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
Introduction
PROSTITUTION is bound up with wider
social processes and permeated by assump-
tions current in society at large. The institu-
tion of prostitution has existed in one form
or another in all class-based patriarchal
societies. In ancient times, female prostitu-
tion in several societies was closely linked to
religious practices. By contrast, prostitution
in modern times tends to be associated with
promiscuity, crime and social condemna-
tion.
Prostitution as an institution therefore
cannot be understood only with reference to
certain culture-specific variables. It has a
clear economic and ideological base and is
intrinsically related to larger socio-economic
and political processes. Rather than as a
moral issue it can be usefully analysed as a
crucial part of the labour transformation
process[Truong, 1987, p 30].
The last four decades have seen female
prostitution/in south-east Asia in particular,
undergoing dramatic changes. Not only has
the scale of the phenomenon reached alar-
ming proportions, but the forms in which
prostitution manifests itself have become
widely diversified. In particular, evidence
suggests a correlation between militarisation
in these regions and the growth of prostitu-
tion. An increase in prostitution as a result
of the development of the tourist industry
is another recent phenomenon. In countries
where the sex business has assumed the
dimensions of an industry, it has been sug-
gested that prostitution makes a significant
contribution to the process of economic
development at the macro-level through in-
come remittances of prostitutes to their
village families.
Despite the magnitude and manifold
dimensions the phenomenon has acquired,
it has received scarce analytical attention.
Existing literature on the subject, in India
for instance, largely tends to be descriptive,
highlighting specific aspects of prostitution,
the socio-economic background of the
women involved, their living and working
conditions, etc. Most of these studies adopt
a structural-functionalist approach, at-
tributable to the dominant positivist orien-
tation of the social sciences and in particular,
sociology, in India. Several studies reveal no
individual motives, attitudes and behaviour,
and issues of vice, morality, public order and
public health, regulation and control.
There are three conflicting views on pro-
stitution, the moralist, the institutionalist
and the feminist. The first two refer to street
and brothel prostitution, while the third,
which is more recent refers to the social con-
ditions of all women. The moral approach
maintains that prostitution violates moral
sensibilities. It is hence undesirable and must
be eradicated through the use of penal
measures. The institutional argument takes
prostitution as the oldest profession, which
the state at best can control marginally.
These two views are based on the assump-
tion that social activities can be regulated
for the benefit of all, and that regulations
can be designed and executed by a national
body. The third line of the thinking reflected
in feminist circles, but not yet significantly
embodied in Indian studies on prostitution,
challenges the first two positions. It main-
tains that prostitution is only one aspect of
the prevailing unequal gender relations. Pro-
stitution as a social phenomenon will sur-
vive so long as the social structures surroun-
ding it, and contributing to it prevail.
Neither sanctions nor moral condemnation
will uproot prostitution. The legal status and
the social stigma prostitutes endure isolate
them from the rest of humankind and ex-
pose them to various forms of exploitation
[Truong, 1988, p 2].
Governments the world over have used the
instrument of law as a means to deal with
prostitutes and prostitution. Because of the
complexity of the phenomenon, its interna-
tionalisation as an industry and the gaps in
our information, there is a pressing need to
delineate the policy issues involved and to
build an analytical framework in which to
discuss them. This article is a modest at-
tempt to examine the ideological under-
pinnings of the prostitution laws across
societies including India.
II
Legal Systems G o v e r n i n g
Prostitution
Three systems of prostitution-related laws
have been formulated and applied in various
parts of the world; the prohibitionist system,
the tolerationist system and the system of
legalised prostitution.
The prohibitionist system as it exists in the
US except in Nevada {Women's World,
1990-91) perceives prostitution as immoral
and aims at its eradication. In pursuance of
this end, it bans prostitution per se,
criminalising the activities of all categories
of people involved in prostitution, i e,
brothel-keepers, pimps, procurers, clients
and prostitutes.
The tolerationist system rests on the
assumption that prostitution is as old as
human civilisation itself; that it is a univer-
sal and inevitable social evil necessary to
satiate a naturally aggressive male sexuality
and that in the past it has only been pos-
sible for the state to at best introduce some
mechanisms of control over prostitution, so
as to protect public health and curb excessive
exploitation. This system of law consequent-
ly does not seek to abolish prostitution per
se. It is only targeted at trafficking in women
and girls for prostitution, brothel-keeping,
pimping, procuring and renting premises for
prostitution. Prostitutes are not intended to
be criminalised by virtue of their work. They
have more or less the same rights as other
citizens. The United Nations' Convention
for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution
of Others, 1949 which has been adopted in
several countries such as Britain, India and
France (Women's World, 1990-91) embodies
this system.
Though this system does not forbid the
act of prostitution per se, countries adop-
ting this system generally and surprisingly
have other laws or insidious clauses within
the dominant prostitution law, penalising
soliciting or loitering by prostitutes. Thus
contrary to the declared objectives of the
tolerationist tradition, these clauses effective-
ly result in the criminalising of individual
women in prostitution, while the client is not
considered an offender.
Many countries have adopted the system
of legalised prostitution. Prostitution was a
legal activity in 19th century England and
India and presently in Germany, Nevada in
the US, Vienna in Austria and Switzerland.
(Women's World, 1900-91). The legal tradi-
tion, is grounded in the assumption that pro-
stitution is a necessary social evil required
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
structure, and must hence be legalised.
Legalisation permits prostitution especial-
ly in 'closed houses' or 'eros' centres. The
system requires prostitutes to mandatorily
and compulsorily register themselves with
the local authorities and submit them-
selves to periodic health check-ups for VD
clearance after which a prostitute is issued
a, police clearance to work professionally,
generally in officially designated areas.
Legalisation is thus perceived as a means of
ensuring 'public health', through regulation
and control of prostitutes and their health,
while permitting unfettered male access to
women.
In more recent times, sections of western
civil liberation and certain prostitutes' rights
groups have been raising the demand for
'decriminalisation of prostitution'. This
arises partly from their desire to protect in-
dividual women in prostitution and place
them outside the scope of state regulation
and control that the tradition of legalisation
and other systems of law seek to enforce. It
also stems from a certain understanding of
the institution of prostitution, which while
it moves beyond a conventional morality, ac-
cepts the patriarchal and exploitative basis
of prostitution as an institution.
Advocacy of this legal tradition is on the
following grounds: (a) Prostitution is often
a woman's occupational choice; (b) it affords
a woman freedom, financial autonomy and
sexual self-determination; (c) if a woman can
sell her mental and manual skills, which are
exploited, there is nothing wrong in commer-
cialising her sexual skills in prostitution,
which is only another form of women's
work; (d) prostitution is related to the ex-
ploitation and oppression of all women
looked upon as sex objects—a prostitute at
least sells her body and does not give it away
free as married women do; (e) Decriminalis-
ing prostitution would allow for unionisa-
tion of prostitutes against brothel-managers,
pimps and the police and it would also
enable prostitutes to press for welfare
measures like health eare, child eare and
educational facilities for their children,
social security for themselves, etc; and
(0 decriminalisation of prostitution would
wipe out the stigma of immorality and
criminality attached to prostitutes and
prostitution.
This system, seeks to recognise prostitu-
tion as a legitimate business, subjecting
owners and managers of prostitution
establishments to business and labour laws
and not to criminal law. It likewise advocates
the removal of all criminal sanctions against
prostitutes.
Ill
Biases in Legal Systems
Legal systems governing prostitution, like
any other, mirror the dominant value
Economic and Political Weekly April 25, 1992
premises and assumptions regarding class,
gender, race, etc, current in society at large.
DEFINITION OF PROSTITUTION
To begin with, prostitution laws in most
countries, by and large define prostitution
as a female phenomenon. The Indian law,
for instance, embodied in the Suppression
of Immoral Traffic in Women and Girls Act
1956 (operational in 1958) defined prostitu-
tion as "the act of a female offering her
body for promiscuous sexual intercourse, for
.,. whether in money or in kind, and whether
offered immediately or otherwise, and the
expression prostitute was to be construed ac-
cordingly" [Beotra's The Suppression of Im-
moral Traffic in Women and Girls Act, 1956,
1981, p 19]. However the scope of this defini-
tion has by the amendment act of 1986..., The
Immoral Traffic in Persons (Prevention) Act,
now been broadened to include any person
offering sexual services, an amendment in-
troduced as a result of pressure from pro-
gressive sections [D'Cunha,199l, pp 85-86].
The legal definition of prostitution
reflects the conventional social perception
of prostitution for a greater part of history
as a female phenomenon, despite the ex-
istence of male prostitution. This is largely
the product of structural and cultural fac-
tors which account for gender roles and
stereotypes in society. Women have tradi-
tionally been referred to in terms of their
reproductive organs and functions—either
as reproductive machines and providers of
sexual services deemed part of conjugal duty
to husbands in marriage or as providers of
sexual pleasure to men outside the institu-
tion of marriage. As sexually-linked
characteristics serving male interests
predominate cultural definitions of women,
it is little wonder that prostitution is perceiv-
ed as a female phenomenon even in law. Fur-
ther, male prostitution has also perhaps been
more limited, less varied and institutionalis-
ed compared to female prostitution.
Also most definitions of prostitution, in-
cluding that contained in the Indian law
define the phenomenon as promiscuous
sexual intercourse, either habitual or inter-
mittent, for mercenary inducement'. It is
thus characterised by payment, promiscui-
ty and emotional indifference. This suggests
moral acceptance of sexual intercourse
within socially accepted unions alone and
assures that sexual intercourse within these
unions is unpaid for. Thus sexual intercourse
which is not paid for, which involves emo-
tional attachment and occurs within social-
ly prescribed institutions is morally accepted,
while sexual unions outside these are morally
condemned.
Other definitions indicate broad agree-
ment among researchers that the element of
payment is most basic, but that the economic
criteria alone does not suffice. Disagreement
revolves around the social confines in which
prostitution manifests itself. Thus Davis
[1961, p 273] argues that since some form
of payment is found in social arrangements
such as marriage and courtship, the element
of promiscuity must be retained in the
definition to differentiate prostitution from
other types of relationships. This view is ex-
tended by Polaky [1967, p 191 ] who defines
prostitution as the granting of non-marital
sex as a vocation [Truong, 1986, p 4].
Gagnon [1968, p 592] defines prostitution
more precisely as "the granting of sexual
access on a relatively indiscriminate basis for
payment in money or in'goods, depending
on the complexity of the local economic
system. Payment is acknowledged for the
specific sexual performance", with a view to
differentiate the professional prostitute from
the mistress or from females who accept a
range of gifts while having sexual contract
with a male. However, as often pointed out,
this differentiation is an artificial one, since
in patriarchal societies, the structural rela-
tionship between men and women is such
that the control of women's sexuality and
female prostitution are two sides of the same
coin: male domination. The separation bet-
ween the wife (the respectable woman), the
mistress (the kept woman) and the prostitute
(the fallen woman), only serves to divide
women, strengthen patriarchal ideology and
conceal women's consciousness of their
common condition of dependency on men
[Truong, 1986, p 4].
Kathleen Barry [1981] presents another
dimension to our understanding of prostitu-
tion. She points out that women are forced
into prostitution by men who use a variety
of means ranging from deceptive promises
of jobs or marriage or the invisible enslave-
ment of love and loyalty (for a pimp) to
physical kidnapping and imprisonment. She
writes; "Female sexual slavery is present in
all situations where women or girls cannot
change the immediate conditions of their
existence, where regardless of how they got
into those conditions, they cannot get out
and where they are subject to sexual violence
and exploitation" (p 40).
Though Barry's definition draws out a
very important dimension of prostitution
ignored by others, namely coercion, it is at
the same time too wide and too narrow.
First, although slave labour in prostitution
continues to exist to date, it is not the only
form of prostitution. Second, not all women
who are subject to sexual exploitation can
be considered slaves, even when they cannot
get out of the situation. Slavery carries with
it connotations of social outcast, property
and compulsory labour [Watson, 1980,
pp 1-15]. In many societies however, there are
women who are purchased as a piece of pro-
perty through marriage, must perform com-
pulsory labour, maybe sexually abused, but
are not social outcastes [Truong, 1986, p 5].
Social scientist Truong attempts to pro-
vide some guidelines which can be applied
cross-culturally and historically. To begin
with, prostitution is the provision of sexual
services in exchange for material gains. Thus
provision may be induced by one or more
of a variety of conditions: physical coercion,
WS-35
 socio-economic coercion and individual
decision. Prostitution can take many dif-
ferent forms, the delineation of which in-
volves the following criteria: (a) the number
of men to whom services are provided,
(b) the nature of payment, and (c) the in-
stitutional confines [Truong, 1986, p 5).
Depending on the forms, the institutions
and the people involved, prostitution can be
simultaneously condoned and condemned,
at any given historical period. At one ex-
treme prostitution may be disguised.in the
legal institution of marriage through which
a woman is contracted to be sold or con-
tracts to sell herself to a man in exchange
for social conformity, economic security and
some limited rights. In this case sexual
services form only a part of the relationship.
At the other extreme, prostitution is a prac-
tice involving the exclusive provision of
setual services on a relatively indiscriminate
basis, in a manner similar to the sale of any
form of unskilled or semi-skilled labour. In
between, there are the hetaerae (including
courtesan, geisha, kisang, demi-mondaine)
who provide sexual services to a select
number of parties, sometimes as a form of
exotic art, and usually on payment, which
ranges from money, expensive gifts and/or
access to social mobility. Equally there is the
mistress or hired wife who is maintained by
a partner in exchange for the occasional
provision of sexual services, without a bin-
ding marriage contract and its legal implica-
tions. The social conditions of women who
practise prostitution are determined by the
institutional confines, e g, slave labour can
exist in brothels while within hetaerism
women can have limited social mobility and
can be largely free of moral condemnation.
The insitutions in which prostitution
manifests itself vary according to socio-
economic changes and equally, relations of
exchange in prostitution are also transform-
ed, in relation to institutional changes
[Triong, 1986, pp 5-6].
Five main issues emerge from this
definition:
(1) Sexual services in prostitution cannot be
conceptualised as being limited to sexual
intercourse, but must be extended to in-
clude other dimensions of human exis-
tence such as leisure and nurturing,
which are often included in the services
provided by prostitutes as professionals
and as women.
(2) Material gains cannot be seen only in
terms of money and/or gifts, but must
also be seen in terms of social mobility
for the individual as well as for groups.
(3) The social conditions of prostitutes be
assessed beyond the institution of slavery
and brothels, so as to include other insti-
tutions because each institution is
governed by a different set of social rela-
tions, which determine the status of the
individual prostitute.
(4) The act of prostitution must not be seen
only at the level of individual motives,
but must be analysed in relation to the
structure of the social relationships bet-
WS-36
ween men and women and the class
structure of society because these struc-
tures generally condition the act itself.
(5) The conditions governing the live/of in-
dividual prostitutes are subject to
changes. The personal dimensions of
such change include the physical at-
tributes of the individual prostitute and
her consciousness of her social situation
and the institutional dimensions include
the legal and the socio-economic struc-
ture of society in which they operate
(Truong, 1986, pp 5-6].
PATRIARCHAL ASSUMPTIONS
Foremost among these assumptions is that
prostitution is the oldest profession, a
universal and inevitable social evil, necessary
to satiate an uncontainable male sexuality.
Prostitution is therefore considered society's
safety valve against the rape of Innocent
women' and the disintegration of the institu-
tion of the family. The tolerationist system
of law consequently tolerates prostitution
and legalisation openly sanctions its ex-
istence. It is necessary to examine each of
these assumptions.
Though prostitution has existed in all
class-based patriarchal societies where power
is vested in the hands of males and women
are dominated and maintained in conditions
of servitude, prostitution was and is still
unknown in many so-called tribal societies
[Barry, 1979]. The Warli tribe of Dahanu is
one such society although now that the tribe
is being absorbed into the mainstream
capitalist system prostitution is making an
appearance (interview with Shiraz Bulsara,
activist, Kashtakari Sangatna, Dahanu,
Thane district, 1986).
Prostitution emerged with the develop-
ment of social classes, itself a product of
surplus accumulation. The more aggressive
and violent the accumulation of surplus, the
greater the incidence and stronger the con-
solidation of prostitution. The era of col-
onialism for instance, whose primary con-
sideration was surplus accumulation through
the introduction of capitalism, resulted in
prostitution at a mass level, with the degree,
form and nature changing with the phases
of capitalist development. The link between
the increasing accumulation of capital and
the appropriation of women's bodies is part of
a historial process, interacting as it does with
the economy and polity. In recognising the
systematic dimensions of prostitution, the
onus of responsibility is shifted from the
women in prostitution to the social system
and the controllers of sex businesses, so
much so that "pimping becomes the oldest
profession" and not prostitution [Barry,
1979].
Central to the argument of the universali-
ty, inevitability and necessity of prostitution
are dominant social perceptions about male
and female sexual behaviour. Patriarchal
society equates sex drive with male sexuali-
ty which is assumed to be naturally active
and aggressive. Women by contrast are at-
Economic and Political Weekly
tributed with sexual feelings of a diffuse and
passive nature [Barry, 1979], Androcentric
research asserts that male sexual aggres-
siveness is dictated by hormones possessed
chiefly or solely by males, resulting in an
overwhelmingly uncontrollable male sex
drive which demands a fitting object for
release [Narayan, 1981).
Kinsey was the first sexologist to establish
that the sex drive was learned behaviour, not
an uncontrollable instinct—a conclusion
supported by Masters and Johnson in their
research on males in clinical settings [Barry,
1979]. Kinsey's study of American
adolescents revealed that boys learnt two
things from cultural myths—that the sex
drive must be fulfilled because it cannot be
contained and that they have the implicit
right to use girls and women to fulfil that
drive. Sexual power is gained via sexual ex-
perience. The media and pornography rein-
force these patriarchal myths [Barry, 1979].
It has also been found that the so-called
uncontrollability of an erection can be con-
trolled by the time the boys are adults. There
are males who are questioning the perfor-
mance criteria that they have been taught to
live under the demand of their partners.
They maintain that male sexual satisfaction
need not depend on an erection, but on more
diffuse sensations [Barry, 1979]. The fin-
dings of a survey of 4066 men on male sex-
uality reported in Beyond the Male Myth,
revealed that 981 of the men surveyed felt
it was important for a woman to have an
orgasm. Over half of them were self-critical
if their partner did not respond fully and
four out of five men were making conscious
efforts to delay their orgasms [Reynaud,
1981]. So the sex drive is not just a
physiological response of the sex organs die
tated by hormones. It is learned behaviour
conditioned by patriarchal societies. So too
is 'female passivity'.
The assumption that prostitution is a
safeguard for 'respectable women' against
male sexual aggression is implicit in the legal
systems governing prostitution. It has been
used to control and divide women without
questioning the material basis of male sexual
aggression.
Firstly, though rape and prostitution both
have sexual connotations, they are not per
se sexual phenomena. Rape is tantamount
to assault on women; prostitution is often
nothing more than a purely economic tran-
saction for women. The extent of sexual
gratification for both the rapist and client
too has come to be questioned. Studies sug-
gest that rape occurs not for lack of sexual
alternatives, but for gratification of the need
to exercise power. Part of the client's motive
in prostitution is the exercise of consumer
power. The act of buying imbues him with
a measure of power and control. The act of
buying sexual intimacy with a woman
represents the logical marriage between
sexism and consumerism [Macmillan, 1976].
In cultures with a high premium on
virginity, victims of sexual abuse, who are
April 25, 1992
 considered to have lost their Honour, may
even enter prostitution having internalised
social perceptions of themselves as 'fallen
women' with little or nothing to live for.
Cashing in on this, rape as a means to crush
a woman's identity, break her resistance and
initiate her into prostitution is a well-
documented phenomenon [D'Cunha, 1991).
The sexually non-exclusive nature of a
prostitute's job and the perception of her as a
common property, casts her into the stereo-
type of a 'bad woman', who is 'fair game'
for rapists. She is denied the protection
available to "straight women'. Prostitutes are
one of the most vulnerable sections of
women in society subject to sexual and
physical violence by men. Both rape and pro-
stitution are manifestations of women's
subordination and powerlessneu in society
[Macmillan, 1976].
Individual and mass rapes as assertions
of class and power occur routinely despite
the existence of prostitution and will con-
tinue to occur in class divided patriarchal
societies. The prevalence of and sanctions
for rape in class struggles or war is evidence
of this. Rape as a military strategy and as
personal outlet is inseparable from prostitu-
tion, when one considers the large numbers
of women and girls from war-torn countries
like Paraguay, Laos and Vietnam, for whom
prostitution would have been unknown, had
the demands of the military not brought
these women to the cities [Barry, 1979). In
Japan the colonisation of women's bodies
which began with rape during the second
world war led to the government presenting
women as 'comfort' girls to the US occupa-
tion force in Japan after the war [Barry,
1979). Rape continues to occur in countries
that have legalised prostitution. Connections
have been established between organised
crime, rape and prostitution by a district at-
torney in Lincoln county in the US, a place
close to Las Vegas, where prostitution is legal
[Barry, 1979].
Ib tolerate or legalise prostitution because
it is supposed to protect the family structure
is a conservative functionalist explanation,
which conserves a patriarchal and ex-
ploitative status quo. It shies away from at-
tacking the sexist and exploitative basis of
the institution of prostitution. It also leaves
unchallenged the oppressive basis of the
patriarchal family in contemporary society,
which gives males the moral and legal right
to a woman's body in marriage in exchange
for financial support; which endorses dual
standards of morality for men and women
in order to accurately determine paternity
and safeguard the purity of descent and in-
heritance and ensure a steady legitimate
workforce. These economic functions of the
patriarchal monogamous family unit, led to
the contracting of marriage arrangements on
the basis of economic status, caste and
religion. The genuine basis for marital com-
patibility is rejected. The proliferation of
such depersonalised relationships in socie-
ty coupled with the double standards of
morality provide the justification for males
Economic and Political Weekly April 25, 1992
to seek sexual pleasure outside the institu-
tion of marriage in prostitution.
What is more, 'respectable' women now
share as much interest as men in the institu-
tion of prostitution. 'Respectable' young
virgins must not allow their lovers to cross
the boundary of sexual intercourse before
marriage and therefore 'respectable' young
men use the prostitutes to gain experience.
In order to avoid marital conflict and finan-
cial predicaments arising from such ques-
tions as inheritance and share of property,
respectable principal wives would accept
their husbands' visiting prostitutes rather
than his mistresses or minor wives
[Hantrakul, 1983). This necessitates a ques-
tioning of the material basis of both pro-
stitution and the family as social institutions.
Ironically, while several contemporary
societies and their prostitution laws tolerate
or openly endorse the institution of prostitu-
tion, individual women in prostitution are
socially and legally castigated, blamed as
they are for ruining 'public health' and cor-
rupting 'public morality'.
HEALTH CONCERNS
Yet another sexist assumption underpin-
ning prostitution laws is a perception of pro-
stitutes as the source of sexually transmit-
ted diseases (STD). STD can be transmitted
by anyone who is not selective in sexual rela-
tions and does not practice safe sex and not
just by prostitutes. The fact that prostitutes
often suffer from STDs may mean that
public health services are inadequate and/or
used to stigmatise them and that private
medical services are often beyond their
means.
However in a male-dominated cultural set-
ting where a woman's and more so a pro-
stitute's nature and being are defined in
terms of her sexuality and her reproductive
organs and functions, because of the nature
of her work, her health and health problems
too come to be defined and linked to sex-
uality Prostitutes have thus been blamed for
spreading STDs. Authorities have over the
years justified the social and legal control
of prostitutes as a 'public health measure'
and state legalised prostitution has
historically been perceived as the official
weapon to combat STDs.
The age-old policy dating back to ancient
Greece and Rome, saw a renewed interest in
19th century Europe, with the outbreak of
VD in the French army, during the French
revolution. By the middle of the 19th cen-
tury, individualised and isolated efforts of
French medicos and police at identifying
public prostitutes, registering and subjecting
them to periodical medical examinations,
evolved into a well-defined system of state
legalised prostitution through brothels, the
only place in which prostitutes were permit-
ted to live and work [Barry, 1979]. In 1871,
at the International Medical Congress in
Vienna, an international law was proposed
to make legislation uniform throughout the
world. It was introduced in Britain through
the Contagious Diseases Acts, 1864-49 and
later in British India between 1869-1888.
The Contagious Diseases Acts in Britain
were a post-Crimean war reform of the 1860s
and 70s. Social commentators in Britain at-
tributed the disappointing military perfor-
mance of the British in the Crimean wars
to the moral and physical degeneration of
the soldiers. Military reformers were con-
fronted with the problem of reconciling the
soldiers' sex drive with military efficiency.
An uncontrolled sex drive or one that had
no outlet, in their opinion, led to in-
debtedness, alcholism and illness. Permis-
sion to satisfy this drive with 'greedy,
unclean' women would lead to a decline in
the country's military capabilities. The Vic-
torian army, therefore, began to foster a cer-
tain kind of man, the creation of which had
implications for women with whom a male
was permitted to consort. Male bonding and
a shared male identity cutting across class,
ethnic and rank divisions played a crucial
role in determining attitudes to male sexuali-
ty and official policy towards the military
men's sexuality.
The Contagious Diseases Acts designed to
repress contagious diseases, i'e VD, for-
mulated for a certain class of women, con-
trolled and regulated them like offenders.
But to reach them these acts brought all
women residing in all districts to which it
applied under its purview. The 'Special
Morals Police' which was specially assign-
ed to identify prostitutes was invested with
unlimited power and control over women.
It could take any woman to court where she
was required to prove that she was not a
common prostitute. The magistrate could
condemn her on the basis of the policeman's
statement that he had good reason to believe
her to be one If condemned, she was to be
thoroughly examined periodically by a
surgeon for 12 months. Resistance on her
part led to her imprisonment with or
without hard labour [Barry, 1979].
In India where the Contagious Diseases
Acts were operational between 1869 and
1888, prostitute women who after registra-
tion, refused or neglected to go for an ex-
amination at the stated hour and place, were
liable to be punished with imprisonment. If
found or even suspected of being diseased,
they were to be locked up in a special
hospital for a period varying from one to
several months deprived of all their liberties.
The acts did not seek to regulate men who
infected and propagated the disease which
also meant that preventive and curative
facilities for clients and the population at
large were conspicuous by their absence [The
Contagious Diseases Acts, 1888].
Many innocent women were compulsori-
ly detained for days for VD examinations in
hospitals by examining surgeons. About 609
women who had been sent to a British
hospital by the state appointed examining
surgeon, had been discharged within 10 days
of their admission between October 1866
and December 1869, as free from disease.
According to four civil and independent
WS-37
 surgeons of the hospital who addressed a let-
ter on the subject to the boards of the ad-
mirality 'numerous cases' had been sent to
the hospital by the government surgeons for
compulsory detention. "Some of these
women had been deliberately kept a few
days, without specific treatment and were
found to be, after repeated examinations,
perfectly free from the disease" [The Con-
tagious Diseases Acts, 1888]. In 1880 in
Bombay, a medical committee which after
careful inspection of the women whp were
being forcibly detained and treated,
discovered that of the nearly 200 alleged
cases of contagious diseases, 90 were not suf-
fering from VD at all and the surgeon in
charge practically admitted this by tender-
ing his resignation (The Contagious Diseases
Acts, 1888].
Despite this, the spread of V D was not to be
arrested, defeating the very purpose of the
acts. According to the British Medical
Journal, May 18, 1870, there was in fact a
steady increase of VD in the army and navy
during the operation of these acts. A similar
situation prevailed in India [The Contagious
Diseases Acts, 1888]. There were several fac-
tors responsible for this. For instance, a large
percentage of prostitutes had not been
registered. In Calcutta with a population of
about four lakh of people, the number of
registered women was 3,000 and it was
reckoned that there were as many clandestine
prostitutes. In a population of about eight
lakh in Bombay, there were only 1,800
registered prostitutes. It was reckoned that
the number of clandestine prostitutes in
Bombay was four times greater than in
Calcutta. Prostitutes avoided registration as
medical examinations were demeaning,
callous and violative and because registra-
tion openly identified them as prostitutes
and left them vulnerable to harassment of
all kinds. When infected with VD, prostitutes
went to private practitioners if they could af-
ford it. Alternately they let the disease run
its course and kept working. They did not
seek relief in public hospitals for fear of for-
cible registration and imprisonment [The
Contagious Diseases Acts, 1888]. The acts
thus offered help and treatment to only one-
tenth of the sufferers from VD and prevented
the larger remaining portion from seeking
relief [The Contagious Diseases Acts, 1988].
Another important reason for the failure of
the acts did not seek to identify the diseas-
ed among the client population.
While state legalised prostitution in the
form of the Contagious Diseases Acts were
seen as a progressive health measure,
evidence from Bombay suggests that it en-
couraged the procurement and exploitation
of women and girls for prostitution. Young
soldiers landing at Bombay were sent directly
to Deolali military camp from where they
were moved to their various stations. The
Deolali camp was deliberately supplied with
licensed prostitutes. On account of a large
influx of soldiers, subordinate officials
received an increase of pay to go out into
villages within five miles of Deolali and ar-
WS-38
rest native women who were known or sup-
posed to be living 'immoral lives' and bring
them into the camp so that the supply might
be adequate to the increased number of
soldiers [The Qontagious Diseases Acts,
1388].
Circulars were passed exhorting 'dais' to
be alert and furnish them w i t h authority to
visit the neighbouring villages to procure
young girls of 'attractive' appearance and
tender age and place them in orostitutcs
quarters for British soldiers. The village
'patel who on receipt of an official docu-
ment from the British gave every facility to
the 'dai' in her pursuits of decoying women
on false pretexts of lucrative employment or
of marriage, often with the consent of
parents or guardians who being in abject
poverty, would part with their daughters.
There were several instances of death on the
first or second morning of the arrival of
many young girls because of consorting with
several soldiers at a time and due to outrages
inflicted on them (The Contagious Diseases
Acts, 1888].
The conservative ideology underlying this
legal system, it s implications for women and
its failure to meet its own objectives not-
withstanding, the possibility of legalising
prostitution was being discussed in govern-
ment circles in the states of Maharashtra and
Karnataka (India) and among certain
medical bodies, a few years ago, in the con-
text of formulating a public health pro-
gramme to curb the spread of STDs and
AIDS.
PRESERVING PUBLIC MORALITY
Criminal sanctions against women in pro-
stitution to prevent 'public nuisance' and to
'preserve public morality', have roots in
social definitions of women's role, functions
and social notions about women's sexuality.
Two categories of moral systems emerge
under patriarchy, one applicable to each sex,
with each system of morality based on a con-
cept of honour. A women's honour is intrin-
sically linked to her body and sexuality. The
various facets of female sexuality, that is, the
reproduction of labour power and the pro
duction of pleasure arc defined in terms of
their relationship with men, in male interests.
Thus as mothers women bear children for
men and nurture their families. To enjoy
their rights, they must be legally wedded and
to be legally wedded they must enjoy certain
socially prescribed criteria, namely, chastity,
capacity to labour, and/or wealth. So chasti-
ty of a woman before marriage and to her
husband after marriage become feminine
traits and values whose degree of signi-
ficance is determined by the mode of pro-
duction at that particular historical juncture
[Troung, 1986]. Thus a woman becomes the
private property of her husband as well as
his sexual property. A man owns his wife's
entire being controlling her earnings,
thoughts, reproductive capacity and
sexuality.
Economic and Political Weekly
Such patriarchal control by and large
permeates all male-female relationships
across classes. So too, do the double stan-
dards of male sexual morality extend to all
males as an expression of class and/or male
power. Patriarchal society defines a male's
honour in terms of his conduct in public life
and permits him the freedom to formulate
his own rules in matters of sexuality. I*
allows him access to sexual pleasure in varied
forms and with several women. While a
woman is severely condemned for allowing
more than one male access to her body. Man
by contrast is praised for proving his virility,
regardless of the basis, be it love, money or
force. While being "sexually serviced' by
women within marriage, men are allowed by
society to find sexual pleasure elsewhere.
Society goes so far as to create the institu-
tion of prostitution outside marriage to cater
to male's so-called 'diverse sexual needs' and
'natural sexual aggressiveness", all of which
cannot or. may not be fulfilled within
marriage.
Controls, such as criminal sanctions
against and regulation of women in prostitu
tion, are the product of structural and
cultural factors, which account for gender
role and trait stereotypes in society and in
crime. For, traditionally, attitudes to
women's crimes have been linked to assump-
tions about determinants of human
behaviour, defined in terms of biology 'the
weaker sex'. The patriarchal division between
'madonnas and whores' and good and evil
in women has become most conspicuous in
discussions and explanations of crime, as
here a woman's so-called negativeness is car-
ried to extremes. According to psychoanalyst
Klein, characteristics used in criminology,
where female crime is defined as the inability
of certain women to adhere to cultural stan-
dards. As these standards are often sexual,
deviation is seen as a sexual abnormality and
crimes of women are consequently defined
in such terms, even if another more ap-
propriate and accurate explanation exists.
Prostitution is a case in point [Leonard,
1982]. By contrast, definitions of male
honour and morality, allowing for free sex-
ual access to several women with a tacit if
not open acceptance of males frequenting
prostitutes, account for non-criminalisation
of male clients in prostitution laws.
Confirming this reasoning is an incisive
analysis by Smart (1981] of why prostitutes
in the 1950s, standing say on the streets of
Kings Cross, should have attracted legislative
measures in the form of the Street Offences
Act, 1959, with the purpose of dealing with
the 'public nuisance', they caused. Smart
argued that it was largely because street pro-
stitutes threatened dominant class and
gender interests [Mcleod, 1992].
Elaborating the threat to class and gender
interests, Smart maintains that Britain of the
1950s was deeply concerned about post-war
family breakdown presaging social disloca-
tion. Women were therefore encouraged to
redeploy their energies into child bearing and
child rearing and to confine their sexual
April 25, 1992
drives within marriage, to strengthen marital
ties. Legislation on prostitution is imbued
with ideological support for the mono-
gamous family, inasmuch as monogamy has
traditionally meant a restriction of female
non-marital sexual behaviour rather than
male. Just prior to the Wolfcnden Commit-
tee's deliberations and at about the time of
their publication, something of a moral
panic [Hall et al, 1978] was whipped up over
prostitution. This concerned the way in
which vice on the streets contrasted with
family and Christian virtues exemplified by
the coronation of the young queen. It was
intensified by racialist concern about post-
war immigration which focused public
debate on immigrant women corrupting 'our
women' [Mcleod, 1982). Smart's analysis
also tries to explain why the intensification
of legal control over prostitutes occurred in
the 1950s after a century of little action
[Storch, 1977].
This line of explanation can be amplified
in two ways. First the stigmatisation of street
prostitutes can be seen as part of a conti-
nuing, albeit alternated, preoccupation with
the threat presented by the 'residum'. In 19th
century Britain, members of this the lowest
grouping or class in society had been seen
as being comparatively untramelled by social
convention or allegiance to dominant norms
and as constituting a potential threat to the
social order [Steadman, 1971]. Judith
Walkouwitz (1981) in her analysis of Vic-
torian prostitution has shown how despite
the final overthrow of the Contagious
Diseases Acts, their application served to
isolate prostitutes as an unrespeciable 'class
apart' from working class women and
thereby placed them in the public need in
these residual ranks of society. In the 1950s
echoes of these fears of the 'disorderly
classes' persisted as in discussions about the
threat from delinquents [Hall and Jefferson,
1975). It was therefore as someone wearing
a badge of unrespectability, acquired in an
earlier era, that the prostitute faced concern
over the 'public nuisance' she created. From
the outset the Wcjlfenden Committee, for ex-
ample, clearly delineated prostitutes as social
pariahs
the law should confine itself to those ac-
tivities which offend against public order and
decency or expose the ordinary cittzen to
what is offensive or injurious. Prostitutes do
parade themselves more habitually and open-
ly than their prospective customers and do
by their continual presence a f f r o n t the sense
of decency of the ordinary citi/en [Wolfenden
1957 in Mcleod, 1982].
CRIMINAL SANCTIONS
Criminal sanctions against prostitutes and
a plethora of legal controls over women in
prostitution, exist in one form or another,
under all three legal traditions governing
prostitution. The prohibitionist system in its
very formulation bans prostitution as an ac
tivity per se, i e, both the act and its en
couragement. In countries espousing tolera
tionism, the act itself is not illegal, but its
encouragement is. However, the legal defini-
tion of encouragement is extremely narrow,
limiting itself to one individual encourag-
ing another and does not take into account
the direct and indirect encouragement by
larger collectives such as the media, the
tourist industry and the entertainment in-
dustry, which are subject to degrees of state
control. Contradicting the spirit of the act
clauses inserted into prostitution laws under
the tolerationist system penalise soliciting
and loitering for prostitution, thus allowing
for treatment of prostitutes as offenders. The
Street Offences Act, 1959 in Britain aimed
not at abolishing prostitution perse, but in
keeping prostitutes off the streets to deal
with the 'nuisance value' and preservation
of 'public morality'. In view of this women
soliciting for prostitution are cautioned
twice. On the third occasion, they are
brought to court where they, are identified
as common prostitutes and charged with the
current offence. Penalties in the form of
fines and prison sentences were imposed, but
in 1983 the British parliaments made
soliciting and loitering for prostitution a
non-prisonablc offence [Mcleod, 1982]
Penalties for soliciting and loitering for pro
stitulion also exist in France [Women's
World, 1990 91 ] and India [D'Cunha, 19911.
Prostitution related laws in the Philippines
are very contradictory. While city officials
and business operators claim that the enter-
tainment industry is purely entertainment,
the transactions, which have been legiti-
mated by various city ordinances, clearly
reveal an organised prostitution industry.
Among such ordinances and legitimations
are: (a) The requirement of a mayor's per-
mit for employees before they are considered
registered/licensed entertainment workers
likewise, business permits are necessary for
operators of entertainment establishments
(b) The city government maintains and
operates a social hygiene clinic which
certifies whether an entertainer is free from
VD and other communicable diseases. If
found to be infected, the worker is prohibited
from working till cured, (c) While the act
of prostitution is itself not illegal, there exists
an anti street walking ordinance which con
sidcrs soliciting of customers in the street
punishable By contrast, soliciting customers
inside clubs which assure operators of
income from various fees imposed on
customers is not punishable.
What is contradictory is that while the act
of prostitution is legal, penalties for loiter-
ing and soliciting, render it difficult for pro-
siitutes to work, for a woman cannot make
contact with her client legally. Even more
discriminatory is the fact that both prosti-
tutes and clients are active participants in
the act of soliciting, but it is only the pro
slitute who is subject to legal process.
Further, the definition of the term brother
in several of these countries makes it difficult
for women to work. The Indian law for in
stance defines a brothel as any house, room,
conveyance or place or any portion of any
house, room, conveyance or place which is
used for the purpose of prostitution for the
gain of another person or for the mutual
gain of two or more prostitutes [Beotra,
1981 ]. This could result in two or more pro-
stitutes operating from the same premises for
the purpose of safety, security or the like,
getting booked for running of brothel.
Prostitutes are subject to rigid controls
and sanctions even under the system of
legalised prostitution. In Nevada in the US,
brothel prostitutes are required to observe
a number of regulations established by local
county authorities. Some are nearly univer-
sal and relate directly to their work; others
exist primarily in urban areas and place
restrictions on personal relationships and
mobility and are only occasionally work-
related. The latter restrictions blatantly
define prostitutes as people of questionable
social standing, who cannot be trusted. The
legal or quasi-legal limitations placed on
mobility result in socially sanctioned mobili-
ty spaces. Prostitutes are permitted outside
the brothel, with a few exceptions, only bet-
ween certain hours, with activity confined
to visiting certain establishments or sections
of the town or to particular interactions.
Girls are explicitly prohibited from going to
bars, gaming houses and residential areas.
They are not permitted to rent houses in the
town [Symanski, 1974}.
The rule that no girl may solicit business
outside the house is rigidly enforced. Written
regulations usually state that a girl may not
be accompanied by a male escort in town.
In some counties prostitutes are not allow-
ed to have friends within the town, including
pimps, boy friends, husbands and others
defined by the police department. Girls in
some counties report that they cannot talk
to anyone when out of the brothel or at most
can only exchange salutations. To obviate
problems, after a girl's official status
changes, some counties require that girls
who have been terminated or fixed must
leave town by the first available transporta-
tion [Symanski, 1974].
Local rules and regulations also place
restrictions on family proximity, dates with
clients and employment changes. A pro-
stitute cannot be employed in a brothel in
certain counties if a member of her family
lives in the same county. The rule on dates
varies. Some towns require that a client
meets a girl at the town limits or dates her
beyond the town limits. Others stipulate that
the girl and client must leave the county. In
either case the intent is the same, to avoid
embarrassment to those in the community.'
Violations of these regulations result in
revocation of the work permit and perhaps
banishment. By contrast little control is ex-
ercised over brothel managers (Symanski,
1974]. Laws under a system of legalised pro-
stitution in Germany, restricting the activi-
ty spaces of prostitutes are another evidence
of the control and regulation over women
in prostitution. Women found outside these
officially designated zones are fined and/or

Economic and Political Weekly April 25, 1992 WS 39

arrested by the police.
Austria which is a federation of states has
prostitution laws differing from one state to
another. But Vienna that has legalised pro-
stitution has toleration zones and times for
soliciting. Soliciting is allowed only when it
is dark outside and only in police controll-
ed neighbourhoods. Also prostitution is per
milted in uninhabited houses and in areas
that do not have schools, churches or
kindergartens in the vicinity and that are
sparsely populated. Prostitutes arc required
to register with the police, including register-
ing their places of work. Registration re-
quires obtaining a letter of good conduct
which takes almost five years.
If women are caught working without be-
ing registered they can be fined and if unable
to pay the fine, are awarded prison sentences.
Prostitutes caught working outside registered
zones are fined lower than if they were work
ing illegally. Their work permits are revok
ed if fines are not paid. When at work pro-
stitutes arc required to produce their record
of compulsory weekly medical check-ups to
the police on demand. If found infected the
record book is confiscated and they are pro-
hibited from working. Austrian prostitutes
are presently required to test monthly, for
AIDS, failing which they are fined up to US
$ 7,000 or sentenced to prison (Women's
World, 1990-91). By contrast, the male client,
by and large stand outside the scope of
criminal sanctions or controls under tolera-
tionism and legalised prostitution, reflecting
the double standards of male sexual
morality.
In their operation too, prostitution laws
are discriminatorily enforced against
women. They overwhelmingly penalise the
prostitute, while the men who derive profit
(the organisers and controllers of the sex in-
dustry) and pleasure (the client) from pro-
stitution go scot-free.
In the US in 1983, 1,26,500 people were
arrested for prostitution. Although the pro-
hibitionist system of law, current almost
throughout the US, in principle makes no
gender-based distinction and in most states
prohibits both sides of the transaction for
prostitution, the percentage of women ar-
rested generally stands at around 70 per cent.
In 1979 it dropped to 67 per cent, but was
back to 73 per cent in 1983. Customers con
stitute around 10 per cent of those arrested.
The remainder of the arrests arc generally
of transvestites and pre-op trans-sexual pros
titutes [Alexander, 1987],
Related arrest records in San Francisco for
the months April and October 1976 reveal
that the number of prostitutes arrested were
179 and 157 respectively By contrast the
number of clients arrested for the same
period were 15 and nine respectively; and the
number of mate pimps arrested were 12 and
three respectively. Similar trends arc evident
in New York city [Barry, 1979].
Similar trends persist in Thailand. Accor-
ding to Khun Jantira Kalampasutra of the
National Commission on Women's Affairs,
Thailand, "while the Prostitution Suppres-
sion Act awards light penalties on prostitu-
WS-40
tion racketeers virtually allowing them to go
scot-free, prostitutes are arrested like
criminals. The larger number of prostitutes
arrested and convicted compared to prostitu-
tion racketeers and clients—largely men ex-
ercising various forms of power and control
over the prostitute exploiting the latter as a
sex commodity, so as to make the enterprise
possible in the first place—clearly indicates
a gender bias against prostitute women in
the implementation of prostitution laws. It
is also indicative of a class-based discrimi-
natory enforcement, as it operates decisive-
ly against the prostitute (victim and worker),
while allowing prostitution racketeers (en-
trepreneurs, landlords, brothel managers,
pimps and procurers) to go scot-free.
Enforcement practices similarly dis-
criminate on the basis of class and race
within the prostitute population itself—
85-90 per cent of the prostitutes arrested in
the US work on the street, although only
10-20 per cent of all prostitutes are street
walkers. While approximately 40 per cent of
street prostitutes are coloured women, 55 per
cent of those arrested are coloured. Racism
becomes even more apparent, when you look
at the figures on who gets jailed—85 per cent
of prostitutes sentenced to do jail time are
coloured women [Alexander, 1987].
Similarly in Bombay, street prostitues who
are at the bottom of the hierarchically struc-
tured sex industry are subject to greater
harassment by way of arrests and convic-
tions than prostitutes in brothels. Between
1980-87 there were 53,866 women and 5,676
women arrested on the streets and convicted
for obscenity and loitering soliciting for pro-
stitution under sections HOB of the Bom-
bay Police Act and 8(b) of the SITA respec-
tively. By contrast there were only 3,564
women arrested from brothels under section
7(1) SITA, for practice of prostitution in a
public place [D'Cunha Jean, 1991].
Further there is a tendency on the part of
the implementing authorities especially the
police to "stretch the law", thereby under
mining the prostitutes' civil liberties. Under
the Street Offences Act in England there was
no requirement for the police to prove that
a woman actually caused annoyance to
anyone by soliciting [Worrall, 1981], This was
also at variance with the standard practice
in the case of other offences where a past
criminal record is not revealed until the
current charge is proved.
The practice of entrapment in the course
of arresting prostitutes, the use of abusive
language, physical violence and sexual
demands are other examples of the police
exceeding their brief at the point of or alter
arrests, there are known cases of magistrates
in the city of Bombay asking lawyers defen-
ding prostitutes in court, to send the latter
to them [D'Cunha, 1991]. Police handling
of court procedures in Britain provide a
further example of the way in which pro-
stitutes1 personal freedom can be severely
curtailed because the way legal procedures
are interpreted and applied. Women in
Midlands, Britain reported on the practice
Economic and Political Weekly
of what was colloquially known as 'curfew'.
This meant that a woman could be remand-
ed on bait until her next court appearance,
but on condition that she did not enter
prescribed areas of a town or went beyond
certain geographical limits. [Mcleod, 1982].
Though the British parliament made
soliciting and loitering for the purpose of
prostitution a non-prisonable offence,
magistrates all over England began almost
immediately to impose heavy fines of £150,
even £200, per offence, with seven days to
pay. Knowing well that most if not all the
women would not be able to pay in time and
would be imprisoned.
The police anywhere do not lack initiative
or inventiveness in extending their powers in
relation to prostitution to other sections of
the population as well: putting all women
in fear of being arbitrarily identified as pro
stitutes and harassed.
PROVISIONS FOR REHABILITATION
Prostitution laws have sought not just to
deter prostitutes through the use of legal
penalties, but also to draw women away
through a process of 'rehabilitation of
offenders'.
The Indian law is an example of the com-
bination of penal sanctions against and ef-
forts to rehabilitate prostitutes. The
rehabilitation of girls or women rescued or
arrested under the SITA, 1956 or now
ITPAA, 1986, is the responsibility of pro-
tective homes on corrective institutions set
up under the act. Minor girls rescued or
picked up under Section 40 of the Bombay
Children Act (for safe custody and shelter,
as they are destitute and have no fixed
abode) and under Section 78 of the same act
(for being exposed to moral danger or being
in prostitution) and minor girls and women
rescued and produced in court under various
sections of the Indian Penal Code relating
to rape, kidnapping and abduction for illicit
sexual intercourse, wrongful confinement or
procurement for prostitution and the like arc
sent to rescue and r e h a b i l i t a t e houses for
females, which are different from those set
up under SITA.
A previous study conducted by the author
of one such nome Asha Sadan, showed that
the
corrective and reformative orientation in
these homes is partly the product of d o m i -
nant social attitudes towards and penal sanc-
tions against prostitutes in the Indian law,
reinforcing an image and status as criminals,
delinquents, offenders or fallen women, in
need of reformation. This was evident from
the following facts:
(a) Memos from the police and the
metropolitan magistrate of the juvenile court
to the superintendent referred to the girls as
'girl juveniles'.
(b) Counselling by the then psychologist
urged the girls to give up prostitution,
because it was an immoral profession.
(c) Raking up the girls' past and abusing
them as prostitutes in the event of quarrels
between the inmates themselves or between
April 25, 1992
 the latter und the resident maintenance staff
was a common phenomenon.
(d) Beating and physical punishment were
also common. Punishments like salt free
food and barring the girl from watching TV
were also resorted to, by the home autho-
rities. 'Hardened girls' were isolated in a
special room, without bulbs, fans and long
pieces of cloth to avoid the occurrence of
suicide [D'Cunha, 1987].
This orientation towards rehabilitation does
little to reintegrate women in prostitution.
In part this accounts for women attempting
to escape or succeeding in doing so from
these houses.
Criminal sanctions against prostitutes and
their artificial isolation by the legal and
moral system thus not only reflect the widely
held assumption that prostitution emerges
from the contradictions of the moral system
alone, they also fail to distinguish between
prostitution as a social institution and the
individual woman in prostitution. The
economic base of the institution of prostitu-
tion and its interaction with the rest of the
economy thereby remains concealed. Also
concealed are the individual and collective
vested interests grounded in the economic
system underlying prostitution.
These assumptions also mask various
aspects of social transformation that impact
women as a group and result in changes in
the institutional manifestations of prostitu-
tion. The failure to recognise the hierarchical
structure and organised nature of the sex in-
dustry conceals the heterogeneity within the
prostitute population itself—differentiated
in their self-perceptions, needs and demands.
The above-mentioned assumptions of pro-
stitution laws inevitably result in placing the
onus of social blight and invisibility on the
individual woman in prostitution which is
a cruel irony. She has to resolve the con-
traduction between social necessity and social
unacceptability.
It is necessary to place the institution of
prostitution within the context of wider
social processes to understand the subtle
interconnections between prostitution and
the economy and polity, to understand how
existing and changing patterns of produc-
tion processes and relations can lead to con-
version of female sexuality into economic
assets for individuals and collectives [Truong,
1986]. The issues that need to be addressed
arc not why so many women deviate from
prescribed norms of sexual conduct, but why
and in what way female sexuality is valour is-
ed and how values are extracted from it, as
well as who benefits from this extraction.
Questions such as these would point to the
larger socio-economic-political system and
vested interests within prostitution, as me
originators of the institution—not the indi-
vidual women in prostitution.
Criminalising women in prostitution not
only reinforces a prostitutes sub-culture as
moral outcastes, it forces many a woman to
operate more discreetly and clandestinely.
The use of bogus names and addresses is
often used to ensure this. One can only
Economic and Political Weekly April 25, 1992
speculate oil the effect of constant shifting
between real and work designated identities
or between restricted and open activity on
those who remain in the profession for long.
The value extracted from women in prostitu-
tion, facilitated partly by a process of
making it invisible through moral and
criminal sanctions render the prostitute
dependent on commercial enterprises and
vested interests, who appropriate the gains
from the trade of sex and women bodies.
The invisibility of the woman's oppression
and exploitation behind closed doors is thus
ensured.
The narrow moralistic concerns and
criminal sanctions embodied in existing pro-
stitution laws, over prostitutes, the penal
measures for violations of these and the lack
of regulation of brothel management under
the system of state legalised prostitution
are being challenged by those who are
advocating the decriminalisation of
prostitution.
IV
Decriminalisation of
Prostitution
The advocates of this tradition define
"decriminalisation of prostitution' as the
complete renewal of any sanctions against
prostitutes. They recommend that (a) third
party managers, i e, brothel owners,
managers and pimps be recognised as
legitimate business men and women,
(b) their business be regulated only by
business and labour law and not criminal
law, (c) third party managers must provide
safe, healthy and non-exploitative conditions
of work for prostitutes, and (d) that pimp-
ing laws be repealed. The formulation of any
regulations for third party managements of
prostitution business should be the function
of prostitution boards or commissions, the
majority of whose members should be pro-
stitutes (National Task Force on Prostitution,
USA, 1984-86)
The position on decriminalisation of pro-
stitution is best exemplified in the statement
on 'Prostitution and Feminism', formulated
by the International Committee for Pro-
stitute's Rights (ICPR), a group of prostitute
and non-prostitute women primarily from
Europe and the US upholding prostitutes'
rights—at the Second International Con-
gress on Prostitution, Human Rights and
Feminism held in Brussels in 1986.
The, ICPR statement says,
until recently, the women's movement in most
countries has not or has only marginally
included prostitutes as spokespersons and as
theorists. Historically, women's movements
(for example, socialist and communist
movements) have opposed the institution of
prostitution, while claiming to support
women. However, prostitutes reject support
that requires them to leave prostitution; they
object, to being treated as symbols of op-
pression and demand recognition as workers.
Due to feminist refusal to accept prostitution
as legitimate work and to accept prostitutes
as working women, the majority of pro-
stitutes have not been identified as feminists
nonetheless many prostitutes identify with
feminist values such as independence, finan-
cial autonomy, sexual self determination, per-
sonal strength and female bonding.
During the last decade, some feminists
began to re evaluate the traditional anti-
prostitution stance of their movement in the
light of the actual experiences, Opinions and
needs of women prostitutes. The ICPR can
be considered a feminist organisation, in that
it is committed to respecting all women, in-
cluding the most invisible, isolated, degrad-
ed and/or idealised. The development of pro-
stitution analyses and strategies within
women's movements which link the condi-
tions of women in general and which do
justice to the integrity of prostitute women
are therefore important goals of the commit-
tee" (International Committee on Prostitute's
Rights 1986).
Ironically, while the ICPR begins by
criticising feminists and feminism, it asserts
that prostitutes identify with feminist values
like financial autonomy, sexual self deter-
mination, independence, etc. Conspicuous
by its absence in this list of values is the
feminist struggle against sexual object ifica-
tion and com modification of sex and
women's bodies. Or is this perceived as part
of 'sexual self determination'? The ICPR by
its legitimation of the institution of prostitu-
tion explicitly endorses the sexual objecti-
fication and commodification of women—
the exploitative core of the institution of pro-
stitution which is based on the patriarchal
assumption that sex is a male right and
women's bodies are commodities to be
bought and sold in prostitution.
Secondly, while legitimising prostitution
as a valid force of work, partly because of
its overwhelming desire to give a voice to the
most isolated and degraded of women (by
society) groups like the ICPR are conscious-
ly or otherwise committing a more serious
error. They are succumbing to the traditional
patriarchal equation between the individual
in prostitution and the institution of pro-
stitution and in doing so leave the latter's
inevitability, assumptions and existence un-
challenged. Further, the line of distinction
that organisations like the ICPR, draws bet-
ween legalisation and decriminalisation of
prostitution is thin. Both systems of law
unequivocally endorse the institution of pro-
stitution and third party management of
prostitution—a position that is in the
interests of patriarchy and capital accumula-
tion, that accrues to vested and exploitative
interests in the hierarchically structured sex
industry
Lastly, a brothel business bases itself on
profits and its accumulation through the
exploitation and commodification of
women's bodies. Commodification of sex
and women's bodies especially by third par-
ties is itself an exploitative condition, render-
ing the demand for non-exploitative condi-
tions of work in a brothel farcical
Moreover it is farfetched to believe that
it would be possible to check forced prostitu-
tion, while brothels are allowed to flourish
WS-41
 legally. This is especially so for those coun-
tries where forced prostitution has reached
staggering proportions and the increasing
market demand for children and women for
prostitution give prostitution establishment
colossal profits.
Finally, one must identify which category
of prostitution in the hierarchically stratified
industry gets representation on prostitution
boards and commissions, formulating
regulations for third party management.
It will generally be the articulate arid
politically active initiators of the demand for
decriminalisation of prostitution that con-
stitute the upper caste of the sex industry-
brothel managers, elite call girls and the like
rather than brothel attached prostitutes or
women operating on the streets. One can
only speculate as to the manner in which the
interests of prostitute women at the lower
end of the hierarchy will be protected.
Against this backdrop it is necessary to
examine the arguments advanced in favour
of decriminalisation of prostitution.
Prostitution is often a woman's occupa-
tional choice: This reasoning corning from
the countries of the north implies either free
choice or a certain degree or freeness in
choice. In countries of the south however,
the magnitude and dimension of the institu-
tion of prostitution have reached alarming
proportion, with the phenomenon acquir-
ing the dimensions of an industry in south
east Asia, The mass character of this
phenomenon must be viewed in the context
of north-south relations of domination and
subjugation economically, politically and
socio-culturally. The resulting structurally
induced poverty and deprivation at all these
levels, the imposition of a commodity-
oriented culture and the appropriation and
use of traditional focus of patriarchy to serve
new interests and functions with the super-
imposition of modernisation, create the con-
ditions for prostitution. Prostitution in these
societies is like a survival strategy for large
masses of women, with a greater degree of
'unfreeness' characterising women's entry
into prostitution. This ranges from crass
physical or socio-economic coercion to
calculated decisions by women and girls to
enter prostitution as the most viable among
a very restricted and economically less viable
of occupational options available to them.
Even in the technologically developed
countries of the north when more women
are at least functionally literate and there is
a significant number of occupational
choices, about 10 per cent of women who
work as prostitutes are coerced into prostitu-
tion by third parties through a combination
of trickery and violence. This figure appears
to be relatively constant in the US as
reflected in studies done at the turn of the
century and current estimates of COYOTE,
a prostitute rights group and other pro-
stitutes rights organisations (Rosen, 1981).
The entry of poor while American women
on an insufficient dole or impoverished
black American women into prostitution is
not unknown. To gloss over this reality and
WS-42
overplay free choice even in the developed
countries is a distortion of reality.
It is therefore necessary to deconstruct the
structural factors responsible for prostitu-
tion to defend choice, For choice must be
viewed on a continuum, characterised by
degrees of freeness and unfreeness. Against
this background, prostitution can hardly be
often said to be a woman's choice especially
in developing countries.
Further, the ICPR's stance on prostitution
as an occupational choice is contradictory.
While admitting the exploitation of and
discrimination against women in employ
ment and making claims for genuine oc-
cupational choice for women, not dictated
by class, gender, social prejudices, it
legitimates prostitution, where exploitation
is inherent, as an occupation thus nullify-
ing its claims for elimination of sexual divi-
sion of labour.
Prostitution allows a woman freedom,
financial autonomy and the right to sexual
self determination: The degree of freedom
a woman in prostitution enjoys depends upon
the institution within which she operates.
The experience of large sections of women
in prostitution however reveals it to be one
of the most alienated forms of labout
Under conditions of slave labour existing in
many of our 'developing countries' and for
women of these countries working in the sex
industry in northern countries, imprison
ment and confinement are eommonlv
resorted to, to break the woman's will and
ego, shatter her identity, distance her from
her past life and expose her to a new
environment, bonding her to the brothel
management.
Another well-entrenched phenomenon is
the institution of poncing (pimping), with
heavy ponces moving from sweet talk to
violence, intimidation and appropriation of
the women's earnings as he disciplines her
and brings her under control. Resistance to
the brothel management or pimps is met
with abuse, torture even murder or threats
of it (D'Cunha. 1991 ].
The forced identification with and sub-
mission to the control of the organisers of
sex business is a depersonalising experience
as it means a loss of freedom. The woman
lives for the present, realising that she has
no control over her life [Barry, 1979).
Women known as prostitutes are
regulatorily denied custody of their children
in many countries on the assumption that
they are less responsible, loving or deserv-
ing than other women. Stamping prostitutes'
passports to indicate the prostitution district
in which they operate, photographing and
finger printing prostitute women to identify
them are measures used and misused by the
authorities, impeding women's social mobili-
ty and violating their rights and dignity as
human beings (Discussions with prostitutes
at the Brussels Congress, 1986).
Economically prostitution is unpredic-
table and fluctuating with earnings depen-
dent on (a) client demand and purchasing
power which is related to market forces and
Economic and Political Weekly
on client availability, (b) competition, (c) the
relationship with the brothel keeper and the
rest of the hierarchy. Further prostitution is
one of those professions where with age and
accumulation of experience, earnings
decline. This apart, a prostitute rarely has
control over her earnings and the manner
in which she would like to spend it, for the
brothel managment and pimps appropriate
large proportions of it. Independent women
working on the streets are often in an even
more precarious position with clients refus-
ing to pay [D'Cunha, 1991).
Gender subordination in the sex industry
is at its very worst, In the case of prostitute,
both their labour and sexuality are control-
led. Their labour is considered a human
resource and their sexuality a natural
resource which men of all classes can ap-
propriate [Wolhof, 1980]. This is particularly
true and more obvious for prostitutes attach-
ed to brothels, bars and sex clubs and is evi-
dent in their lack of control over the choice
of clients, pace of work, price fixation,
forms of sexual activity. Assertion of sex-
ual self-determination is met with brutal
consequences. Hazardous work conditions
make women in prostitution vulnerable to
numerous physical and psychological
ailments. Tuberculosis, anaemia, hepatitis-
B, STDs, gynaecological problems like
vaginal infections, pelvic inflammatory
diseases, etc, and physical injuries are com-
mon among prostitute women in India
[D'Cunha, 1991]. In the case of child pro-
stitutes, rectal lesions, poor sphincter con-
trol, lacerated vagina, perforated anal and
vaginal walls, death by asphyxiation, are
found to be largely related to adult sexual
ads with children [Barry, Bruch and Castley,
1983].
Prostitutes' reactions to clients range from
disgust, contempt, pity, indifference, feign-
ing sexual response and jeering at clients
who are taken in by this, to liking and
becoming involved with clients. By and large
however they perceive their work purely as
a source of income, the control of emo-
tionality and sexuality being a safeguard
against male exploitation and monopoly or
a defence against fusing their love life with
their profession [D'Cunha, 1984].
Such a separation of sexual experience in-
volving the most personal and erotic parts
of one's physical and psyche being from the
total person is indicative of the objectifica-
tion and depersonalisation of a prostitute.
Women in prostitution are by and large
alienated from this intimacy [Barry, 1979].
Finally, socialised like all women to ac-
cept pain and suffering and having inter-
nalised the social perception of themselves
as 'deviant' large section of women in pro-
stitution are unable to perceive themselves
as human beings and as victims and sur-
vivors in an exploitative system. They
therefore, live with negative self identities.
The estrangement from intimacy and love
and the social ostracism that prostitutes face,
generally inhibit them from entering into a
love relationship for fear of being deserted
April 25, 1992
or their pasts being raked up in the relation-
ship. A prostitute is thus alienated from
society at large and is forced to live a life
of social condemnation.
But if a woman can sell her mental and
manual skills, which are exploited, there is
nothing wrong with commercialising her
sexual skills in prostitution which is
only another form of women's work. Pro-
stitution is related to the exploitation of all
women looked upon as sex objects. A pro
stitute at least sells her sex and does not give
it away free as married women do. It is the
sexual objectification of women that must
be eliminated and not just prostitution as
a profession.
Traditionally, a woman's nature, entire
being and role have been defined in terms
of her sexuality, her reproductive organs and
functions. While upper class women have
always been protected, restricted and con
trolled within the confines of their homes,
the working class woman's labour outside
the home has always been ignored in terms
of its contribution to larger socio-economic
life. Though a woman's mental or manual
skills may be exploited, use or sale of these
skills may represent a break with traditional
gender stereotypes of women,
Further, recognising prostitution as a valid
form of women's work absolves govern-
ments of the responsibility of providing op-
portunity to women for developing voca-
tional and occupational skills, expanding
their employment opportunities providing
non-discriminatory conditions of work for
women or infrastructural facilities (or
women to leave prostitution. Provision of
viable economic options for women
are crucial to curbing the growth of prosti
tution.
While it is true that sexual objcctification,
violence and opposition arc common ex-
periences of all women, be it the prostitute
or the wife, with a difference of degree, ques-
tioning the bases of both the institutions of
prostitution and the patriarchal among
monogamous family are steps in the direc-
tion of challenging the sexual objectifica-
tion, exploitation of all women.
Decriminalising of prostitution, facilitates
unionisation of prostitutes for welfare
facilities and better work conditions: Pro-
stitutes must be treated with dignity as
human beings without stigmatisation or
discrimination vis-a-vis other citizens. It is
therefore necessary to delete alt legal pro
visions criminalising or. victimising pro-
stitutes in any way. Welfare facilities and
other benefits available to other categories
must be open and available to women in pro-
stitution. It is important that this distinction
between the individual prostitute and
decriminalising her and the institution of
prostitution and its decriminalisation be
made, for while the former is necessary, the
latter is unacceptable
In raising a demand for decriminalisation
of prostitution the ICPR collapses the
distinction between the individual and
the institution endorsing the patriarchal and
Economic and Political Weekly April 25, 1992
exploitative assumptions of the latter, pro- bases of prostitution and questioning
moting vested interests within the sex prevailing sexist attitudes towards prostitutes
business. Further it is contradictory to and prostitution.
demand the repeal of laws against pimping, Rehabilitation: Change the 'corrective and
while simultaneously making claims for the reformative' orientation towards rehabilita-
regulation of third party managements and tion to perceiving prostitutes as victims,
of the abolition of force, coercion and active survivors and human beings with
violence against prostitute women. This is self respect and dignity. Pro government pro-
because third party managements, inclusive vision of adequate enforcement facilities for
of pimps are a well-established phenomenon integrations of criminals in rehabilitation
within the institution which is rooted in and centres. Provision of halfway houses and
thrives on the exploitation, physical and subsidised hostels for women and their
psychological oppression of prostitute children needed especially when they leave
women. For this same reason while pro
the rehabilitation centre.
stitutes must assert their rights as human
beings and must demand wel fare and other Socioeconomic Measures: While the task
benefits like any other citizen, any union of of providing adequate support structures to
prostitutes must be examined in terms of women in prostitution and those wanting to
the nature of its social base, its leader opt out is an urgent need, it is equally im-
ship, demands, ideology and structure o f . portant to initiate measures that prevent
organisation. women being forced to prostitute, in the first
place. The following are some. Widespread
Decriminalisation would wipe out the public education, on the structural roots of
stigma of immorality and criminality: Law
prostitution, the subtle and blatant manners
plays an ideological role in a class-based in which the public sustains the institution,
patriarchal society reflecting and reinforc-
public awareness on the moral and legal
ing the status quo. Within these limits, it isolation of prostitution and their concealed
plays a progressive role whenever it is used
exploitation in prostitution, emphases on
as an instrument to mete out justice to the values of gender equality and justice.
oppressed and bring exploiters to book. By Increase educational and job opportunities
itself taw cannot bring absent radical for women and eliminate gender based
changes in society. discriminatory work conditions. Review and
Decriminalisation of prostitution is an change discriminatory provisions in other
expression of the double standards of male laws against women that may either
sexual morality it reinforces sexist myths predispose them to prostitution or reinforce
about women and reinforces the patriarchal their image as sex objects, eg, marriage and
assumptions of the inevitability of prostitu- divorce laws, custody, maintenance, employ-
tion. Such deeply internalised sexist values ment laws, laws on the use of women's im-
and practices can only be countered by deter- ages in the media. Review existing and
mined struggles against an exploitative class- planned economic policies that directly and
based social order that breeds street indirectly predispose women to prostitution.
prostitution.
V
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