless of
such person’s consent.” 536
It further defines forced labour or service as, “compelling the other person to work or provide
service by putting such person in fear of injury to life, body, liberty, reputation or property, of
such person or another person, by means of intimidation, use of force, or any other means
causing such person to be in a state of being unable to resist.” 537
531 Section 38, Constitution of Thailand states, “Forced labour shall not be imposed except by virtue of law
specifically enacted for the purpose of averting imminent public calamity or by virtue of law which provides for
its imposition during the time when the country is in a state of war or armed conflict, or when a state of
emergency or martial law is declared.”
532 Article 28I of the Constitution of Indonesia states, “The rights to life, to remain free from torture, to freedom
of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual
before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human
rights that shall not be curtailed under any circumstance.”
533 Article 29, Interim Constitution of Nepal, 2007
534 Article 11, Constitution of Sri Lanka, 1978
535 United Nations, 2000
536 Section 4, Anti-Trafficking in Persons Act B.E. 2551 (2008) (Thailand)
537 Ibid.
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