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

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May, 1950 for the prevention of immoral traffic.” While the law does not criminalise sex work or sex workers, it prohibits various activities surrounding sex work. 812 The law confers broad powers to the police and the judiciary which are predominantly used to target sex workers rather than traffickers or trafficking networks. The provisions in this Act dealing with trafficking and minor girls are discussed in Chapter 5 on Violence (sexual exploitation). The fact that a law supposedly aimed at preventing trafficking has been largely used against sex workers has been noted by courts and the government alike. In Vishal Jeet v. Union of India 813 where the Supreme Court issued guidelines for the prevention of child prostitution 814 , the court while speaking of what it termed the evil effects of prostitution, also noted that, “this malignity cannot be eradicated cither by banishing, branding, scourging or inflicting severe punishment on these helpless and hapless victims most of whom are unwilling participants and involuntary victims of compelled circumstances,” and requires “law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers.” Attempts to challenge Immoral Traffic (Prevention) Act, 1986, its enforcement and the forcible testing of sex workers for HIV in the courts have not been successful. 815 In 2003, a case brought against the Gujarat government for extensive raids carried out in an area predominantly inhabited by sex workers and the resultant destruction of property, arrests and harassments of sex workers was dismissed by the High Court of Gujarat. 816 In a case similar to the one in Bangladesh of the eviction of sex workers from an area called Baina in Goa, the Goa Bench of the High Court of Bombay was not only unwilling to stop the evictions, it called on the government to destroy tenements that housed sex workers, noting that many of the sex workers came from outside Goa and so should be rehabilitated by their respective state governments. 817 In 2006, the Indian government proposed amendments to Immoral Traffic (Prevention) Act, 1986 which met with mixed reactions. 818 While a proposal to de-criminalise solicitation was welcomed, attendant amendments to punish clients of sex workers led to widespread protests and as of now, the amendments are on the back-burner. Unlike India and Bangladesh, where anti-trafficking laws are also the laws on sex work, Thailand has separate legislations dealing with these issues, although the two laws do have some overlapping areas of regulation. The primary law in Thailand governing sex work is the Prevention and Suppression of Prostitution Act, B.E. 2539 (1996). Section 4 defines prostitution to mean, “sexual intercourse, or any other act, or the commission of any other act in order to gratify the sexual desire of another person in a promiscuous manner in return for earning or any other benefit, irrespective of whether the person who accepts the act and the 812 Thus Section 3 punishes any person maintaining a brothel, Section 4 punishes any person living off earnings of prostitution and Section 5 punishes the procurement, inducement or detention for the sake of prostitution. 813 W.P. No. 421 of 1989 814 See Chapter 5 on Violence - sexual exploitation 815 Public at large v. State of Maharashtra, Writ petition No.112 of 1996 Bombay High Court and Andhra Pradesh High Court judgment. 816 Sahyog Mahila Mandal & another v. State of Gujarat & Ors [Special Civil Application No 15195 of 2003 with Special Civil Application No 4594 of 2003] 817 Savera v. State of Goa, Writ Petition No. 365 of 1997, High Court of Bombay (Goa Bench), Date of Decision: 21 July 2003. 818 The Immoral Traffic Prevention (Amendment) Bill, 2006 (India) 178
person who commits the act are of the same sex or not.” The Thai law on sex work is gender neutral. The law penalises solicitation, 819 association with a prostitution establishment 820 and the advertising of prostitution. 821 While solicitation is punishable only with a fine, the other two offences may involve imprisonment as well. Owners, supervisors, managers of prostitution establishments are also punishable. 822 The Thai law has strict punishments for detention or confinement, 823 provisions for the revocation of parental rights and also provides for situations where the offender in the case is below the age of eighteen. Places of entertainment are also regulated by the law in that officers are empowered to inspect such places day or night for commission of offences under this Act. The law has detailed provisions relating to sex workers below the age of eighteen and some provisions related to trafficking that are discussed in Chapter 5 on Violence (sexual exploitation). The laws of Nepal and Sri Lanka criminalise sex work. In Nepal the Human Trafficking and Transportation (Control) Act, 2007 824 defines human trafficking to include engaging in prostitution. 825 Therefore trafficking is directly equated with prostitution under this law, consequently criminalizing prostitution in all its dimensions. The punishment for engaging in prostitution is 1-3 months in prison and a fine up to Nepali Rupees 5000 for a person convicted of engaging in prostitution. 826 The provisions in this law dealing with trafficking and minor girls are discussed in Chapter 5 on Violence (sexual exploitation). This law gives extensive authority to the police. For instance it empowers a sub-inspector or higher personnel to enter premises, seize any property and gather evidence or arrest a person without warrant on the suspicion that an offence of human trafficking or transportation is being committed. 827 In order to prevent persons who are alleged to have forced a person into sex work the law provides that while prosecuting cases under the Act, except in cases where a person is being prosecuted for engaging in prostitution, the court is required to keep the accused in custody during the period of prosecution. 828 The burden of proof to demonstrate innocence is placed on the accused under this statute. 829 Court proceedings are required to be conducted in camera. 830 Sex work in Sri Lanka is governed by a complex, overlapping group of statutes: the Vagrants Ordinance of 1842, the Brothels Ordinance of 1889 and Sri Lanka’s Penal Code. 819 Section 5, Prevention and Suppression of Prostitution Act, B.E. 2539 (1996) (Thailand) 820 Section 6, ibid. 821 Section 7, ibid. 822 Section 11, ibid. 823 Sections 12 and 13, ibid. 824 The English version of this statute available to the authors is an unofficial translation obtained from the website of the Kathmandu School of Law: http://www.ksl.edu.np/cpanel/pics/trafficking_act_2064.pdf 825 Section 4, Human Trafficking & Transportation (Control) Act, 2007 (Nepal) 826 Section 15, ibid. 827 Section 7, ibid. 828 Section 8, ibid. 829 Section 9, ibid. 830 Section 27, ibid. 179
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
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according to the physical condition
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Constitutional Court in The Nationa
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protections or statutory law. There
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However it also noted that every Ri
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concerned with declaring that the h
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without guaranteeing the personal p
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to enlarge the meaning and content
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a concept has wider dimensions than
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Such conduct mentioned in clauses (
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embraced the complainant and asked
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does not sever the ties between the
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The potential recognition of same-s
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Similarly, seeking out sex educatio
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condom). Across such laws, the defi
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jurisdictions. Nepal, a country wit
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the conviction of the accused for s
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with an unmarried woman is not puni
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physical characteristics (virginity
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interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
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to consider the case of a woman see
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oth parties and deems all marital p
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female who has not attained 12 year
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Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
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The Act specifies imprisonment of 6
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property jointly or separately held
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upees or the amount of the dowry wh
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however, is that, of the 10,000 dea
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Addararachchi 439 the court conside
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harassment, the Indian Supreme Cour
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doer’s sexual desire by using doe
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In holding that there was no justif
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coerce or induce female inmates to
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material or detain any person for t
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consensual sexual activity with you
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The fined amount is to be given to
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the State and its citizens is one o
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every person “the right against e
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The law also includes the right of
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eing committed. 570 While prosecuti
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135 and 136: Indonesia’s Constitution recognis
Page 137 and 138: In Thailand too, abortion is illega
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145 and 146: Government could not be held liable
Page 147 and 148: among those in the reproductive age
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
Page 163 and 164: “...any interpretation of 'obscen
Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
Page 171 and 172: The use of raids, and exemptions fr
Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176: and non-rehabilitative juvenile jus
Page 177: “In view of the aforesaid proposi
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188: 19. Azimuddin v State of Uttar Prad
Page 189 and 190: 1. Acid Control Act, 2002 2. Acid-O
Page 191: 13. Intellectual Property Act, 2003
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