Anti-trafficking Bill: No, it does not take away sex workers’ rights. Here’s how

The Bill, to be taken up by the Rajya Sabha in the winter session, has been criticised by some activists and sex workers’ unions who argue sex work is sometimes a matter of choice.

 |  6-minute read |   20-12-2018
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Trafficking of humans is the second largest organised illegal activity in the world, after the drugs trade — trafficking for the purpose of sex work constitutes one of its major forms, and its victims are mainly children and women. According to the International Labour Organisation (ILO), 80% of trafficked persons are women and girls, and 50% of the victims are minors.

In India, the total number of victims rescued from human trafficking in 2016 was 23,117 (Crime in India Report, 2016).

The data on rescued victims reveals that a major proportion (almost 22%) are trafficked for the purpose of sexual exploitation.

The debate

The legal status of sex work varies from country to country, ranging from being permissible but unregulated, an enforced or unenforced crime, to a regulated profession.

In India, the total number of victims rescued from human trafficking in 2016 was 23,117In India, the total number of victims rescued from human trafficking in 2016 was 23,117. A large number were being pushed into sex work. (Photo: PTI/file)

In India, a debate erupted in July this year over the proposed anti-trafficking Bill. Many sex workers spoke against the Bill, claiming it did not differentiate between trafficking and consensual sex work, and it ‘forced’ rescue and rehabilitation.

This was a wide misconception that the unions ascribed to.

The Indian case is just one example of a global dispute about what constitutes exploitation in the sale and purchase of sex, and it also shows two differing points of views — one which believes that sex work should be legalised (the retentionists), and the other which believes that all prostitution is inherently exploitative, and it must be eliminated (the abolitionists).

For abolitionists, there is almost no distinction drawn between sex work and sexual exploitation, where the latter is often through the process of trafficking and involves controlling someone through threats or violence. This presumed conflation leaves no room for sex workers who make decisions for themselves.

On the other hand, some retentionists too feel that the term ‘sex work’ sterilises all the exploitation inherent in prostitution. This presumed ‘free-choice’ leaves no option to treat the so-called ‘sex worker’ as a victim, and to prosecute the abuser.

Both positions — one that leads to a blatant victimisation of all sex workers, without taking into account their agency, and the other, which doesn’t question the social circumstances that lead women to make such choices — are problematic.

Let me substantiate with some arguments.

Victims, choice, coercion

Over the years, various human rights agencies have spearheaded a movement towards exploring the idea that women involved in sex work should be seen as victims of abuse and coercion. In fact, for many scholars and practitioners working on sex trafficking and sex work, coercion and abuse have always been major factors in the process of someone becoming a ‘sex worker’.

The extent of coercion and the organised crime that entraps women — particularly women from a certain socio-economic background — can be observed from the degree of force inherent in women’s decision to take up sex work. Often, even women who had been trafficked start to feel that they own their decision, and want to believe they had made a free choice.

Evidently, the case for determining any voluntarism in the face of obvious and prolonged patterns of abuse is highly contentious.

coercion and abuse have always been major ingredients in the process of someone becoming a ‘sex worker’.Coercion and abuse have always been major factors in someone becoming a ‘sex worker’. (Photo: Reuters/file)

This establishes that coercion acts in such a way as to manipulate individuals into believing that they are acting for themselves.

Herein lies the complexity for activists — of balancing the desire to not take one of the two polarised stands, because recognising the nuances of coercive factors involved, and acknowledging the individual historicity, is vital.

Respecting a woman’s decision to take up sex work — however diminishing her ability to choose for herself might be — is crucial in demonstrating a non-judgemental attitude towards vulnerable women. Therefore, it is the construction of an empathic relationship between the policy makers and those it affects that is key to beginning the work of rehabilitation and support provision.

The victimisation of women involved in sex work is inherent in the nature of their work and its circumstances.

For example, ‘sex workers’ are at risk of sexual and physical violence. This is manifest in sex workers’ relationship with conditions of indebtedness, addiction, physical violence, social exclusion, deteriorated mental health and discrimination.

Consequently, it can be argued that victimisation can result in ‘sex workers’ suffering from a significant loss of ‘agency’. In this context, recognising the victimhood experienced by all ‘sex workers’ is, therefore, not an illogical progression. Nonetheless, despite the inherent victimhood, there should still be some scope of individual-driven choices — the decision to identify as a victim should lie with the individual.

Rethinking victimhood of sex workers

Coming back to the anti-trafficking Bill, 2018, some sex worker unions argue that developmental and political agendas seek to forcefully victimise them, which curb their rights.

In my view, this argument is problematic and highly unilateral.

While there is indeed some recognition of the social morality implicit in the legal-institutional response, it cannot be denied that many sex workers are sold into or coerced into the work. It is so because coercion can take numerous forms, and extend to other areas of life. Thus, the victimhood attached to sex workers becomes a crucial area to be further explored.

Some sex worker unions believe that the Bill forces institutionalisation upon them. Some sex worker unions believe that the Bill forces institutionalisation upon them. (Photo: PTI/file)

If the developmental agenda is equated with forceful victimisation today, any one-dimensional or over-simplified approach to free choice in sex work must also be questioned, as it reduces the idea of ‘free-will’ to a level of explanation in which ‘individuals are choosing clients professionally and making independent decisions’.

A section of sex workers seems to have assumed that the idea of forced victimisation links victimhood with criminalisation — and lands them in jails (institutional rehabs).

Also, this distorted account leads to an insufficient understanding of the complex notions of ‘consent’, ‘voluntarism’ and ‘coercion’, based on how they are victims and not victims, both at the same time.

There may not be a literal lack of choice as a consequence of explicit exploitation such as trafficking, but social and material conditions do tend to funnel choices. Therefore, institutional rehabilitation or the status of victimhood might be the last resort, but at least having an option to avail of it underscores the progression towards decriminalisation of sex workers.

However, at the same time, it is important to also not overemphasise the concept of victimhood altogether when considering sex work.

The Anti-Trafficking Bill 2018

The issues discussed in this article pose a number of questions for the understanding of implicit coercion and free-choice, and the subsequent notion of victimhood, which a section of the sex workers’ community seems to be criticising.

As can be assessed from the arguments presented in the above sections, the levels of coercion and lack of agency indicate that the ‘sex workers’ have powerful influences over their choice.

The Bill was passed by the Lok Sabha in July, and is to be tabled in the Rajya Sabha. The Bill was passed by the Lok Sabha in July, and is to be tabled in the Rajya Sabha. (Photo: PTI/file)

Ultimately, any successful mediation has to be individually tailored and authenticated by engagement with women on their own linguistic terms, without falling into the dichotomous debate, as emphasised in the Bill.

The proposed law in India attempts to find a middle path between the debates and attempts to empower sex workers by, first and foremost, providing them with an exit strategy if they seek it.

It focuses on trafficking being abhorrent and illegal, and has to be reviewed from that standpoint.

Secondly, by providing the right to rehabilitation to a victim while also simultaneously not forcing it, the Bill attempts to respect the complexity of agency positioned within the broader system of patriarchy.

Thus, to say that the Bill curbs the rights of sex workers is incorrect — it tries to understand ‘victimhood’ as a more complex reality than what is presented through the dichotomous understanding of complete agency or complete coercion.

Also read: Why the Trafficking Bill is an important step towards securing child rights


Abza Bharadwaj Abza Bharadwaj @abza_bharadwaj

Sociologist and social researcher working in the field of Child Rights and Gender.

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