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Prostitution Laws—Ideological Dimensions

and Enforcement Practices

Jean D'Cunha
Prostitution as an institution can only be understood by exploring the economic and ideological base on which
it rests. In the last four decades not only has the phenomenon reached alarming proportions but the forms of
operation have changed as well. Militarisation, global impoverishment, development models pursued, etc, have
alt had an impact on its growth. Governments all oyer the world have used the instrument of law as a means
to deal with prostitutes and prostitution. This article attempts to examine the ideological underpinnings of these
laws and their operation and how they affect all women.

I clear theoretical assumptions, but emphasise the tolerationist system and the system of
individual motives, attitudes and behaviour, legalised prostitution.
Introduction and issues of vice, morality, public order and The prohibitionist system as it exists in the
PROSTITUTION is bound up with wider public health, regulation and control. US except in Nevada {Women's World,
social processes and permeated by assump- There are three conflicting views on pro- 1990-91) perceives prostitution as immoral
tions current in society at large. The institu- stitution, the moralist, the institutionalist and aims at its eradication. In pursuance of
tion of prostitution has existed in one form and the feminist. The first two refer to street this end, it bans prostitution per se,
or another in all class-based patriarchal and brothel prostitution, while the third, criminalising the activities of all categories
societies. In ancient times, female prostitu- which is more recent refers to the social con- of people involved in prostitution, i e,
tion in several societies was closely linked to ditions of all women. The moral approach brothel-keepers, pimps, procurers, clients
religious practices. By contrast, prostitution maintains that prostitution violates moral and prostitutes.
in modern times tends to be associated with sensibilities. It is hence undesirable and must The tolerationist system rests on the
promiscuity, crime and social condemna- be eradicated through the use of penal assumption that prostitution is as old as
tion. measures. The institutional argument takes human civilisation itself; that it is a univer-
Prostitution as an institution therefore prostitution as the oldest profession, which sal and inevitable social evil necessary to
cannot be understood only with reference to the state at best can control marginally. satiate a naturally aggressive male sexuality
certain culture-specific variables. It has a These two views are based on the assump- and that in the past it has only been pos-
clear economic and ideological base and is tion that social activities can be regulated sible for the state to at best introduce some
intrinsically related to larger socio-economic for the benefit of all, and that regulations mechanisms of control over prostitution, so
and political processes. Rather than as a can be designed and executed by a national as to protect public health and curb excessive
moral issue it can be usefully analysed as a body. The third line of the thinking reflected exploitation. This system of law consequent-
crucial part of the labour transformation in feminist circles, but not yet significantly ly does not seek to abolish prostitution per
process[Truong, 1987, p 30]. embodied in Indian studies on prostitution, se. It is only targeted at trafficking in women
The last four decades have seen female challenges the first two positions. It main- and girls for prostitution, brothel-keeping,
prostitution/in south-east Asia in particular, tains that prostitution is only one aspect of pimping, procuring and renting premises for
undergoing dramatic changes. Not only has the prevailing unequal gender relations. Pro- prostitution. Prostitutes are not intended to
the scale of the phenomenon reached alar- stitution as a social phenomenon will sur- be criminalised by virtue of their work. They
ming proportions, but the forms in which vive so long as the social structures surroun- have more or less the same rights as other
prostitution manifests itself have become ding it, and contributing to it prevail. citizens. The United Nations' Convention
widely diversified. In particular, evidence Neither sanctions nor moral condemnation for the Suppression of the Traffic in Persons
suggests a correlation between militarisation will uproot prostitution. The legal status and and of the Exploitation of the Prostitution
in these regions and the growth of prostitu- the social stigma prostitutes endure isolate of Others, 1949 which has been adopted in
tion. An increase in prostitution as a result them from the rest of humankind and ex- several countries such as Britain, India and
of the development of the tourist industry pose them to various forms of exploitation France (Women's World, 1990-91) embodies
is another recent phenomenon. In countries [Truong, 1988, p 2]. this system.
where the sex business has assumed the Governments the world over have used the Though this system does not forbid the
dimensions of an industry, it has been sug- instrument of law as a means to deal with act of prostitution per se, countries adop-
gested that prostitution makes a significant prostitutes and prostitution. Because of the ting this system generally and surprisingly
contribution to the process of economic complexity of the phenomenon, its interna- have other laws or insidious clauses within
development at the macro-level through in- tionalisation as an industry and the gaps in the dominant prostitution law, penalising
come remittances of prostitutes to their our information, there is a pressing need to soliciting or loitering by prostitutes. Thus
village families. delineate the policy issues involved and to contrary to the declared objectives of the
Despite the magnitude and manifold build an analytical framework in which to tolerationist tradition, these clauses effective-
dimensions the phenomenon has acquired, discuss them. This article is a modest at- ly result in the criminalising of individual
it has received scarce analytical attention. tempt to examine the ideological under- women in prostitution, while the client is not
Existing literature on the subject, in India pinnings of the prostitution laws across considered an offender.
for instance, largely tends to be descriptive, societies including India. Many countries have adopted the system
highlighting specific aspects of prostitution, of legalised prostitution. Prostitution was a
the socio-economic background of the II legal activity in 19th century England and
women involved, their living and working Legal Systems G o v e r n i n g India and presently in Germany, Nevada in
conditions, etc. Most of these studies adopt the US, Vienna in Austria and Switzerland.
a structural-functionalist approach, at- Prostitution (Women's World, 1900-91). The legal tradi-
tributable to the dominant positivist orien- Three systems of prostitution-related laws tion, is grounded in the assumption that pro-
tation of the social sciences and in particular, have been formulated and applied in various stitution is a necessary social evil required
sociology, in India. Several studies reveal no parts of the world; the prohibitionist system, to safeguard 'straight women' against male

WS-34 Economic and Political Weekly A p r i l 35, 1992

sexual aggression and to protect the family premises and assumptions regarding class, such as marriage and courtship, the element
structure, and must hence be legalised. gender, race, etc, current in society at large. of promiscuity must be retained in the
Legalisation permits prostitution especial- definition to differentiate prostitution from
ly in 'closed houses' or 'eros' centres. The DEFINITION OF PROSTITUTION other types of relationships. This view is ex-
system requires prostitutes to mandatorily tended by Polaky [1967, p 191 ] who defines
and compulsorily register themselves with To begin with, prostitution laws in most prostitution as the granting of non-marital
the local authorities and submit them- countries, by and large define prostitution sex as a vocation [Truong, 1986, p 4].
selves to periodic health check-ups for VD as a female phenomenon. The Indian law, Gagnon [1968, p 592] defines prostitution
clearance after which a prostitute is issued for instance, embodied in the Suppression more precisely as "the granting of sexual
a, police clearance to work professionally, of Immoral Traffic in Women and Girls Act access on a relatively indiscriminate basis for
generally in officially designated areas. 1956 (operational in 1958) defined prostitu- payment in money or in'goods, depending
Legalisation is thus perceived as a means of tion as "the act of a female offering her on the complexity of the local economic
ensuring 'public health', through regulation body for promiscuous sexual intercourse, for system. Payment is acknowledged for the
and control of prostitutes and their health, .,. whether in money or in kind, and whether
specific sexual performance", with a view to
while permitting unfettered male access to offered immediately or otherwise, and the
differentiate the professional prostitute from
women. expression prostitute was to be construed ac-
the mistress or from females who accept a
cordingly" [Beotra's The Suppression of Im-
In more recent times, sections of western range of gifts while having sexual contract
moral Traffic in Women and Girls Act, 1956,
civil liberation and certain prostitutes' rights with a male. However, as often pointed out,
1981, p 19]. However the scope of this defini-
groups have been raising the demand for this differentiation is an artificial one, since
tion has by the amendment act of 1986..., The
'decriminalisation of prostitution'. This in patriarchal societies, the structural rela-
Immoral Traffic in Persons (Prevention) Act,
arises partly from their desire to protect in- tionship between men and women is such
now been broadened to include any person
dividual women in prostitution and place that the control of women's sexuality and
offering sexual services, an amendment in-
them outside the scope of state regulation female prostitution are two sides of the same
troduced as a result of pressure from pro-
and control that the tradition of legalisation coin: male domination. The separation bet-
gressive sections [D'Cunha,199l, pp 85-86].
and other systems of law seek to enforce. It ween the wife (the respectable woman), the
also stems from a certain understanding of The legal definition of prostitution mistress (the kept woman) and the prostitute
the institution of prostitution, which while reflects the conventional social perception (the fallen woman), only serves to divide
it moves beyond a conventional morality, ac- of prostitution for a greater part of history women, strengthen patriarchal ideology and
cepts the patriarchal and exploitative basis as a female phenomenon, despite the ex- conceal women's consciousness of their
of prostitution as an institution. istence of male prostitution. This is largely common condition of dependency on men
Advocacy of this legal tradition is on the the product of structural and cultural fac- [Truong, 1986, p 4].
following grounds: (a) Prostitution is often tors which account for gender roles and Kathleen Barry [1981] presents another
a woman's occupational choice; (b) it affords stereotypes in society. Women have tradi- dimension to our understanding of prostitu-
a woman freedom, financial autonomy and tionally been referred to in terms of their
tion. She points out that women are forced
sexual self-determination; (c) if a woman can reproductive organs and functions—either
into prostitution by men who use a variety
sell her mental and manual skills, which are as reproductive machines and providers of
of means ranging from deceptive promises
sexual services deemed part of conjugal duty
exploited, there is nothing wrong in commer- of jobs or marriage or the invisible enslave-
to husbands in marriage or as providers of
cialising her sexual skills in prostitution, ment of love and loyalty (for a pimp) to
sexual pleasure to men outside the institu-
which is only another form of women's physical kidnapping and imprisonment. She
tion of marriage. As sexually-linked
work; (d) prostitution is related to the ex- writes; "Female sexual slavery is present in
characteristics serving male interests
ploitation and oppression of all women all situations where women or girls cannot
predominate cultural definitions of women,
looked upon as sex objects—a prostitute at change the immediate conditions of their
it is little wonder that prostitution is perceiv-
least sells her body and does not give it away existence, where regardless of how they got
ed as a female phenomenon even in law. Fur-
free as married women do; (e) Decriminalis- into those conditions, they cannot get out
ther, male prostitution has also perhaps been
ing prostitution would allow for unionisa- and where they are subject to sexual violence
more limited, less varied and institutionalis-
tion of prostitutes against brothel-managers, ed compared to female prostitution. and exploitation" (p 40).
pimps and the police and it would also Though Barry's definition draws out a
enable prostitutes to press for welfare Also most definitions of prostitution, in-
cluding that contained in the Indian law very important dimension of prostitution
measures like health eare, child eare and ignored by others, namely coercion, it is at
educational facilities for their children, define the phenomenon as promiscuous
sexual intercourse, either habitual or inter- the same time too wide and too narrow.
social security for themselves, etc; and First, although slave labour in prostitution
(0 decriminalisation of prostitution would mittent, for mercenary inducement'. It is
thus characterised by payment, promiscui- continues to exist to date, it is not the only
wipe out the stigma of immorality and form of prostitution. Second, not all women
criminality attached to prostitutes and ty and emotional indifference. This suggests
moral acceptance of sexual intercourse who are subject to sexual exploitation can
prostitution. be considered slaves, even when they cannot
within socially accepted unions alone and
This system, seeks to recognise prostitu- assures that sexual intercourse within these get out of the situation. Slavery carries with
tion as a legitimate business, subjecting unions is unpaid for. Thus sexual intercourse it connotations of social outcast, property
owners and managers of prostitution which is not paid for, which involves emo- and compulsory labour [Watson, 1980,
establishments to business and labour laws tional attachment and occurs within social- pp 1-15]. In many societies however, there are
and not to criminal law. It likewise advocates ly prescribed institutions is morally accepted, women who are purchased as a piece of pro-
the removal of all criminal sanctions against while sexual unions outside these are morally perty through marriage, must perform com-
prostitutes. condemned. pulsory labour, maybe sexually abused, but
are not social outcastes [Truong, 1986, p 5].
Other definitions indicate broad agree-
ment among researchers that the element of Social scientist Truong attempts to pro-
Ill payment is most basic, but that the economic vide some guidelines which can be applied
criteria alone does not suffice. Disagreement cross-culturally and historically. To begin
Biases in Legal Systems revolves around the social confines in which with, prostitution is the provision of sexual
prostitution manifests itself. Thus Davis services in exchange for material gains. Thus
Legal systems governing prostitution, like [1961, p 273] argues that since some form provision may be induced by one or more
any other, mirror the dominant value of payment is found in social arrangements of a variety of conditions: physical coercion,

Economic and Political Weekly April 25, 1992 WS-35

socio-economic coercion and individual ween men and women and the class tributed with sexual feelings of a diffuse and
decision. Prostitution can take many dif- structure of society because these struc- passive nature [Barry, 1979], Androcentric
ferent forms, the delineation of which in- tures generally condition the act itself. research asserts that male sexual aggres-
volves the following criteria: (a) the number (5) The conditions governing the live/of in- siveness is dictated by hormones possessed
of men to whom services are provided, dividual prostitutes are subject to chiefly or solely by males, resulting in an
(b) the nature of payment, and (c) the in- changes. The personal dimensions of overwhelmingly uncontrollable male sex
stitutional confines [Truong, 1986, p 5). such change include the physical at- drive which demands a fitting object for
Depending on the forms, the institutions tributes of the individual prostitute and release [Narayan, 1981).
and the people involved, prostitution can be her consciousness of her social situation
Kinsey was the first sexologist to establish
simultaneously condoned and condemned, and the institutional dimensions include
that the sex drive was learned behaviour, not
at any given historical period. At one ex- the legal and the socio-economic struc-
an uncontrollable instinct—a conclusion
treme prostitution may be the ture of society in which they operate
supported by Masters and Johnson in their
legal institution of marriage through which (Truong, 1986, pp 5-6].
research on males in clinical settings [Barry,
a woman is contracted to be sold or con-
1979]. Kinsey's study of American
tracts to sell herself to a man in exchange PATRIARCHAL ASSUMPTIONS adolescents revealed that boys learnt two
for social conformity, economic security and
things from cultural myths—that the sex
some limited rights. In this case sexual Foremost among these assumptions is that drive must be fulfilled because it cannot be
services form only a part of the relationship. prostitution is the oldest profession, a contained and that they have the implicit
At the other extreme, prostitution is a prac- universal and inevitable social evil, necessary right to use girls and women to fulfil that
tice involving the exclusive provision of to satiate an uncontainable male sexuality. drive. Sexual power is gained via sexual ex-
setual services on a relatively indiscriminate Prostitution is therefore considered society's perience. The media and pornography rein-
basis, in a manner similar to the sale of any safety valve against the rape of Innocent force these patriarchal myths [Barry, 1979].
form of unskilled or semi-skilled labour. In women' and the disintegration of the institu-
between, there are the hetaerae (including tion of the family. The tolerationist system It has also been found that the so-called
courtesan, geisha, kisang, demi-mondaine) of law consequently tolerates prostitution uncontrollability of an erection can be con-
who provide sexual services to a select and legalisation openly sanctions its ex- trolled by the time the boys are adults. There
number of parties, sometimes as a form of istence. It is necessary to examine each of are males who are questioning the perfor-
exotic art, and usually on payment, which these assumptions. mance criteria that they have been taught to
ranges from money, expensive gifts and/or Though prostitution has existed in all live under the demand of their partners.
access to social mobility. Equally there is the class-based patriarchal societies where power They maintain that male sexual satisfaction
mistress or hired wife who is maintained by is vested in the hands of males and women need not depend on an erection, but on more
a partner in exchange for the occasional are dominated and maintained in conditions diffuse sensations [Barry, 1979]. The fin-
provision of sexual services, without a bin- of servitude, prostitution was and is still dings of a survey of 4066 men on male sex-
ding marriage contract and its legal implica- unknown in many so-called tribal societies uality reported in Beyond the Male Myth,
tions. The social conditions of women who [Barry, 1979]. The Warli tribe of Dahanu is revealed that 981 of the men surveyed felt
practise prostitution are determined by the one such society although now that the tribe it was important for a woman to have an
institutional confines, e g, slave labour can is being absorbed into the mainstream orgasm. Over half of them were self-critical
exist in brothels while within hetaerism capitalist system prostitution is making an if their partner did not respond fully and
women can have limited social mobility and appearance (interview with Shiraz Bulsara, four out of five men were making conscious
can be largely free of moral condemnation. activist, Kashtakari Sangatna, Dahanu, efforts to delay their orgasms [Reynaud,
The insitutions in which prostitution Thane district, 1986). 1981]. So the sex drive is not just a
manifests itself vary according to socio- Prostitution emerged with the develop- physiological response of the sex organs die
economic changes and equally, relations of ment of social classes, itself a product of tated by hormones. It is learned behaviour
exchange in prostitution are also transform- surplus accumulation. The more aggressive conditioned by patriarchal societies. So too
ed, in relation to institutional changes and violent the accumulation of surplus, the is 'female passivity'.
[Triong, 1986, pp 5-6]. greater the incidence and stronger the con- The assumption that prostitution is a
Five main issues emerge from this solidation of prostitution. The era of col- safeguard for 'respectable women' against
definition: onialism for instance, whose primary con- male sexual aggression is implicit in the legal
(1) Sexual services in prostitution cannot be sideration was surplus accumulation through systems governing prostitution. It has been
conceptualised as being limited to sexual the introduction of capitalism, resulted in used to control and divide women without
intercourse, but must be extended to in- prostitution at a mass level, with the degree, questioning the material basis of male sexual
clude other dimensions of human exis- form and nature changing with the phases aggression.
tence such as leisure and nurturing, of capitalist development. The link between Firstly, though rape and prostitution both
which are often included in the services the increasing accumulation of capital and have sexual connotations, they are not per
provided by prostitutes as professionals the appropriation of women's bodies is part of se sexual phenomena. Rape is tantamount
and as women. a historial process, interacting as it does with to assault on women; prostitution is often
(2) Material gains cannot be seen only in the economy and polity. In recognising the nothing more than a purely economic tran-
terms of money and/or gifts, but must systematic dimensions of prostitution, the saction for women. The extent of sexual
also be seen in terms of social mobility onus of responsibility is shifted from the gratification for both the rapist and client
for the individual as well as for groups. women in prostitution to the social system too has come to be questioned. Studies sug-
(3) The social conditions of prostitutes be and the controllers of sex businesses, so gest that rape occurs not for lack of sexual
assessed beyond the institution of slavery much so that "pimping becomes the oldest alternatives, but for gratification of the need
and brothels, so as to include other insti- profession" and not prostitution [Barry, to exercise power. Part of the client's motive
tutions because each institution is 1979]. in prostitution is the exercise of consumer
governed by a different set of social rela- Central to the argument of the universali- power. The act of buying imbues him with
tions, which determine the status of the ty, inevitability and necessity of prostitution a measure of power and control. The act of
individual prostitute. are dominant social perceptions about male buying sexual intimacy with a woman
(4) The act of prostitution must not be seen and female sexual behaviour. Patriarchal represents the logical marriage between
only at the level of individual motives, society equates sex drive with male sexuali- sexism and consumerism [Macmillan, 1976].
but must be analysed in relation to the ty which is assumed to be naturally active In cultures with a high premium on
structure of the social relationships bet- and aggressive. Women by contrast are at- virginity, victims of sexual abuse, who are

WS-36 Economic and Political Weekly April 25, 1992

considered to have lost their Honour, may to seek sexual pleasure outside the institu- the Contagious Diseases Acts, 1864-49 and
even enter prostitution having internalised tion of marriage in prostitution. later in British India between 1869-1888.
social perceptions of themselves as 'fallen What is more, 'respectable' women now The Contagious Diseases Acts in Britain
women' with little or nothing to live for. share as much interest as men in the institu- were a post-Crimean war reform of the 1860s
Cashing in on this, rape as a means to crush tion of prostitution. 'Respectable' young and 70s. Social commentators in Britain at-
a woman's identity, break her resistance and virgins must not allow their lovers to cross tributed the disappointing military perfor-
initiate her into prostitution is a well- the boundary of sexual intercourse before mance of the British in the Crimean wars
documented phenomenon [D'Cunha, 1991). marriage and therefore 'respectable' young to the moral and physical degeneration of
The sexually non-exclusive nature of a men use the prostitutes to gain experience. the soldiers. Military reformers were con-
prostitute's job and the perception of her as a In order to avoid marital conflict and finan- fronted with the problem of reconciling the
common property, casts her into the stereo- cial predicaments arising from such ques- soldiers' sex drive with military efficiency.
type of a 'bad woman', who is 'fair game' tions as inheritance and share of property, An uncontrolled sex drive or one that had
for rapists. She is denied the protection respectable principal wives would accept no outlet, in their opinion, led to in-
available to "straight women'. Prostitutes are their husbands' visiting prostitutes rather debtedness, alcholism and illness. Permis-
one of the most vulnerable sections of than his mistresses or minor wives sion to satisfy this drive with 'greedy,
women in society subject to sexual and [Hantrakul, 1983). This necessitates a ques- unclean' women would lead to a decline in
physical violence by men. Both rape and pro- tioning of the material basis of both pro- the country's military capabilities. The Vic-
stitution are manifestations of women's stitution and the family as social institutions. torian army, therefore, began to foster a cer-
subordination and powerlessneu in society Ironically, while several contemporary tain kind of man, the creation of which had
[Macmillan, 1976]. societies and their prostitution laws tolerate implications for women with whom a male
Individual and mass rapes as assertions or openly endorse the institution of prostitu- was permitted to consort. Male bonding and
of class and power occur routinely despite tion, individual women in prostitution are a shared male identity cutting across class,
the existence of prostitution and will con- socially and legally castigated, blamed as ethnic and rank divisions played a crucial
tinue to occur in class divided patriarchal they are for ruining 'public health' and cor- role in determining attitudes to male sexuali-
societies. The prevalence of and sanctions rupting 'public morality'. ty and official policy towards the military
for rape in class struggles or war is evidence men's sexuality.
of this. Rape as a military strategy and as HEALTH CONCERNS The Contagious Diseases Acts designed to
personal outlet is inseparable from prostitu- repress contagious diseases, i'e VD, for-
tion, when one considers the large numbers Yet another sexist assumption underpin- mulated for a certain class of women, con-
of women and girls from war-torn countries ning prostitution laws is a perception of pro- trolled and regulated them like offenders.
like Paraguay, Laos and Vietnam, for whom stitutes as the source of sexually transmit- But to reach them these acts brought all
prostitution would have been unknown, had ted diseases (STD). STD can be transmitted women residing in all districts to which it
the demands of the military not brought by anyone who is not selective in sexual rela- applied under its purview. The 'Special
these women to the cities [Barry, 1979). In tions and does not practice safe sex and not Morals Police' which was specially assign-
Japan the colonisation of women's bodies just by prostitutes. The fact that prostitutes ed to identify prostitutes was invested with
which began with rape during the second often suffer from STDs may mean that unlimited power and control over women.
world war led to the government presenting public health services are inadequate and/or It could take any woman to court where she
women as 'comfort' girls to the US occupa- used to stigmatise them and that private was required to prove that she was not a
tion force in Japan after the war [Barry, medical services are often beyond their common prostitute. The magistrate could
1979). Rape continues to occur in countries means. condemn her on the basis of the policeman's
that have legalised prostitution. Connections However in a male-dominated cultural set- statement that he had good reason to believe
have been established between organised ting where a woman's and more so a pro- her to be one If condemned, she was to be
crime, rape and prostitution by a district at- stitute's nature and being are defined in thoroughly examined periodically by a
torney in Lincoln county in the US, a place terms of her sexuality and her reproductive surgeon for 12 months. Resistance on her
close to Las Vegas, where prostitution is legal organs and functions, because of the nature part led to her imprisonment with or
[Barry, 1979]. of her work, her health and health problems without hard labour [Barry, 1979].
Ib tolerate or legalise prostitution because too come to be defined and linked to sex- In India where the Contagious Diseases
it is supposed to protect the family structure uality Prostitutes have thus been blamed for Acts were operational between 1869 and
is a conservative functionalist explanation, spreading STDs. Authorities have over the 1888, prostitute women who after registra-
which conserves a patriarchal and ex- years justified the social and legal control tion, refused or neglected to go for an ex-
ploitative status quo. It shies away from at- of prostitutes as a 'public health measure' amination at the stated hour and place, were
tacking the sexist and exploitative basis of and state legalised prostitution has liable to be punished with imprisonment. If
the institution of prostitution. It also leaves historically been perceived as the official found or even suspected of being diseased,
unchallenged the oppressive basis of the weapon to combat STDs. they were to be locked up in a special
patriarchal family in contemporary society, The age-old policy dating back to ancient hospital for a period varying from one to
which gives males the moral and legal right Greece and Rome, saw a renewed interest in several months deprived of all their liberties.
to a woman's body in marriage in exchange 19th century Europe, with the outbreak of The acts did not seek to regulate men who
for financial support; which endorses dual VD in the French army, during the French infected and propagated the disease which
standards of morality for men and women revolution. By the middle of the 19th cen- also meant that preventive and curative
in order to accurately determine paternity tury, individualised and isolated efforts of facilities for clients and the population at
and safeguard the purity of descent and in- French medicos and police at identifying large were conspicuous by their absence [The
heritance and ensure a steady legitimate public prostitutes, registering and subjecting Contagious Diseases Acts, 1888].
workforce. These economic functions of the them to periodical medical examinations, Many innocent women were compulsori-
patriarchal monogamous family unit, led to evolved into a well-defined system of state ly detained for days for VD examinations in
the contracting of marriage arrangements on legalised prostitution through brothels, the hospitals by examining surgeons. About 609
the basis of economic status, caste and only place in which prostitutes were permit- women who had been sent to a British
religion. The genuine basis for marital com- ted to live and work [Barry, 1979]. In 1871, hospital by the state appointed examining
patibility is rejected. The proliferation of at the International Medical Congress in surgeon, had been discharged within 10 days
such depersonalised relationships in socie- Vienna, an international law was proposed of their admission between October 1866
ty coupled with the double standards of to make legislation uniform throughout the and December 1869, as free from disease.
morality provide the justification for males world. It was introduced in Britain through According to four civil and independent

Economic and Political Weekly April 25, 1992 WS-37

surgeons of the hospital who addressed a let- rest native women who were known or sup- Such patriarchal control by and large
ter on the subject to the boards of the ad- posed to be living 'immoral lives' and bring permeates all male-female relationships
mirality 'numerous cases' had been sent to them into the camp so that the supply might across classes. So too, do the double stan-
the hospital by the government surgeons for be adequate to the increased number of dards of male sexual morality extend to all
compulsory detention. "Some of these soldiers [The Qontagious Diseases Acts, males as an expression of class and/or male
women had been deliberately kept a few 1388]. power. Patriarchal society defines a male's
days, without specific treatment and were honour in terms of his conduct in public life
found to be, after repeated examinations, Circulars were passed exhorting 'dais' to
and permits him the freedom to formulate
perfectly free from the disease" [The Con- be alert and furnish them w i t h authority to
his own rules in matters of sexuality. I*
tagious Diseases Acts, 1888]. In 1880 in visit the neighbouring villages to procure
allows him access to sexual pleasure in varied
Bombay, a medical committee which after young girls of 'attractive' appearance and
forms and with several women. While a
careful inspection of the women whp were tender age and place them in orostitutcs
woman is severely condemned for allowing
being forcibly detained and treated, quarters for British soldiers. The village
more than one male access to her body. Man
discovered that of the nearly 200 alleged 'patel who on receipt of an official docu-
by contrast is praised for proving his virility,
cases of contagious diseases, 90 were not suf- ment from the British gave every facility to
regardless of the basis, be it love, money or
fering from VD at all and the surgeon in the 'dai' in her pursuits of decoying women
force. While being "sexually serviced' by
charge practically admitted this by tender- on false pretexts of lucrative employment or
women within marriage, men are allowed by
ing his resignation (The Contagious Diseases of marriage, often with the consent of
society to find sexual pleasure elsewhere.
Acts, 1888]. parents or guardians who being in abject
Society goes so far as to create the institu-
poverty, would part with their daughters.
Despite this, the spread of V D was not to be tion of prostitution outside marriage to cater
There were several instances of death on the
arrested, defeating the very purpose of the to male's so-called 'diverse sexual needs' and
first or second morning of the arrival of
acts. According to the British Medical 'natural sexual aggressiveness", all of which
many young girls because of consorting with
Journal, May 18, 1870, there was in fact a cannot or. may not be fulfilled within
several soldiers at a time and due to outrages
steady increase of VD in the army and navy marriage.
inflicted on them (The Contagious Diseases
during the operation of these acts. A similar Controls, such as criminal sanctions
Acts, 1888].
situation prevailed in India [The Contagious against and regulation of women in prostitu
Diseases Acts, 1888]. There were several fac- The conservative ideology underlying this tion, are the product of structural and
tors responsible for this. For instance, a large legal system, it s implications for women and cultural factors, which account for gender
percentage of prostitutes had not been its failure to meet its own objectives not- role and trait stereotypes in society and in
registered. In Calcutta with a population of withstanding, the possibility of legalising crime. For, traditionally, attitudes to
about four lakh of people, the number of prostitution was being discussed in govern- women's crimes have been linked to assump-
registered women was 3,000 and it was ment circles in the states of Maharashtra and tions about determinants of human
reckoned that there were as many clandestine Karnataka (India) and among certain behaviour, defined in terms of biology 'the
prostitutes. In a population of about eight medical bodies, a few years ago, in the con- weaker sex'. The patriarchal division between
lakh in Bombay, there were only 1,800 text of formulating a public health pro- 'madonnas and whores' and good and evil
registered prostitutes. It was reckoned that gramme to curb the spread of STDs and in women has become most conspicuous in
the number of clandestine prostitutes in AIDS. discussions and explanations of crime, as
Bombay was four times greater than in here a woman's so-called negativeness is car-
Calcutta. Prostitutes avoided registration as PRESERVING PUBLIC MORALITY ried to extremes. According to psychoanalyst
medical examinations were demeaning, Klein, characteristics used in criminology,
callous and violative and because registra- Criminal sanctions against women in pro- where female crime is defined as the inability
tion openly identified them as prostitutes stitution to prevent 'public nuisance' and to of certain women to adhere to cultural stan-
and left them vulnerable to harassment of 'preserve public morality', have roots in dards. As these standards are often sexual,
all kinds. When infected with VD, prostitutes social definitions of women's role, functions deviation is seen as a sexual abnormality and
went to private practitioners if they could af- and social notions about women's sexuality. crimes of women are consequently defined
ford it. Alternately they let the disease run Two categories of moral systems emerge in such terms, even if another more ap-
its course and kept working. They did not under patriarchy, one applicable to each sex, propriate and accurate explanation exists.
seek relief in public hospitals for fear of for- with each system of morality based on a con- Prostitution is a case in point [Leonard,
cible registration and imprisonment [The cept of honour. A women's honour is intrin- 1982]. By contrast, definitions of male
Contagious Diseases Acts, 1888]. The acts sically linked to her body and sexuality. The honour and morality, allowing for free sex-
thus offered help and treatment to only one- various facets of female sexuality, that is, the ual access to several women with a tacit if
tenth of the sufferers from VD and prevented reproduction of labour power and the pro not open acceptance of males frequenting
the larger remaining portion from seeking duction of pleasure arc defined in terms of prostitutes, account for non-criminalisation
relief [The Contagious Diseases Acts, 1988]. their relationship with men, in male interests. of male clients in prostitution laws.
Another important reason for the failure of Thus as mothers women bear children for Confirming this reasoning is an incisive
the acts did not seek to identify the diseas- men and nurture their families. To enjoy analysis by Smart (1981] of why prostitutes
ed among the client population. their rights, they must be legally wedded and in the 1950s, standing say on the streets of
While state legalised prostitution in the to be legally wedded they must enjoy certain Kings Cross, should have attracted legislative
form of the Contagious Diseases Acts were socially prescribed criteria, namely, chastity, measures in the form of the Street Offences
seen as a progressive health measure, capacity to labour, and/or wealth. So chasti- Act, 1959, with the purpose of dealing with
evidence from Bombay suggests that it en- ty of a woman before marriage and to her the 'public nuisance', they caused. Smart
couraged the procurement and exploitation husband after marriage become feminine argued that it was largely because street pro-
of women and girls for prostitution. Young traits and values whose degree of signi- stitutes threatened dominant class and
soldiers landing at Bombay were sent directly ficance is determined by the mode of pro- gender interests [Mcleod, 1992].
to Deolali military camp from where they duction at that particular historical juncture Elaborating the threat to class and gender
were moved to their various stations. The [Troung, 1986]. Thus a woman becomes the interests, Smart maintains that Britain of the
Deolali camp was deliberately supplied with private property of her husband as well as 1950s was deeply concerned about post-war
licensed prostitutes. On account of a large his sexual property. A man owns his wife's family breakdown presaging social disloca-
influx of soldiers, subordinate officials entire being controlling her earnings, tion. Women were therefore encouraged to
received an increase of pay to go out into thoughts, reproductive capacity and redeploy their energies into child bearing and
villages within five miles of Deolali and ar- sexuality. child rearing and to confine their sexual

WS-38 Economic and Political Weekly April 25, 1992

drives within marriage, to strengthen marital tionism, the act itself is not illegal, but its conveyance or place or any portion of any
ties. Legislation on prostitution is imbued encouragement is. However, the legal defini- house, room, conveyance or place which is
with ideological support for the mono- tion of encouragement is extremely narrow, used for the purpose of prostitution for the
gamous family, inasmuch as monogamy has limiting itself to one individual encourag- gain of another person or for the mutual
traditionally meant a restriction of female ing another and does not take into account gain of two or more prostitutes [Beotra,
non-marital sexual behaviour rather than the direct and indirect encouragement by 1981 ]. This could result in two or more pro-
male. Just prior to the Wolfcnden Commit- larger collectives such as the media, the stitutes operating from the same premises for
tee's deliberations and at about the time of tourist industry and the entertainment in- the purpose of safety, security or the like,
their publication, something of a moral dustry, which are subject to degrees of state getting booked for running of brothel.
panic [Hall et al, 1978] was whipped up over control. Contradicting the spirit of the act Prostitutes are subject to rigid controls
prostitution. This concerned the way in clauses inserted into prostitution laws under and sanctions even under the system of
which vice on the streets contrasted with the tolerationist system penalise soliciting legalised prostitution. In Nevada in the US,
family and Christian virtues exemplified by and loitering for prostitution, thus allowing brothel prostitutes are required to observe
the coronation of the young queen. It was for treatment of prostitutes as offenders. The a number of regulations established by local
intensified by racialist concern about post- Street Offences Act, 1959 in Britain aimed county authorities. Some are nearly univer-
war immigration which focused public not at abolishing prostitution perse, but in sal and relate directly to their work; others
debate on immigrant women corrupting 'our keeping prostitutes off the streets to deal exist primarily in urban areas and place
women' [Mcleod, 1982). Smart's analysis with the 'nuisance value' and preservation restrictions on personal relationships and
also tries to explain why the intensification of 'public morality'. In view of this women mobility and are only occasionally work-
of legal control over prostitutes occurred in soliciting for prostitution are cautioned related. The latter restrictions blatantly
the 1950s after a century of little action twice. On the third occasion, they are define prostitutes as people of questionable
[Storch, 1977]. brought to court where they, are identified social standing, who cannot be trusted. The
This line of explanation can be amplified as common prostitutes and charged with the legal or quasi-legal limitations placed on
in two ways. First the stigmatisation of street current offence. Penalties in the form of mobility result in socially sanctioned mobili-
prostitutes can be seen as part of a conti- fines and prison sentences were imposed, but ty spaces. Prostitutes are permitted outside
nuing, albeit alternated, preoccupation with in 1983 the British parliaments made the brothel, with a few exceptions, only bet-
the threat presented by the 'residum'. In 19th soliciting and loitering for prostitution a ween certain hours, with activity confined
century Britain, members of this the lowest non-prisonablc offence [Mcleod, 1982] to visiting certain establishments or sections
grouping or class in society had been seen Penalties for soliciting and loitering for pro of the town or to particular interactions.
as being comparatively untramelled by social stitulion also exist in France [Women's Girls are explicitly prohibited from going to
convention or allegiance to dominant norms World, 1990 91 ] and India [D'Cunha, 19911. bars, gaming houses and residential areas.
and as constituting a potential threat to the Prostitution related laws in the Philippines They are not permitted to rent houses in the
social order [Steadman, 1971]. Judith are very contradictory. While city officials town [Symanski, 1974}.
Walkouwitz (1981) in her analysis of Vic- and business operators claim that the enter- The rule that no girl may solicit business
torian prostitution has shown how despite tainment industry is purely entertainment, outside the house is rigidly enforced. Written
the final overthrow of the Contagious the transactions, which have been legiti- regulations usually state that a girl may not
Diseases Acts, their application served to mated by various city ordinances, clearly be accompanied by a male escort in town.
isolate prostitutes as an unrespeciable 'class reveal an organised prostitution industry. In some counties prostitutes are not allow-
apart' from working class women and Among such ordinances and legitimations ed to have friends within the town, including
thereby placed them in the public need in are: (a) The requirement of a mayor's per- pimps, boy friends, husbands and others
these residual ranks of society. In the 1950s mit for employees before they are considered defined by the police department. Girls in
echoes of these fears of the 'disorderly registered/licensed entertainment workers some counties report that they cannot talk
classes' persisted as in discussions about the likewise, business permits are necessary for to anyone when out of the brothel or at most
threat from delinquents [Hall and Jefferson, operators of entertainment establishments can only exchange salutations. To obviate
1975). It was therefore as someone wearing (b) The city government maintains and problems, after a girl's official status
a badge of unrespectability, acquired in an operates a social hygiene clinic which changes, some counties require that girls
earlier era, that the prostitute faced concern certifies whether an entertainer is free from who have been terminated or fixed must
over the 'public nuisance' she created. From VD and other communicable diseases. If leave town by the first available transporta-
the outset the Wcjlfenden Committee, for ex- found to be infected, the worker is prohibited tion [Symanski, 1974].
ample, clearly delineated prostitutes as social from working till cured, (c) While the act Local rules and regulations also place
pariahs of prostitution is itself not illegal, there exists restrictions on family proximity, dates with
the law should confine itself to those ac- an anti street walking ordinance which con clients and employment changes. A pro-
tivities which offend against public order and sidcrs soliciting of customers in the street stitute cannot be employed in a brothel in
decency or expose the ordinary cittzen to punishable By contrast, soliciting customers certain counties if a member of her family
what is offensive or injurious. Prostitutes do inside clubs which assure operators of lives in the same county. The rule on dates
parade themselves more habitually and open- income from various fees imposed on varies. Some towns require that a client
ly than their prospective customers and do customers is not punishable. meets a girl at the town limits or dates her
by their continual presence a f f r o n t the sense beyond the town limits. Others stipulate that
What is contradictory is that while the act the girl and client must leave the county. In
of decency of the ordinary citi/en [Wolfenden
of prostitution is legal, penalties for loiter- either case the intent is the same, to avoid
1957 in Mcleod, 1982].
ing and soliciting, render it difficult for pro- embarrassment to those in the community.'
siitutes to work, for a woman cannot make Violations of these regulations result in
CRIMINAL SANCTIONS contact with her client legally. Even more revocation of the work permit and perhaps
discriminatory is the fact that both prosti- banishment. By contrast little control is ex-
Criminal sanctions against prostitutes and
tutes and clients are active participants in ercised over brothel managers (Symanski,
a plethora of legal controls over women in
the act of soliciting, but it is only the pro 1974]. Laws under a system of legalised pro-
prostitution, exist in one form or another,
slitute who is subject to legal process. stitution in Germany, restricting the activi-
under all three legal traditions governing
prostitution. The prohibitionist system in its Further, the definition of the term brother ty spaces of prostitutes are another evidence
very formulation bans prostitution as an ac in several of these countries makes it difficult of the control and regulation over women
tivity per se, i e, both the act and its en for women to work. The Indian law for in in prostitution. Women found outside these
couragement. In countries espousing tolera stance defines a brothel as any house, room, officially designated zones are fined and/or

Economic and Political Weekly April 25, 1992 WS 39

arrested by the police. tion racketeers virtually allowing them to go of what was colloquially known as 'curfew'.
Austria which is a federation of states has scot-free, prostitutes are arrested like This meant that a woman could be remand-
prostitution laws differing from one state to criminals. The larger number of prostitutes ed on bait until her next court appearance,
another. But Vienna that has legalised pro- arrested and convicted compared to prostitu- but on condition that she did not enter
stitution has toleration zones and times for tion racketeers and clients—largely men ex- prescribed areas of a town or went beyond
soliciting. Soliciting is allowed only when it ercising various forms of power and control certain geographical limits. [Mcleod, 1982].
is dark outside and only in police controll- over the prostitute exploiting the latter as a Though the British parliament made
ed neighbourhoods. Also prostitution is per sex commodity, so as to make the enterprise soliciting and loitering for the purpose of
milted in uninhabited houses and in areas possible in the first place—clearly indicates prostitution a non-prisonable offence,
that do not have schools, churches or a gender bias against prostitute women in magistrates all over England began almost
kindergartens in the vicinity and that are the implementation of prostitution laws. It immediately to impose heavy fines of £150,
sparsely populated. Prostitutes arc required is also indicative of a class-based discrimi- even £200, per offence, with seven days to
to register with the police, including register- natory enforcement, as it operates decisive- pay. Knowing well that most if not all the
ing their places of work. Registration re- ly against the prostitute (victim and worker), women would not be able to pay in time and
quires obtaining a letter of good conduct while allowing prostitution racketeers (en- would be imprisoned.
which takes almost five years. trepreneurs, landlords, brothel managers, The police anywhere do not lack initiative
If women are caught working without be- pimps and procurers) to go scot-free. or inventiveness in extending their powers in
ing registered they can be fined and if unable Enforcement practices similarly dis- relation to prostitution to other sections of
to pay the fine, are awarded prison sentences. criminate on the basis of class and race the population as well: putting all women
Prostitutes caught working outside registered within the prostitute population itself— in fear of being arbitrarily identified as pro
zones are fined lower than if they were work 85-90 per cent of the prostitutes arrested in stitutes and harassed.
ing illegally. Their work permits are revok the US work on the street, although only
ed if fines are not paid. When at work pro- 10-20 per cent of all prostitutes are street PROVISIONS FOR REHABILITATION
stitutes arc required to produce their record walkers. While approximately 40 per cent of
of compulsory weekly medical check-ups to street prostitutes are coloured women, 55 per Prostitution laws have sought not just to
the police on demand. If found infected the cent of those arrested are coloured. Racism deter prostitutes through the use of legal
record book is confiscated and they are pro- becomes even more apparent, when you look penalties, but also to draw women away
hibited from working. Austrian prostitutes at the figures on who gets jailed—85 per cent through a process of 'rehabilitation of
are presently required to test monthly, for of prostitutes sentenced to do jail time are offenders'.
AIDS, failing which they are fined up to US coloured women [Alexander, 1987].
The Indian law is an example of the com-
$ 7,000 or sentenced to prison (Women's Similarly in Bombay, street prostitues who bination of penal sanctions against and ef-
World, 1990-91). By contrast, the male client, are at the bottom of the hierarchically struc- forts to rehabilitate prostitutes. The
by and large stand outside the scope of tured sex industry are subject to greater rehabilitation of girls or women rescued or
criminal sanctions or controls under tolera- harassment by way of arrests and convic- arrested under the SITA, 1956 or now
tionism and legalised prostitution, reflecting tions than prostitutes in brothels. Between ITPAA, 1986, is the responsibility of pro-
the double standards of male sexual 1980-87 there were 53,866 women and 5,676 tective homes on corrective institutions set
morality. women arrested on the streets and convicted up under the act. Minor girls rescued or
In their operation too, prostitution laws for obscenity and loitering soliciting for pro- picked up under Section 40 of the Bombay
are discriminatorily enforced against stitution under sections HOB of the Bom- Children Act (for safe custody and shelter,
women. They overwhelmingly penalise the bay Police Act and 8(b) of the SITA respec- as they are destitute and have no fixed
prostitute, while the men who derive profit tively. By contrast there were only 3,564 abode) and under Section 78 of the same act
(the organisers and controllers of the sex in- women arrested from brothels under section (for being exposed to moral danger or being
dustry) and pleasure (the client) from pro- 7(1) SITA, for practice of prostitution in a in prostitution) and minor girls and women
stitution go scot-free. public place [D'Cunha Jean, 1991]. rescued and produced in court under various
In the US in 1983, 1,26,500 people were sections of the Indian Penal Code relating
Further there is a tendency on the part of
arrested for prostitution. Although the pro- to rape, kidnapping and abduction for illicit
the implementing authorities especially the
hibitionist system of law, current almost sexual intercourse, wrongful confinement or
police to "stretch the law", thereby under
throughout the US, in principle makes no procurement for prostitution and the like arc
mining the prostitutes' civil liberties. Under
gender-based distinction and in most states sent to rescue and r e h a b i l i t a t e houses for
the Street Offences Act in England there was
prohibits both sides of the transaction for females, which are different from those set
no requirement for the police to prove that
prostitution, the percentage of women ar- up under SITA.
a woman actually caused annoyance to
rested generally stands at around 70 per cent.
anyone by soliciting [Worrall, 1981], This was A previous study conducted by the author
In 1979 it dropped to 67 per cent, but was
also at variance with the standard practice of one such nome Asha Sadan, showed that
back to 73 per cent in 1983. Customers con
in the case of other offences where a past the
stitute around 10 per cent of those arrested.
criminal record is not revealed until the corrective and reformative orientation in
The remainder of the arrests arc generally
current charge is proved. these homes is partly the product of d o m i -
of transvestites and pre-op trans-sexual pros
The practice of entrapment in the course nant social attitudes towards and penal sanc-
titutes [Alexander, 1987],
tions against prostitutes in the Indian law,
Related arrest records in San Francisco for of arresting prostitutes, the use of abusive
reinforcing an image and status as criminals,
the months April and October 1976 reveal language, physical violence and sexual
delinquents, offenders or fallen women, in
that the number of prostitutes arrested were demands are other examples of the police
need of reformation. This was evident from
179 and 157 respectively By contrast the exceeding their brief at the point of or alter
the following facts:
number of clients arrested for the same arrests, there are known cases of magistrates
(a) Memos from the police and the
period were 15 and nine respectively; and the in the city of Bombay asking lawyers defen-
metropolitan magistrate of the juvenile court
number of mate pimps arrested were 12 and ding prostitutes in court, to send the latter
to the superintendent referred to the girls as
three respectively. Similar trends arc evident to them [D'Cunha, 1991]. Police handling 'girl juveniles'.
in New York city [Barry, 1979]. of court procedures in Britain provide a (b) Counselling by the then psychologist
Similar trends persist in Thailand. Accor- further example of the way in which pro- urged the girls to give up prostitution,
ding to Khun Jantira Kalampasutra of the stitutes1 personal freedom can be severely because it was an immoral profession.
National Commission on Women's Affairs, curtailed because the way legal procedures (c) Raking up the girls' past and abusing
Thailand, "while the Prostitution Suppres- are interpreted and applied. Women in them as prostitutes in the event of quarrels
sion Act awards light penalties on prostitu- Midlands, Britain reported on the practice between the inmates themselves or between

WS-40 Economic and Political Weekly April 25, 1992

the latter und the resident maintenance staff speculate oil the effect of constant shifting stitutes have not been identified as feminists
was a common phenomenon. between real and work designated identities nonetheless many prostitutes identify with
(d) Beating and physical punishment were or between restricted and open activity on feminist values such as independence, finan-
also common. Punishments like salt free those who remain in the profession for long. cial autonomy, sexual self determination, per-
food and barring the girl from watching TV The value extracted from women in prostitu- sonal strength and female bonding.
were also resorted to, by the home autho- tion, facilitated partly by a process of During the last decade, some feminists
rities. 'Hardened girls' were isolated in a making it invisible through moral and began to re evaluate the traditional anti-
special room, without bulbs, fans and long criminal sanctions render the prostitute prostitution stance of their movement in the
pieces of cloth to avoid the occurrence of dependent on commercial enterprises and light of the actual experiences, Opinions and
suicide [D'Cunha, 1987]. vested interests, who appropriate the gains needs of women prostitutes. The ICPR can
This orientation towards rehabilitation does from the trade of sex and women bodies. be considered a feminist organisation, in that
little to reintegrate women in prostitution. The invisibility of the woman's oppression it is committed to respecting all women, in-
and exploitation behind closed doors is thus cluding the most invisible, isolated, degrad-
In part this accounts for women attempting
ensured. ed and/or idealised. The development of pro-
to escape or succeeding in doing so from
stitution analyses and strategies within
these houses. The narrow moralistic concerns and
women's movements which link the condi-
Criminal sanctions against prostitutes and criminal sanctions embodied in existing pro- tions of women in general and which do
their artificial isolation by the legal and stitution laws, over prostitutes, the penal justice to the integrity of prostitute women
moral system thus not only reflect the widely measures for violations of these and the lack are therefore important goals of the commit-
held assumption that prostitution emerges of regulation of brothel management under tee" (International Committee on Prostitute's
from the contradictions of the moral system the system of state legalised prostitution Rights 1986).
alone, they also fail to distinguish between are being challenged by those who are Ironically, while the ICPR begins by
prostitution as a social institution and the advocating the decriminalisation of criticising feminists and feminism, it asserts
individual woman in prostitution. The prostitution. that prostitutes identify with feminist values
economic base of the institution of prostitu- like financial autonomy, sexual self deter-
tion and its interaction with the rest of the IV
mination, independence, etc. Conspicuous
economy thereby remains concealed. Also Decriminalisation of by its absence in this list of values is the
concealed are the individual and collective Prostitution feminist struggle against sexual object ifica-
vested interests grounded in the economic tion and com modification of sex and
system underlying prostitution. The advocates of this tradition define
"decriminalisation of prostitution' as the women's bodies. Or is this perceived as part
These assumptions also mask various of 'sexual self determination'? The ICPR by
complete renewal of any sanctions against
aspects of social transformation that impact its legitimation of the institution of prostitu-
prostitutes. They recommend that (a) third
women as a group and result in changes in tion explicitly endorses the sexual objecti-
party managers, i e, brothel owners,
the institutional manifestations of prostitu- fication and commodification of women—
managers and pimps be recognised as
tion. The failure to recognise the hierarchical legitimate business men and women, the exploitative core of the institution of pro-
structure and organised nature of the sex in- (b) their business be regulated only by stitution which is based on the patriarchal
dustry conceals the heterogeneity within the business and labour law and not criminal assumption that sex is a male right and
prostitute population itself—differentiated law, (c) third party managers must provide women's bodies are commodities to be
in their self-perceptions, needs and demands. safe, healthy and non-exploitative conditions bought and sold in prostitution.
The above-mentioned assumptions of pro- of work for prostitutes, and (d) that pimp- Secondly, while legitimising prostitution
stitution laws inevitably result in placing the ing laws be repealed. The formulation of any as a valid force of work, partly because of
onus of social blight and invisibility on the regulations for third party managements of its overwhelming desire to give a voice to the
individual woman in prostitution which is prostitution business should be the function most isolated and degraded of women (by
a cruel irony. She has to resolve the con- of prostitution boards or commissions, the society) groups like the ICPR are conscious-
traduction between social necessity and social majority of whose members should be pro- ly or otherwise committing a more serious
unacceptability. stitutes (National Task Force on Prostitution, error. They are succumbing to the traditional
It is necessary to place the institution of USA, 1984-86) patriarchal equation between the individual
prostitution within the context of wider in prostitution and the institution of pro-
social processes to understand the subtle The position on decriminalisation of pro- stitution and in doing so leave the latter's
interconnections between prostitution and stitution is best exemplified in the statement inevitability, assumptions and existence un-
the economy and polity, to understand how on 'Prostitution and Feminism', formulated challenged. Further, the line of distinction
existing and changing patterns of produc- by the International Committee for Pro- that organisations like the ICPR, draws bet-
tion processes and relations can lead to con- stitute's Rights (ICPR), a group of prostitute ween legalisation and decriminalisation of
and non-prostitute women primarily from prostitution is thin. Both systems of law
version of female sexuality into economic
Europe and the US upholding prostitutes' unequivocally endorse the institution of pro-
assets for individuals and collectives [Truong,
rights—at the Second International Con- stitution and third party management of
1986]. The issues that need to be addressed
gress on Prostitution, Human Rights and prostitution—a position that is in the
arc not why so many women deviate from Feminism held in Brussels in 1986. interests of patriarchy and capital accumula-
prescribed norms of sexual conduct, but why The, ICPR statement says, tion, that accrues to vested and exploitative
and in what way female sexuality is valour is- until recently, the women's movement in most interests in the hierarchically structured sex
ed and how values are extracted from it, as countries has not or has only marginally industry
well as who benefits from this extraction. included prostitutes as spokespersons and as
Questions such as these would point to the Lastly, a brothel business bases itself on
theorists. Historically, women's movements
larger socio-economic-political system and profits and its accumulation through the
(for example, socialist and communist
vested interests within prostitution, as me exploitation and commodification of
movements) have opposed the institution of
originators of the institution—not the indi- women's bodies. Commodification of sex
prostitution, while claiming to support
vidual women in prostitution. and women's bodies especially by third par-
women. However, prostitutes reject support
Criminalising women in prostitution not ties is itself an exploitative condition, render-
that requires them to leave prostitution; they
only reinforces a prostitutes sub-culture as ing the demand for non-exploitative condi-
object, to being treated as symbols of op-
tions of work in a brothel farcical
moral outcastes, it forces many a woman to pression and demand recognition as workers.
operate more discreetly and clandestinely. Due to feminist refusal to accept prostitution Moreover it is farfetched to believe that
The use of bogus names and addresses is as legitimate work and to accept prostitutes it would be possible to check forced prostitu-
often used to ensure this. One can only as working women, the majority of pro- tion, while brothels are allowed to flourish

Economic and Political Weekly April 25, 1992 WS-41

legally. This is especially so for those coun- overplay free choice even in the developed on client availability, (b) competition, (c) the
tries where forced prostitution has reached countries is a distortion of reality. relationship with the brothel keeper and the
staggering proportions and the increasing It is therefore necessary to deconstruct the rest of the hierarchy. Further prostitution is
market demand for children and women for structural factors responsible for prostitu- one of those professions where with age and
prostitution give prostitution establishment tion to defend choice, For choice must be accumulation of experience, earnings
colossal profits. viewed on a continuum, characterised by decline. This apart, a prostitute rarely has
Finally, one must identify which category degrees of freeness and unfreeness. Against control over her earnings and the manner
of prostitution in the hierarchically stratified this background, prostitution can hardly be in which she would like to spend it, for the
industry gets representation on prostitution often said to be a woman's choice especially brothel managment and pimps appropriate
boards and commissions, formulating in developing countries. large proportions of it. Independent women
regulations for third party management. Further, the ICPR's stance on prostitution working on the streets are often in an even
It will generally be the articulate arid as an occupational choice is contradictory. more precarious position with clients refus-
politically active initiators of the demand for While admitting the exploitation of and ing to pay [D'Cunha, 1991).
decriminalisation of prostitution that con- discrimination against women in employ Gender subordination in the sex industry
stitute the upper caste of the sex industry- ment and making claims for genuine oc- is at its very worst, In the case of prostitute,
brothel managers, elite call girls and the like cupational choice for women, not dictated both their labour and sexuality are control-
rather than brothel attached prostitutes or by class, gender, social prejudices, it led. Their labour is considered a human
women operating on the streets. One can legitimates prostitution, where exploitation resource and their sexuality a natural
only speculate as to the manner in which the is inherent, as an occupation thus nullify- resource which men of all classes can ap-
interests of prostitute women at the lower ing its claims for elimination of sexual divi- propriate [Wolhof, 1980]. This is particularly
end of the hierarchy will be protected. sion of labour. true and more obvious for prostitutes attach-
Against this backdrop it is necessary to Prostitution allows a woman freedom, ed to brothels, bars and sex clubs and is evi-
examine the arguments advanced in favour financial autonomy and the right to sexual dent in their lack of control over the choice
of decriminalisation of prostitution. self determination: The degree of freedom of clients, pace of work, price fixation,
Prostitution is often a woman's occupa- a woman in prostitution enjoys depends upon forms of sexual activity. Assertion of sex-
tional choice: This reasoning corning from the institution within which she operates. ual self-determination is met with brutal
the countries of the north implies either free The experience of large sections of women consequences. Hazardous work conditions
choice or a certain degree or freeness in in prostitution however reveals it to be one make women in prostitution vulnerable to
choice. In countries of the south however, of the most alienated forms of labout numerous physical and psychological
the magnitude and dimension of the institu- Under conditions of slave labour existing in ailments. Tuberculosis, anaemia, hepatitis-
tion of prostitution have reached alarming many of our 'developing countries' and for B, STDs, gynaecological problems like
proportion, with the phenomenon acquir- women of these countries working in the sex vaginal infections, pelvic inflammatory
ing the dimensions of an industry in south industry in northern countries, imprison diseases, etc, and physical injuries are com-
east Asia, The mass character of this ment and confinement are eommonlv mon among prostitute women in India
phenomenon must be viewed in the context resorted to, to break the woman's will and [D'Cunha, 1991]. In the case of child pro-
of north-south relations of domination and ego, shatter her identity, distance her from stitutes, rectal lesions, poor sphincter con-
subjugation economically, politically and her past life and expose her to a new trol, lacerated vagina, perforated anal and
socio-culturally. The resulting structurally environment, bonding her to the brothel vaginal walls, death by asphyxiation, are
induced poverty and deprivation at all these management. found to be largely related to adult sexual
levels, the imposition of a commodity- Another well-entrenched phenomenon is ads with children [Barry, Bruch and Castley,
oriented culture and the appropriation and the institution of poncing (pimping), with 1983].
use of traditional focus of patriarchy to serve heavy ponces moving from sweet talk to Prostitutes' reactions to clients range from
new interests and functions with the super- violence, intimidation and appropriation of disgust, contempt, pity, indifference, feign-
imposition of modernisation, create the con- the women's earnings as he disciplines her ing sexual response and jeering at clients
ditions for prostitution. Prostitution in these and brings her under control. Resistance to who are taken in by this, to liking and
societies is like a survival strategy for large the brothel management or pimps is met becoming involved with clients. By and large
masses of women, with a greater degree of with abuse, torture even murder or threats however they perceive their work purely as
'unfreeness' characterising women's entry of it (D'Cunha. 1991 ]. a source of income, the control of emo-
into prostitution. This ranges from crass The forced identification with and sub- tionality and sexuality being a safeguard
physical or socio-economic coercion to mission to the control of the organisers of against male exploitation and monopoly or
calculated decisions by women and girls to sex business is a depersonalising experience a defence against fusing their love life with
enter prostitution as the most viable among as it means a loss of freedom. The woman their profession [D'Cunha, 1984].
a very restricted and economically less viable lives for the present, realising that she has Such a separation of sexual experience in-
of occupational options available to them. no control over her life [Barry, 1979). volving the most personal and erotic parts
Even in the technologically developed Women known as prostitutes are of one's physical and psyche being from the
countries of the north when more women regulatorily denied custody of their children total person is indicative of the objectifica-
are at least functionally literate and there is in many countries on the assumption that tion and depersonalisation of a prostitute.
a significant number of occupational they are less responsible, loving or deserv- Women in prostitution are by and large
choices, about 10 per cent of women who ing than other women. Stamping prostitutes' alienated from this intimacy [Barry, 1979].
work as prostitutes are coerced into prostitu- passports to indicate the prostitution district Finally, socialised like all women to ac-
tion by third parties through a combination in which they operate, photographing and cept pain and suffering and having inter-
of trickery and violence. This figure appears finger printing prostitute women to identify nalised the social perception of themselves
to be relatively constant in the US as them are measures used and misused by the as 'deviant' large section of women in pro-
reflected in studies done at the turn of the authorities, impeding women's social mobili- stitution are unable to perceive themselves
century and current estimates of COYOTE, ty and violating their rights and dignity as as human beings and as victims and sur-
a prostitute rights group and other pro- human beings (Discussions with prostitutes vivors in an exploitative system. They
stitutes rights organisations (Rosen, 1981). at the Brussels Congress, 1986). therefore, live with negative self identities.
The entry of poor while American women Economically prostitution is unpredic- The estrangement from intimacy and love
on an insufficient dole or impoverished table and fluctuating with earnings depen- and the social ostracism that prostitutes face,
black American women into prostitution is dent on (a) client demand and purchasing generally inhibit them from entering into a
not unknown. To gloss over this reality and power which is related to market forces and love relationship for fear of being deserted

WS-42 Economic and Political Weekly April 25, 1992

or their pasts being raked up in the relation- exploitative assumptions of the latter, pro- bases of prostitution and questioning
ship. A prostitute is thus alienated from moting vested interests within the sex prevailing sexist attitudes towards prostitutes
society at large and is forced to live a life business. Further it is contradictory to and prostitution.
of social condemnation. demand the repeal of laws against pimping, Rehabilitation: Change the 'corrective and
But if a woman can sell her mental and while simultaneously making claims for the reformative' orientation towards rehabilita-
manual skills, which are exploited, there is regulation of third party managements and tion to perceiving prostitutes as victims,
nothing wrong with commercialising her of the abolition of force, coercion and active survivors and human beings with
sexual skills in prostitution which is violence against prostitute women. This is self respect and dignity. Pro government pro-
only another form of women's work. Pro- because third party managements, inclusive vision of adequate enforcement facilities for
stitution is related to the exploitation of all of pimps are a well-established phenomenon integrations of criminals in rehabilitation
women looked upon as sex objects. A pro within the institution which is rooted in and centres. Provision of halfway houses and
stitute at least sells her sex and does not give thrives on the exploitation, physical and subsidised hostels for women and their
it away free as married women do. It is the psychological oppression of prostitute children needed especially when they leave
sexual objectification of women that must women. For this same reason while pro
the rehabilitation centre.
be eliminated and not just prostitution as stitutes must assert their rights as human
a profession. beings and must demand wel fare and other Socioeconomic Measures: While the task
Traditionally, a woman's nature, entire benefits like any other citizen, any union of of providing adequate support structures to
being and role have been defined in terms prostitutes must be examined in terms of women in prostitution and those wanting to
of her sexuality, her reproductive organs and the nature of its social base, its leader opt out is an urgent need, it is equally im-
functions. While upper class women have ship, demands, ideology and structure o f . portant to initiate measures that prevent
always been protected, restricted and con organisation. women being forced to prostitute, in the first
trolled within the confines of their homes, place. The following are some. Widespread
Decriminalisation would wipe out the public education, on the structural roots of
the working class woman's labour outside stigma of immorality and criminality: Law
the home has always been ignored in terms prostitution, the subtle and blatant manners
plays an ideological role in a class-based in which the public sustains the institution,
of its contribution to larger socio-economic patriarchal society reflecting and reinforc-
life. Though a woman's mental or manual public awareness on the moral and legal
ing the status quo. Within these limits, it isolation of prostitution and their concealed
skills may be exploited, use or sale of these plays a progressive role whenever it is used
skills may represent a break with traditional exploitation in prostitution, emphases on
as an instrument to mete out justice to the values of gender equality and justice.
gender stereotypes of women, oppressed and bring exploiters to book. By Increase educational and job opportunities
Further, recognising prostitution as a valid itself taw cannot bring absent radical for women and eliminate gender based
form of women's work absolves govern- changes in society. discriminatory work conditions. Review and
ments of the responsibility of providing op- Decriminalisation of prostitution is an change discriminatory provisions in other
portunity to women for developing voca- expression of the double standards of male laws against women that may either
tional and occupational skills, expanding sexual morality it reinforces sexist myths predispose them to prostitution or reinforce
their employment opportunities providing about women and reinforces the patriarchal their image as sex objects, eg, marriage and
non-discriminatory conditions of work for assumptions of the inevitability of prostitu- divorce laws, custody, maintenance, employ-
women or infrastructural facilities (or tion. Such deeply internalised sexist values ment laws, laws on the use of women's im-
women to leave prostitution. Provision of and practices can only be countered by deter- ages in the media. Review existing and
viable economic options for women mined struggles against an exploitative class- planned economic policies that directly and
are crucial to curbing the growth of prosti based social order that breeds street indirectly predispose women to prostitution.
tution. prostitution.
While it is true that sexual objcctification,
violence and opposition arc common ex- V
periences of all women, be it the prostitute Some Recommendations
or the wife, with a difference of degree, ques- Alexander, Priscilla (1987): 'On Prostitution',
tioning the bases of both the institutions of On the bases of the foregoing analyses, Paper for the National task Force on Pro-
prostitution and the patriarchal among the following recommendations may be stitution, San Francisco, USA, February.
monogamous family are steps in the direc- made: Barry, Kathleen (1979); Female Sexual Slavery,
tion of challenging the sexual objectifica- Prentice H a l l , New Jersey.
Legal Reform. Review of dominant prostitu-
tion, exploitation of all women. (1981): Female Sexual Slavery, Avon Books,
tion laws and other laws related to prostitu
Decriminalising of prostitution, facilitates First Discus Printing, New York.
tion to identity the loopholes through which
unionisation of prostitutes for welfare Barry, Kathleen, Bunch, Charlotte and Cost ley,
prostitutes are victimised and delete all sec- Shircly (1983): International Feminism—
facilities and better work conditions: Pro-
tions in these laws that penalise and Networking against Female Sexual Slavery,
stitutes must be treated with dignity as
discriminate against prostitutes. Tighten up Report of the Global Feminist Workshop
human beings without stigmatisation or
and enforce criminal sanctions against pro- to Organise against Traffic in Women,
discrimination vis-a-vis other citizens. It is
stitution rackets, especially procuring net- Rotterdam, The Netherlands; A p r i l 6-15.
therefore necessary to delete alt legal pro
works trafficking in young women and girls Beotra (1981): The Suppression of immoral
visions criminalising or. victimising pro-
for prostitution. Penal sanctions against Traffic in Women and Girls Act 1956 (with
stitutes in any way. Welfare facilities and
clients for acts that violate prostitution. State Rules), Revised by Deyinder Singh, 3rd
other benefits available to other categories
Penal provisions against corrupt enforce- edition.
must be open and available to women in pro-
ment authorities. Contagious Diseases Acts (1888): Records of
stitution. It is important that this distinction Debates on the Contagious Diseases Acts
between the individual prostitute and Citizen's Committee. Enhancing efficacy in India in the Bombay Medical Union,
decriminalising her and the institution of in implementation by the constitution of printed at the Anglo Jewish Vernacular
prostitution and its decriminalisation be statutorily and mandatorily recognised Press, Bombay.
made, for while the former is necessary, the citizens committees, area wise to observe im- Davis K (1961): Prostitution in Contemporary
latter is unacceptable plementation of prostitution laws. Provide Social Problems, R Merten and R A Misbet
In raising a demand for decriminalisation legal education to implementing authorities (eds), Brace and World, New York.
of prostitution the ICPR collapses the on [he provisions of prostitution laws and D'Cunha, Jean (1984): 'Voices in the Dark'.
distinction between the individual and other related local laws Organise awareness Eve's Weekly, May 19 24.
the institution endorsing the patriarchal and workshops for them, analysing the structural —(1986); The Suppression of Immoral Traffic

Economic and Political Weekly April 25, 1992 WS-43

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WS-44 Economic and Political Weekly April 25, 1992