Debmalya Biswas

This article seeks to highlight the inherent contradiction between the law’s moral stance on sex work and long-standing principles of morality. Owing to the phenomenon of legal moralism, abstract moral notions regarding prostitution manifest themselves in deeply disadvantageous and exploitative laws for sex workers. Yet, it is argued that the articulation of these abstract notions ignores the well-established Dworkinian understanding of rights. Additionally, it is seen that the abstractions of morality that lie at the core of the law are not consistent with the core principles of morality in the first place.

Introduction

Prostitution is regarded as the world’s oldest profession, but its permissibility has historically been contentious. The dominant attitude has been one of condemnation; with prostitution being considered immoral and profane. India has adopted a prohibitionist outlook towards prostitution, as a manifestation of this moral condemnation. This is evidenced through the provisions of the Immoral Traffic (Prevention) Act, 1956.

It is argued that this moral perspective is dismissive of the rights of sex workers, and also endangers their lives and liberties. Towards that end, this piece firstly outlines natural law’s disapproval of prostitution, using John Finnis’ views on the exclusive legitimacy of marital intercourse. Secondly, this paper presents a non-consequential and principled rebuttal of this standpoint, using Dworkin’s conceptualisation of rights. Thirdly, consequential arguments are provided to demonstrate the inherent incoherence between Finnis’ stance on prostitution and his master principle of morality.

Natural Law on Prostitution

Natural law theorists have historically been critical of prostitution, and this paper analyses the line of argumentation adopted by theorists like Finnis, Aquinas and  Kant. While Finnis did not explicitly decry prostitution, his arguments regarding homosexuality can be extended to imply his denunciation of prostitution.

Finnis sees heterosexual marriage as a basic good, requiring the spouses to owe fidelity to each other. Further, Finnis argues that only marital intercourse can be regarded to be a legitimate form of intercourse. Sex is generally seen as morally reprehensible unless it is practised by persons bound by wedlock. This is because, for Finnis, sexual intercourse should have a unitive character, instead of simply being an expression of base desires. Intercourse between a man and his wife allows them to biologically and volitionally “give themselves” to each other and reinforces their bond and their commitment to each other. Further, this intercourse must be aimed towards bringing new life into the world, i.e., must have “procreative significance.” Since homosexual intercourse is not out of a matrimonial relationship and does not have reproductive motivations, Finnis claims it to be immoral. Kant, St. Augustine and Aquinas argue on similar lines, claiming that all sexual pleasure should be directed towards contributing to God’s work of creation.

The same argument can be used to reject prostitution. Prostitution is an arrangement wherein sex workers have intercourse with their clients for economic considerations. Ipso facto this is not a matrimonial arrangement and is a purely commercial one; intended not to reinforce commitments, but only to earn a livelihood. This illegitimate form of intercourse detracts from the virtue of marital intercourse, by providing easier avenues for a person to engage in sex. On this basis, Finnis, and more generally natural law, vilifies the act of prostitution. Through the phenomenon of Legal Moralism, this disapproval manifests itself in the prohibitionist outlook towards acts of prostitution.

Infringement of Rights and the Dworkinian Counter

It is often overlooked that the prohibition of prostitution encroaches upon the sex worker’s right to bodily autonomy. For example, the Wolfenden report which sparked the Hart/Devlin debate, concerned only the rights of ‘normal citizens,’ and not of prostitutes. Finnis, quoting Aquinas with approval, notes that rights refer to the idea of “giving to others what is theirs.” It may be noted that rights serve to act as trumps, as was pointed out by Dworkin in Taking Rights Seriously. Essentially, rights are entitlements that have a special normative force, which allow them to override other considerations. Therefore, if a person has a right to do something or to receive something, it must be respected and safeguarded. This is valid even in scenarios where the community would be better off if the right was not protected. Hence, legitimate rights ‘trump’ over other societal and utilitarian considerations.

Right to Bodily Autonomy

Th general theoretical framework can be applied to the present context. Here, it is important to note that the present exposition is limited to consensual and uncoerced acts of prostitution. It is submitted that every person has a legitimate and fundamental right to bodily autonomy, often considered the most basic right that a person can have. This right entitles the holder to use their body as they want, and provides that the state cannot interfere or undermine such autonomy. This has often been considered to be a part of the Right to Privacy. In the landmark case of Lawrence v. Texas, it was explicitly provided that the right to privacy and bodily autonomy should be interpreted broadly and includes within its ambit the choices of adult persons regarding how to conduct their private lives in matters pertaining to sex. Thus, it is evident that this right should also be available to prostitutes qua humans.

The right to bodily autonomy has two dimensions –

a) the capacity to rule oneself.

b) the independence of one’s deliberation and choice from manipulation by others.

The capacity of self-rule essentially implies the requirements of rational thought, mental stability, etc. Since sex workers are adults, they can be presumed to have the required mental faculties to make reasoned decisions. So, they fulfil the requirement of having the right and the capacity to rule oneself.

Further, the second aspect places the use of one’s body completely under one’s personal volition. Hence, the right to bodily autonomy would inevitably accord to sex workers the ability to use their bodies in any way that they desire, including providing sexual services for economic gains. However, this ability is clamped down upon by the law, in the interest of public morality.

Equating Sex-work to Trafficking: Affront to Dignity

This is another associated aspect that is overlooked by the natural law position. As was examined, the act of taking up the profession of prostitution is a personal decision. Transactional sex work is intrinsically connected to the notion that a person is entitled to choose to be a sex worker. However, the law fails to recognise this, by treating sex work to be equivalent to trafficking, wherein persons are involuntarily sold as prostitutes. This is evidenced by the way prostitution is defined in the ITPA. Section 2(f) provides that the term ‘prostitution’ refers to “sexual exploitation or abuse of persons for commercial purpose.” The use of the terminology of exploitation and abuse necessarily signifies compulsion and coercion. Further, the ITPA clamps down on prostitution by criminalising public solicitation, keeping of a brothel etc. These provisions seek to essentially obviate sex work, rendering it practically impossible. Apart from the notions of public morality, the guidance behind such regulations is the idea that sex workers are ‘victims.’ Every sex worker has been deemed to have been forced into the vice of prostitution. Therefore, the law seeks to alleviate the plight of the supposed victims by curbing their profession.

The purpose of the law is to facilitate the exit of the necessarily coerced prostitutes from the realm of sex work. No distinction is made between voluntary sex workers and trafficked prostitutes. This is despite the fact that sex workers have routinely emphasised that their choice to engage in this profession is a considered decision. This is also evidenced by the phenomenon of sex workers openly stating their profession, and striving for the right to carry on that profession. Thus, the law completely overlooks the fact that a person may choose to be a sex worker, and fundamentally equates sex work with trafficking and slavery, wherein persons are compelled to sell their bodies against their wishes.

The import is that it is often considered that women can never genuinely choose to undertake sex work. Such a conception of prostitution fundamentally goes against the principle of agency, by rejecting the worth of a woman’s choice of entering sex work. This denial of agency is tantamount to depriving a woman of her right to dignity. Dignity, as defined by Dworkin in Justice for Hedgehogs, has two limbs –

a) self-respect i.e., the ability to realise the objective importance of one’s life; and

b) authenticity i.e., the opportunity to create one’s own markers for success and fulfilment.

The second limb is important here. For a sex worker, dignity would include the ability to decide that selling her body for sex fits into her metrics of fulfilment. The legal system unquestionably foreclosing the proposition that a person can willingly engage in sex work reflects its paternalistic attitude, and thus denies the ability of sex workers to realise their own conceptions of success. It nullifies the importance of an adult woman’s consent and volition, and thus is an affront to her dignity and agency.

As mentioned above, this prohibition is justified on moral grounds; prostitution is considered to be opposed to public decency and morality. I argue that this position is untenable. As has already been noted, rights are to be thought of in the Dworkinian sense, i.e., as trumps. Therefore, the notion of rights must override any societal or utilitarian considerations. The notion of ‘public decency and morality’ is fundamentally a societal concern. However, as Dworkin argues, the rights to bodily autonomy and to dignity occupy primacy over such considerations. Hence, one must reach the conclusion that the prostitute’s right to bodily autonomy and dignity extends to her voluntary decision to have sexual intercourse for money. This sacrosanct right cannot be curtailed on the grounds of public morality. Therefore, natural law’s reasons for prohibiting prostitution cannot be said to be valid ones.

Contradiction with Finnis’ Principles of Morality

There can be another critique of the natural law outlook, along the lines of the principles of morality outlined by Finnis. Here, it will be observed that Finnis’ stance on prostitution is inconsistent with his stance on rights.

It is important to reiterate the fact that the settled position of Indian law is largely sourced from natural law’s disapproval of prostitution. Therefore, the practical manifestation of the natural law outlook is evidenced in the ITPA. It has been well-established that the goal of moral standards is to guide humans to integral human fulfilment. Hence, to determine the appropriateness of such moral standards, their consequences need to be assessed. Here, the metric of such an assessment is the specifications of the master principle of morality propounded by Finnis. Finnis claims that these specifications determine what rights people have, which serve to secures basic human goods for them. The second such specification is the most appropriate one, for the purpose of this argument.

Finnis stated this second specification as follows:

“Do not do evil—choose to destroy, damage, or impede some instance of a basic human good—that good may come.”

Essentially, this principle provides that harming innocent persons or causing injuries to them cannot be justified on the grounds that the infliction of harm was done to achieve public or private ends.

Using this metric, it can be argued that the law on prostitution is not in accordance with the aforementioned specification of the moral principle of morality. This is because of the harm that is caused to sex workers by the implementation of the ITPA. According to Finnis, life is the first basic good that is secured for all humans. The preservation of health and safety must necessarily be included in this basic good, for the concept of ‘life’ to have any meaning. The law, in prohibiting prostitution, impedes this basic human good of the sex workers. This shall be explained by taking into account specific provisions of the law.

Section 7 of the Act prohibits the practice of prostitution from being carried out in the vicinity of any public place. Further, Section 3 disallows persons from operating in brothels. This ensures that prostitution often has to take place in private settings; often in secluded areas, far from the public eye. This makes the working conditions of sex workers extremely unsafe, as they have no recourse to safety if clients turn hostile. In fact, it has been empirically shown that prostitution is the most dangerous job for women. This is evidenced by the fact that homicides rates of prostitutes are fifty per cent higher than that in the second most dangerous profession, i.e., working in an alcohol store.

This problem is compounded by Section 20 of the Act, which provides for the power of the district magistrate to expel any prostitute from her residential place. This again leads to sex workers having to reside and work in isolated and dangerous areas. Working in fixed indoor locations would go a long way in securing the life and safety of sex workers (basic human goods), but the law renders this impossible, by prohibiting the operation of brothels.

These issues that have been brought out are intensified when one considers the element of immorality and depravity that is attached to those engaged in sex work. This often deprives the sex workers of the opportunity to enforce their entitlements and seek recourses. For this reason, in A People’s Constitution, Rohit De notes that it was unprecedented to see females and that too sex workers. making claims on their fundamental rights. However, the fact remains that sex workers are looked down upon by society. This results in prostitutes routinely being profiled, ridiculed, verbally and physically harassed and even sexually assaulted by law enforcement officers, whenever they go to file complaints. It has also been established that sex workers are seen as easy targets for crimes since they are stigmatised and highly unlikely to receive help.

The purpose of highlighting his observations is to highlight how natural law’s views of prostitution leave sex workers unable to enforce their most fundamental rights. Therefore, a consequential critique against natural law can be made, as it manifests itself in forms that deprive sex workers of the basic human good of ‘life.’ Further, the aforementioned manifestations are antithetical to all conceptions of right behaviour, and violate higher moral standards, as propounded by Finnis.

Conclusion

To conclude, the works of Finnis can be considered to represent natural law’s moral objections to prostitution. This manifests itself in Indian law, which in practice, prohibits prostitution. However, it is argued that such an outlook cannot be accepted and cannot justify a prohibition, since it encroaches upon the rights of bodily autonomy and dignity of the sex workers. Furthermore, a consequentialist argument can be made, highlighting the internal incoherence in Finnis’ positions on prostitution and the master principle of morality. The paper concludes that the natural law position would be in contravention of the principle of morality, by denying to prostitutes the basic human good of life- which includes within its ambit the considerations of health and safety.

Debmalya Biswas is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the National Law School of India University (NLSIU), Bengaluru.