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

as parent or guardian has given his consent to a girl living with any man as his wife. 843
Sections 13 to 15 of the Ordinance provide for detention of a girl to safe custody. 844
The Sri Lankan Penal Code also addresses the issue of sex work and does so primarily
through three clauses. Section 357 prohibits the kidnap or abduction of a woman so that she
may be forced or seduced to ‘illicit intercourse’. 845 Section 358 prohibits the kidnap or
abduction of any person in order to subject that person to the ‘unnatural lust’ of another
person. 846 Section 360C addresses trafficking and insofar as it relates to sex work it punishes
anyone who buys, sells or barters or instigates another to do so or does anything to promote,
facilitate or induce the buying, selling or bartering of any person for money or other
consideration, or recruits, transports, harbours or receives any person (including a child i.e.
below eighteen years of age) or does any other act by the use of threat, force, fraud, deception
or inducement or by exploiting the vulnerability of another for the purpose of, inter alia,
prostitution. “Exploiting the vulnerability of another” means compelling a person to submit to
any act, taking advantage of such person's economic, cultural or other circumstances. 847
The Brothels Ordinance is aimed at suppressing brothels and therefore confines its scope as
such. It punishes any person who keeps, manages, assists in the management of a brothel or
as a tenant, lessee, occupier or owner of a premises, knowingly permits such premises to be
used as a brothel, or for the purpose of habitual prostitution or as a lessor, landlord or agent of
such lessor or landlord, lets the premises to be used as a brothel, or wilfully is party to the
continued use of such premises as a brothel. 848 The ordinance provides that any person who
appears, acts, or behaves as master or mistress, or as the person having the care, government,
or management of any brothel, shall be deemed to be its keeper or manager. 849
Few judgments of the higher courts in Sri Lanka have dealt with the issue of sex work. All of
them have revolved around application of the Brothels Ordinance, which criminalises
‘keeping a brothel’.
Some judgments indicate that courts are not easily swayed while declaring a place a
brothel. 850 For instance in Pieris v. Magrida Fernando et al 851 the Privy Council examined the
843 Ibid.
844 Sections 13, 14, 15, ibid.
845 Section 357, Sri Lankan Penal Code, 1883
846 Section 358, ibid.
847 Section 360C, ibid.
848 Section 2, The Brothels Ordinance, 1889 (Sri Lanka)
849 Section 3, ibid.
850 On the other hand in Mrs. Dorothy Silva v Inspector of Police, City Vice Squad, Pettah (1977; citation not
available, however, authors have access to full text of judgment) the court expanded the meaning of the term
‘brothel’ in order to effectively curb “the mischief sought to be suppressed by the Brothels Ordinance.” It held
that to deem a place a brothel there was no need for the acts of sexual intercourse to take place on the very
premises where women were offered in prostitution as long as arrangements were made to make women
available for men, to be taken elsewhere for purposes of prostitution. The premises where such arrangements
were made had all the attributes of a brothel for the purposes of the ordinance. The court went on to explain that
the “live” element need not be present to make a place a brothel – even where photographs of prostitutes were
displayed in a premises where men selected from the photographs in order to have sexual intercourse elsewhere,
such a premises would also be covered by the ordinance as a brothel. It said: “If a narrow construction is given
to the word ‘brothel’ …. it would virtually give a licence to running houses of ill-fame by using the subtler
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