SHOULD COMMERCIAL SEX BE DESIGNATED SEX WORK OR PROSTITUTION IN THE ERA OF HIV/AIDS?

To appreciate and understand the emotionally charged response to sex work we need to confront a very deep rooted human fear -- few parents would like their child to be a sex worker or to be enticed into sex work. This overwhelming fear is intimately coupled with the existing dominant moral and social value system[1] -- one should not have sex outside marriage and especially not casual sex with strangers. Anyone who uses their body to provide sexual pleasures in exchange for money or favors is considered immoral. There are two questions which we all have to confront -- if this value system is such an overwhelming desire then how did we arrive at the current situation in which the sex trade is flourishing? Second, given that there exists a highly flourishing sex trade, should we try to stop it, can we stop it and if so how?

I would like to argue that there are four very important reasons why a large sex trade exists. First, moral and social constraints have not been applied uniformly to all people; second, a significant fraction of human beings stray from the straight and narrow path, thus creating demand; third, for people living in extreme poverty selling sex is a viable means of survival; and fourth, there exist enough ruthless people who are willing to exploit the poor and the unsuspecting. Given this environment, what policies will be most effective in reducing the trade is a very difficult and open question that this article attempts to elucidate. The thoughts presented here are based on my experiences in India and I use examples from India, however, the issues are global and I hope my arguments promote a global debate.

Throughout history the powerful have had concubines, mistresses and sex slaves. Their philandering has come in various guises and with various degrees of legitimacy. For the rich and powerful who could afford to have exclusive rights on people and even own them outright, society accommodated the practice by enlarging the definition of the household. If they were not viewed as part of a second tier of family they were viewed as servants whose life's goal was to provide comfort and pleasure to their masters and beyond that their own life had little value. Another institutional form of indulging the appetite for sex outside marriage was created by priests in many societies. One such example was the devdasi system in India. Simply by calling her "servant of the Lord" priests could legitimately have sex with her. In a democracy none of these practices are acceptable. No person can or should demand that another human being live solely for their pleasure. If sex work is to exist it should be voluntary and the workers should have an understanding of the risks.

For many of the rich and the powerful having sex with someone whom they could own, buy or coerce, did not fully excite or satisfy them. They needed to also experience conquest in the process. Catering to these desires was the courtesan. She was not beholden to any one man but sold her services to any man who could pay her price and very often she exercised control over whom she would accept as a lover. Since she held power over the rich and the powerful, she was grudgingly accorded status. The role of the courtesan is today being played by the high society call girls and boys. They are not stigmatized as long as they ply their trade discreetly, and encounter no problems staying integrated in society.

Since sexual urges are not limited to the rich and the powerful, the demand of the common man was satisfied by the prostitute. She could be someone won in war, a widow, or a destitute. Irrespective of how she was inducted, the end result was the same. She sold sex to anyone who could pay and this became her dominant mode of survival. And once she was identified as a prostitute, she was labeled and had few opportunities to reintegrate into society. The label sex-slave was not far off the mark as many were survivors of rape and plunder following military conquests. Religion forbade this practice but could not eliminate it. Over time a double standard was born. The very same men, both married and unmarried and of all socio-economic status, desired and sought out women for pleasure and at the same time denounced the practice. Once slavery was abolished, criminal gangs started running prostitution rings and began using kidnapping, coercion, deception, violence and drugs to bring and keep women in the trade. The prostitutes were not accorded status in society and when exploited or coerced into sex work their existence becames a new form of slavery. The practice is tolerated as an outlet for base human instincts and even today, in spite of a legal framework, the marginalization and social condemnation of the common sex worker continues.

We continue to have double standards. If a well to do man or woman chooses to earn through sex work but is discreet, they raise no alarms. In case of call girls or boys it is assumed, because they have education, are socially refined, and of good socio-economic status, that they are doing sex work voluntarily. So, there is no mad rush to rescue and rehabilitate these sex workers, or to ask what lead them to sex work -- was childhood sexual abuse a factor or were they inducted by a well entrenched criminal organization. They stay integrated in society and their children are not stigmatized and traumatized in school. By being discreet they can assume an alternate identity that society accepts. The common prostitute does not have these safety nets. He/she works close to where he/she lives, i.e., is geographically localized, and therefore cannot maintain anonymity when seeking clients. They get labeled and marginalized. Even when the practice is voluntary, the genteel in society cannot face the poverty, desperate existence and despondency of the common prostitute. It makes them feel vulnerable and naked. Unfortunately, rather than help them in any significant way, the genteel want the practice stopped or at least for the prostitutes to stay invisible. What jars people most about the common prostitute is their lack of social refinement and an alternate identity under which they can stay integrated within society. For prostitutes to reach this stage of refinement they need access to health care, education, rights, protection under law, and not condemnation. In this quest for identity the label prostitute or sex worker matters.

Most societies have been male dominated, and the seeker is predominately male and the provider a woman. This was not an exclusive arrangement as homosexuality and male sex workers have also existed. Even though I mostly portray the prostitute as female, I am hoping that the reader will recognize that the discussion applies equally well to male prostitutes. The one big difference is that, in most cultures and during most periods of history, homosexuality and sodomy have been underground activities. In addition to sex outside marriage being considered immoral, homosexuality and sodomy have had the additional stigma of being considered unnatural.

So how have things changed over time? We have abolished the institution of slavery so the concept of sex-slaves has become doubly abhorable. Nation states have laws that are meant to apply equally to all citizens, so no person can exploit another for sexual purposes or force another to have sex with them. The enlightened have come to value and accept gender equality and equity, so the notion of a woman simply as an object of pleasure or as a breeding machine is unacceptable. Modern birth control methods have provided a solution to unwanted pregnancies, but the increasing focus on physical sexual gratification for both partners as an end in itself makes many people very uncomfortable. Even if they accept human beings' obsession with sex, they question whether it should be bought and sold or restricted only to within marriage?

Many things have not changed. We have not eliminated exploitation or poverty or illiteracy. We have not provided safety nets for all citizens who are not able to work or to find alternate work. So prostitution as a means of survival continues. In this environment criminal networks find easy profit and have stepped in to control trafficking of women for sex trade. The result is that up to a million women and girls are estimated to be trafficked every year.

Different countries are in various stages of overcoming these problems and societies in which poverty is coupled with very unequal relations between the genders are faring much worse. India (and much of South and South East Asia, Africa, Middle East and Latin America) is one of them. Furthermore, notwithstanding economic, technological and social developments, there still remains the unresolved question that, even if poverty was removed and all the necessary safety nets were in place, would human sexual urges and lust still create a demand for sex work and will there always be willing people eager to capitalize on that demand?

So how does one resolve the many conflicting issues in our real world? "No" parent wants their child to end up as a sex worker or seek gratification through one, so how can society legitimize sex work? No child looks forward to, or plans for, a career as a sex worker, so how can sex work be desirable or voluntary? Why would any person willingly choose to be a sex worker if they could find alternate meaningful work? How does one deal with easy and anonymous access to sex workers eroding family values? How does one eliminate lust and the demand for easy sex? How does one confront the large scale trafficking of women that is occurring globally? On the other hand what avenue for survival does a person without work have when there are no social safety nets or worse still when there exists open hostility towards victims of situations created by bad social practices and circumstances beyond one's control? Why should a fully cognitive adult not be allowed to use certain parts of his/her body to earn a living and to even prosper? Why does society not have the same emotional response to people working in highly hazardous and dangerous situations or debasing menial work which exposes them to extreme risk for physical and emotional harm?

Society and individuals have to challenge themselves to address these issues with the understanding that there is a tremendous demand for sex workers, and many sex workers accept sex work as a way of earning a living which has its challenges, need for training, talent, skills set, benefits and drawbacks just as any other profession.

For governments, policy and law makers the challenge continues to be what moral and societal factors should be considered when legislating what are allowable relationships between two consenting adults? This is an age old question which, in principle, was addressed by creating the institution of marriage -- in one word humankind defined with whom, when and how to have sex. Unfortunately no society or culture has been able to restrict sex to within marriage, and all have limped along tolerating extra-marital sex and bearing its health, emotional, and financial consequences.  Today, these same questions have come to the forefront because of HIV, a recently recognized virus that is sexually transmitted and devastating large parts of the world. Sex work is at the center of this discussion because the two main factors implicated in sexual transmission are (i) start of sexual activity at a very early age and outside the social sanctity of marriage and (ii) sex with multiple partners whose sexual history, and in particular disease status, is unknown.[2] Unfortunately, these same two factors (labeled risky sex) are also hallmarks of sex work as it is practiced. Most sex workers in large parts of the world practice without education on issues of reproductive health and lack empowerment to insist on the use of condoms.

Given the extreme health risks to an individual and the global impact of the spread of HIV, all of us have to make choices between advocating for a harm reduction approach [3] and maintaining moral principles in accord with religious teachings. In an perfect world the moralists would be right -- if all people have sex only within the institution of marriage, then all sexually transmitted infections (STIs) caused by pathogen whose only natural hosts are humans would be controlled and eradicated. On the practical side the realists are right because sex is not restricted to marriage, and for those who have sex outside marriage a harm reduction approach is the best solution available. Even the strictest of laws have not stemmed demand and in a global world people are willing to travel across continents to find and provide sex. This phenomena is very much evident in the exponential growth in sex tourism.

What is the difference between calling it sex work or prostitution? Is it simply a matter of semantics or is it something important whose resolution will reduce the risk of STIs and erosion of family values? I claim it is the latter for the following reason. Calling it prostitution implies it is exploitative, debasing of human life, and immoral. Its practice should be illegal and if demand cannot be removed then it should remain an underground activity. Its willing practitioners should be considered immoral and should be rescued and rehabilitated. Conservatives hope and assume that the exploitation, abuse, and victimization of the prostitutes and their children will decrease slowly over time as the economic situation and literacy rates improve. However, if demand persists then at least the common prostitute would evolve into a call girl/boy and happily for everyone the eyesore would disappear. We face a catch 22 if prostitutes continue to face tremendous impediments when trying to access education, health care and housing in an attempt to improve their lives. On the other hand if we accept it as sex work then we have no choice but to consider their rights, benefits, role and value to society, income, payment of taxes, contributions to the economy, social safety nets, education, health and housing needs.

Experience in all parts of the world shows that by designating it sex work the health risks to them and their clients have been significantly reduced, the opportunities for their children have improved considerably, and the associated violence and exploitation is much less. What is not as clear is whether by legitimizing it as sex work one also increases demand and induces more people to experiment, ones who would not otherwise have done so if prostitution was illegal. The almost daily exposé of large scale trafficking of girls and women globally has frightened the public and even many liberals doubt whether legitimizing or legalizing sex work will help put a stop to this problem.

By calling it sex work society gives it legitimacy. Will legalizing prostitution and designating it as legitimate work remove the trade from the clutches of criminals? As a parent, what worries me most is not whether my children choose to become sex workers but whether they are exploited, abused, deceived or coerced into sex work. I favor a solution that decriminalizes sex work and protects it from exploitation and control by criminals and simultaneously ensures an education system that teaches children how to develop healthy attitudes towards sex and lasting relationships. At the same time I will not deny that, even if I were assured that there are no organized criminal gangs enticing children into sex work, I would feel concerned if prostitution was common?

These questions become even more difficult to answer when the issue of implementation is confronted. Will parents and schools, in general, be effective at developing good judgment in children so that they do not undertake risky experiments? Is there a clear solution that can be implemented to remove the control of criminals over sex workers? Is legalizing and legitimizing sex work this solution, especially in countries with poor law and order situation and high rates of corruption? Will simply decriminalizing prostitution work? And how effective will any strategy be in protecting children/adolescents from becoming sex workers or from pedofiles having sex with them?

On one issue my stand is clear, and on which there should be no compromise, and that is the status of children coerced into sex work. Any person below the legal age of an adult in the trade should be considered a victim of sexual abuse. The child should be rescued and rehabilitated and the perpetrator and the criminal network facilitating sex with minors should be prosecuted as criminal offenders with a degree of punishment more serious than rape and aggravated assault. I have the same verdict on those coercing and forcing adults into sex work, however, in this context I recognize that often it is very difficult to establish who has been coerced and what constitutes coercion.

On the issue of making sex between consenting adults safer I advocate for a comprehensive education on sex, sexuality and reproductive health for all starting with adolescents. The need is especially urgent today since exposure to sex is constant and pervasive and children are having to make important life affecting decisions at younger and younger age. Education has to, often, overcome parental silence and must happen before children learn through uninformed risky experiments. Also, such awareness through education must be coupled with a harm reduction program for those who choose to have risky life styles or digress.

I wish to emphasize is that these are very emotional and difficult issues on which every individual has strong opinions and throughout history there has been no solution that has worked. What the rapid spread of HIV is forcing all societies and individuals to do is to confront this dilemma with urgency. We must have the debate, develop a consensus, make a decision on the course of action, implement the decision, monitor the programs for effectiveness, and if not successful in stopping the spread, have the courage to reassess and choose new solutions even if they go contrary to religious and cultural beliefs. Many people are very uncomfortable with being forced into this debate, but as with many things in life we cannot hide behind a veil of discomfort or ignore the issue or make decisions that prove harmful in the short and long term as lives of millions of people are at stake.

Since I do not have a magic solution, let me not attempt to provide "answers" but pose what I consider are key questions whose resolution, I believe, will at least demonstrate the required political and social will to confront the health and societal crises caused by HIV/AIDS. I do state my views on these issues but only in parenthesis.

• According to the Indian Penal Code prostitution is not illegal but soliciting is a criminal offense. Is this arrangement working? [A ban on soliciting was designed to prevent enticement, to prevent someone from being swayed who would otherwise not voluntarily seek. By not banning prostitution law makers recognized the huge demand for sex, sex work as a means of survival, and lack of effective ways of control. Unfortunately, the law and its poor implementation and corruption have created a very ambiguous situation. Sex workers are exploited, abused, and victimized by criminals, madams, pimps and by the police. They do not have access to education, health care, and decent living conditions. They are marginalized and the trade remains underground. In my opinion, the current system is not working, and in view of the fast spreading HIV the need for clear and enabling laws is urgent.]

• Is a fully mature (over the legal age) person who chooses to be a sex worker "deviating from desirable norms" or is the client? [The sex worker is openly providing a service, albeit of carnal pleasures. The client is the one who breaks social and family norms in seeking an anonymous and easy source of pleasure, and is in the position of power and control. As stated before, I consider children a special case and anyone having sex with them, or exploiting them for purposes of sex, should be subject to severe criminal procedures.]

• Is a society that is not prepared to accept sex-work prepared to accept sex-workers and, furthermore, pay to rehabilitate the estimated 2.3-8 million of them in India alone? Will the demand cease automatically if all sex-workers stopped selling sex tomorrow? What alternate means of entertainment will the clients seek? [My first observation is that rescue requires identification of the person as being a sex-worker and then their consent. Once people are labeled they will continue to be shunned by society. Second, rescue without rehabilitation has little value. Rehabilitation requires, in addition to providing a job and a home, a rebuilding of self-respect and identity. This is a very difficult, costly and long term proposition. Third, new workers will emerge at least as fast as the existing ones are rescued until demand deceases as a result of major changes in societal conditions. Hope lies in reducing demand through education and people learning to develop better and more meaningful relationships with their partner.]

• Will legalization or prohibition of sex-work be more effective in preventing (i) erosion of moral values, (ii) coerced and forced entry of women and children into the trade, (iii) exploitation of minors in the trade; and (iv), which policy will lead to better health and living conditions for the sex workers and their families? [Prohibition can work if we are prepared to enforce draconian punishments as in Saudi Arabia, but even there it has not succeeded in curbing demand, nor in stopping extra-marital sex and exploitation. Legalization will work if society is simultaneously prepared to provide sex-workers with equal human rights, legal protection from exploitation and violence, freedom to practice their profession without social censure and stigma, and education for the youth to develop a healthy attitude towards sex and thus reduce demand for risky sex.  In either case the quality of governance, the reach of the education system, and the law and order situation will drive the outcome.]

• If sex work is to be eliminated through legal action, should punishment be given to the sex workers, who are already living under brutal conditions, or to the customer who exercises choice and to the ruthless organizations behind trafficking and facilitation who are in positions of power and control? [The customers, the organizers and the perpetrators should be held accountable and punishable, and the sex workers should be rehabilitated.]

• If sex work is to be legal, then should sex workers have the ability to organize in trade unions and ask for minimum wages and retirement benefits, health care, education, protection from police harassment, and decent living conditions? [Yes. These are a part of the fundamental rights of all human beings in a democratic society.]

• In a country very short on resources, what should the priority with respect to resource allocation be? "Can a country cutting back on food subsidies and midday meals for children subordinate these priorities to subsidize sex transactions [money spent on making commercial sex less risky through harm reduction programs like condom distribution] in violation of laws and family stability?" [Faced with a health crisis which can no longer be ignored and from which the general public is no longer immune, society is finally being forced to confront a long simmering health and human rights issue. This wakeup call is not equivalent to subsidizing sex transactions but a desperate cry to force us to respond to the needs and rights of the marginalized. In short, the government and society should invest in both, and the collective failure to deal adequately with either should be cause for deep concern.]

• Does information on reproductive health, sexuality, sex, STIs, methods of contraception, and addiction to alcohol, tobacco, and drugs lead to more school students trying risky experiments or does it empower them to make healthier choices? [I believe that while such information may drive some students to experiment out of curiosity, it will empower many times more to make healthy choices lifelong and be much better human beings. Over time, implementing such a curriculum will also lead to improved relationships between the genders and in the development of a civil society.]

• What is a discreet and conservative approach to stemming a raging health crisis caused by sexually transmitted infections and addictions? [Historically, the discreet and conservative approach practiced in India has been to marginalize the "deviants from the norm" and the lesser born rather than to grant the same human and legal rights to all, independent of their conditions of birth, profession, socio-economic status, and sexual orientation. Today, the failure to guarantee the same human and legal rights to all have led to many disastrous consequences, like sex selective abortions, female infanticide, pandemics created by STIs, addictions to alcohol and drugs, racial riots, a deteriorating law and order situation, and rampant corruption. An enlightened and responsible system requires we invest in health care and education for all, and develop respect for human life and our natural environment in all its diversity. A transition to a civil society will happen if we set good examples for the coming generations and educate the youth on societal and health issues and empower them to make healthy and safe choices throughout their life.]

• Can one simultaneously satisfy both the liberals and the conservatives by building on the principle of five R's: Respect, Reliance, Recognition, Rescue and Rehabilitation? [For sex workers that are over the legal age of eighteen and are not forced into doing this work, the first three Rs also constitute rescue and rehabilitation. Demanding all five or the latter two will create a power struggle with the pimps, madams and traffickers and, in a country with a huge demand for sex workers and poor enforcement of the law, sex work will remain an underground activity characterized by exploitation, violence, harassment and disease. In the case of children and those coerced into sex work, rescue and rehabilitation is essential and this should be coupled with a very vigorous effort by law and order agencies to enforce stiff penalties on the organizers, perpetrators and profiteers.]

• Should there be different laws and norms for male versus female sex workers? [Most of the discussion on sex workers in India assumes that the numbers of male sex workers are negligible. This is certainly false. Since the risk of spread of STIs through anal sex is higher, it is important to formulate a comprehensive policy that addresses the needs of both genders. Children, both boys and girls, should be rescued and rehabilitated, whereas adults should be allowed to practice the trade with Respect, Reliance, and Recognition.]

My overall hope is that a very serious and scholarly discussion on these issues is carried out with the involvement of the senior politicians and bureaucrats, both at the state and central level, and the conservatives and the liberals should work together to create a clear policy that is realistic and can be implemented quickly. Thereafter, the politicians, bureaucrats, judiciary, and law and order agencies should act cooperatively with CBOs and NGOs to address the HIV crisis with a common sense of purpose and urgency.

The current situation in which there is no clear policy is counterproductive if not outright harmful. My reading is that many bureaucrats and politicians do not believe that the conservative approach works, but are too afraid of a possible backlash because they are not convinced that any approach will work. Also, many do not see political profit in confronting a highly charged issue involving morality and culture. As a result they vacillate. The conservatives, on the other hand, are convinced of their course of action and believe that they are not succeeding because they are not adequately funded. Since almost all the funding for STI and HIV intervention is coming from the West, the already aroused passions due to the implications of STIs for social and cultural norms, are being further ignited by the issues being labeled "a Western agenda".

There are many positive developments. Some of the prominent red light districts have developed successful self-help groups and are also being helped by excellent NGOs. Notable among these are DMSC/Sonagachi in Kolkata, sex workers in Surat, Sangram in Sangli (Maharashtra), Saheli in Mumbai, CHES in Chennai, and sex-workers forum Kerala. Sex workers have begun to voice their needs and rights as human beings and as citizens of a democratic nation. Parliamentarians have begun to discuss the issues of gender, HIV and sex work. Private sector is forming partnerships with the government and NGOs to improve health care and education facilities and to spread awareness. Lawyers Collective and NGOs like NAZ Foundation working on HIV prevention have petitioned the Supreme Court to amend and clarify section 377 of the Indian penal code that deals with sodomy as a criminal offense and the Prevention of Immoral Traffic Act (PITA). So far the government and the judiciary have not shown any sign of action on legal reform. The public is caught in a bind -- societal change through enlightenment is a very slow process, implementation is even slower, whereas HIV and other STIs are spreading fast.

Too many people are getting infected by HIV due to lack of knowledge and empowerment to demand safe sex, and bad medical practices (like reusing unsterilized needles and instruments, contaminated blood). It is time we faced the challenge with courage and develop clear enabling laws and the social will to move beyond our fears. We must act to enhance the welfare of all, especially the poor, the illiterate, and the marginalized. Calling it sex work will be a very positive and powerful step forward. Major progress on stemming the spread of HIV can happen quickly if both conservatives and liberals can agree on a harm reduction approach that they implement and monitor as partners.