By B. Mohan
Struggling to make ends meet whilst living in poverty, being exploited, denied of their rights, and facing discrimination and harassment, the sex workers of Sri Lanka have been dealt a very raw deal.
This Women’s Day, I sought to speak for the women of the country who are rarely spoken for. This isn’t to say that other women’s issues should take the backseat, but rather that this issue should be given equal priority amongst the rest.
The recent ruling by Fort Magistrate Ranga Dissanayake, where he stated that earning a living through prostitution wasn’t considered an offence, had local and social media buzzing with their take on the decision. While some agreed with the precedent he has now set, others felt he hadn’t made the right call. Dissanayake also clarified that although earning via prostitution wasn’t illegal, operating a brothel was.
A subsequent ruling also saw him sticking to this interpretation of the law, where he dismissed a case against a handful of sex workers who were presented in court after being arrested at a massage parlour in Bambalapitiya by the Peliyagoda Police. The operator of the massage parlour, however, was fined, according to the Standup Movement Lanka, a nonprofit that fights for the rights of sex workers.
Reportedly, the Police were instructed to refrain from making these arrests – not only after Magistrate Dissanayake’s pioneering ruling, but even before that. However, the Police don’t seem to have heeded and still continue to make their arrests.
According to Standup Movement Lanka Executive Director Ashila Dandeniya even though the Police said they instructed their officers not to make these arrests, practically, it is still happening, even today.
Asked where these arrests usually take place, she told the Colombo Gazette that it was mainly in Colombo.
“The main areas are Bambalapitiya, where arrests are made by the Peliyagoda Police, and Walana.”
Asked by the Colombo Gazette about the arrests that are made under the Vagrants Ordinance, Police Spokesman SP Jaliya Senaratne said “We have advised them (police officers) not to take people into custody in a manner which is not in line with the law.”
The Vagrants Ordinance (Sections 2 and 9), which was introduced during the time of British rule in 1841, is cited whenever these arrests are made. According to Magistrate Dissanayake, only if the prostitute was behaving in a riotous or disorderly manner in any public street or highway, could they be arrested citing this Ordinance. However, most of the arrests are made from the brothels – mainly massage parlours – itself.
The Brothels Ordinance, on the other hand, governs the operation of brothels, and clearly states that operating a brothel is illegal.
Upon questioning private practitioner Attorney-at-Law Oshan Fernando on whether these two Ordinances deem sex work illegal, he stated: “This isn’t a ‘yes’ or ‘no’ answer. Considering both statutes, prostitution is illegal under certain conditions. However, as both Ordinances are outdated legislation enacted during a different era, which has changed significantly (particularly due to technology), arguably not all forms of prostitution is illegal today.”
Violation of rights
Sex workers face immense discrimination from both society and the Police. Sri Lankan society views sex workers as the lowest class and attach a lot of stigma to their profession. And the Police are no different, and sometimes even worse.
There have been reports of the Police detaining transgender sex workers, making them perform certain tasks in exchange for their release. Last year, I spoke to a transgender lady who related to me the depressing story of how she was forcefully detained by the Police and made to bathe in a drain on the main road, in the view of passers-by.
The Police also wrongfully make arrests during the daytime, sometimes even while the workers are off duty and just on their way to buy lunch, only to detain them in custody and write them up after dark.
“The Police cannot book them for sex work when they make the arrest during the daytime, so they keep them in custody and book them after dark to give the impression that they were caught later in the day,” Sakuni Mayadunne, a transgender activist told the Colombo Gazette. She also occasionally engages in sex work.
She explained that these arrests occur while the sex worker isn’t even on duty. Asked how the Police identify them during the daytime, Sakuni shared that they have made note of the sex workers and know who they are, and so arrest them from time to time.
She continued: “Also, when the sex workers are arrested during the morning or afternoon, the first thing the Police does is take their phones away, so as to prevent them from calling anyone for help. This is a problem we face with the Police.”
“It is a real issue,” Family Planning Association (FPA) Director – Advocacy Sonali Gunasekera told the Colombo Gazette. “Through use of the Vagrants Ordinance these workers are picked up at 10 at night if they are standing on the street and sent to the Gangodawila House of Detention, which in itself is a violation of human rights.”
While investigating the conduct of the Police, I also learned that they make a majority of these arrests at massage parlours, or brothels, citing the Vagrants Ordinance. Whereas the Ordinance actually states that, according to Section 7(1)(a), “ any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not”, and continues to the end of Section 7(1), which states that they “shall be guilty of an offence, and shall be liable on summary conviction to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding one hundred rupees, or to both”.
A recent incident that was related to me by Standup Movement Executive Director Dandeniya, for which their organisation is preparing to file a fundamental rights (FR) application, shed more light on the issue. A few weeks ago, two sex workers were arrested by plain-clothed policeman who had banged on the door of the massage parlour from which they operated and arrested them.
“Now, they (Police) know that there will be no case for them, so what they did was request that a medical examination be done. Now unfortunately, they were not produced before Magistrate Ranga (Dissanayake), so they had to get checked.
“We are waiting for the medical reports to come through, and once that does, we will be filing a fundamental rights (application) against those police officers,” she said.
She explained that they had not filed any FRs in the past as they were unsure of any judgements being passed in favour of these workers, however after the Magistrate has now set the precedent, they have new hope.
Delving into why a medical report would be required, I uncovered that the Police look for any way to detain these sex workers, especially since the law isn’t clear on sex work. By producing them in front of a magistrate whilst requesting for a medical examination, the Police cite “health issues” as a concern; they are concerned for the public’s wellbeing and wish to prevent the spread of sexually transmitted diseases (STDs) and HIV, or so they claim.
This practice inevitably leads to the sex workers being detained for more than one or two days, as the Police can release them only once the medical reports are received. In this instance, Sakuni explained that the transgender women who are in the process of their transformation (i.e. those who have undergone the sex change operation and are currently taking hormone medication to that end) have to forgo taking medication for the period they are held – this can even stretch to 14 days, she said.
Upon questioning Attorney-at-Law Fernando on whether ill health is a valid basis on which to detain someone, he said: “It’s difficult to answer this without checking with the Police. From a strictly legal perspective (and admittedly with little research into this particular issue), I can’t think of a reason why a medical report would be relevant for an arrest under the Vagrants Ordinance.”
Questioned Police Spokesperson Senaratne on the matter, he said: “If there is an incident or an individual case where someone has faced an issue or something unfair has happened, we can raise a complaint.
“We can then take disciplinary action against them if they do something wrong. If this is happening in any other precinct and we are made aware, we can, through the IGP (Inspector General of Police) by notice or circular inform such a precinct.”
He then stated that once a complaint is made, they would need to ensure the due investigations are conducted before acting.
The violation of human rights is the action that is a result of a much deeper problem – social stigma. The sex workers are viewed by Sri Lankan society as engaging in something morally questionable – selling their bodies. However, we need to realise that in order to survive, these workers get into this profession to satisfy a demand – a demand created by our very own Sri Lankans – ironic isn’t it?
“This social stigma is the biggest barrier for them – and they openly tell us all the time,” said Gunasekera from the FPA. “But these women are generally very strong women, and they do this by choice – to an extent at least; they don’t have money and so resort to this type of work, and so it’s something they want to do and it’s money they can earn fast.”
Asked if there was any support for women in this profession, Gunasekera shared: “Well, in the sense of counselling, I don’t think Sri Lanka is has the capacity required for these women, because all the counsellors will also frown down at them for the work they do.”
This was confirmed in a January 2017 report by CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which states: “While healthcare is free in Sri Lanka, and free clinics for sexually transmitted diseases (STDs) are available, sex workers report facing discrimination by medical personnel who look at sex workers as ‘dirty’ or ‘unclean’.”
It went on to state: “Street-based sex workers are especially vulnerable to be rejected medical treatment or testing due to these reasons. Due to this stigma and ill treatment at the hands of health personnel, many sex workers resist seeking medical attention which puts their life and health at risk. Sex workers who newly enter the field have indicated that they didn’t have access to information on health services and clinics. They were informed of this by other sex workers.”
And that isn’t all. Sex workers are also denied access to loans and financial credit, where they face discrimination when declaring their source of income. Some sex workers report being driven out of their homes by neighbours, while some male neighbours demanded sex as they knew they were sex workers, the report revealed.
What can be done?
Recommendations on ensuring sex workers are treated fairly range from repealing the Vagrants Ordinance in order to prevent unwarranted arrests to regularising the trade in order to better protect the sex workers to reforming the national policy on it.
“The immediate need is to repeal the Vagrants Ordinance,” shared Standup Movement Executive Director Dandeniya, while referring to the 2017 CEDAW report which also lists this as a recommendation. She believes that this would be the first step towards alleviating the social stigma these workers are subject to, after which other measures would be looked at.
The ultimate goal, she said, is to categorise these workers under a framework where they will be protected under labour rights. In that scenario, ideally the workers would receive EPF and ETF from the massage parlours they work in.
Seeking a legal perspective, I asked Attorney-at-Law Fernando how he believes it should be done. “I think the whole subject of prostitution needs to be addressed holistically. Rather than enacting piece-meal statutes or amendments, the question of national policy on the issue ought to be resolved first. After that, all relevant legislation needs to be looked at and amended/repealed in line with that policy.
“Either way one thing is clear, it is a poorly regulated industry and there doesn’t appear to be a coherent policy behind these fragmented pieces of legislation.
“This, coupled with the popular moral opinion means that sex workers face a lot of challenges, which seem to be due to law enforcement trying to mete out moral justice by misinterpreting existing legislation.
“The best way to remedy this would be to have a clear and consolidated legislation which properly regulates the industry, specifying how income is taxed and health requirements, and also defining the way in which people can engage in sex work.
“The main concern here is the lack of a positive national policy geared towards regulation, without which enacting laws would not really solve the issue,” he said.
Efforts to get in touch with Government Spokespersons Keheliya Kambukwella and Mahindananda Aluthgamage to ascertain the Government’s view on the matter proved futile.
The biggest, most obvious and to an extent legitimate concern behind decriminalizing sex work is increased exploitation and human trafficking as a result of opening up the market. However, many countries have taken steps towards decriminalising this type of work, with the view of protecting those in the profession, as they have identified that sex workers are amongst the most marginalised and stigmatised populations around the world, without always seeing increases in the number of women entering the profession, which is yet another popular concern.
As evident by the situation in Sri Lanka, even though sex work is viewed as illegal, the industry is still fully operational. Add to that, as discussed, sex workers are subject to many conditions that are unfavourable to them – decriminalising sex work would remove a good portion of these.
Studies in the West and European regions have shown that decriminalisation leads to lower risk of HIV and violence and abuse from clients. In addition, case studies have shed light on how the stigma surrounding sex workers also reduced, with them being able to reach out to local authorities without hestiation, knowing they wont be discriminated against.
Certain countries have even regularised the industry, so much so that sex workers get benefits just like any other worker, are required to go for health checkups every so often, and even have to pay taxes, thereby making positive contributions to the economy.
Prostitution is legal in New Zealand, Austria, Bangladesh (apart from male prostitution, which is illegal), Belgium, Denmark, Ecuador, Germany (which also has many state-run brothels), Greece, Indonesia (by default, as it does not have any law covering it), Netherlands, Mexico, Bulgaria, Chile, Colombia, Costa Rica, Cuba, Cyprus, Czech Republic, Dominican Republic, El Salvador, Ethiopia, Estonia, Finland, Greece, Argentina, Guatemala, Honduras, Hungary, India, Israel, Italy, Kenya, Kyrgyzstan, Latvia, Luxemburg, Malta, Nicaragua, Panama, Paraguay, Peru, Poland, Portugal, Bolivia, Senegal, Singapore, Slovakia, Spain, Switzerland, Brazil, Turkey, Belize, Uruguay, and Venezuela.
In Colombia, Canada, France, Iceland, Australia, Ireland, Japan, Malaysia, Armenia, Norway, Sweden, and United Kingdom prostitution is limitedly legal, in the sense that either running a brothel is prohibited, soliciting in public is prohibitied, the law varies from state to state, etc.; the law is tailored to suit the requirement of the country in question.
However, I am unsure of whether Sri Lanka is ready to fully legalise the profession, but we need to start somewhere, and repealing the Vagrants Ordinance would be a good way to.
While the world strives forward, empowering women to do what they want to do and be what they want to be, let us not segregate within an already segregated people. Let us embody the slogan of International Women’s Day, and actually BE “Generation Equality: Realising Women’s Rights”. (Colombo Gazette)