Experiencing Justice Delivery: Women Exploited for Commercial Sex Speak
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| DOI | 10.1177/2516606918819286 |
| Subject Matter | Articles |
Experiencing Justice
Journal of Victimology
and Victim Justice
Delivery: Women
2(1) 11–25, 2019
2019 National Law
Exploited for
University Delhi
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DOI: 10.1177/2516606918819286
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Sharon Menezes1
Abstract
Based on a phenomenological study conducted in the state of Maharashtra, India,
this article draws attention to how women with current and former engage-
ments in commercial sex perceived delivery of justice. The article voices women’s
responses to protective and penal measures enacted by the state through the
Immoral Traffic Prevention Act (1956). Protective sections include rescue of
persons, their intermediate custody and assessing prospects for rehabilitation.
Penal sections include arrest of managers and pimps, punishment for keeping a
brothel and living off the earnings of prostitution and soliciting in the vicinity of
public places. The article points to women’s lack of participation and voice in the
delivery of justice and highlights the need for attention to procedural justice in
the context of justice delivery.
Keywords
Victims, Immoral Traffic Prevention Act, commercial sex, rescue, custody,
procedural justice
1 Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences,
Mumbai, India.
Corresponding author:
Sharon Menezes, Centre for Criminology and Justice, School of Social Work, Tata Institute of Social
Work, V.N. Purav Marg, Deonar, Mumbai 400088, India.
E-mail: menezes.sharon@gmail.com
12
Journal of Victimology and Victim Justice 2(1)
Introduction
Commercial sex involves physical and sexual assault (Barry 1995).2 It poses
health risks. Verbal abuse has acute and long-term psychological symptoms.3
Perpetrators inflict a sense of terror and helplessness, threaten harm to the victim
and family, attempt to destroy the victim’s sense of self in relation to others, have
violent outbursts and isolate victims from sources of information, material aid or
emotional support. This results in victims of commercial sex experiencing depres-
sion, hopelessness and worthlessness, sleep difficulties, being on guard, high
level of distrust, being trapped, paranoia and shame. Anger and rage directed
inward result in thoughts of suicide and suicide attempts and self-injury through
drug overdoses, abuse of pills and high-risk behaviour like not using condoms and
walking in front of moving cars.4
In commercial sex, violence is a norm rather than an exception. However,
mandates on female morality and behaviour in a gendered social structure lead
to victims getting categorized as those deserving of support and those not
deserving of it. Such categorizations are also reflected in responses of state and
civil society organizations.
In the context of human trafficking, Tonisha Jones and Brian Kingshott5 argue
that criminal justice system responses have favoured male perspectives, interests
and approaches. This has produced narrow construction of a trafficking victim,
the prioritization of the criminal justice system’s goals over the trafficking vic-
tim’s needs and lack of concern for the victim’s lived reality.
Historically, legal and ideological positions of the state have influenced the
quantum and nature of support offered to women exploited through commer-
cial sex. For instance, Jones and Kingshott6 cite Jahic and Finckenauer (2005)
and Lobasz (2009) to show how the White Slave Traffic Act of 1910 was
enacted as part of the international campaign against ‘white slavery’ (p. 276)
to protect white women’s virtue, uphold their morality and sanction their sex-
ual activity committed for ‘immoral purposes’ (276). Concern over the white
women’s virtue, morality and sexuality, as well as ideological positions about
sex work (Marcus et al. 2014 and Wilson & O’Brien 2016)7 in highly gen-
dered and male-dominated political and criminal justice systems likely led to
the adoption of the Trafficking Victims Protection Act (TPVA) in 2000 by the
US Congress. Victims who are not kidnapped, sold and sexually exploited,
2 M. Farley, ‘Bad for the Body, Bad for the Heart’: Prostitution Harms Women Even if Legalized
or Decriminalized, 10 Viol. against WoMen 1087–1125 n.10 (2004); s. BroMBerg, FeMinist issues
in Prostitution. Paper presented at International Conference on Prostitution, Cal State University,
Northridge (1997), available at http://www.feministissues.com (last visited 27 January 2019);
K. Barry, The Prostitution of Sexuality (New York University Press, 1995)
3 Id.
4 r. shigekane, Rehabilitation and Community Integration of Trafficking Survivors in the United
States, 29 huM. rights Quart 112–136 n.1 (2007).
5 t. r. Jones & B. F. kingshott, A Feminist Analysis of the American Criminal Justice System’s
Response to Human Trafficking, 29 CriM JustiCe stud 272–287 n.3 (2016).
6 Supra note 5.
7 Supra note 5.
Menezes 13
and waiting and wanting to be rescued; are not identified as victims of traf-
ficking.8 Further, if trafficking victims cannot prove that their situation is the
result of force, fraud or coercion, they are often seen by criminal justice pro-
fessionals as complicit in and guilty of their victimization and quickly rela-
belled a prostitute, labour law violator or illegal immigrant (Lobasz 2009,
Rieger 2007, Sheldon-Sherman 2012, Wolken 2006).9
In India, punishment to women engaged in prostitution was reflected since
early legislation. During colonial rule, prostitution in India was governed by the
Contagious Diseases Act (CDA), 1864. Passed by the then British Parliament to
reduce venereal disease among its armed forces deputed to India, CDA gave the
police the authority to arrest a woman prostitute found in specified areas. Upon
medical examination, if found to be suffering from venereal disease, she was
detained in a hospital for minimum 3 months. Refusal to undergo medical exami-
nation or enter a hospital could result in imprisonment with or without hard
labour.10 As in other British colonies, state-regulated prostitution in India was
aimed at providing safe sexual recreation for sailors, migrant men and soldiers;
discouraging homosexual relations between personnel; and exercising sexual
control over local women (Ballhatchet 1980).11 In 1880s, organizations such as
the Ladies National Association advocated repeal of CDA and abolition of regu-
lated prostitution (Burton 1994).12 However, the colonial state had a greater inter-
est in regulating interracial sexual recreation. So brothels remained legal until the
1930s in Indian cities. Informal registration and medical check-ups of prostitutes
continued into the 1920s (Burton 1994, Levine 2003).13
The current Indian legislation, the Immoral Traffic Prevention Act (ITPA),
1956, was passed subsequent to the country’s ratification of the International
Convention for the Suppression of Immoral Traffic and the Exploitation of the
Prostitution of Others. This legislation was passed to bring uniform legislation in
the whole of India, provide sufficient deterrence and establish or maintain protec-
tive homes14 that were licensed by state governments (Nanda 2014). The act has
provisions for rescue of persons, but there is punishment for prostitution in public
spaces. This reinforces historic responses of the state to protect public from
disturbances of prostitution.
The criminal justice system has been preoccupied with the morality and
sexuality of women and girls as criminal offenders and as crime victims
8 Supra note 5.
9 Supra note 5.
10 M. haMilton, Opposition to the Contagious Diseases Acts, 1864–1886. Albion, 10 Quart. J. ConCern.
Br. stud 14–27 n.1 (1978).
11 a. taMBe, The Elusive Ingenue: A Transnational Feminist Analysis of European Prostitution in
Colonial Bombay, 19gender soC 160–179 n.2 (2005).
12 Supra note 11.
13 Supra note 11.
14 Protective home means an institution, by whatever name called … in which [persons], who are in
need of care and protection, may be kept under this act [and where appropriate technically qualified
persons, equipment and other facilities have been provided] but does not include (a) a shelter where
[undertrials] may be kept in pursuance of this act or (b) a corrective institution.
14
Journal of Victimology and Victim Justice 2(1)
(Franklin 2008).15 It has reserved victim status for women considered to be ‘true
victims’16 and offered protection and rehabilitation to women—whether victims
or offenders—who conform to sex-role stereotypes and standards of behaviour
and who are willing to accept the criminal justice system’s paternal protection
(Lutze and Symons 2003).17 This response is explained in early victim precipita-
tion theories that assumed that victims had an active role to play in his or her
harm. Criminologists (von Hentig 1941 and Mendelsohn 1956)18 identified vul-
nerable characteristics that made victims susceptible to crime. They further distin-
guished between innocent, partially responsible and guilty victims. Amir (1971)19
suggested that a percentage of victims of rape had a record of ‘sexual misconduct’
in the form of prostitution or juvenile sex and had ‘bad reputations’ (p. 463). So
the victim status of women exploited through commercial sex, and their interac-
tion with state agencies is a vexed one.
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