SEX WORK AND THE LAW - HIV/AIDS Data Hub

4.6.1 Laws
The Trafficking and Transportation (Control) Act 2007 provides that it is an offence to
engage the services of a sex worker. 229 Penalties that apply to clients of sex workers include
between one month and three months imprisonment and fines.
Although the act of sex work itself is not specifically criminalized, sex workers may be
prosecuted for other offences. In practice, sex workers are most often arrested for public
order offences under the Public Offences and Penalties Act, 1970.
The courts have recognized the constitutional rights of sex workers. In 2002, the Supreme
Court of Nepal ruled that provisions of the criminal law that purported to apply a lighter
penalty to rapists in cases where the survivor is a sex worker were unconstitutional and
invalid. 230 The Court stated that: “prostitution is a profession or occupation irrespective
of whether or not it is legal”. The Court held that sex workers should not be discriminated
against in the criminal law with respect to rape, given the constitutional rights to equality
and to choose one’s own profession. 231
In consultations to inform this report conducted in 2011, the sex worker community
and the Forum for Women, Law and Development (FWLD) identified the following legal
developments of relevance to sex workers, including male and transgender sex workers:
The rape law in Chapter 14 of Country Code 1963 includes only penile and vaginal
penetration, disregards oral and anal penetration and excludes insertion of other
bodily parts and objects. The emphasis on ‘Karani’ (penile and vaginal penetration)
compounds the discrimination and stigmatization of the rape of men and boys and
the failure to recognize sexual minorities (LGBTIs); 232
The draft Criminal Code stigmatizes LGBTI populations by containing provisions that
criminalize ‘unnatural’ sexual acts, including same sex relationships, and prescribing
jail terms up to 16 years and fines. 233
The Trafficking and Transportation (Control) Act 2007 provides offences for trafficking
and rights of legal representation, privacy and compensation for trafficked persons.
The Act also establishes government-funded rehabilitation centres. The Bonded Labour
(Prohibition) Act, 2002 prohibits bonded labour, which presumably includes bonded sex
work.
4.6.2 Law enforcement practices
Sex workers are arrested, detained and harassed by the police under public order laws
dealing with disturbing the peace or obscenity under the Public Offences and Penalties Act,
229 Trafficking and Transportation (Control) Act 2007, s.15(d). FWLD lawyers confirmed that the penalty under
this Act applies to clients of sex workers rather than sex workers themselves. A UNODC report interprets the
definition to refer to “engaging a person in prostitution with or without consideration”: Thomas S. (2011) Legal
and Policy Review: Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka, New Delhi: UNODC
ROSA, p.48.
230 Muluki Ain (Country Code), Chapter 14 prescribes the punishment for rape.
231 Supreme Court of Nepal in Sapana P. Malla for FWLD v. HMG/Nepal, Publication of Judgments relating
to Human Rights: Special Issue (Kathmandu: Supreme Court, 2002) at 144-151; Shreshta P., (2006) Prostitution
and Public Health: Various Forms of Regulating Methods - An Analysis of Current Legal Responses to Prostitution in
Nepal. Available at: http://www.fwld.org/administrator/uploads/free_articles/6.pdf
232 Lesbian, gay, bisexual, transgender, and intersex people.
233 Sunil Babu Pant and others v. Nepal Government and others [2008] 2 NJA L.J. 261-286.
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