When consent is key

‘When I say I didn’t consent to sex, they say you can’t be raped. But when I say I consented, they say you are being raped.’

This is the paradox that millions of sex workers across India face, which has come to the fore with recent legal developments – the enactment of the Criminal Law (Amendment) Ordinance, 2013 (Ordinance) and changes proposed to the Immoral Traffic Prevention Act, 1956 (ITPA) by the Ministry of Women and Child Development. The former introduces a clear definition of consent to distinguish voluntary sexual acts from assault, while the latter add even more ambiguity to the already ambiguous meanings of prostitution and sexual exploitation under the ITPA, with no reference to consent.  

Are non-consensual acts in a commercial context so different that they can’t be addressed through penal law on sexual offences? What sets adult transactional sex apart from other consensual sexual interactions is the involvement of money as quid pro quo for sex. The sex worker’s  agreement is express and specific, in conformity with the definition of consent under the amended Section 375 of the Indian Penal Code, 1860 (IPC). Anything more than what is agreed to is against her will and without her consent, thereby constituting sexual assault. But policemen seldom listen. ‘You solicited and took money… you can’t be raped!’

Contrast this with when the police conduct raids under the ITPA. Women who look older or resist are accused of running brothels as ‘madams’, while others in the premises are dumped in ‘protective’ homes as ‘victims’. Never mind their age or what they have to say about themselves. Where a sex worker states that she is an adult and engaging in consensual sex, neither the police nor the magistrate listens. ‘You don’t know… you are being sexually exploited and raped!’  

This travesty of justice unfolds everyday in the lives of adult sex workers, with the law enforcement legitimising rape and the law illegitimising consent.  

For many, sex work is a survival strategy or a better paying option than other work offered to poor, unskilled women. But poverty does not diminish or invalidate consent. If it did, then our capitalist economic order which ‘exploits’ the labour of the working class would come crashing down. Those who argue that sex work borne out of economic circumstances is not choice are indirectly saying that the poor can’t think and act for themselves. This is derogatory and contemptuous and must not be allowed to inform the ITPA Amendments.  

The government is also toying with criminalising persons who purchase sexual services, which ostensibly constitutes violence against women. Albeit, women who get paid don’t think so. Sex workers assert that transactional sex is also about intimacy, exploration, pleasure and gain, as well as about loneliness and pain. To view buying sex as violence per se is to demonise and make criminals out of students, workers, migrants, businessmen, professionals, military and police personnel and scores of other ‘regular’ men, who unknown to us are a part of our everyday lives. At the same time, where a client turns violent, the law must step in to respond to sexual assault.   

The violence that sex workers almost always complain of is ill-treatment by the police and by husbands or non-paying partners. Women’s ability to resist such violence, whether by paying up the policeman or leaving abusive husbands stems from the money that they earn from sex work. Peer and community support is another important source of resilience.  

Criminalising clients will leave sex workers defenceless. Fearing arrests, sex workers will be forced to work underground and meet clients at unfamiliar locations. Such conditions not only escalate the risk of violence but also cut-off the scant help available.

The ITPA proposal has been influenced by a Swedish law that penalises the ‘buyer’ but not the ‘seller’ of sexual services. Some hail such prohibition as ‘gender just’ or fair to women. But if the proposed law was really uplifting women, why are so many women protesting it? A green light for sex workers has no meaning if clients are to be shown the red signal. Experience shows that laws prohibiting clients’ hurt women more than men. The only beneficiaries of client criminalisation are the police, who extract hefty bribes or pay offs from anyone seen in and around sex work areas. In contrast, sex workers in New Zealand, which decriminalised adult consensual sex work ten years ago, enjoy legal protection. Take the case of Connoly v R [2010] NZCA 129, where a policeman was arraigned for inducing a sex worker to have sex under threat. While sentencing the officer to imprisonment, the court noted the vulnerability of the complainant sex worker and the abuse of authority by the defendant policeman. Although the verdict was announced under the Crimes Act, 1965, the litigant drew strength from the Prostitution Reform Act, 2003 which set a framework to safeguard the rights of sex workers and protect them from exploitation. The New Zealand experience demonstrates that it is not sex work which is dangerous.

It is the absence of laws that protect sex workers which makes their work dangerous. Equating sex work with sexual exploitation makes bad public policy, besides denigrating women. In a constitutional democracy, the state ought not to intrude in private, consensual, adult sexual space or activity. Penal intervention is warranted only where there is no consent, such as where a person is coerced into selling sex or where there is no capacity to consent on account of minority of age. Both have been taken care of by the Ordinance amending the IPC.

The amended Section 370 punishes trafficking for prostitution but not voluntary, adult sex work. The revised  Sections 375 and 376 penalise a range of sexual acts with underage persons and without consent. The new law must stand to test for all women, including sex workers. Any other legislative interference is unnecessary, especially when it does not affirm women’s autonomy and consent.  

Tripti Tandon is an advocate with the  Lawyers Collective in New Delhi and  works with sex workers to affirm their rights

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