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

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As is evident in the research countries, despite certain positive developments in relation to sex work, be they regarding liberal judicial attitudes toward sentencing or injunctions against law enforcement from abusing their powers to raid and arrest, the overarching legal framework is one of criminalisation, often through a multiplicity of laws, whether they criminalise sex work per se or all that surrounds its practice. The research countries span a variety of legal approaches to sex work with Nepal and Sri Lanka criminalising sex work and India, Bangladesh and Thailand not criminalising sex work per se but the actions surrounding sex work including public solicitation. As noted above, the authors were unable to obtain English translations of relevant Indonesian laws which reportedly has a complex legal regime operating in different provinces which determines whether sex work, the running of brothels and other actions are criminalized or not. Even in the case of India and Bangladesh, although there is a narrow de-criminalisation of sex work per se, the criminalization of nearly every other aspect surrounding sex work effectively creates a milieu of criminalisation in the absence of legalization or regulation. The laws in the research countries also demonstrate an approach, which conflates sex work and trafficking. The specific trafficking laws of Indonesia and Thailand in this regard, discussed in an earlier chapter may be noted as a positive development. Amongst the progressive developments from courts in the region, the decision of the Bangladesh High Court in recognising the rights of sex workers including their right to livelihood as well as its strictures on law enforcement excesses stands out for its contribution to the expansion of the rights of equality and life and liberty being applicable by all persons regardless of notions of morality. That said, it stands out also for being the only judgment of this kind from the region with courts in the other research countries limiting their engagement with the rights of sex workers to sympathetic statements or pleas for their rescue. 8.2 Access to health services (regional flexibility) Specific health services for sex workers in the research countries have mostly arisen in the context of government run HIV programmes. In Bangladesh, the National Policy on HIV/AIDS and STD Related Issues, 1995, 863 while outlining the need for counseling, risk reduction and testing of “people with risk behaviours” such as sex workers, also highlights the fear and stigma that the association with HIV has had on sex workers. The policy notes that, “An emphatic approach including decriminalisation of prostitution is more likely to succeed with regard to STD reduction than attempts to abolish prostitution and compel sex workers to undergo screening by punitive and harsh legislation that in practice is unenforceable and has proved to be counterproductive.” The policy also recognizes the need to ensure that HIV prevention programmes do not further stigmatise sex workers by blaming them for HIV transmission, promoting condoms only to certain sections of women, mandatory HIV testing of sex workers, etc. It notes the necessity of providing information and education on sexually transmitted diseases, prevention tools and treatment version given by them has to be assessed with great care and caution”, and “that the witnesses are not of sound moral character.” 863 Directorate General Of Health Services, Ministry Of Health And Family Welfare, Government Of The People’s Republic Of Bangladesh 184
for sex workers while emphasizing their involvement in such programmes for them to be successful. India’s National AIDS Prevention and Control Policy, 2000 states that the, “Government recognises that without the protection of human rights of people, who are vulnerable and afflicted with HIV/AIDS, the response to HIV/AIDS epidemic will remain incomplete.” Now in its third phase of implementation, the National AIDS Control Programme (2006-2011) while outlining specific programmes for prevention, care and treatment including those covering sex workers notes that, “criminal statutes such as…Immoral Trafficking Prevention Act…continue to hamper implementation of targeted interventions with…sex workers…” and that the programme. “will strive to ensure that… vulnerable and high risk populations have access to rights and requisite services are made available to them in a non-discriminatory manner based on ethical codes and guidelines.” The Programme provides for the comprehensive prevention, treatment and care services to be provided to sex workers. The policies and programmes of several of the research countries recognize the importance of for government HIV programmes to provide health services for sex workers. This has been primarily over concerns of preventing the spread of HIV but over the course of time, the language and the policies of some of the governments have reflected problems with criminalisation regimes and even highlighted the rights of sex workers. Although these are merely policies that cannot be enforced in courts of law, they represent an interesting dichotomy in the approach of the government to sex workers and therefore, have been discussed here briefly. It would be fair to assume that HIV policies are a step ahead of the law and HIV programming in relation to vulnerable populations such as sex workers is often at odds with criminal law in the concerned jurisdiction, thereby reflecting a confused approach by the government, which has a health ministry promoting interventions in contravention of criminal laws and a home/ interior ministry which is enforcing the very same law against such interventions. 185
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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
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
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Page 137 and 138: In Thailand too, abortion is illega
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Page 143 and 144: childbearing age to establish a hea
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Page 153 and 154: education as well as non-discrimina
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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
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Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183: with one) on the charge that it was
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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