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Krishnan, Ashwina --- "How Does India's Anti-Trafficking Framework Impact on the Autonomy of Voluntary Sex Workers?" [2024] UNSWLawJlStuS 19; (2024) UNSWLJ Student Series No 24-19


HOW DOES INDIA’S ANTI-TRAFFICKING FRAMEWORK IMPACT ON THE AUTONOMY OF VOLUNTARY SEX WORKERS?

ASHWINA KRISHNAN

I INTRODUCTION

The anti-trafficking framework in India is largely informed by a ‘law and order and criminal justice approach’ instead of a ‘human rights approach’.[1] This focus on punitive measures to address trafficking has been found to be ‘part of a growing culture of militarized humanitarianism by the United States’[2] in countries in the Global South, including India. This paper intends to explore the ways in which the anti-trafficking framework in India embodies anti-sex work agendas to analyse its impact on the autonomy of voluntary sex workers through a postcolonial feminist lens. It will begin by outlining the theoretical framework utilised, the divergent perspectives on sex work from prominent feminist schools of thought and the phenomenon of “sex work exceptionalism”. It will then provide an overview of the institution of sex work and the relevant anti-trafficking legislation in India. This paper will then analyse the implementation of anti-trafficking measures in India and explore the harms faced by sex workers as a result of this implementation. The paper concludes that the anti-trafficking framework and the “neoabolitionist” principles that underpin it, infantilises sex workers and infringes on their autonomy. This paper will utilise the term “sex worker” as it is the preferred term used by women in the industry, except when referring to the anti-trafficking legislation in India, wherein the defined term used for sex work is “prostitution”.

II THEORETICAL FRAMEWORK

Postcolonial discourse ‘critically assess the ways in which legacies of colonialism, as well as forms of neocolonialism and imperialism, inform and shape our postcolonial world’.[3] Postcolonial feminists correspondingly view the subjugation of women in the context of the ‘sexualisation and racialisation’ that shapes the ‘discursive production of knowledge about non-Western women’.[4] Both Gayatri Chakravorty Spivak and Chandra Talpade Mohanty have criticised mainstream (Western) feminism for their homogenizing assumptions of female oppression in the Global South.[5] Mohanty particularly takes issue with the perpetuation of the ‘inferior status of non-Western women’ through Western feminism’s conceptualisation of “third world” women as ‘ignorant, poor, uneducated, tradition-bound, religious, domesticated, family-oriented, [and] victimized’. [6] Spivak argues that the as a result of these perspectives, “third world” women are silenced and their voices are ‘ignored by those in positions of relative power’.[7] This paper adopts a postcolonial feminist lens on the issues explored.

III FEMINIST PERSPECTIVES ON SEX WORK

Historically, sex work has been conceptualised in divergent ways in feminist discourse. In the eighteenth and nineteenth centuries, sex work was regarded as a ‘necessary evil that protected young women from rape ... or as an unfortunate outcome of poverty and the economic constraints facing women’.[8] Some feminists also draw a comparison between sex work and marriage, regarding both as ‘involving sexual economic exchange’.[9] In fact, in 1790, Mary Wollstonecraft regarded sex work as not worse and more honest than “legal prostitution” – a term she used to describe marriage.[10] For most feminists, sex work has ‘broad implications for the negotiation of power between men and women’.[11] It is these differing perspectives on the negotiation of power that has resulted in conflicting views on the acceptability of sex work.

Radical feminism regards sex work as an institution that is both a perpetuation and a consequence of the inequality between sexes. According to Kate Millet, sex work ‘represents an illustration of power relations’ wherein ‘some persons (men) control others (women)’.[12] Some radical feminists go further by drawing a nexus between sex work and rape as both incorporate ‘elements of objectification and coercion.’ Accordingly, rape and sex work reinforce ‘male dominance and female inferiority’ by encouraging the view that ‘women are mere sexual objects’.[13] From the perspective of radical feminism, ‘men are socialized to have sexual desires and to feel entitled to have those desires met, whereas women are socialized to meet those desires and to internalize accepted definitions of femininity and sexual objectification’.[14] As such, per radical feminists, sex work ‘institutionalizes the concept of male right of access to the female body and of sex as an obligatory female service’.[15] Significant to this discourse is Catherine McKinnon’s theory of dominance which espouses that gender oppression arises from ‘stark inequalities of power realised and expressed through men’s sexual coercion of women’.[16] The notion of consent is thus central to a radical feminist analysis of sex work, with radical feminists rejecting the possibility that women may enter into sex work of their own free will.[17] Susan Brownmiller argues that ‘woman is indeed a victim of the “male power principle”’ and calls ‘the notion of consent’ into question within this context.[18] She consequently regards sex workers making a free choice to ‘sell her body’ a “myth”[19] as consent within this context is regarded as ‘coercion by [the] patriarchy’.[20] Radical feminists thus advocate for the ‘elimination of [sex work]’ as a means to alleviate the oppression of women.[21] Drawing from radical feminist thought, ‘neoabolitionism’[22] is the dominant paradigm in sex work and trafficking discourse.[23] A fundamental facet of neoabolitionism is that it does not distinguish between sex trafficking and voluntary sex work regarding both as phenomena that ‘are exploitative, constitute violence, and harm women’.[24] Liberal feminists on the other hand are not united in their views on sex work with some perceiving sex work as ‘degrading to women’ while others claiming to ‘see nothing wrong with’ sex work.[25] In accordance with classic liberal philosophy, that is, that the ‘state should not interfere in individuals’ lives, especially in regulating private morality,’ sex work should be viewed as ‘an ordinary business transaction’ and that ‘in the absence of coercion,’ sex work should be considered a legitimate form of ‘employment for women’.[26] The approach to sex work that derives from liberal feminist thought thus focuses on ‘the legitimacy of consent’ and the ‘rights’ of sex workers, with proponents of this approach calling for human rights to be extended to sex workers.[27]

Both radical and liberal feminism places focus on gender inequality as the defining factor of women’s oppression. Many theorists have argued that focusing on a ‘single axis of differentiation or ... inequality’[28] – that is gender – is reductive and does not consider the multifaceted identities of women, particularly women of colour.[29] Radical feminism, and dominance theory in particular, is regarded essentialist in their depiction of women as ‘passive victims’[30] by virtue of their womanhood. This negates other factors relevant to the ‘narrative of women’s exploitation’ such as ‘socio-economic factors, caste or religion, as well as the historical legacies of colonialism, and the enslavement of non-white populations (including both men and women)’.[31] In the context of India, the subordination of women is intertwined with their experience of colonialism. As such, attributing the subjugation of Indian women exclusively to gender inequality erases the ‘broader economic and political subordination and expropriation of another nation's labour, resources, land, raw materials and market, and the exclusion of the native-both men and women-from sovereignty and legal entitlements’[32] which have resulted in the structural inequalities that shape women’s experiences with injustice in postcolonial contexts. Dominance theory’s victim-centric view further relegates women to a position of having no agency and does not offer a means for ‘the articulation of [women’s] sexuality or sexual desire in terms that are more affirming’.[33] Many sex workers regard this notion as anti-sex[34] and reject this rhetoric of victimisation wherein sex workers are regarded as ‘lacking any capacity to take their own decisions’ [allowing feminists to] appropriate all decision making on their behalf’.[35] Thus, liberal and radical feminism, at best, are reductive and, at worst, implicitly encourage the notion that women who are “other-ed,” such as women of colour or sex workers, are unable to make agential choices and are in need of “saving”.

Additionally, scholars argue that dominant policy discourse frames the problem of trafficking as one that is created by ‘“the Barbarous Other” in the Global South’ – a problem that needs to be solved by the ‘virtuous Self’ of the Global North.[36] This is similarly reductive in that it negates the structural inequalities that contribute to the vulnerabilities of particular groups to trafficking, such as historical ‘practices of colonialism [that] have contributed to the extremely unequal distribution of global resources and capital’.[37] It is posited that anti-trafficking measures are developed through this reductive lens resulting in measures that are based on perceived vulnerabilities of women from the Global South in particular. While this ‘paternalistic rescue narrative’ may be well-meaning in some cases, it should be noted that, historically, the narrative of ‘white men ... saving brown women from brown men’ is a common justification for imperialist rule over the Global South.[38] Postcolonial feminist theory is consequently fundamental to dismantle the ‘legacies of colonialism [that] have continued to influence and shape the dominant political ideologies’[39] that in turn influence how we legislate on both sex work and trafficking.

IV SEX WORK EXCEPTIONALISM

Anti-trafficking discourse is dominated by the ‘myth of the innocent girl duped into prostitution against her will’.[40] This myth is propagated by media coverage of trafficking cases that portray victims of sex trafficking as ‘ignorant, weak, incompetent, and in need of heroic rescue’.[41] Dominant narratives of trafficking in the media are oversimplified and do not account for the nuanced lived experiences of trafficking victims or the structural realities that have made some more susceptible to trafficking than others.[42] These narratives often rely on portrayals of ‘transnational ‘others’ (specifically “third world” women, in this context) as ‘thoroughly disempowered, brutalised and victimized’ or as ‘infantilised or passive’.[43] These portrayals of “third world” women are problematic in that they ‘reinforce colonial-era constructs’ of women in the Global South.[44] A study has also found that media coverage of trafficking ‘disproportionately [overrepresent]’ cases of sex trafficking, as compared to trafficking in other sectors.[45] Comparably, despite the prevalence of trafficking in a range of labour sectors, neoabolitionists focus almost exclusively on ‘trafficking in the sex sector’.[46] Neoabolitionists justify this focus on the basis of their view that sex work is an exceptionally ‘harmful activity’ and ‘egregious violation of human dignity.’ This paired with the conflation of sex work and sex trafficking by neoabolitionists is termed “sex work exceptionalism”.[47] Sex work exceptionalism is manifest in India’s anti-trafficking efforts which focuses almost exclusively on sex trafficking.[48] This paper argues that sex work exceptionalism is premised on the conceptualization of women, particularly “third world” women, as asexual and unagential.

V OVERVIEW OF SEX WORK IN INDIA

India is a pluralistic country consisting of multiple cultures, languages and heterogeneous identities. This diversity also presents in the institution of sex work in India, which has multiple traditions involving sex work ‘linked with gender, religion, caste, class and even the arts’.[49] For instance, in the North and Central India, the tradition of dancing nautch girls was prevalent under Mughal rule. In the South, the tradition of dedicating girls, largely from the dalit community, to the Goddess Yellamma was common. These girls were known as devadasis and were ‘equipped with considerable skills in poetry, music and dance while being provided with livelihood, security, community identity, and support’.[50] Both nautch girls and devadasis ‘provided sex outside the confines of marriage’.[51] The ‘relatively open and non-moralistic attitudes to sex and sexuality’ prevalent at the time[52] allowed for sex work to be accepted as ‘part and parcel of the Indian cultural milieu’.[53] During British colonial rule, these traditional sex work practices were regarded uncivilised and incompatible with the imperial state’s ‘puritanical Victorian morality’.[54] Seeking to regulate sex work in accordance with ‘Victorian notions of morality’[55] while also accommodating ‘the sexual needs of its soldiers ... the British East India Company set up red light areas for their troops and officials’.[56] In more recent times, neoabolitionist perspectives have ‘gained momentum in India’ as a result of the ‘the rise of the global movement against the white sex trade’. This popularised the sentiment that sex work was inherently ‘evil’ and that women in sex work needed ‘protection’.[57] While sex work is not explicitly prohibited under Indian law,[58] the laws against trafficking have increased criminalization over facets of sex work. This paired with a corrupt law enforcement machinery has led to ‘increasing brutality in [sex work]’.[59]

VI OVERVIEW OF ANTI-TRAFFICKING LEGISLATION (‘ITPA’)

The anti-trafficking law in India was enacted following its ratification of the UN Suppression of Traffic Convention (‘the Convention’). In its first iteration, the Act was called the Suppression of Immoral Traffic in Women and Girls Act 1956 (‘SITA’).[60] It was later amended in 1986, leading to its current incarnation as the Immoral Traffic (Prevention) Act (‘ITPA’).[61] Both SITA and ITPA is informed by the Convention which is ‘overwhelmingly focused on abolishing’ sex work.[62] The anti-trafficking law in India on the other hand appears at odds with this focus on abolition as it seeks to ‘regulate [sex work] rather than prohibit it’.[63] ITPA does not explicitly criminalises sex work nor does it ‘recognise sex work as a legitimate form of labour’.[64] This ambiguity has in turn resulted in the state and law enforcement routinely categorizing sex workers as ‘either ‘criminals’ or ‘victims’. [65] Sex workers are thus ‘made to believe they are working in an ‘illegal’ business’ which in turn allows law enforcement agencies and ‘criminal elements to use the ‘site of ... sex work to practice their ‘criminal activities ... [resulting] in an uneasy alliance between the State, criminals and the women’.[66] While ITPA does not penalize women for engaging in sex work, particular conditions surrounding sex work are defined as crimes. This includes operating a brothel (s 3), living off the earnings of a sex worker (s4), procuring or detaining a person for the sake of sex work with or without their consent (ss 5 and 6), carrying on sex work in the vicinity of public places (s 7) and soliciting for sex work purposes (s8).[67] These provisions implicitly regard sex workers as ‘victims’ and is intended to disrupt ‘the recruitment of women and girls for the purpose of’ sex work as well as ‘punish those who profit from or exploit sex workers’.[68]

ITPA presents a wide ambit for law enforcement intervention in sex work which in turn has broad implications for the rights and liberties of sex workers. For instance, s 7 specifically prohibits conducting sex work ‘within 200 metres of any place of public religious worship, educational institution, hostel, hospital, nursing home’ but then expands this prohibition to any ‘such other public place of any kind as may be notified ... by the Commissioner of Police or Magistrate’.[69] As such, in theory, the prohibition against sex work in public places could extend to any area the State deems fit. The definition of ‘public place’ is also broad and includes ‘any place intended for use by or accessible to, the public and includes any public conveyances’[70] which could capture the home of a sex worker as ‘it is accessible to the public’.[71] This blurring of lines between public and private spheres also manifests in ITPA’s definition of ‘brothel’ which includes ‘any house, room, conveyance, or place or any portion of any house, room, conveyance or place, which is used for the purpose of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes’.[72] This definition thus allows for the residence of two or more sex workers to be considered a brothel, leaving them potentially liable under s 3.[73]

The prohibition against soliciting is similarly broad capturing conduct such as loitering, causing obstruction or annoyance to persons, making gestures and willful exposure of one’s person, including ‘by sitting by a window or on the balcony of a building or house or in any other way’.[74] It is also notable that men convicted under this section are punishable by imprisonment of seven days to three months while women may be subject to imprisonment of up to six months or a year, dependent on whether it is a first or subsequent offence. A fine of Rs 500 can also be imposed on women while the act does not prescribe any fines for men.[75] Section 8 has long faced criticism from activists and NGOs alike who advocate for its removal[76] due to the frequent misuse of this provision to target and penalize sex workers.[77] In fact, majority of arrests under this section are of sex workers soliciting customers, while ‘traffickers and pimps are seldom identified and prosecuted’[78] and even where they are, they are often faced with ‘minimum punishment’. [79]

ITPA also confers broad powers onto magistrates and law enforcement to conduct raid, rescue and rehabilitation activities. This includes s15 which allows police officers to conduct searches on premises without a warrant if they suspect that an offence under ITPA is committed there and if accompanied by ‘two or more respectable inhabitants ... of the locality’.[80] Section 16 further allows police to “rescue” any person carrying on or being made to carry on “prostitution” (as defined in ITPA) or any person living in a brothel[81] and to produce them before a magistrate who can then order the detainment of “rescued” persons in protective or corrective homes for up to three years if the person ‘is need of care and protection’.[82] Section 20 further enables a magistrate to order the removal of a “prostitute” from a place and prohibit their re-entry to the place.[83] Of further note is ITPA’s definition of the term prostitution. Section 2(f) specifies that prostitution means ‘the sexual exploitation or abuse of persons for commercial purpose’ and further states that the term prostitute ‘shall be construed accordingly’.[84] This implies that ITPA only captures sex workers who are forced into sex work, however, as s 16 denotes, any person found in a brothel, whether engaging in sex work or not, and willingly or not, can be “rescued.”

VII IMPLEMENTATION OF ITPA

While ITPA may have been enacted with the intent of safeguarding the rights of trafficking victims, the on-ground reality of implementation is ‘a very different matter’.[85] A study conducted by the National Human Rights Commission of India found that ‘women engaged in commercial sex work, whether willingly or otherwise, are ... disproportionately punished and that traffickers are able to act with relative impunity’.[86] ITPA’s provisions are known to be abused by ‘pimps, police officers, traffickers and others who stand to gain from the exploitation of...sex workers’[87] resulting in a highly discriminatory implementation process.[88] ITPA fails to address issues such as arbitrary raids and arrest, seizure of sex workers’ valuables and money, or any other rights violations sex workers may be susceptible to during the implementation of ITPA which in turn ‘results in greater abuse of powers by the police machinery’.[89] It is also clear that without ‘an overhaul of the prevalent [corruption-riddled] police procedures involved in ITPA cases,’ any amendments to ITPA will not improve conditions for sex workers.[90] Studies indicate that bribing police is a common practice in the establishment and maintenance of brothels.[91] In fact, the practice of collecting bribes in ITPA cases is so lucrative that ‘police are known to give a large sum of money to get transferred to police [stations] near a Red Light Area’.[92] Police picking up girls in Red Light Areas without a legal basis is also a common occurrence. In Pune, constables are known to visit the Red Light Area ‘three times a day’ and generally ‘pick up 10-12 girls everyday’. While ITPA allows for the arrest of persons who solicit, most women picked up under the guise of solicitation are usually ‘doing minor purchases or simply hanging about at a shop or a tea-stall’ when picked up by the police.[93] Most times police pick up sex workers to obtain bribes from either brothel-keepers or sex workers themselves in exchange for their release. These “catching” operations are known to be conducted in an ‘extremely abusive’ manner.[94]

The clearest manifestation of the neoabolitionist influence on India’s anti-trafficking measures is in its raid and rescue operations on brothels. Raid and rescue operations are a ‘key aspect of government interventions to address trafficking’[95] and are ‘typically conducted by police officers at the behest of local and international organisations’ or ‘NGO workers’.[96] The process usually involves entering ‘identified brothels and the removal of underage girls and women, by force’.[97] Following a raid, “rescued” women and girls are usually subject to administrative detention at protective or corrective homes,[98] where it is intended they undergo rehabilitation.[99] The use of raids as an anti-trafficking instrument is controversial.[100] While some believe raids ‘are justified in order to ‘rescue’’ women and children forced into sex work.[101] Others challenge the effectiveness of raids,[102] regarding them as both ‘counterproductive’ and ‘problematic’ on account of the numerous reports of abuse committed by police officials conducting raids.[103] Many question the true intentions behind raid and rescue operations with some suggesting they are ‘at times politically motivated by communal or anti-migrant groups’[104] and others regarding these operations as an exercise in ‘[garnering] statistics for anti-trafficking interventions’ rather than a noble, if misguided, attempt at protecting the interests of trafficking victims.[105] Raid and rescue operations are also viewed as a form of ‘neo-colonial humanitarian intervention’ or ‘militarised humanitarianism’.[106] This is particularly evident in the continued lobbying for neoabolitionist interventions by international or internationally funded organisations in India’s anti-trafficking efforts.[107] The Global Alliance Against Traffic in Women recounts a particularly ‘violent raid’ on a brothel in 2005, wherein women were physically and verbally abused, that was induced by people associated with International Justice Mission and Restore International – both organisations with ties to the United States (‘US’).[108] It should also be noted that while ITPA does not in theory allow for the arbitrary detention of voluntary adult sex workers, raid and rescue operations in practice generally do not distinguish between victims of trafficking and voluntary sex workers.[109] This paper argues that the forced “rescue” and arbitrary detention of voluntary adult sex workers is a consequence of neoabolitionist principles that infantilise third world women and conceptualise them as in need of saving.[110]

The neoabolitionist agenda is also imposed on sex worker collectives and rights groups in India that are ‘dependent on funding from international sources’[111] resulting in some organisations engaging in ‘abolitionist work’ themselves.[112] The US is a prominent donor for anti-trafficking and anti-HIV programmes in India and has endorsed its neoabolitionist stance on sex work in its Trafficking Victims Protection Act 2000.[113] This Act states that ‘no funds made available to carry out this Act ... may be used to promote or advocate the legalization or practice of prostitution or sex trafficking’, which in turn has resulted in the practice of limiting funding to organisations that endorse the “Anti-Prostitution Loyalty Oath” (‘APLO’) which requires organisations to adopt an anti-sex work policy.[114] This in turn has allowed the US to promote its ‘[neo]abolitionist agenda’ by offering support to organisations and projects seeking to ‘criminalise aspects of the sex industry’ and ‘raid, rescue, and rehabilitate’ sex workers without distinguishing if they are victims of trafficking or not.[115] The reliance on foreign funding further redefines the rights of sex workers ‘through the prism of the needs or dictates of funding agencies’ thus limiting the focus of sex worker rights organisations on issues that international funding organisations consider to be important, such as the prevention of HIV,[116] rather than placing focus on the needs of sex workers. Sex worker collective organisations such as DMSC, VAMP and Sangram are thus at the mercy of the US foreign assistance policies. It is also notable that, following the establishment of APLO, many of these organisations have faced scrutiny for providing non-HIV prevention services to sex workers. Sangram has been ‘publicly accused of trafficking women and girls’[117] by US-funded groups after refusing to sign APLO.[118] VAMP has also faced hurdles in its efforts to politically mobilise ‘sex workers in Sangli’ due to internationally funded raid and rescue organisations.[119]

VIII HARMS TO SEX WORKERS

A wide range of harms are reported to be experienced by sex workers as a result of India’s neoabolitionist anti-trafficking measures. Many have documented instances where police officers, empowered by provisions of ITPA, engaged in extortion activities.[120] For instance, in 2003, women from Chakla Bazaar area of Surat were detained, purportedly under ss 7(1)(b) and 8 of ITPA.[121] It should be noted that ‘the women had been working in the area for almost 400 years’, however, the development of the city which led to the establishment of schools, temples and hospitals in the area, resulted in these women being found in contravention of the prohibitions against soliciting and conducting sex work in the vicinity of public places. The women were reportedly extorted for money by police officers conducting raids and were further rendered homeless after being evicted from their homes under s 20 of ITPA.[122] As noted prior, there are also reported instances of police extorting brothelkeepers for the maintenance of brothels[123] and for the release of sex workers that have been detained.[124] The money paid to by brothelkeepers are usually transferred to ‘the sex worker as a loan to be paid back eventually’[125] thus reinforcing the debt bondage of sex workers.[126][127]

Raid and rescue operations in particular are reported to involve a range of ‘serious human rights violations’ by police.[128] There are many reports of police officers behaving in abusive and degrading ways towards women during these operations causing trauma to both sex workers and victims of trafficking.[129] Police are known to employ violence during raids and in some instances, women captured during raid and rescue operations are ‘coerced into having sex by corrupt police officials in exchange for their release’.[130] At times decoy customers are used to identify women and girls[131] or in “buy-bust” operations wherein a decoy attempts to solicit sexual services, usually from underage girls and then alerts police when the purchase is accepted.[132] However, some reports describe decoy customers engaging in unethical and sometimes illegal practices, such as engaging in sexual conduct with women or underage girls they are purportedly “rescuing”.[133] In spite of this, neo-abolitionists continue to push for the use of police in raid and rescues[134] and employ the use of “buy-bust” tactics.[135] Studies indicate that rather than disrupting sex work, raids on brothels ‘drives [sex work] underground’ cutting them off from peer and NGO support which in turn exposes sex workers to higher risks of violence and health risks.[136]

Sex workers and trafficking victims that are “rescued” (referred to as “rescued” women in this section to encapsulate the experiences of both trafficking victims and voluntary sex workers) are subject to further rights violations through the “rehabilitation” process. Women detained under ITPA are often ‘subjected to invasive medical examinations and inquiries into [their] personal background’ violating their rights to privacy and bodily integrity.[137] “Rescued” women that are detained at protective or corrective homes are also ‘regarded as being in protective custody’ and are therefore unable to ‘leave the homes of their own free will’. Some are subject to ‘indefinite incarceration’[138] and report being ‘kept in jail-like conditions’ at protective/corrective homes.[139] A study conducted on the experiences of trafficking victims at protective/corrective homes documents that victims’ movement and contact with their families were restricted.[140] Several victims reportedly viewed their experience at the homes as a ‘second incarceration’ with some perceiving it as ‘worse than the brothels’.[141] Protective/corrective homes are also often ‘barely habitable’ with reportedly ‘appalling living conditions’.[142] Although some of these homes provide limited avenues for vocational skill-building, they are often ‘ill-equipped' to provide [the] capability expansion’[143] needed to empower “rescued” women with the ability to pursue alternative options for ‘income generation’.[144] Some institutions even promote marriage as a ‘mechanism for the reintegration of [rescued] women into society’[145] and will marry “rescued” women to ‘men that visit seeking wives’.[146] These homes are also often not equipped to meet the particular health needs of sex workers and victims of trafficking, such as trauma-informed psychological care[147] or HIV treatment.[148] These factors result in many “rescued” women returning to sex work upon their release or escape from protective/corrective homes. [149]

IX (A)SEXUAL & (UN)AGENTIAL

As prefaced, neoabolitionist principles are driven by radical feminist notions of women lacking agency in sexual relations.[150] That a woman can consent to engaging in sex work is refuted by radical feminists, and by extension neoabolitionists, who consider money to be a medium for compulsion in sex work. Their view of sex work negates the varied ‘degrees of agency that women may experience’[151] and reflects an unnuanced view of ‘female sexuality’[152] as inextricable from victimisation. Female sexuality is thus associated with issues such as ‘rape, adultery or violence’ rather than viewed as the ‘flowering of a woman’s identity’.[153] Through this narrow view of female sexuality, radical feminists, perhaps inadvertently, reinforce patriarchal notions that associate women’s body and sexuality with ‘the idea of shame’.[154] This in turn propogates the idea that ‘respect for women is equivalent to treating them as asexual’.[155]

Abolitionist stances on sex work is further underpinned by views that sex work is a site of violence that perpetuates the subordination of women. Notably, Catherine MacKinnon, a prominent radical feminist and proponent of sex work abolition, premises her position on her view that male dominance is achieved through sexuality.[156] One could argue then that marriage similarly enables male domination and female subordination, a view that is largely endorsed by radical feminist factions.[157] While some feminists do call for the abolition of marriage,[158] it is notable that MacKinnon, who herself has been married once and was engaged to be married to another after that,[159] does not appear to adopt the abolitionist stance she holds against pornography, sex work and the likes to the institution of marriage. MacKinnon has justified her own decision to marry by stating “[d]oes one not have any relations simply because society is hierarchical?”[160] One has to question why that same rationale does not apply to sex work. While it is unlikely that MacKinnon subscribes to this notion, this inconsistency does implicitly suggest that the subordination of women through sexuality should not be tolerated unless it falls within accepted normative ideals – that is Western ideals.

The focus on sex work as a site of violence further glosses over the fact that marriage and the family unit is, at times, a far more significant site of violence for women.[161] Women’s movements in India have often addressed the issue of domestic and family violence through interventions ‘aimed at empowering married women’ but have not utilised the prevalence of family and domestic violence as a challenge to ‘the marital or natal family itself’.[162] So why then is sex work not understood similarly? – as bearing ‘elements of and scope for violence against women,’[163] which sex workers should be empowered to overcome. The parallels between marriage and sex work have also been noted by DMSC who suggest ‘that most families are based not on principles of sharing and love, but on ‘inequality and oppression’.[164] In fact, DMSC views sex work as arguably more agential than marriage in that married women are ‘indebted to their husband for food and shelter’[165] unlike sex workers.

The conceptualisation of sex work as a site of violence further negates the fact that ‘a lot of “legitimate” work is violent and can be degrading’.[166] It is unclear then as to why neoabolitionists focus their abolition efforts exclusively on sex work. An inference can be drawn that neoabolitionists’ stance on sex work is driven by a limited view of women’s sexuality as homogenously confined to experiences of victimisation. Confining female sexuality to a paradigm of victimisation in turn conceptualises women as perpetual victims and fails to recognise women as agential.[167] It negates the diverse ways in which women, including sex workers, may express and experience sexual autononmy. The neoabolitionist conception of sex work as inherently exploitative thus fails to recognise that women’s experience of sex work, is not homogenous.[168] Through arbitrary constructions of sex workers as victims, radical feminists, and by extension, neoabolitionists employ an analysis that views the sex worker’s body ‘without reference to their experience’ within which ‘there is no space for the [sex worker] herself, particularly if her speech may contradict the feminist construction of her body.[169]

The construction of sex workers as inherently un-agential is further bolstered by persistently homogenous narratives of women being forced into sex work. This negates the varied reasons and agential choices a woman might make in deciding to enter into sex work.[170] Additionally, within a neoabolitionist understanding, sex workers who claim to view themselves as engaging in sex work of their own will are ‘suffering from false consciousness’ and are ‘unable to recognise their oppression’.[171] This is an oversimplification of the complex and nuanced ways in which a sex worker may conceptualise her own agential choices in choosing to enter into or remain in sex work. As the following quote from a brothel-based sex worker in Sonagachi highlights:

‘[The brothel] is my home and this is the only place I could ever call home. It is only here I have some way to earn money to survive. I am not educated like you, so all I have is my gatar (body) to sell. But do I like it? Did I even want to get into line-er kaaj (sex work)? But here, at least I have been able to feed myself and take care of my daughter. So, this is all I know, like, you know, your home? And why don’t the police just let us be in our homes? Who asked them to rescue us?’ [172]

This rumination demonstrates the varied considerations of a sex worker in choosing to enter or remain in sex work. It further demonstrates that even in cases where a woman does not enjoy engaging in sex work, she may make an agential choice to remain in it for a variety of factors, just as any other worker may in relation to their own employment. By framing sex workers as perpetual victims, particularly in ‘economically deprived contexts’, neoabolitionists not only infantilises sex workers, they also invalidate the agential choices women may make ‘when confronted with limited economic opportunities’.[173]

Neoabolitionists also fail to recognise how the raid, rescue and rehabilitation framework in itself denies sex workers their autonomy by forcefully “rescuing” sex workers and compelling them to engage in vocational activities.[174] These rehabilitative efforts are often perceived by sex workers as an ‘incursion on their already well-established livelihood’,[175] as the following quote from another brothel-based sex worker in Sonagachi highlights:

‘And when they rescue us, they send us to these awful homes, teach us how to use sewing machines. Now, how much money can I earn by sewing clothes, when I can earn way more here in one sitting?’[176]

The above quote further demonstrates the fact that sex workers do exercise agency and autonomy in their choice to engage in sex work. By utilising paternalistic rescue and rehabilitation schemes and failing to consider the views of sex workers, the anti-trafficking framework in India thereby reinforces neo-colonial constructs of “Third World” women, as in need of rescue. As Spivak postulates, this has resulted in the silencing of Indian sex workers.[177]

X CONCLUSION

This paper demonstrates how the anti-trafficking measures in India adopts neoabolitionist principles through its implementation of the Immoral Trafficking Prevention Act 1986. These assumptions are largely sustained by Western intervention through funding and propogates a culture of militarised humanitarianism. This in turn perpetuates the raid, rescue and rehabilitation methods of anti-trafficking intervention that conflates sex work with sex trafficking. The anti-trafficking framework further demonstrates sex work exceptionalism by focusing primarily on trafficking within sex industries. By failing to detach itself from neoabolitionist agendas, the anti-trafficking framework in India negates the fact that sex workers are not just helpless receptacles of assistance. Rather, in many cases, sex workers demonstrate exercising agency in choosing to enter into and/or remain in sex work and are capable of defining the agendas they are subjected to. In doing so, India denies its sex workers their agency and propagates neo-colonial assumptions about “third world” women as incapable of decision-making and in need of protection. This results in a paternalistic “rescue” framework that infantilises sex workers and causes them more harm than good. India’s anti-trafficking framework consequently fails to recognise sex workers as agential and infringes on the autonomy of voluntary sex workers.


[1] Global Alliance Against Traffic in Women, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World (Report, 2007) 135 (‘Collateral Damage’).

[2] Aziza Ahmed and Meena Seshu, ‘“We Have the Right Not to Be ‘Rescued’”: When Anti Trafficking Programmes Undermine the Health and Well-Being of Sex Workers’ (2012) 1 Anti-Trafficking Review 149, 151–2.

[3] Ina Kerner, ‘Relations of Difference: Power and Inequality in Intersectional and Postcolonial Feminist Theories’ (2017) 65(6) Current Sociology Review 846, 854.

[4] Ran Hu, ‘Examining Social Service Providers’ Representation of Trafficking Victims: A Feminist Postcolonial Lens’ (2019) 34(4) Journal of Women and Social Work 421, 423–4.

[5] Claire Chambers and Susan Watkins, ‘Postcolonial Feminism?’ (2012) 47(3) The Journal of Commonwealth Literature 297, 298.

[6] Hu (n 4) 424.

[7] Ibid.

[8] Kelly D Weisberg, Applications of Feminist Legal Theory to Women’s Lives: Sex, Violence, Work, and Reproduction (Temple University Press, 1996) 187.

[9] Barbara Sullivan, ‘Feminism and Female Prostitution’ in Robert Perkins et al (eds), Sex Work and Sex Workers in Australia (UNSW Press, 1994) 253, 253.

[10] Weisberg (n 8) 187.

[11] Sullivan (n 9) 253.

[12] Weisberg (n 8) 188.

[13] Weisberg (n 8) 194.

[14] Ibid.

[15] Weisberg (n 8) 188.

[16] Kathryn Abrams, ‘Sex Wars Redux: Agency and Coercion in Feminist Legal Theory’ (1995) 95(2) Columbia Law Review 304, 336.

[17] Weisberg (n 8) 194.

[18] Weisberg (n 8) 189.

[19] Ibid.

[20] Weisberg (n 8) 194.

[21] Ibid.

[22] Lisa Carson and Kathy Edwards, ‘Prostitution and Sex Trafficking: What Are the Problems Represented to Be? A Discursive Analysis of Law and Policy in Sweden and Victoria, Australia’ (2011) 34(1) Australian Feminist Law Journal 63, 67.

[23] Veronica Magar, ‘Rescue and Rehabilitation: A Critical Analysis of Sex Workers’ Anti-trafficking Response in India’ (2012) 37(3) Journal of Women in Culture and Society 619, 620.

[24] Carson and Edwards (n 22) 67.

[25] Weisberg (n 8) 190.

[26] Ibid.

[27] Carson and Edwards (n 22) 65.

[28] Kerner (n 3) 848.

[29] Abrams (n 16) 336.

[30] Abrams (n 16) 336.

[31] Ratna Kapur, ‘Pink Chaddis and SlutWalk Couture: The Postcolonial Politics of Feminism Lite’ (2012) 20(1) Feminist Legal Studies 1, 10.

[32] Kapur (n 31) 11.

[33] Kapur (n 31) 10.

[34] Sullivan (n 9) 254.

[35] Kapur (n 31) 9.

[36] Hu (n 4) 422.

[37] Ibid.

[38] Carrie N Baker, ‘Racialized Rescue Narratives in Public Discourses on Youth Prostitution and Sex Trafficking in the United States’ (2019) 15 Politics & Gender 773, 776.

[39] Hu (n 4) 423.

[40] Prabha Kotiswaran, ‘The Sexual Politics of Anti-Trafcking Discourse’ (2021) 29 Feminist Legal Studies 43, 44.

[41] Hu (n 4) 423.

[42] Ibid.

[43] Kotiswaran (n 40) 55.

[44] Ibid.

[45] Hu (n 4) 423.

[46] Ahmed and Seshu (n 2) 151–2.

[47] Kotiswaran (n 40) 45.

[48] Collateral Damage (n 1) 121.

[49] Global Alliance Against Traffic in Women, Sex Workers Organising for Change: Self-Representation, Community Mobilisation, and Working Conditions (Report, 2018) 112 (‘Sex Workers Organising for Change’).

[50] Sex Workers Organising for Change (n 49) 113.

[51] Ibid.

[52] Ibid.

[53] Sonal Pandey, ‘Raid, Rescue, and Rehabilitation: An Exploratory Study of Effective Anti-trafficking Interventions for the Survivors of Sex Trafficking of Brothel-Based Prostitution’ (2020) 18(3) Social Work & Society 1, 1.

[54] Sex Workers Organising for Change (n 49) 113.

[55] Ibid.

[56] Sex Workers Organising for Change (n 49) 114.

[57] Pandey (n 53) 1.

[58] Asim Sarode ‘Contesting Legal Positions on Prostitution from a Human Rights Perspective’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 232, 232–3.

[59] Meena Saraswathi Seshu, ‘Surfacing Voices from the Underground’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 195, 198; Suppression of Immoral Traffic in Women and Girls Act 1956 (India).

[60] Collateral Damage (n 1) 116.

[61] The Immoral Traffic (Prevention) Act 1986 (India) (‘ITPA’).

[62] Collateral Damage (n 1) 115–6.

[63] Collateral Damage (n 1) 116.

[64] Simanti Dasgupta ‘Of Raids and Returns: Sex Work Movement, Police Oppression, and the Politics of the Ordinary in Sonagachi, India’ (2019) 12 AntiTrafficking Review 127, 130.

[65] Ibid.

[66] Seshu (n 59) 199.

[67] ITPA (n 61) ss 3–8.

[68] Sex Workers Organising for Change (n 49) 118–9.

[69] ITPA (n 61) s 7(1)(b).

[70] ITPA (n 61) s 2(h).

[71] Sarode (n 58) 233.

[72] ITPA (n 61) s 2(a).

[73] Sarode (n 58) 233.

[74] ITPA (n 61) s 8.

[75] Ibid.

[76] Harshad Barde ‘(Mis)reading through the Lines’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 225, 226; Sarode (n 58) 234.

[77] Pandey (n 53) 4–5.

[78] Sarode (n 58) 234.

[79] Pandey (n 53) 4–5.

[80] ITPA (n 61) s 15.

[81] ITPA (n 61) s 16.

[82] ITPA (n 61) s 17.

[83] ITPA (n 61) s 20.

[84] ITPA (n 61) s 2(f).

[85] Zara Kaushik ‘Legal Interpretations of Prostitution’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 221, 221.

[86] Collateral Damage (n 1) 120.

[87] Barde (n 76) 225.

[88] Sarode (n 58) 234.

[89] Sarode (n 58) 234–5.

[90] Barde (n 76) 227.

[91] Kaushik (n 85) 223.

[92] Puja Yadav ‘Ground Realities of the Legal Framework’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 229, 230.

[93] Yadav (n 92) 229.

[94] Yadav (n 92) 231.

[95] Magar (n 23) 622.

[96] Ahmed and Seshu (n 2) 154.

[97] Magar (n 23) 622.

[98] Collateral Damage (n 1) 122.

[99] Ahmed and Seshu (n 2) 155–6.

[100] Dasgupta (n 64) 129.

[101] Collateral Damage (n 1) 123.

[102] Pandey (n 53) 10.

[103] Collateral Damage (n 1) 123.

[104] Ibid.

[105] Pandey (n 53) 5.

[106] Kotiswaran (n 40) 55.

[107] Ibid.

[108] Collateral Damage (n 1) 134.

[109] Geetanjali Gangoli, ‘Immorality, Hurt or Choice’ in Rohinis Sahni, V Kalyani Shankar and Hemant Apte (eds), Prostitution and Beyond: An Analysis of Sex Workers in India (SAGE Publications, 2008) 21, 26.

[110] Kotiswaran (n 40) 55.

[111] Gangoli (n 109) 35.

[112] Ahmed and Seshu (n 2) 152.

[113] Trafficking Victims Protection Act 2000 (US).

[114] Ahmed and Seshu (n 2) 153.

[115] Ibid.

[116] Gangoli (n 109) 35.

[117] Ahmed and Seshu (n 2) 157.

[118] Sex Workers Organising for Change (n 49) 133.

[119] Ahmed and Seshu (n 2) 157.

[120] Barde (n 76) 227.

[121] Barde (n 76) 226.

[122] Ibid.

[123] Yadav (n 92) 230.

[124] Yadav (n 92) 229.

[125] Ibid.

[126] Collateral Damage (n 1) 121.

[127] Magar (n 23) 622.

[128] Collateral Damage (n 1) 123.

[129] Pandey (n 53) 4; 10.

[130] Ahmed and Seshu (n 2) 155.

[131] Magar (n 23) 622.

[132] Ahmed and Seshu (n 2) 154.

[133] Ibid; Sex Workers Organising for Change (n 49) 135.

[134] Ahmed and Seshu (n 2) 155.

[135] Ahmed and Seshu (n 2) 154.

[136] Ahmed and Seshu (n 2) 162–3.

[137] Collateral Damage (n 1) 122.

[138] Ibid.

[139] Ahmed and Seshu (n 2) 155-156.

[140] Pandey (n 53) 9.

[141] Pandey (n 53) 11.

[142] Collateral Damage (n 1) 122.

[143] Kaushik (n 85) 221.

[144] Collateral Damage (n 1) 123.

[145] Ibid.

[146] Ahmed and Seshu (n 2) 160.

[147] Pandey (n 53) 11.

[148] Ahmed and Seshu (n 2) 163.

[149] Ahmed and Seshu (n 2) 155–6; Kaushik (n 83) 221.

[150] Ahmed and Seshu (n 2) 151–2.

[151] Gangoli (n 109) 26.

[152] Magar (n 23) 620.

[153] Gangoli (n 109) 22.

[154] Skylab Sahu, Unfolding Feminism in India: Women, Power and Politics (Routledge, 2023) 8.

[155] Gangoli (n 109) 26.

[156] Catherine A MacKinnon, ‘Sexuality, Pornography, and Method: “Pleasure under Patriarchy”’ (1989) 99(2) Ethics 314, 315.

[157] Candice A Garcia-Rodrigo, ‘An Analysis of and Alternative to the Radical Feminist Position on the Institution of Marriage’ (2008) 11 Journal of Law & Family Studies 113, 118.

[158] Garcia-Rodrigo (n 157) 118.

[159] Dinitia Smith, ‘Love is Strange’ (22 March 1993) New York Magazine 43.

[160] Ibid.

[161] Gangoli (n 109) 28.

[162] Gangoli (n 109) 30.

[163] Ibid.

[164] Gangoli (n 109) 32.

[165] Ibid.

[166] Gangoli (n 109) 28.

[167] Sahu (n 154) 161.

[168] Seshu (n 59) 202.

[169] Gangoli (n 109) 22.

[170] Gangoli (n 109) 29.

[171] Gangoli (n 109) 26–7.

[172] Dasgupta (n 64) 137.

[173] Magar (n 23) 620.

[174] Collateral Damage (n 1) 136.

[175] Dasgupta (n 64) 138.

[176] Ibid.

[177] Hu (n 4) 424.


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