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Vision and Mission Vision:

Our actions are informed and framed by two Gandhian beliefs; Antodaya and Ahimsa Antodaya (uplift of the last woman): Antodaya, lexically means the awakening of the last person. Change is possible and sustainable only if it is led by the last wo/man and affects and elevates the lives of the poorest of the poor. Apne Aap will ONLY undertake work that touches this person, in this case she being the prostituted child or woman. Ahimsa (Non-violence): Sex-trafficking and prostitution are forms of violence against women. Any attempt to end sex-trafficking and deal with prostitution would first of all require our own internalization of the principles of non-violence.

Mission:

To end the sex-trafficking of women and chilren.

CONFRONTING THE DEMAND FOR SEX-TRAFFICKING

an initiative to end sex-trafficking

Confronting the Demand for Sex-trafficking A Handbook for Law-enforcement JULY 2007

Objectives: -

To support community-based initiatives of those trapped by the sex industry Mitigate the circumstances of those caught in prostitution Develop leadership among the affected to end sex-trafficking Prevent inter-generational prostitution Build linkages between grassroots activisim and policy makers on issues related to ending sex-trafficking - Create awareness in society on discrimination against women and girls, particularly on issues realted to sex-trafficking, prostitution, sex, sexuality and violence against women and girls.

COALITI N


Confronting the Demand for Sex-trafficking A Handbook for Law-enforcement

July 2007

Ruchira Gupta Ruchi Sinha


July 2007

Š Apne Aap Women Worldwide 2007

Apne Aap Women Worldwide is registered under the Bombay Public Trust Act. (Registration No. E 20422 - Mumbai).

All Rights Reserved. No part of this document may be reproduced in whole or in part, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without written permission of the publisher.

Apne Aap Women Worldwide centers: Bihar (Forbesgunj) Vill: Rampur (North) Forbesgunge, Bihar Ph: (91-33) 22834354, 22812955 Delhi (Subhash Camp) 66/295-96, Dakshini Puri Extension New Delhi - 110062 Ph: 011-32617268

Published by Apne Aap Women Worldwide Identity, Himadri Building 22, Ballygunge Park Road Kolkata – 700 019 Phone: +91-33-22812955, 22834354 contact@apneaap.org www.apneaap.org

Designed and printed by ISHTIHAAR 511 Surya Kiran Building 19 Kasturba Gandhi Marg New Delhi 110 001 Tel: 91-11-2373-3100 info@ishtihaar.com

Delhi Resource Centre D-56, Anand Niketan New Delhi - 110 021 Ph: 011-24110056 Kolkata (Kidderpore) 2/6, Nitya Ghosh Street Kolkata - 700 023 Ph: 033-30984934 Kolkata (Topsia) 1/A, Biresh Guha Road Kolkata - 700 017 Ph: 033-32943081 Mumbai (Bhiwandi) Hanuman Tekdi, Rampur Hasbibi Darga Road Bhiwandi, Thane - 421302 Ph: 0252-2566874 Mumbai (Kamatipura) Chandramani Budh Vihar Muncipal School 4th Floor, Kamatipura 13th Lane, Mumbai-400 008 Ph: 022-32015597


Foreword — Ms. Sigma Huda Messages from • Mr. Vilasrao Deshmukh • Lt. Gen Satish Nambiar • Dr. Girija Vyas • Dr. Kiran Bedi • Ms. Chandni Joshi

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vii ix x xi xii

Preface — Ms. Ruchira Gupta Executive Director, Apne Aap Women Worldwide

Introduction About this Handbook

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1

SECTION 1: WORKBOOK Module 1 Definitions 1.1 Introduction 1.2 Learning Objectives 1.3.1 What is Trafficking? 1.3.2 Trafficking in Indian Constitution and Laws 1.3.3 What is the Indian Definition of Trafficking? 1.3.4 Trafficking Offences under ITPA 1.3.5 What is Prostitution? 1.3.6 What is Sexual Exploitation? 1.3.7 Good Practice in India 1.4 Learning Activity Module 2 Trends in Trafficking: Nationally and Globally 2.1 Introduction 2.2 Learning Objectives 2.3.1 Scale and Nature of Trafficking 2.3.2 Trends in Trafficking in India 2.3.3 Linkages Between Trafficking, Sexual Exploitation and Prostitution 2.3.4 Trafficking in Human Beings - An Organized Crime 2.3.5 Trafficking in Human Beings – A Matter of Public Health 2.3.6 Causes of Trafficking in India 2.4 Learning Activity

17 19 21 22 25 26 27 31 31 32 33

35 37 38 39 39 42 42 43 44 48


Module 3 Understanding the Trafficked 3.1 Introduction 3.2 Learning Objectives 3.3.1 Who are the Trafficked and Prostituted Persons in India? 3.3.2 What are the Different Forms of Prostitution? 3.3.3 How do those, who are Trafficked, Survive? 3.3.4 Myths and Facts about Trafficked and Prostituted Women and Girls 3.3.5 Myths and Facts about Legalizing Trafficking and Prostitution 3.4 Learning Activity

51 53 54 55 56 57 59 63 67

Module 4 Exposing the Traffickers and Buyers 4.1 Introduction 4.2 Learning Objectives 4.3.1 How do you Define Demand for Trafficked Sex? 4.3.2 Why Should one Criminalize the Demand in Sex Trafficking? 4.3.3 Who Constitutes the Demand for Trafficking? 4.3.4 Demand Patterns 4.3.5 Survivors’ Response to Interventions Aimed at Curbing Demand 4.3.6 List of Countries that have Addressed Demand Successfully 4.4 Learning Activity

69 71 72 73 73 74 80 81 82 97

Module 5 Responding to Trafficking and Prostitution by Curbing the Demand 5.1 Introduction 5.2 Learning Objectives 5.3.1 Shifting the Blame from the Victim to the Perpetrator 5.3.2 Prostitution is not a Victimless Crime 5.3.3 Role of Police - Use of ITPA to address the Demand 5.3.4 Present Trends of Police Investigation 5.3.5 Police-NGO Partnership to Address Demand 5.4 Learning Activity

99 102 103 104 106 106 109 115 117 124

SECTION 2: RESOURCES Bibliography

129

Legislations / Conventions and Protocols

132

Website Resources

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Annexures I: UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children II: The Immoral Traffic (Prevention) Act, 1956 III: The Immoral Traffic (Prevention) Amendment Bill, 2006 IV: Trafficking in other SLL V: International Framework of Laws Related to Trafficking VI: Regional Initiatives Related to Trafficking VII: Crime Data VIII: UN Secretary-General’s Bulletin and Information IX: List of Abbreviations X: List of Participants

134 143 165 169 170 173 175 177 189 190

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HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L'HOMME

OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DE LA COMMISSION DES DROITS DE L'HOMME

SPECIAL PROCEDURES OF THE COMMISSION ON HUMAN RIGHTS

Mandate of the Special Rapporteur on Trafficking in Persons established by the Commission on Human Rights Téléfax: (41-22)-917 90 06 Télégrammes: UNATIONS GENEVE Téléx: 41 29 62 Téléphone: (41-22)-917 94 07 Internet: www.ohchr.org/english/bodies/chr/special/index.htm E-mail: urgent-action@ohchr.org

Address: Palais des Nations CH-1211 GENEVE 10

REFERENCE: SH

FOREWORD With great pleasure I have learnt that Apne Aap Women Worldwide is publishing a Handbook on trafficking in human beings. While trafficking in human beings has many facets, highlighting not only the most vile aspect of trafficking – trafficking in persons for sex – but identifying the question of demand and the persons responsible for the flourishing of this crime is a laudable effort and I hope that with a large scale distribution of the handbook, this most vile form of trafficking will be successfully contained if not fully eradicated. I am proud and honoured to have been given this opportunity to write some words in appreciation. Demand created by prostitute-users is not the only factor that drives the sex-trafficking market. However, it is the factor which has received the least attention and creative thought in anti-trafficking initiatives. By and large, anti-trafficking policy has been directed towards detecting, preventing and punishing the conduct of traffickers, or towards stemming the supply of victims through educational campaigns or the like. While these initiatives are important and necessary, they must be complemented by targeted projects that discourage demand. Thus, this attempt to highlight the importance of understanding and addressing demand as both a global and a local problem is appreciated. The Handbook highlights the concern that some laws still continue to treat trafficked persons as criminals rather than as victims. It is critical that in all anti-trafficking interventions the human rights of the victim have to remain paramount, so that the human rights of victims of trafficking should be at the centre of all efforts to combat trafficking and protect, assist and provide redress to victims of trafficking. The Handbook outlines the links between trafficking on the one hand and micro level factors such as discrimination and macro level factors such as migration or security on the other hand. It then goes on to state that action was most effective if it was coupled with efforts to advance human rights through the law enforcement agencies and other national mechanisms, with advocacy and awareness at all levels including government machineries on the harms of trafficking. It presents hard

v


HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L'HOMME

OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DE LA COMMISSION DES DROITS DE L'HOMME

SPECIAL PROCEDURES OF THE COMMISSION ON HUMAN RIGHTS

Mandate of the Special Rapporteur on Trafficking in Persons established by the Commission on Human Rights Téléfax: (41-22)-917 90 06 Télégrammes: UNATIONS GENEVE Téléx: 41 29 62 Téléphone: (41-22)-917 94 07 Internet: www.ohchr.org/english/bodies/chr/special/index.htm E-mail: urgent-action@ohchr.org

Address: Palais des Nations CH-1211 GENEVE 10

REFERENCE: SH

facts as to how the multi-billion operation of trafficking – the fastest growing business of organized crime – could be eradicated only with a human rights based strategy that also took into account the demand for sexual exploitation, gender inequalities and poverty. Whilst people are trafficked for different purposes, the Handbook focuses principally upon the linkages between demand and sextrafficking. The issue of demand has been highlighted to be of crucial importance in addressing trafficking of women and children from a human rights perspective. One needs to condemn the continued practice of source countries turning a blind eye to sex-trafficking as well as to the debt bondage and slaverylike conditions suffered by trafficking victims within their borders and abroad. Though socio-economic, political and cultural conditions in many parts of the world make women and children particularly susceptible to being trafficked, thereby fostering the supply side of trafficking, these conditions are often ignored or even tacitly encouraged by Governments, often for the purpose of encouraging tourism within their borders. Apne Aap Women Worldwide has taken the bold initiative to publish this Handbook to address this awning gap. I wish the organisers all the best.

(Sigma Huda) United Nations Special Rapporteur On Trafficking in Persons, Especially Women and Children

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7th July 2007

MESSAGE I am happy to know that you are publishing a Handbook, namely “Confronting the Demand for Sex-trafficking – A Handbook for Law-enforcement.” With the advancement of newer technologies and changing global scenario, sex trade has emerged in diverse forms. Menace of HIV/AIDS and increasing number of young girls/children being trafficked for sex trade, cross-border trafficking, etc. are some of the compelling issues that have necessitated the amendment to ITPA. Trafficking in persons, especially in women and girls has created serious threats to the social and economic systems of many developing countries. Taking into consideration the severity and magnitude of flesh trade, Government of Maharashtra in its Women’s Empowerment Policy stands committed to prosecute those who commit this crime. The State seeks to end this sexual exploitation of women and children by using all the means at its disposal to eradicate sex-trafficking at all levels. The government is proud to support this pioneering effort that lays out guidelines to confront the demand for human trafficking. This collaboration between the Mumbai Police and Apne Aap Women Worldwide will definitely encourage other agencies, NGOs, the media and civil society to join the struggle and make extensive use of this Handbook. The State has set up a State Level Advisory Committee under the Chairmanship of Additional Secretary (Home) to monitor efforts of rehabilitation and protection of victims of commercial sexual exploitation. The District Advisory Committees are also set up under the Chairmanship of Superintendent of Police / Deputy Commissioner of Police to combat trafficking. These Committees comprise representatives from various government agencies and NGOs. For rehabilitation of rescued minor girls and women, a ‘Swadhar’ a 400-capacity centre is being constructed. The Centre will have ancillary units like medical centre, counselling centre, networking centre, vocational training centre, recreation centre and a helpline.

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The State Government has also appointed a State Level Monitoring Committee under the Chairmanship of Deputy Secretary, District Women & Child Development for co-management of special rehabilitation Centre at Deonar, Mumbai. There are six pilot projects under Government of India scheme to combat trafficking of children for Commercial Sexual Exploitation in Source and Destination areas. There are 29 shelter homes for destitute women, 15 Short Stay Homes run under Government of India schemes, 82 Working Women’s Hostels, 43 Legal Counselling Cells run by Zilla Parishads, 10 special Counselling Centres established on the premises of police stations funded by UNIFEM. The Government of Maharashtra has taken over these Centres recently. It is proposed to increase the number of these Centres from 10 to 40. To prevent trafficking, frequent raids are being conducted and the accused are prosecuted vigorously. Recently, Government has approved the proposal to set up the State Child Rights’ Commission. The Department has further initiated the process of preparing draft rules under the provisions of Immoral Traffic (Prevention) Act, 1956, and Protocols of Rescue, Rehabilitation and Prosecution. The proposal to establish a Special Court for the cases filed under ITPA is under the consideration of Government. This is not only a State-wide or a National problem but an issue that needs to be addressed at an international level in order to uphold people’s human rights and prevent the spread of HIV/AIDS. I am sure that the steps undertaken by my Government will help prevent trafficking of women and children and eradicate prostitution from our society. Through this message I appeal to all the people to join hands to curb such a menace from our society for our healthy tomorrow.

(Vilasrao Deshmukh) Chief Minister, Maharashtra State

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Rao Tula Ram Marg (Opposite Signals Enclave) Post Bag No. 8, Vasant Vihar PO New Delhi 110 057 09 January 2007

MESSAGE I am indeed very happy to append a message to the Handbook prepared by Apne Aap Women Worldwide on the subject of ‘Confronting the Demand for Sex-trafficking’. I am given to understand that it is a pioneering effort on this vital aspect of social behaviour and conduct that will no doubt be of great use in creating general awareness in society at large but more particularly in the case of the Indian military, police and other security agencies whose personnel are not only deployed in far flung frontiers of our own country but also in international commitments like United Nations Peace Operations, away from their families and loved ones for prolonged periods of time. The military demand for prostitution is no more or less than in other sections of society. Without making any claims that Indian military man is purity personified, I can state with some authority given my experience of having commanded troops from a large number of countries, that our standards of conduct in this context are indeed commendable. Even so there is little doubt that the subject merits serious attention. And it is in recognition of the seriousness of the problem that manifested itself in recent UN peace operations, particularly in Africa, that Secretary General Kofi Annan set up a Commission under Prince Zeid, Jordan’s Permanent Representative at the UN and a person with considerable knowledge of peace operations, to undertake a detailed study. Recommendations of the Commission are already under implementation. The Handbook includes the contents of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and existing Indian laws on the subject. It specially focuses on the aspect of addressing the demand for sex trafficking which is highlighted in the UN protocol and in the Secretary General’s Bulletin on commercial sexual exploitation. It therefore provides a useful source of material for training of our personnel deputed for UN peacekeeping missions that will go a long way in ensuring continued maintenance of the high standards of professionalism and personal conduct of our military and police.

ix


MESSAGE It gives me immense pleasure to learn that Apne Aap Women Worldwide, an all-India organisation with anti-trafficking units in Delhi, Maharashtra, West Bengal and Bihar is bringing out a Handbook on ‘Confronting Demand for Sex-trafficking’. This Handbook has been the outcome of two years of long consultation with the Mumbai Police. The evil of trafficking and commercial sex exploitation is eroding the very foundation of human civilization since it thrives on a fundamentally objectionable process “commodification of the human being”. The crime is becoming all the more ghastly as the predators are increasingly targeting innocent children and under aged girls. While there has been a Convention in place since 1949 (The Convention of Trafficking in Persons) and relevant provisions in the Convention on the Elimination of all forms of Discrimination Against Women (Article 6), the issue has been receiving attention for less than a decade. The formation of The Transnational Organised Crime Convention, makes it to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The Protocol is intended to “prevent and combat” trafficking in persons and facilitate international cooperation against such trafficking. A human rights perspective proceeds from an awareness of the complex dynamics of trafficking. One of the sad realities of trafficking is that it depends for its perpetration on the greed and corruption of those who encounter it – obviously on the part of the traffickers, but also more tragically, on the part of too many public officials. However, it is also true that too often rights are breached not because of any malice on the part of the State or its officials, but because of carelessness, lack of training of concerned personnel etc. I would like to commend Apne Aap Women Worldwide for shouldering the responsibility of advocating the rights of the marginalized and exploited women to a great extent. I hope this Handbook will be useful not only to women and men dealing with law enforcement for combating sex-trafficking but also in curbing the growth of trafficking for sexual exploitation by addressing the demand for prostituted women and children.

x


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egkfuns ' kd Kiran Bedi, I.P.S. Director General Tel.: 011-24361849

Bureau of Police Research and Development Ministry of Home Affairs, Govt. of India Block No. 11, 4th Floor, C.G.O. Complex Lodhi Road, New Delhi - 110 003 E-mail : dgbprd@bol.net.in

MESSAGE The human, social and economic cost of prostitution is incalculable. Transcending boundaries of nationality, culture, religion and socio-economic status, prostitution in its different manifestations plagues every society through its harmful consequences to women’s physical and emotional health, self-esteem and social roles vis-a-vis men. These consequences create an enormous social and economic cost that has to be addressed immediately. Prostitution is a complex social issue which traditionally has not been addressed properly within the legal framework. The situation is disquieting, the response by the law enforcement agencies concerned even more appalling. They lack sensitivity and understanding, which leads to the re-victimization of the victim, who gets penalized instead of benefiting by reintegration into society. The cycle of human rights violations and the multidimensional nature of the trafficking problems (including loopholes in law and gaps in law enforcement) need to be addressed urgently. The issue of prostitution has to be recognized as an issue of violence against women on the international agenda in order to combat all forms of existing and emerging prostitution. The key objectives of this Handbook is to address the issue of trafficking for sexual exploitation. This Handbook promises to serve as a tool to help conceptualize prostitution as a human rights violation issue and help understand that addressing the demand for trafficking and prostitution is one of the basic strategies within the rights-based approach. This Handbook is especially useful now, since evidence is pouring in from all quarters on the link between feminization of poverty, violence and prostitution. It calls upon all those associated with law enforcement to assume greater responsibility in addressing the issue. Besides attempting to broaden the national and international understanding of prostitution, the Handbook also highlights the need for effective and sensitive intervention. It elucidates the need to find common ground between civil society and law enforcement agencies in order to build the social capacity to address the problems of trafficking and prostitution. I commend Apne Aap Women Worldwide for taking the first step to confront the problem by publishing this Handbook.

‘Promoting Good Practices and Standards’

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MESSAGE Many congratulations to Apne Aap Women Worldwide for this Handbook on Confronting Demand for Sex-trafficking. I appreciate your efforts as we share your passion and commitment in the journey against trafficking of women and children across South Asia. Trafficking poses serious human rights, gender, social and developmental threats in the countries of our region. Reportedly, trafficking is on the increase, changing dimensions and trends. Victimization of women, girl and boy children and even men, as a consequence of trafficking is on the rise. This Handbook is a significant contribution to anti-trafficking work and second generation trafficking through addressing the demand for trafficking for commercial and sexual exploitation. It gives me much happiness to see the interventions suggested in the Handbook linking efforts of advancing human rights through law enforcement agencies and other national mechanisms with advocacy and awareness-raising at different level, including government machineries on trafficking. The recommendation for human rights based strategy that factors in demand aspect of sexual exploitation, gender based inequalities, including feminized poverty is a most welcome approach to all anti-trafficking work in the region. We call for the process of national ownership of strategies through broad-based participation of civil society, media and other change actors including the interfaith communities and survivors and for evolving a coordinated participation of development partners (government, domestic stakeholders, and external donors) in comprehensively addressing the factors responsible for trafficking, regionally. We believe in application of the human rights perspective to all the diversified interventions against human trafficking and strategizing for empowerment of vulnerable groups. All of us who are committed to combat trafficking from a Human Rights perspective will work for the realization of the right to protection against trafficking and all forms of abuse and exploitation arising from it. We will address the root causes that act as “push”, “pull” and “facilitating” factors in giving birth to and perpetuating, this grave violation of human rights. We will work towards empowering all men, women, girls and boys who are survivors of trafficking or are vulnerable to it. We will facilitate processes that will help people reclaim their lives and live with dignity. All this, we will do together in a partnership with all duty bearers and rights holders so that our consolidated partnership makes a positive difference. I wish Apne Aap Women Worldwide much success in all their good work.

Chandni Joshi Regional Programme Director UNIFEM, South Asia Sub Regional Office, New Delhi

xii


Apne Aap Women Worldwide Identity, Himadri Building 22, Ballygunge Park Road, Kolkata – 700 019 Phone: +91-33-22812955 www.apneaap.org

PREFACE The demand for the use of prostituted persons is the most immediate and proximate cause of the expansion of the sex industry. It is also one of the most dominant reasons for human trafficking. Trafficking is a process and prostitution is one of its outcomes. In India, between 100,000 to 200,000 women and children are trafficked for the purposes of sexual exploitation each year. These women and children make up the “supply” side of the world of sex-trafficking. Their lives are dominated by poverty, abuse, exploitation, rape and discrimination. Why is it that women and girls are being trafficked? Who is profiting? Who is turning a blind eye to the abuses? Many of the criminal gangs in this fast growing industry are motivated by the profits that can be made by supplying local businesses with women and girls who can be turned into prostitutes. Some of the traffickers’ most lucrative destinations are towns popular with male tourists or male soldiers. Of course, profits can only be made by the traffickers, because there are willing and paying male customers. There are two groups of people who benefit from sex-trafficking. First are the people who profit financially from the sexual exploitation of trafficked person, including pimps, brothel owners, and pornographers. Second are those (mostly men) who buy sexual services and/or consumer goods (e.g., videos, etc.) created via the sexual exploitation of trafficked persons. These people and their practices constitute the “demand” side of sex-trafficking. The Swedish Law that prohibits the purchase of sexual services is a particularly apt expression against the demand side of trafficking, for it not only formally condemns the use of prostituted persons, but does so in a context which explicitly recognizes the gendered nature of the commercial sex industry: As with all laws, the [Swedish] Law has a normative function. It is a concrete and tangible expression of the belief that in Sweden women and children are not for sale. It effectively dispels men’s self-assumed right to buy women and children for prostitution. Article 9, paragraph 5, of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children states that: ‘States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through

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Apne Aap Women Worldwide Identity, Himadri Building 22, Ballygunge Park Road, Kolkata – 700 019 Phone: +91-33-22812955 www.apneaap.org

bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. India is a signatory to the UN protocol. Article 23 of the Indian Constitution expressly prohibits traffic in human beings and forced labour. The Immoral Trafficking (Prevention) Act, 1956 is the substantive law dealing with trafficking in India. Under ITPA, trafficking is recognized as an organized crime. Recruiters, spotters, sellers, purchasers, contractors, transporters, hoteliers who allow their premises to be used as a brothels, financiers, abettors, those who live on the earnings of sexual exploitation, promoters of prostitution and finally buyers of prostituted sex are all considered part of the trafficking chain and liable to punishment. This Handbook is specifically designed for anyone working with law enforcement to combat sex-trafficking by confronting the demand for prostituted women and children, especially girls. It hopes to provide tools to law-enforcement officials to increase conviction against traffickers, thereby making it harder for the sex-trafficking industry to operate. When governments or international organizations assume that women and girls are less valuable, less responsible, less full citizens, then officials are apt to see threats to women and girls as trivial or as not worthy of serious attention. Traffickers and buyers can only traffick women and girls, if officials let them. It is up to us in India to use our laws to protect our women and girls to fulfil their full potential.

Ruchira Gupta Executive Director Apne Aap Women Worldwide

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Confronting the Demand for Sex-trafficking

INTRODUCTION

This Handbook presents innovative techniques, practical information and the legal background to counter human trafficking for prostitution. It is based on inputs from survivors of prostitution, activists from civil society, national and international experts from law enforcement, academia and the United Nations. It elaborates current good practices and recommendations, recognized by a national and international team of experts, and has a specific focus on curbing the male demand for prostitution, which fuels trafficking. It is set within the framework of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000), the Indian Immoral Trafficking Prevention Act, 1986 and Indian Penal Code, 1860.

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Apne Aap Women Worldwide

What is this Handbook for? This publication is specifically designed for anyone working with law enforcement to combat sex trafficking by curbing the demand for prostituted women and children, especially girls. The focus on supply (the bodies of women and girls) requires a comparable focus on demand. It is not sufficient to address only the victims and survivors. Counter-trafficking measures must also focus on the responsibility of those who buy women in prostitution, usually addressed as “customers”, “clientele”, etc., and the sex entrepreneurs (traffickers, procurers, pimps, brothel owners, managers and money lenders) who make a profit off trading in women and girls. Law-enforcement officials, NGOs as well as governmental groups and authorities can use the Handbook as a basis for training sessions and as a resource on the essential ‘demand’ factor. Individuals can utilize it as a workbook to learn how to counter human trafficking. Additionally, the following groups of people can also benefit from the training: 1. The entire package can be used to prepare new volunteers and employees to work with trafficked persons. It can also be an excellent preparation tool for survivors of trafficking who want to work as peer educators and peer counselors. 2. The training materials may broaden the understanding of experienced workers on various issues of human trafficking. 3. The materials can also be useful for training people who plan or manage programmes for trafficked persons. 4. Sections of the Handbook can be selected and adapted to aid planners at national and regional levels. For example, the Third Module (Understanding the Trafficked) can be useful in orienting planners to the situations of trafficked persons, as many planners may not have had previous first-hand experience. 5. Certain modules could also be selected from the complete package for training professionals and workers in agencies that work with trafficked persons for staff development or continuing education. The same holds true for agency administrators, professionals and law enforcement personnel (such as police, prosecutors, judicial officers and judicial administrators) and researchers. 6. Much of the material could also be included in curricula for students of the above professions and fields. For example, law students can use Modules Four and Five to learn how to address the demand for human trafficking. The Handbook responds to the needs of law-enforcement officials and field workers in a variety of settings and aims to better equip them with essential knowledge, skills and attitudes. It seeks to provide the user with an understanding of the importance of curbing the demand for women and children to counter human trafficking, identify a wide range of appropriate strategies and consequently to develop methods to implement the law and facilitate increased convictions of traffickers. Each module begins with clearly defined learning objectives and culminates in a learning activity. The modules can be used independently or combined together, depending on the objectives of the training session. This Handbook is not inclusive of every possible issue on countering trafficking. Therefore


Confronting the Demand for Sex-trafficking

5

references to other materials are included for individuals who would like further information. It is hoped that appropriate groups are involved and engaged in the process, including survivors of trafficking and prostitution and health and social work professionals. The Handbook contains five training modules with a list of important resource materials at the end of the Handbook. The training modules aim to: 1. Provide a brief overview on existing international legal frameworks and standards on trafficking, prostitution and sexual exploitation; 2. Present country-specific legislation, situations and methods on trafficking, prostitution and sexual exploitation; 3. Increase awareness and knowledge of the problems and complexities of cases of trafficking in India, including myths and facts about the legalization of prostitution; 4. Increase understanding of law-enforcement officials and field workers about those who are prostituted and trafficked; 5. Focus on the ‘Demand’ factor to counter trafficking; 6. Disseminate good practices and recommendations from different countries and increase their exchange on the ‘Demand’ factor; 7. Increase the practical skills of law enforcement officers specializing in combating trafficking by curbing the ‘Demand’ factor; 8. Improve the capacity of law enforcement officers to combat trafficking by suggesting innovative techniques to increase convictions of traffickers and buyers of prostituted women and children; and 9. Strengthen cooperation between law enforcement authorities and NGOs/social service providers.

How was the Handbook developed? The Handbook is the result of joint consultations between Apne Aap Women Worldwide and the Mumbai Police over a two-year period (2005-06) to address the gaps in anti-trafficking programmes from a combined NGO and law-enforcement perspective. Survivors’ groups of women in prostitution were consulted at every step and the Coalition Against Trafficking in Women (CATW) brought in international experts. The Action Research report titled Trafficking in Women and Children in India (2005) of the National Human Rights Commission provided much of the data. A meeting was held at the Mantralaya under the Chairmanship of the Director-General of Maharashtra Police with 23 participants (see Annexure X for a complete list of participants), including the Police Commissioner. The meeting highlighted the context and the rationale for the project: to explain how existing laws can be used to focus on the culpability of those who buy women in prostitution and of the sex entrepreneurs (traffickers, procurers, pimps, brothel owners, managers and money lenders) who make a profit off trading in women and girls. The Police Commissioner appointed the DCP of the Mumbai Social Services as the focal point for the project. An advisory group of the project was established with members from the Maharashtra government, Mumbai Police, two anti-trafficking NGOs, international experts from the UN, public prosecutors, lawyers and faculty from Tata Institute of Social Sciences. The Advisory Group included Dr. P. M. Nair, Dr. Sanjay Aparanti, Ms. Vandana and Dr. Asha Bajpai.


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The methodology for the consultations included: 1. Periodical joint workshops between Mumbai Police, NGOs, academics, lawyers, prosecutors and UN officials; 2. Field interviews with police officials in red-light areas; 3. Field interviews with survivors of prostitution; 4. Focus group discussions with police officials in red-light areas; 5. Focus group discussions with survivors of prostitution; and 6. Individual interviews with lawyers, NGO experts and prosecutors who had experience dealing with trafficking cases. The analysis at the workshop discussions was combined with a review/background research of published material to address the Demand. Case studies were collected from Mumbai and abroad. The editors have made extensive use of the Action Research on Trafficking in Women and Children by the National Human Rights Commission (NHRC) of India, published by Orient Longman (2005), and principally researched and documented by Dr. P.M. Nair. As it is one of the most comprehensive and exhaustive studies available on socio-legal aspects of trafficking in India, the authors have used its findings to compliment field experiences and studies quoted in the Handbook. It is referred to as the NHRC study throughout the Handbook. The editors have also heavily drawn upon two other sources that have been immensely helpful in compiling this Handbook — Primer on the Male Demand for Prostitution edited by Ilvi-Joe Cannon and the Coalition Against Trafficking in Women (CATW, 2006); and the Report of the UN Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, Especially Women and Children, Sigma Huda, Integration of the Human Rights of Women and a Gender Perspective, Commission on Human Rights, 62nd Session, 2006. In addition the Handbook was developed with the expert contributions of Mr. Taj Mohammad (Deputy Director, Public Prosecution, West Bengal), Dr. P.M. Nair (presently Project Coordinator, Anti-Human Trafficking, UNODC), Dr. Sanjay Aparanti, (DCP, Enforcement), Dr. Janice G. Raymond, Ms. Barbara C. Kryszko and Ms. Jean Enriquez, Coalition Against Trafficking in Women (CATW), Ms. Ruchi Sinha, Assistant Professor, Centre of Criminology and Justice, Tata Institute of Social Sciences and Ms. Ruchira Gupta, Programme Officer, UNICEF, Iran and Executive Director of Apne Aap Women Worldwide. The Handbook has been conceptualized and developed by Ruchira Gupta, Ruchi Sinha and Barbara C. Kryszko. Experts were requested to draft contributions on identified good practices based on experience and lessons learnt in the course of their work to counter trafficking. The draft modules of the Handbook were shared with members of the working groups and experts, as well as with the Project Team in order to receive further inputs. A selected Advisory Board also provided comments to further improve the quality of, as well as to increase the involvement of experts in the compilation of the Handbook. The Advisory Board was composed of individuals belonging to a range of organizations with particular commitment to the topic, and who belonged to countries that were different from those of the experts who drafted the modules and from a range of organizations. After the final draft was approved by the contributors, the Handbook was pilot tested with select law enforcement officials from various Indian states, but located in the capital city of Delhi, and modifications were made accordingly.


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How to use this Handbook? The Handbook has been divided into five training modules which provide information on the problems that the trafficked persons may face, and essential skills and knowledge that the trainers need, to address human trafficking. Each module is designed in an easy-to-use, accessible and interactive format that can be used by individuals as a workbook or as a training guide for trainers to teach other trainers. A bibliography and further reading is provided for reference at the end of the Handbook. Structure of the Modules Each module has four sections, including: 1. Introduction: provides a summary of what is contained in the module. 2. Learning objectives: state what the user should know and be able to do after completing the module. 3. Lessons: contain the issues to be covered in the module. Each of these lessons has examples, which are mostly derived from collaborating NGOs or case studies provided by the police on dealing with trafficking. These examples will help the users in understanding the reality of working with trafficked persons. 4. Learning activities: include exercises at the end of each Module, which will help the user in reviewing what has been presented. The exercises are designed to enhance the learning process. Some learning activities can only be accomplished by training in a group. Victim Testimonies The victims’ testimonies included in the report are meant to be representative only and do not include all forms of sex trafficking that occur. Any of these stories could unfortunately take place almost anywhere in the world. They are provided to illustrate a few of the many forms of sex trafficking and the wide variety of places in which they take place. No country/ state is immune. All names of victims that appear in this report are fictional, but the incidents are true. Trainer Tips The tips listed below provide ideas on how to teach and present information on selected topics. The tips describe a number of options to help the trainer adapt to local needs and resources. The trainer should: 1. Go through a literature appreciation session with the trainees before commencing the course. This literature appreciation session should apprise the trainee of all the resources annexed in the Handbook. 2. Work through the modules with the participants. Use of interactive training/learning methods is recommended. Thus the participants should actively participate in the learning process. 3. Study the modules thoroughly before presenting them to trainees. The objectives should be presented by writing the material on a board or on large sheets of paper, or if the material is simple to understand it can be summarized verbally. 4. Select local or more relevant examples to enhance the training. 5. Modify the learning activities to make them more relevant for the trainees’ background and work setting. The trainer could ask the questions given in this Section orally and discuss the answers, write them on a board and have the trainees write down the


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6. 7.

8.

9.

10.

11. 12.

13.

14.

15.

16.

answers to them, or photocopy the worksheets and give them to the trainees to fill out. The trainer could also make up her/his own worksheet using the activity that has been provided as a guide. Be patient and flexible in working with workshop participants. Basic respect for participants is essential and a sense of humour has been found to be very useful! Find out what trainees already know. Ask trainees to make a brief presentation about their previous experiences with trafficked persons or community development. In this way, the trainer helps the trainees recognize that they already have valuable skills and knowledge that can be put to use. The trainer could ask the participants to help plan the curriculum, the order of the topics, and the methods of presentation. They may already know what they need to learn and the best way to learn it. Do not rely solely on traditional lectures to train. Active, participatory learning experiences are necessary to master the material thoroughly. Use resource persons for selected topics. Resource people can add to the expertise that the trainer has, and increase awareness of the trafficking and sexual exploitation among key people working in the respective area. Survivors who were trafficked and sexually exploited could be useful and effective resource persons (provided their “informed consent” is obtained beforehand and it is ensured that their rights are not violated in any way i.e. maintain anonymity etc.). Help trainees to examine their own attitudes about trafficked persons. Some may hold stereotypes about victims of sexual exploitation and trafficking that might interfere with their work. Help trainees to examine their attitudes about working with victims of sexual exploitation and trafficking. Many may see themselves as charitable helpers or missionaries rather than as agents of empowerment. Victims and survivors are unlikely to accept or trust individuals who do not respect them and who impose their own views. Decide which modules/sections/lessons will be covered in the workshop based on the training needs of the participants. Prepare handouts and provide a photocopy of relevant pages to the trainees. Some of the material that you would not be covering in the workshop could be given for selfstudy. Choose a mix of relevant and suitable training methods. (Demonstration, small group discussion, role play, individual work, trafficked persons panel, brainstorming, questions & answers, story telling, games, field visit, large group discussion). Avoid monotony. Balancing group and individual work, active and passive methods, written and thinking exercises, and the use of audio-visual teaching aids and field visits help in keeping the training interesting. This helps trainees to remain focused. Each trainer tends to find his or her own style of keeping participants involved. Feedback. An end of day or session wrap-up, in which positive and negative points of the session are discussed, gives the trainers and the group instant feedback. The points made can alert the trainer to areas that need to be clarified and suggest ways to adapt the methods that trainers plan to use in the next session. Asking participants for feedback and the trainer’s readiness to incorporate suggestions help participants feel a part of the process. The experience of going through this participatory approach can help them in their work with victims of sexual exploitation and trafficking. We encourage trainers to build a collection of resources to help in their work. Try and develop a network of the trained personnel who are/can be linked up so that there is experience sharing and promotion of innovative ideas/strategies etc. This group could be an electronic group too.


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About the Contributors DR. SANJAY APARANTI is currently the Deputy Commissioner of Police, Enforcement Crime Branch, Mumbai. He has completed his M.B.B.S., M.D. (Physiology) from Grant Medical College Hospital, Mumbai and M.A. (Sociology) from Pune University. He entered the police force in 1992 as Deputy Superintendent of Police. Since then he has had a variety of postings in various districts within Maharashtra and has several positions to his credit. He has, during his tenure, taken several steps to address the ‘demand’ and his most recent noteworthy attempt is in the direction of getting a ban on dance bars in Mumbai. MS. JEAN ENRIQUEZ has been an activist and feminist for 24 years now, since she was a teenager fighting against the Marcos dictatorship in the Philippines. Ms. Enriquez is the Executive Director of the Coalition Against Trafficking in Women, Asia Pacific. Ms. Enriquez has led the campaign for the passage of the anti-trafficking law in the Philippines until its enactment in 2003 and continues education of law enforcers, prosecutors and judiciary on a feminist understanding of trafficking and gender-responsive implementation of the law. She pioneered the project Rethinking Masculinity: Education Camps for Young Men on Gender Issues, Sexuality and Prostitution which has become a model project for other countries. She continues to help campaigns for the passage or modification of anti-trafficking laws in various countries in Asia. She has led the development of a gender-responsive documentation system and has shared the same with anti-trafficking groups in Indonesia, Cambodia, India, Nepal, Bangladesh and Pakistan. Ms. Enriquez chaired the Commission on Trafficking in Persons during the World Conference Against Racism held in Durban, South Africa in 2001 and was also a delegate to the 49th Session of the UN Commission on the Status of Women in 2005 held in New York, where she presented on “Addressing the Demand Side of Trafficking”. In the Philippines, she concurrently sits as Women’s Sectoral Council Member for the National Anti-Poverty Commission (NACP), and is a Member of the Board of Advisors for Buklod Centre for Women in Olongapo and Bagong Kamalayan (Prostitution Survivors’ Collective), Executive Committee Member of WomanHealth Philippines, Vice President of Freedom from Debt Coalition. Ms. Enriquez took up B.A. Sociology at the University of Philippines and is a radio broadcaster for DZRH, a nationwide radio programme. MS. RUCHIRA GUPTA is the Founder Director of Apne Aap Women Worldwide, India. She is on the Steering Committee for Women and Children of the Planning Commission of India for the 11th Five Year Plan. She also serves on the working group of the Department of Women and Child, in the Ministry of Human Resource Development. She has been awarded an Emmy by the U.S. Academy for Television Arts and Sciences for her antitrafficking documentary, The Selling of Innocents, which was used along with her testimony in advocating for the passage of the UN Protocol on Trafficking and for the US Trafficking Victim Protection Act. She has co-edited Literature Review and Analysis Related to Human Trafficking in Post-Conflict Situations, has co-written Assessment of the Situation of Women and Children Combatants in the Liberian Post-Conflict Period and Recommendations for Successful Integration and has been the team leader in writing Trafficking in the ANE Region: Problem Analysis and Proposed Framework for Response and Trafficking Responses in Thailand, Burma, Cambodia, Laos, Vietnam, the Philippines


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and Indonesia: Needs, Capacity Assessment And Recommendations. She has also written in Asiaweek, The Telegraph, Sunday Observer, Business India, Frontline and Ms Magazine. Ms. Gupta led an expert team for the government in Kosovo to develop their anti-trafficking action plan. She serves on the boards of Asia Society, Coalition Against Trafficking in Women (AsiaPacific), Cents for Relief, People for Children-Ricky Martin Foundation and Vital Voices. She has also been working in different capacities in the UN and USAID for the last seven years in Kathmandu, Kosovo, New York and Bangkok to help national governments develop counter-trafficking plans. At present she commutes between Iran and India. She has been featured in Marie Claire, The Washington Post, Cosmopolitan, ABC-20-20, CNN, PBS, The Telegraph, The Guardian, India Today, Hindustan Times, The Statesman, in two books-That Takes Ovaries and Adventure Divas. She has been an invited speaker on trafficking-related issues to the UN General Assembly, Columbia University, Kennedy School of Government and School of Public Health at Harvard University, George Washington University, American University, Yale School for Public Health, University of Chicago, Ohio University, Grinell College, New York University, Massachusetts Institute of Technology, University of California, Los Ángeles and Asia Society. Ms. Gupta has written numerous articles on prostitution and sex trafficking, many of which can be found at www.apneaap.org. She holds a Master of Arts. MS. BARBARA C. KRYSZKO has been active with Coalition Against Trafficking in Women – International for over seven years. Ms. Kryszko has lectured and given expert presentations on sex trafficking and sexual exploitation, including sex tourism, international and regional trafficking laws, and the demand for trafficking, at various conferences, universities and United Nations events. Ms. Kryszko is also an attorney at Sanctuary for Families’ Center for Battered Women’s Legal Services in New York City, where she represents indigent battered women in family court proceedings. She is a graduate of the University of Michigan Law School. MR. TAJ MOHAMMAD is the Deputy Director, Public Prosecution, West Bengal. After completing his LLB from Calcutta University he has conducted various courses in Human Rights, Humanitarian Laws and other related topics. He has been practising law since 1995 and has assisted a number of non governmental organizations in the state of West Bengal, India, on issues related to trafficking for sexual exploitation. He has spearheaded various studies exploring the legal dimensions of trafficking and has been a pronounced vocal advocate of reform in the Immoral Traffic Prevention Act and has in his court championed the cause of survivors. DR. P.M. NAIR (Project Coordinator, Anti-Human Trafficking, UNODC) has served with the Indian Police Service since 1978. He has served CBI (Central Bureau of Investigation) for 10 years. He is presently on deputation with the UNODC (United Nations Office on Drugs and Crime), as the Project Coordinator, Anti-Human Trafficking. He has worked as the Principal Researcher and Investigator in the Action Research on Human Trafficking in India. This report is held to be a treatise on the subject and the first of its kind in the world. Dr. Nair has also authored other books - Combating Organized Crime, published in 2002 and Handbook for Law Enforcement Agencies in India - Dealing with Trafficking of Women and Children for Commercial Sexual Exploitation, published by UNIFEM in 2005. Dr. Nair completed a Masters of Arts in Sociology (1975), LLB (2000) and has a Ph.D. in Criminology (2006). Dr. Nair graduated from the FBI National Academy,


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Quantico, Virginia, where he completed the FBI NA Course (1998). He received a Certificate of Criminal Administration from the University of Virginia, USA. He is also a graduate of the National Defence College (NDC), New Delhi, where he did a course on National Security and Strategy. He was awarded the Indian Police Medal (IPM) for Meritorious Service in 1995 and the President of India’s Police Medal (PPM) for Distinguished Services in 2006. DR. JANICE G. RAYMOND is Professor, Emerita, University of Massachusetts and Co-Executive Director of Coalition Against Trafficking in Women-International. She is Professor Emerita of Women’s Studies and Medical Ethics at the University of Massachusetts in Amherst. She has been Visiting Professor at the University of Linkoping in Sweden, Visiting Research Scholar at the Massachusetts Institute of Technology (MIT), and Lecturer at the State Institute for Islamic Studies (IAIN Sunan Kalijaga), Center for Women Studies, Yogyakarta, Indonesia. A longtime feminist activist against violence against women and sexual exploitation, as well as against the medical abuse of women, Dr. Raymond is also Co-Executive Director of the Coalition Against Trafficking in Women (CATW), an international NGO having Category II Consultative Status with ECOSOC, and with branches in many world regions. In January 2004, Dr. Raymond testified before the European Parliament on “The Impact of the Sex Industry in the EU.” In 2003, Dr. Raymond testified before a subcommittee of the U.S. Congress on “The Ongoing Tragedy of International Slavery and Human Trafficking.” In March, 2000, she was an NGO member of the Official U.S. Delegation to the Asian Regional Initiative Against the Trafficking of Women and Children (ARIAT), Manila, the Philippines, hosted by the governments of the Philippines and the United States. In 1999-2000, she was the main representative of the CATW to the UN Transnational Crime Committee, Vienna, Austria, where she helped define the recent UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime. In advocating for new international legislation on trafficking, she organized the International Human Rights Network of over 140 NGOs in support of a new UN definition of trafficking that protects all victims of trafficking. Dr. Raymond has also served as an expert witness at criminal trials involving a challenge to the illegality of brothels. Dr. Raymond is the author of five books and multiple articles, translated into several languages, on issues ranging from violence against women, women’s health, feminist theory and bio-medicine, the most recent which is Women as Wombs: Reproductive Freedom and the Battle Over Women’s Bodies (Harper San Francisco, 1994). She has published numerous articles on prostitution and sex trafficking, many of which can be found at www.catwinternational.org. She lectures internationally on all these topics. MS. RUCHI SINHA is the Assistant Professor, Centre of Criminology and Justice Studies, Tata Institute of Social Sciences – TISS. After graduating in Psychology from Delhi University Ms. Sinha went on to complete her Masters in Social Work specializing in Criminology and Correctional Administration from the Tata Institute of Social Sciences, Mumbai and M. Phil in Social Medicine and Community Health from Jawaharlal Nehru University, Delhi. She has ten years of experience working with the criminal justice system, especially on issues related to children, gender and human rights and has been involved in various national and international training programmes.


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Ms. Sinha has presented numerous papers in different fora on issues related to the Criminal Justice System. Through her work at TISS she has been an advocate of reforms in the Criminal Justice System and has particularly attempted to address law enforcement agencies response to the victims of trafficking and the marginalized. Specific to trafficking for sexual exploitation, she has been involved with the protective home and police stations in the red-light areas of Mumbai, and has worked on issues related to raids, investigations as well as victim protection and reintegration. At present she is working on the issue of violence — examining, analyzing and addressing the structural roots of violence.


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Acknowledgements The authors would like to acknowledge the following individuals, organizations and institutions that have provided us the assistance, support and encouragement to take up this task. First and the foremost we would like to state that this Handbook is an outcome of the trust and belief the women and girls, who are victims and survivors of trafficking, had in us and in our mandate. We wish to thank and acknowledge all the women who led us into this process and who stand by us even today. We hope this Handbook will help initiate a process to address all the issues they have shared with us. There is no other way in which we can express our gratitude for the trust they have bestowed on us. The Handbook’s mandate and efforts were endorsed by the Mumbai Police through various consultations with Apne Aap Women Worldwide. Mumbai Police provided the support needed for the authors in order to facilitate their work and ensure an effective process of consultation and participation in the drafting phase of its work. The enthusiasm and the support of the staff of Nagpada Police Station, D.B. Marg Police Station, V.P. Marg Police Station, and the Social Service Branch of Mumbai Police will always encourage us to strive for what we have set out to achieve. The support extended by the Chief Minister, Maharashtra, Mr. Vilas Rao Deshmukh and the keen interest evinced by him is of noteworthy mention. In this context we would also like to thank Additional Chief Secretary, Home, Maharashtra, Mr. A.K.D. Jadhav for his encouragement. The authors wish to acknowledge the encouragement received from Ms. B. Bhamathi, Ms. Sujata Prasad, Mr. Anurag Chaturvedi, Col. Ajit Dutt, Mr. Harsh Chaturvedi, Ms. Tripti Panchal and Dr. Ritu Priya Mehrotra. Their contributions and suggestions provided us the requisite food for thought. We appreciate the tremendous and dedicated work of Ms. Vandana Aparanti, the coordinator of the Demand Project. We hope the outcome justifies all the effort she has put in organizing the consultations. This project was funded in part by the US Department of State, through a grant made to the Daywalka Foundation. The opinions, findings and conclusions or recommendations expressed herein are those of the authors and do not necessarily reflect those of the US Department of State. We also wish to thank the following for their support and encouragement: Maharashtra State Government, National Human Rights Commission, National Commission of Women, and National Institute of Public Cooperation and Child Development. In this regard, we wish to acknowledge the significant support in terms of translation made by UNIFEM, UNODC and the Government of Maharashtra. It goes without saying that the camaraderie expressed by Vinita Saraf and Namarata Surekha, the energetic trustees of Apne Aap; the Kolkata team (Debjani Roychowdhury, Sudebi Thakurta, Durga Kumar, Suroma Ghosh, Manoj Agarwal, Srabani Sircar, Smarita Sengupta, Janaki Dubey, Sarfaraz Ahmed Khan, Minu, Chaitali, and Shahana); the Forbesgunj team (Mohammad Kalam, Tinku Khanna and Col Ajit Dutt); the Mumbai team (Vandana Aparanti, Swati Sonavale, Bhaskar Kakad, Chandrakant and Ravindra Patil); and the Delhi team


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(Priyanka Mukherjee, Lorina Richmond, Neelam, Sangeeta, Usha and Arti) has seen us through the numerous formatting sessions and draft preparations. The contributors’ comments on the final draft and their responses to our emails for more information has helped make the Handbook more informative and interesting as well as comprehensive. We would like to thank Ms. Melissa Farley, SANLAAP, SAHMAT and Ms. Shabnam Hashmi for the continuous support to our endeavor. Finally, we express our appreciation for all those who took part in editing the Handbook. Ms. Barbara who painstakingly looked at all the drafts and was instrumental in giving us the much needed prompt support when we would be tired of re-reading drafts. We would also like to thank Ms. Sumati Nagrath who pitched in as and when requested and Ms. Samta Gupta who with her patience and a well stocked canteen made sure we had enough to keep going. And last but not the least the family members of the authors who not only tolerated our impudence right from the inception but displayed tremendous understanding throughout the process.

This Handbook is a beginning of the process to end “demand” in sexual exploitation.


Confronting the Demand for Sex-trafficking

Section 1

Workbook

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Victim-Survivor Speaks in Parliament by Kumkum Chettry “When I came to know that I had an opportunity to express my feelings (experiences) before the Parliament, I was both scared and happy. The pain that I have kept inside myself for years is not only my own, but is shared by thousands of my sisters who are trapped in prostitution and who are the victims of pimps and traffickers, so I wanted to express it for everyone. Our government has proposed important amendments to the ITPA (Immoral Trafficking Prevention Act) of 1956, which we – the people who suffer from sex trafficking – support strongly. When we heard that Article 5C, which will penalize the persons who demand prostituted sex from us, will be included in the Act, we were relieved, since these people are the real criminals. When I entered the Parliament Annexe, I don’t know why, but my body was trembling and my hands and feet were cold from fear. I started questioning myself, asking, “Will I really be able to convey the pain and suffering that has been there in my life and is in the lives of thousands of my sisters who are trapped in prostitution? After they hear my story, will the members of Parliament try to bring some change to our lives? Will they finally look at us with some respect in their eyes?”

Source: Red Light Despatch Vol. 1, Issue 2, November 2006


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1.1 INTRODUCTION

Trafficking is a crime and should be dealt with by using legal powers to investigate and prosecute offenders for trafficking and any other criminal activities that are committed. Victims may be exploited and trafficked by organized criminal groups, by husbands, boyfriends, family members or other operators. According to UNESCAP, trafficking needs to be seen as “involving human rights violations as well as constituting a violation of human rights in and of itself”1. At the same time trafficked persons should be seen as victims and not perpetrators of a crime. Prostitution is a historically “created” phenomenon and not a universal, inevitable, and necessary social evil. Trafficking in women and girls is also a form of violence against women. When a woman or girl is reduced to a commodity to be bought and sold, her fundamental human rights and dignity are repeatedly violated. Traffickers, pimps, and buyers degrade her humanity while she is raped, beaten and psychologically devastated. A survey of 854 people in prostitution in nine countries (Canada, Colombia, Germany, Mexico, South Africa, Thailand, Turkey, United States and Zambia) revealed that 71% experienced physical assaults in prostitution, and 62% reported rapes in prostitution.2 Another survey conducted in Indonesia, the Philippines, Thailand, Venezuela and the United States found that almost 80% women reported physical harm, over 60% experienced sexual assault, and almost 70% reported control through the use of drugs or alcohol.3 Trafficked and prostituted women and girls have little redress against the abuse, violence, harassment and debasement to which they are subjected. Victims of sexual exploitation often suffer severe health consequences ranging from injuries inflicted by beatings, rapes, and unwanted sex; psychological devastation, including trauma, depression, and suicide; HIV/AIDS and other sexually transmitted diseases; and alcohol and drug abuse induced by pimps or by the women’s attempts to self-medicate. As stated by a prominent researcher, “[m]any of the chronic symptoms of women in prostitution are similar to the long-term physical consequences of torture.”4

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The United Nations Convention against Transnational Organized Crime is the international community’s response to the need for a truly global approach (Article 1). Its supplementary Protocols target certain specific types of organized criminal activity requiring specialised provisions. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime has three basic purposes: 1.

The prevention and combating of Trafficking

2.

The protection and support if victims of Trafficking

3.

The promotion of cooperation between State parties

India is a signatory to the Convention and the Protocol. The Constitution of India expressly prohibits traffic in human beings. Article 23 prohibits traffic in human beings and forced labour. In 1956 India enacted the Suppression of Immoral Traffic in Women and Girls Act (SITA) (Act 104 of 1956). By Section 3 of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act 1986 (44 of 1986) the nomenclature of the act has been changed from 1987. Now it stands as the Immoral Traffic (Prevention) Act 1956 (104 of 1956) and is the main statute dealing with human trafficking in India. At present the Act has been presented in the Lok Sabha, the lower house of the Parliament, for amendment. India is also a signatory to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention Against Transnational Organized Crime.


Confronting the Demand for Sex-trafficking

1.2 LEARNING OBJECTIVES After reading the information and participating in learning activities in this module, you should be able to: 1. Describe what is trafficking 2. Describe the various stages of trafficking 3. Define prostitution under the Indian law 4. Define sexual exploitation under the Indian law 5. List the linkages between trafficking and sexual exploitation 6. List five sections of the Indian law that can be used to address trafficking

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1.3.1 What is Trafficking? We now have an internationally agreed-upon definition of trafficking, defined in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. India is a signatory to the Protocol. Article 3 of the Protocol states: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) “Child” shall mean any person under eighteen years of age. In recognizing the wide and inclusive scope of the trafficking definition as well as the close relationship between prostitution and sex trafficking, the United Nations Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, especially Women and Children has found that: “Prostitution as practised in the world usually satisfies the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution does not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and the life within “the life” is rarely one marked by empowerment or adequate options.”5


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Based on the definition of trafficking in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children adopted in 2000, supplementing the UN Convention Against Transnational Organized Crime, the following elements explain the definition in practical terms. Trafficking is Recruitment

By means of Threat

For the purpose of Exploitation includes... Prostitution

Transportation

Use of force

Other forms of sexual exploitation

Transfer

Coercion

Forced labour or services

Harboring

Abduction

Slavery or practices similar to slavery

Receipt

Fraud

Servitude

Deception

Removal of organs

Abuse of power Abuse of position of vulnerability Giving or receiving payments or benefits With or without the consent of the victim When any one of the elements from each of the three columns above can be applied together to the situation of an individual, the individual is considered to be ‘trafficked’. The UN protocol removes consent as a determinant to trafficking. In this way the Protocol does not distinguish between innocent and guilty, or deserving and undeserving victims of trafficking, thereby obliging states to provide care for all those identified as victims of trafficking. The definition also removes a major burden on the victim, as proving lack of consent is a formidable hurdle in legal settings. The definition makes choice irrelevant in defining trafficking because it recognizes that the “choice” to succumb to exploitation is very often a Hobson’s choice i.e. not a real choice but a forced circumstance. Exploitation is the centrepiece of this definition. The definition further explicitly states what constitutes exploitation under the legal mandate of the Protocol. It does not leave the definition of exploitation to differing perceptions. It is also particularly important to note that the definition protects not only those victims who were forced, or where coercion, abduction, deception or abuse of power were used, but also those who were pushed into exploitation by less explicit means of “the abuse of power or of a position of vulnerability” of the victim. By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited, such as illegal or uncertain immigration or residency status, past sexual abuse or prior exposure to violence or poverty. Movement is not a necessary element in the trafficking process. There may be an overlap of source and destination points as in the case of children born in brothels who are pulled into prostitution when they grow older. They are trafficked within the same source, transit and destination point. Training chart by A2W2 www.apneaap.org


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Trafficking is a process and sexual exploitation/prostitution is one of its main and most visible consequences. The prostituted women and children are the victims of the crime, not its perpetrators. Thus it is imperative that policies and practices curbing sex trafficking also address prostitution, since so many of the victims of prostitution have been trafficked. Women and children, who are trafficked for prostitution domestically, within their own countries, are also protected under the UN Protocol. The key element is the exploitative purpose of the activity rather than the movement of persons either inside a country or across its borders. Notably, women and girls who have been domestically trafficked, as well as those who are in local prostitution industries, report having faced similar types of vulnerabilities which led them into situations of sexual exploitation. For example, a study of sex trafficking in the United States found that 38% of the international women and 65% of the domestic women reported childhood sexual molestation, rape or incest, which are common vulnerabilities of trafficked women.6 By the terms of the Protocol, trafficked persons, especially women in prostitution, are no longer viewed as criminals, but as victims of a crime. The Protocol requirements are a starting point for the protection of victims, and add to the State’s existing obligations and responsibilities. (See Art. 14) Although the Protocol does not explicitly provide protection or immunity from being prosecuted for acts that trafficking victims are made to perform, such as prostitution, there are several provisions with which such prosecution is inconsistent. For instance, Article 6 provides that each State Party consider implementing measures to assist victims’ recovery (not hinder it) and Article 9 provides that States’ Parties shall establish comprehensive policies, programmes and other measures to prevent and combat trafficking in persons ((1)(a)). Arresting victims of sex trafficking for solicitation is inconsistent with their human rights and provisions of the Protocol. Given that victims are often returned to brothel owners or even re-trafficked after being arrested, the arrests of trafficking victims for prostitution is inconsistent with ensuring their protection and preventing further re-trafficking and exploitation of victims. Moreover, the arrest of trafficking victims often requires them to pay a fine, and creates further debt bondage to brothel keepers and moneylenders, which only furthers, not ends their exploitation. India is a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Various stages of Trafficking There are only two stages in the trafficking process. There does not need to be any geographical handover or movement of the victim. Stage One

Stage Two

Recruitment Transportation Transfer Harbouring Receipt

Exploitation Exploitation Exploitation Exploitation Exploitation


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By means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits. • Movement is not a necessary element in the trafficking process. There may be an overlap of source and destination points as in the case of children born in brothels who are pulled into prostitution when they grow older. They are trafficked within the same source, transit and destination point. • Trafficking in persons is for purposes of exploitation and may be with or without the consent of the victim. • Migration may occur with the willing consent of a migrant through legal or illegal channels but is not for the purposes of exploitation and always implies movement. • Smuggling is more directly concerned with the manner in which a person enters a country illegally with the involvement of third parties and directly addresses people who have given their consent to be smuggled.

1.3.2 Trafficking in Indian Constitution and Laws The Constitution of India expressly prohibits traffic in human beings. Article 14 provides for equality in general. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Article 15 (3) provides for special protective discrimination in favour of women and child relieving them from the moribund of formal equality. It states that, “nothing in this article shall prevent the State from making any special provision for women and children”. Article 16 (1) covers equality of opportunity in matters of public employment. Article 23 prohibits traffic in human beings (in any form and for any exploitation) and forced labour. Article 24 prohibits employment of children in any hazardous employment or in any factory or mine unsuited to their age. Article 38 enjoins the State to secure and protect as effectively as it may a social order in which justice – social, economic and political – shall inform all the institutions of national life. It basically says to provide opportunities to make equal results. Article 39 provides that the State should direct its policy towards securing, among other things, a right to adequate means of livelihood for men and women equally and equal pay for equal work their age or strength. Article 39 (f) provides that children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood should be protected against exploitation. Article 42 protects against inhumane working conditions. Article 45 makes provision for free and compulsory education for children, which is now well settled as a fundamental right of children. Article 46 directs that the state to promote the educational and economic interests of the women and weaker sections of the people and that it shall protect them from social injustice and all forms of exploitation.


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1.3.3 What is the Indian definition of Trafficking? Trafficking under the Indian law is acts by third parties facilitating prostitution or bonded labour. Section 5 of ITPA even speaks of procuring, taking and even inducing a person for the sake of prostitution. According to this section, even attempts to procure and attempts to take or cause a person to carry on prostitution amounts to trafficking. The special law in India dealing with trafficking is The Immoral Trafficking Prevention Act, 1986, which punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring.

The substantive law in India is the Indian Penal Code, 1860. IPC addresses issues of buying and sale of minors, importation of girls, etc. In addition, existing rape, assault, and abduction laws can also be used to address the abuse of women and girls in brothels.

Prostitution and trafficking are interlinked in Indian law to the extent that ITPA deals with trafficking for commercial sexual exploitation.

ITPA provides punishment even for attempt to traffic a person. Therefore, even before a person is physically trafficked the law comes into operation.

The Goa Children’s Act is the only Indian statute, which gives a legal definition of trafficking and even this is child specific. It says ‘Child trafficking means the procurement, recruitment, transportation, transfer, harbouring or receipt of persons, legally or illegally, within or across borders, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving payments or benefits to achieve the consent of a person having control over another person, for monetary gain or otherwise.’ (See Annexures for a full list of Indian laws that address trafficking).

The offence of trafficking has the following ingredients: Exploitation of the trafficked person

The displacement can be from one country, state, village, community or home to another or from one situation to another. e.g.: When a daughter of a woman in prostitution is also pulled into prostitution by the brothel keeper, she is considered trafficked as she has been displaced from the safety of her mother’s community to the brothel community, though geographically it may happen in the same room.

Displacement ( physical or situational)

The exploitation may be manifest as in a brothel or latent as in massage parlours, dance bars or beer bars.

Commercialization of the exploitation

The exploiter generates revenue in cash or kind from the exploitation even if the victim gets a share of the revenue. The trafficked victim can never be treated as an accomplice, even if she gets a share of the income.


Confronting the Demand for Sex-trafficking

1.3.4 Trafficking Offences under ITPA Section 3(1)

Offence

Punishment

Keeping or managing or acting or assisting in the keeping or management of a brothel.

First Conviction: rigorous imprisonment for a term of not less than one year and not more than three years and also with fine extending to Rs. 2,000. Second or Subsequent Conviction: rigorous imprisonment for a term not less than two years and not more than five years and also with fine extending to Rs. 2,000.

3(2)

4

5

Using or allowing the use of premises as a brothel of which the accused is the tenant, lessee, occupier or person in charge Or Being the landlord, owner or lessor of any premises or the agent of such owner, lessor, or the landlord and letting the premises or any part of thereof with the knowledge that the same is intended to be used as a brothel.

First Conviction: imprisonment for a term extending to two years and fine extending to Rs. 2,000.

Knowingly living on the earnings of prostitution.

Imprisonment for a term extending to two years or fine extending to Rs. 1,000 or both.

And where such earnings relate to the prostitution of a child or a minor.

Imprisonment for a term extending of not less than 7 years and not more than 10 years.

Procuring, inducing or taking a person for prostitution.

Rigorous imprisonment for term of not less than three years and not more than seven years and also with fine extending to Rs. 2,000.

Second or Subsequent Conviction: rigorous imprisonment for a term extending to five years and also with fine.

If the offence committed is against the will of any person the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.

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Section

Offence

Punishment

Detaining a person in a brothel or in premises where prostitution is carried on.

Imprisonment of either description for a term not less than seven years but may be for life or extend to ten years and also a fine.

7(1)

Prostitution in or in the vicinity of a public place.

Imprisonment up to three months.

7(1)(A)

Where the offence committed is in respect of a child or a minor.

Imprisonment of either description not less than seven years but may be extended for life or ten years and also a fine.

7 (2)

(a) Being the keeper of a public place knowingly permitting prostitution in that place.

First Conviction: Imprisonment up to three months or fine extending to Rs. 200.

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Second or Subsequent Conviction: Imprisonment up to six months and also a fine up to Rs. 200, and if the public place is a hotel, its license may be suspended for three months to a year.

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(b) Being the tenant, etc., knowingly permitting prostitution in the premises.

See above.

(c) Being the landlord, etc., of a public place and letting the same with knowledge that the same may be used for prostitution.

See above.

Seducing or soliciting in a public place for the purpose of prostitution.

First Conviction: Imprisonment up to six months or fine up to Rs. 500 or both. Second or Subsequent Conviction: Imprisonment up to one year and also a fine up to Rs. 500.

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Seducing a person or causing or aiding or abetting her seduction when she is in the custody of a person having custody, charge or care or in a position of authority over any person.

Imprisonment of either description for a term not less than seven years but which may extend to life or up to ten years and fine.


Confronting the Demand for Sex-trafficking

Offence

Punishment

18 (5)

Failure to comply with a direction given under Section 18 (1) (b).

Fine up to Rs. 500.

20 (4) (a)

Failure to comply with an order for removal of prostitute from any place, or re-entering a place without permission whilst the order under Section 20 (3) is in force.

Fine up to Rs. 200 and in the case of a continuing offence with additional fine which may extend to Rs. 20 per day after the first day.

20 (4) (b)

Knowingly harbouring or concealing a person who has disobeyed an order issued under Section 20 (3).

Fine up to Rs. 200 and in the case of a continuing offence with additional fine which may extend to Rs. 20 per day after the first day.

Section

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Second or Subsequent Conviction: imprisonment up to one year and also a fine up to Rs. 500. 21 (10)

23 (3)

Establishing or maintaining a protective home or corrective home without a license.

First Conviction: fine up to Rs. 1,000.

Contravention of the rules framed under Section 23.

Fine up to Rs. 250.

Sections of the Act dealing with victims

Second or Subsequent Conviction: imprisonment up to one year or fine up to Rs. 2,000 or both.

Protection

1. To be protected from abuse by a person having custody of her (Section 9).

Rescue

2. To be removed/rescued from a brothel (Section 16).

Protection

3. To be provided intermediate custody and ensure that victim is not kept in the custody of a person likely to cause harm over him/her (Section 17, 17A).

Rehabilitation

4. To be kept in a protective home or provided care and protection by court upon application (Section 19).

Trafficking and brothel keeping are now crimes under an amended State of Maharashtra Control of Organized Crimes Act, which means that those accused of these offences are unable to get bail. ITPA is a national law and its enforcement is a state government responsibility. The execution of law involves varying degrees of coordination and networking between various state police forces.


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Trafficking offences under the Indian Penal Code The Indian Penal Code, 1860 prohibits trafficking, purchase and sale of minors. In addition, existing rape, assault, and abduction laws can be used to address the systematic abuse of women and girls in brothels. Relevant provisions of significance under the Indian Penal Code are: Sections 359-368 which deal with kidnapping, abduction, and wrongful confinement. Section 359, Section 361, Section 362, Section 363, Section 365, Section 366, and Section 366A, which makes procuration of a minor girl (below the age of 18 years) from one part of India to another punishable. Section 366B, which makes importation of a girl below the age of twenty-one years punishable. Section 367, which mandates imprisonment of up to ten years for the procurement or import of minors for the purposes of illicit intercourse, kidnapping and abduction leading to grievous hurt, slavery or subjection to “unnatural lust”. Section 370, Section 371, Section 372, Section 373, Section 374 makes selling, letting to hire, or otherwise disposes of any person under the age of eighteen (18) years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose criminal. Section 375, Section 376(1), Section 376B criminalizes rape. Rape laws are applicable to both brothel staff and customers. If at the time of a raid pornographic CD’s are also seized Sections 292 and 293c can be used. In addition, Criminal Procedure Code, 1973 with Sections 51(2), 53(2), 98, 160, 327(2) and 357 and Sections 114 A and 151 of The Indian Evidence Act, 1872 are relevant in this context.

An illustrative list of Sections under IPC to be used in the case of a trafficked girl Displacement from her community, which amounts to kidnapping/abduction/ confinement

Sections 361, 362, 365, 366 IPC may apply

Procured illegally

S. 366A IPC

Sold by somebody

S. 372 IPC

Bought by somebody

S. 373 IPC

Imported from a foreign country or hails from J&K

S. 366B IPC

Wrongfully restrained

S. 339 IPC

Wrongfully confined

S. 340 IPC

Physically tortured/injured

S. 327, 329 IPC

Subject to criminal force

S. 350 IPC

Mentally tortured/harassed/assaulted

S. 351 IPC


Confronting the Demand for Sex-trafficking

Criminally intimidated

S. 506 IPC

Outraged of her modesty

S. 354 IPC

Raped/gang raped/repeatedly raped

S. 375 IPC

Subject to perverse sexual exploitation (unnatural offences)

S. 377 IPC

Defamed

S. 499 IPC

Subject to unlawful compulsory labour

S. 374 IPC

Victim of criminal conspiracy

S. 120B IPC

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1.3.5 What is Prostitution? Section 2 (f) of ITPA defines prostitution as the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly. Thus, if a person is sexually exploited or abused and a second person gains from the exploitation/abuse commercially, then the first person is considered prostituted. The Section does not limit the place of prostitution to a brothel alone. • Prostitution has been very clearly defined as sexual exploitation in the India law. • It can also be abuse of a person for commercial purposes. The consent of the victim is irrelevant to her/his exploitation according to ITPA. • The definition very clearly focuses the crime on the abuser/exploiter and not on the victim. • There is no blame or stigma attached to the prostituted person under this. 1.3.6 What is Sexual Exploitation? The Indian Penal Code provides the following categories of sexual exploitation Rape

Prostitution

Child marriage

Illicit intercourse with any person for any unlawful and immoral purpose

Public servant, takes advantage of his official position and induces or seduces, any woman Indecent representations of women

Section 375, Section 376(1), and Section 376B criminalize rape and defines rape as the act of engaging in sexual intercourse with a woman when the act is against her will, without her consent; with her consent when her consent has been obtained by putting her or any person in whom she is interested in fear of death or injury; with her consent when she is incapable of understanding the consequence of her consent; or when she is under sixteen years of age. Rape laws are applicable to both brothel staff and customers. Section 120, Section 293, Section 294, Section 317, Section 327, Section 329, Section 339, Section 340, Section 341, Section 342, Section 350, Section 351 and Section 354, contain prohibitions against indecent assaults on woman.


1.3.7 Good Practice in India Goa Children’s Act, 2003

This addresses several child rights issues in an integrated manner.

Trafficking has been given a legal definition, for the first time in Indian jurisprudence.

Under the new legislation, the owner and manager of a hotel or other establishment will be held solely responsible for the safety of the child on the premises as well as all the adjoining beaches and parks.

The definition of sexual assault has been expanded to incorporate every type of sexual exploitation.

The owner and manager are also held accountable if any child is allowed to enter a room without registration.

Photo studios are required to periodically report to the police that they have not shot any obscene photographs of children.

The legislation provides for strong action against making children available for commercial exploitation including posing obscenely, selling or abetting the sale of children even under the garb of adoption or dedication of a girl child as a Devadasi.

Stringent control measures have been introduced to regulate access of children to pornographic materials. Besides these, the act also provides many proactive measures.

Responsibility of ensuring safety of children in hotel premises has been assigned to the owner and manager of the establishment.

Notes 1. UNESCAP, 2004 2. Melissa Farley, Prostitution in nine countries: Update on violence and posttraumatic stress disorder (2003). 3. Janice G. Raymond, Jean D’Cunha, Siti Ruhaini Dzuhayatin, H. Patricia Hynes, Zoraida Ramirez Rodriguez, and Aida Santos, A Comparative Study of Women Trafficked in the Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries (Indonesia, the Philippines, Thailand, Venezuela and the United States) at 61 (2002). 4. Melissa Farley, Bad for the Body, Bad for the Heart”: Prostitution Harms Women Even if Legalized or Decriminalized, 10 Violence Against Women 1087, 1098-99 (October 2004). 5. Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children, Sigma Huda, E/CN.4/2006/62, United Nations (20 Feb. 2006). Available at http://www.ohchr.org/english/bodies/chr/docs/62chr/ecn4-2006-62.doc. 6. Janice G. Raymond, Donna Hughes, and Carol Gomez, Sex Trafficking of Women in the United States: International and Domestic Trends at 46 (2000).


1.4 LEARNING ACTIVITY 1.

List a combination of any three elements, which would constitute trafficking: a) ________________________________________________________________________ b) ________________________________________________________________________ c) ________________________________________________________________________

2.

What is the definition of trafficking in India? __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________

3.

List any two elements that would constitute two different stages of trafficking: a) ________________________________________________________________________ b) ________________________________________________________________________

4.

List five examples of positions of vulnerability that a trafficker can abuse: a) ________________________________________________________________________ b) ________________________________________________________________________ c) ________________________________________________________________________ d) ________________________________________________________________________ e) ________________________________________________________________________

5.

List five examples of exploitation in the context of trafficking in India: a) ________________________________________________________________________ b) ________________________________________________________________________ c) ________________________________________________________________________ d) ________________________________________________________________________ e) ________________________________________________________________________

6.

Who has committed the crime in this case study and under which Section? CASE STUDY: A 19-year-old woman marries her boyfriend against the wishes of her family. He brings her to the city and tells her that he is unemployed and she should become a prostitute to support the two of them financially. She agrees and he takes her to a brothel every morning and hands her over to a brothel manager. The manager takes a commission from her for every buyer of prostitution who visits her. Her husband picks her up every evening. She hands over her monthly income to her husband to pay for the rent, food and other necessities. Some buyers beat her a lot and she has to go to a doctor for medication. She has no extra money, so a moneylender known to the brothel manager lends her the money. Sections of Indian law to be used: Who committed the Criminal Act?

Relevant Section


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Trafficking, I think, is the act of secretly removing little children, young boys and girls, from one country to another. Our locality is a red-light area. Most of the girls who get trafficked into our locality are from Bangladesh. They have no idea about the place they have come to or the path they will be compelled to walk. Their husbands bring them to this world of darkness. They do not understand the ways of this place. Their husbands rent a room here, purchase a few essential things for daily use, leave the girls there and go away. Sometime the newly trafficked girls share the same room with other girls already in the red-light area. The older girls and women then start bringing men to the new girls and do not allow these girls to leave their rooms lest they flee. The new girls have nowhere to go. All the old girls say that we are “We’re sex workers. From now on, you’ll also be a sex worker.” They threaten the girls until they also accept themselves as sex workers. The trafficked girls want to know the meaning of sex worker. They say they don’t want to be sold into prostitution and don’t understand why they should be called sex-worker. But nobody listens and nobody wants to help. - Anjali, 16. Source: The Place Where We Live is Called a Red-Light Area 2005, Apne Aap, Kolkata


Confronting the Demand for Sex-trafficking

2.1 INTRODUCTION

The UN estimates that over a million people are trafficked annually and that the majority are trafficked for sexual exploitation. Eighty per cent, of the people trafficked annually, are women and girls and at least half are children, according to the US Trafficking in Persons Report1. According to the Asian Development Bank2, about 150,000 women and children are trafficked from South Asia every year and most of them from, via, to or within India. The nature and scale of trafficking has undergone a dramatic change in India in the last ten years. Most of those trafficked are women and children, some as young as five. The numbers of victims of trafficking have increased, the ages of victims have come down and criminal syndicates have become intertwined with local trafficking networks. Indian men and women are trafficked into situations of involuntary servitude in countries in the Middle East and children may be forced to work as beggars or camel jockeys. Bangladeshi women and children are trafficked to India or trafficked through India en route to Pakistan and the Middle East for purposes of sexual exploitation, domestic servitude, and forced labour. Nepalese women and girls are trafficked to India for sexual exploitation, domestic servitude, and forced labour. India is also a growing destination for sex tourists from Europe, the United States, and other Western countries. Internal trafficking of women, men, and children for the purposes of sexual exploitation, domestic servitude, bonded labour, and indentured servitude is widespread. Numerous studies show that all the women in the Indian commercial sex industry are currently victims of sexual exploitation or were originally trafficked into the sex trade. India is also home to millions of victims of forced or bonded labour. In many regions the nature of trafficking has become cyclical, as health, social and economic consequences of trafficking exacerbate the very factors that increase trafficking vulnerability. An example is HIV/AIDS – where the demand for young virgins by HIV positive men has pushed the demand for trafficking. These girls have then ended up with HIV/AIDS as well. New customers who exploit these girls end up with AIDS and so the cycle goes on.

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2.2 LEARNING OBJECTIVES After reading the information and participating in learning activities in this module, you should be able to: • List five disturbing trends in human trafficking in India • List the linkages between organized crime and sex-trafficking • List the linkages between trafficking and sexual exploitation • List five noticeable reasons for the trafficking of women in your experience • Describe the key difference between root causes for trafficking and secondary causes for trafficking • Describe the consequences of trafficking


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2.3.1 Scale and Nature of Trafficking The numbers of the trafficking victims are going up and the average age of the victims is coming down. Available information reveals that women and children are becoming more and more vulnerable to trafficking. The feminization of poverty, the growing inequality between the rich and the poor, the marginalization and exclusion of castes/tribes and indigenous people, the lack of livelihood options in rural India and the absence of any human rights in certain pockets have made women and children easy targets for traffickers. This reinforces the need for law enforcement agencies to give top priority to this expanding crime. There are various reports on the extent of prostitution in India. One report indicates that there are 300,000 to 500,000 children in prostitution in India.3 A study conducted in 1992 estimates that at any one time, 20,000 girls are being transported from one part of the country to another for sex trafficking4. In India, the stigma attached to prostitution and the clandestine nature of operations make it doubly difficult to arrive at an authentic figure5. The figures quoted show a high degree of discrepancy, and the possibility of ascertaining the authenticity of the quoted figures is almost nil. Around 30-90 % of women and girls are under 18 at the time of entry in to prostitution6. There are gaps in the national crime data collection systems in relation to cross-border flows. Only NGOs working in the field are able to provide data on cross-border flows because of the complexities in regulations, which vary from country to country. The estimate regarding the number of girls trafficked from Nepal and Bangladesh into India vary hugely, given the nature of crime. While some organizations put the figures at 7,000 to 10,000 a year7, another report estimate the number to be 5,000 to 7,000 girls8 being trafficked9 annually. According to yet another report the figure is close to 200,000 girls being trafficked over a period of seven years10. A study by UNDP11 shows that the average age of trafficked girls from Nepal to India fell from 14–16 years in the 1980s to 10–14 years in 1994. The Asian Development Bank report of 2000 quotes a figure of 200,000 Nepalese women in Indian brothels. According to Reuters, 30,000 women in Kolkata brothels are from Bangladesh and another 10,000 are in Mumbai and Goa. A study of bar girls in Mumbai found that 42 % were from Bangladesh12. These are significant pointers towards the complex, organized nature of the crime.

2.3.2 Trends in Trafficking in India More women and children are trafficked. Although some victims of trafficking are men, available evidence and general consensus suggest that women and children are the majority of those trafficked. The International Organization of Migration, Bangladesh reports that the overwhelming majority of trafficked women and children are actually led away under deception and/or false promises and are sold in West Bengal and Maharashtra. RESEARCH DATA: Within India 72% of the trafficked are girls who are kidnapped, abducted, tricked and lured by the organized crime syndicates mainly for prostitution, according to the NHRC Study.


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Very young children constitute a large number among those trafficked. Evidence shows that very young children are being trafficked and their numbers are increasing. There is documented evidence of children as young as five being trafficked. According to ILO-IPEC (2001), 61% of the nearly 153 million working children between the ages of 5 and 14 are found in Asia. Child prostitution for sex tourism has emerged as a major disturbing trend. RESEARCH DATA: The age profile of the trafficked victims presents an important dimension, according to the NHRC study. Around a quarter of trafficked children are below 16 years of age and 65% are below 20 years of age. Among the former, 58.3% are from the poor strata of society. Thus, children, especially from poor families, are most vulnerable to trafficking. It has also been found that the age of trafficked person is decreasing over the years13. Prostitution/sexual exploitation is the dominant reason for trafficking. Children and women are increasingly being trafficked for prostitution and even when trafficked for exploitative labour they are being sexually exploited. RESEARCH DATA: The volume and purpose of trafficking depends on the demand factors. Demand has increased for prostitution/sexual exploitation. A recent study found that a huge majority, an overwhelming 92.8% of the interviewed traffickers, revealed that they were able to get higher commissions for women and girls they sold for prostitution over selling people for labour14. Socially marginalized and vulnerable persons are among the majority of those trafficked and prostituted. In India where the caste system or similar forms of social stratification still prevails, families and children of the Dalits and other sections considered as low castes are still found in relationships of bondage to the brothel madams, landowners, and to the upper castes in spite of existing laws that prohibit slavery. The Devadasi, Basavi and Jogini (temple prostitution) systems are the first link in the trafficking chain for many women. RESEARCH DATA: Almost 52% of the trafficked victims interviewed in the NHRC study came from socially deprived sections of society. Just over a quarter (25.1%) were from Scheduled Castes, 4.5% from Scheduled Tribes and 22.1% belonged to other Backward Classes. Urban-rural divide. The urban–rural divide is an expression of asset inequality, education inequality, and health inequality, which has a gendered effect on the women. Female poverty has to be viewed from a social, cultural, legal and economic perspective. With shrinking opportunities women are preyed upon by the traffickers. RESEARCH DATA: Research has shown that the majority – almost 68.6% of the victims come from rural areas whereas 25.7% come from urban centres and 5.7% belong to urban slums15. Literacy levels of the victims. The scourge of illiteracy most affects the world’s poor - UNESCO’s statistical yearbook manifests that this occurs more often in developing countries. Africa had 55% whereas


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India had over 70% of adult illiterates, and women are more illiterate compared to men16. RESEARCH DATA: The NHRC study also shows that of the victims interviewed, an overwhelming majority of 65.1% were illiterate or barely literate Methods of recruitment. Traffickers sometimes use blatant violence, but more often use subtle inducements and deceptions that capitalize on an individual’s vulnerability in order to obtain initial agreement to accept offers of travel and employment. Traffickers may use promises of well paying legitimate jobs, residency status in more prosperous countries or befriending, declarations of love, and fake marriages. Recent trends include inducement to sexual exploitation through the Internet. Material inducements are often provided to relatives and guardians who may or may not be deceived about the fate of the potential victim. There are also cases that involve kidnapping and abduction. Raping women as a means to devalue them is another method to facilitate the trafficking process. RESEARCH DATA: A staggering 69.8% of the trafficked respondents in the NHRC study were sexually abused as children, i.e., when they were below 18 years of age. Of these children, 41.35% were abused when they were less than 16 and hence are victims of child rape. Under Section 375 of the Indian Penal Code, sexual intercourse with a person under 16 years, even with her consent, constitutes rape. The exploitation gets further highlighted if one looks at the specific ages at which these children were sexually assaulted. One respondent was raped at the age of 7, two each at the age of 8 and 10, four persons at the age of 11, thirty-one at the age of 12, thirty-eight at the age of 13, seventy-nine at the age of 14 and seventy-five persons were raped when they were 15 years old17. Inter-generational trafficking. With little or no recourse to legal or social assistance trafficked women are unable to prevent their children from being pulled into situations of sexual exploitation or cheap labour and increasingly there is evidence that exploitation related to trafficking is passed on to the next generation. In the brothels of Mumbai orphaned children of mothers who have died of HIV/AIDS are immediately prostituted and exploited by madams. RESEARCH DATA: 63.4% of trafficking victims who had children said that they had their offspring living with them in the brothels. The children who were staying with their mothers in the brothels were not only exposed to the exploitative environment, but were also highly vulnerable to being themselves exploited, trafficked and further violated. Interviewed brothel owners, agreed that about one-third of the children of prostituted women are made to follow their mothers into prostitution18.

From the above it becomes clear that no one single factor accounts for the vulnerability of women and children to trafficking. This vulnerability is always a combination of various factors that affect the “victim”. However, it is likely that one of the above listed factors could act as a ‘core vulnerability’ for some of the victims.


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2.3.3 Linkages between Trafficking, Sexual Exploitation and Prostitution Trafficking is a process and prostitution is both one of its causes and results. Prostitution is a form of sexual exploitation. Other outcomes of the trafficking process could be domestic servitude, child labour, organ trade and early marriage. The UN Protocol acknowledges that most trafficking is for prostitution and other forms of sexual exploitation. The UN Protocol follows previous international UN human rights instruments that do not separate trafficking and prostitution, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the abolitionist 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The Indian law also acknowledges the link between trafficking and prostitution by the very fact that most of the Indian laws dealing with trafficking define the purpose of trafficking as commercial sexual exploitation, prostitution, abuse or rape. Research studies also reveal that trafficked women and children were either prostituted or sexually exploited along with being forced to provide cheap labour. Vertical and horizontal linkages between crime syndicates and trafficking networks Profits from trafficking are third only to the underground narcotics and arms trade. (UNODC 2000)1.

Organized crime syndicates run trafficking via some recruitment agencies.

Strong connections exist between trafficking networks and well-connected individuals who prevent prosecution of traffickers.

Indian organized crime is involved in the international trade of girls and women from Nepal and Bangladesh to major urban centres, particularly Mumbai.

Inter-linked gangs run gambling, drug, prostitution and the arms trades for overall economy.

Cash exchanged for trafficking and prostitution fuels money laundering and the black economy.

2.3.4 Trafficking in Human Beings - An Organized Crime Trafficking most often involves a range of people such as a seller, a procurer, a broker, an agent, a middleman, a transporter, a buyer, a moneylender, a money launderer, an owner of illegal premises and an exploiter. All of them know that they are breaking the law to make a profit in cash or kind from this act. This fits in with the definition of the United Nations Convention Against Transnational Organized Crime, 2000, which states that an “organized crime group” is “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit” (Article 2(a)). The involvement of organized crime groups in India is indicated by case studies, shared by law enforcement officials and covered by news reports13. Specifically for prostitution and child labour, gangs and syndicates in India operate at various levels: the village or rural level, centres of power at the national level, and the regional or international “flesh trade 1

Arlacchi, 2000 at http://www.unodc.org/unodc/en/speech_2000-11-28_1.html.


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market”. The different levels are all inter-linked and reflect all the elements of organized crime. Within this criminal activity the commodified victim is repeatedly violated. Thus conceptualization of prostitution as an organized crime is of vital importance. All parties who are committed or have the responsibility of curbing trafficking have to have an understanding of: i) Place, time & methods of recruitment of the victims. ii) The profile of procurers in terms of behaviour patterns; patterns of social conditioning. iii) Intermittent abettors (police, passport authorities, taxi operators, etc.). iv) Levels of trafficking. The international links of the traffickers have been well documented. For example, according to the NHRC study, over 10% of the interviewed traffickers had visited one country outside India, 8.1% had visited two countries and 1.3% had visited three or four countries. An overwhelming majority of the traffickers (84.4%) stated that the purpose of the visit was to sell/buy girls. The rest had travelled abroad in connection with associated activities, like arranging dance/song programmes and exploring possibilities for trafficking. The places used by traffickers to carry out trans-border trafficking included Nepal, Dubai, Muscat, Bahrain, Bangkok, Kenya, South Africa, England and the Gulf countries. During data collection, the respondents also revealed that they had trafficked male children to Saudi Arabia and other Gulf countries in order to make them beg.

2.3.5 Trafficking in Human Beings – A matter of Public Health Victims of human trafficking pay a horrible price. Psychological and physical harm, including disease and stunted growth, often have permanent effects. In many cases the exploitation of trafficking victims is progressive: a child trafficked into one form of labour may be further abused in another. It is a brutal reality of the modern-day slave trade that its victims are frequently bought and sold many times over – often sold initially by family members. Victims forced into sex slavery are often subdued with drugs and subjected to extreme violence. Victims trafficked for sexual exploitation face physical and emotional damage from violent sexual activity, forced substance abuse, exposure to sexually transmitted diseases including HIV/AIDS, food deprivation, and psychological torture. Some victims suffer permanent damage to their reproductive organs. Many victims die as a result of being trafficked. When the victim is trafficked to a location where he or she cannot speak or understand the language, this compounds the psychological damage caused by isolation and domination by traffickers. Various health consequences of trafficking and commercial sexual exploitation include: • Injuries of Rape and sexual assault

• Depression

• Injuries or physical assault (beatings, burning from cigarette butts)

• Psycho-social trauma

• Repeated abortions

• Suicide attempts

• Drug and/or alcohol dependency

• TB

• Jaundice

• STDs

• HIV/AIDS

• Malnourishment

• Skin diseases

• Insomnia


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The link between HIV/AIDS and Trafficking HIV/AIDS is one of the outcomes of trafficking for sexual exploitation. This is because: 1. Women and children trafficked for prostitution cannot say no to unwanted or unprotected sex. They are forced to have sex with multiple buyers who can and do pass on the HIV virus to them. 2. Often the trafficked victim is infected with the HIV virus at the time of her “seasoning” when pimps and traffickers rape and sexually assault the victim to prepare her for a life in prostitution. 3. Trafficked victims are forced by brothel managers, with an eye on maximizing profits, to have repeated sex, thus increasing their chance of infection. 4. Even those trafficked women who have organized as “sex worker” groups are unable to enforce condom usage with buyers of prostituted sex due to their own physical and mental health and the demand of buyers for unprotected sex. To deal with the out-ofbody experience of repeated rapes, the trafficked women are often dependent on drugs or alcohol and cannot remember to enforce condom usage or say no to a forceful buyer. 5. Inadvertently, AIDS workers who cut deals with brothel managers to distribute condoms further endanger women and children trafficked for prostitution to the HIV virus as they end up empowering traffickers/ brothel managers by legitimizing their continued existence. These traffickers/ brothel managers create the demand for the trafficked victims and supply them to potential buyers for prostituted sex. The traffickers/ brothel managers’ trot out the hapless victims as and when required by AIDS workers, manipulate, coerce or indoctrinate the victims into denying their own exploitation and continuing to force them into unprotected sex when there is a profit in doing so. In reality, there is little connection between the distribution of condoms and actual use of the condoms. AIDS workers while trying to solve one problem end up allowing the continued existence of a greater problem-the sexual slavery of women and children. 6. The urban myth that having sex with virgins cures one of HIV/AIDS has not only meant an increase in demand for young girls, it has also led to a number of them being infected with the virus. 7. Continued deaths from AIDS in brothels or depletion of pretty-looking girls due to AIDS related diseases leads to a constant demand for new trafficked girls by brothel managers and buyers of prostituted sex. This neglect has two very significant consequences for not only the public health system, but also for the future economic growth of the country: 1. The future workforce is being depleted because of HIV/AIDS related deaths, as the majority belongs to the economically most productive age-group. 2. The money and resources required for the treatment and care for victims of HIV/AIDS can be draining.

2.3.6 Causes of Trafficking in India Trafficking in India is fuelled by relative deprivations caused by deep seated poverty, the low status of women and the growing demand for the exploitation of trafficked people, especially women and children for sexual exploitation. While poverty is a predisposing factor, the tactics used by the traffickers and other exploiters is what exacerbates the situation and acts as a trigger. Clearly, poverty by itself is not a sufficient driver of trafficking. Male demand


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Causes of Trafficking: 1. Relative disparities

Widening visible disparities within populations have resulted in people flowing from poorer to more prosperous venues.

2. Increased commodification of women

A culture of the hyper-sexualization and commodification of women increases sexual violence and devaluation of women.

3. Increased demand The increase in dance-bars, brothels, street-prostitution, for prostituted women pornography and pedophilia has created a culture of and children acceptability for the sale and purchase of women and girls, leading to greater safety and impunity for trafficking rings. 4. Internal displacement

Alienation and isolation of internally displaced people (e.g. big development projects such as dams) increases vulnerability.

5. Crime syndicates

Organized criminal syndicates often take over the trade in humans, institutionalizing this modern form of slavery. These linkages lead to hefty profits from trafficking, which according to estimates are third only to the underground narcotics and arms trade.

6. Efficient “supply� chain

The use of new technologies such as internet has made the process of trafficking children, women and men more efficient. Faster transportation has made moving people much easier.

7. HIV/AIDS epidemic

The pandemic has created a generation of AIDS orphans vulnerable to traffickers in Cambodia, Thailand and Vietnam. It has also led to the utter destitution of families who cannot afford care and support for HIV/AIDS patients who are in turn vulnerable to trafficking. And lastly, it has increased the demand for young virgins by HIV positive men who believe sex with a virgin will cure them of AIDS.

8. Transition in countries

Political and economic transitions in countries leading to changing borders, new systems of production, and demand for new kinds of jobs and sexual exploitation lead to vulnerabilities to trafficking.

9. Sectors that drive the demand

Sectors that drive demand include tourism and pornography. Sex tourism has created new destination points for traffickers and is a major cause of child prostitution. The beaches of Sri Lanka and Goa and places like Mumbai, Agra, Darjeeling and Jaipur are the new destinations for sex tourists.


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for a supply of women and children is the root cause of prostitution and trafficking whereas gender inequality, globalization, poverty, racism, migration, and the collapse of women’s economic stability are global factors, which create the conditions driving women into prostitution. In India trafficking is intensified by the erosion of social stability, where the worth of a human being is devalued. Other intensifying factors include hostile political environments, unsafe migration, the marginalization of certain communities or ethnic groups (castes, tribes or minority religions), and conflict and natural disasters. There are also the unexpected consequences of infrastructure projects (e.g., big dam projects) when planners did not consider the socio-economic impact and the subsequent vulnerability of internally displaced people. A number of secondary factors create conditions for vast number of girls being propelled into prostitution. The female illiteracy rate of 54.16%, sex ratio at 933, juvenile sex ratio at 927 (Census data, 2001, Registrar and Census Commissioner of India) and official crime statistics with a trend of rising crimes against women14 are all testimonies of the low social, cultural, political and economic status of women in India. These get reflected in the differential gender treatment in nutrition, health care, education, mobility, and other life opportunities, placing girls and women at a higher risk of violation of all kinds. In turn this is further compounded by practices such as dowry, child marriages, sati and Devadasi, which also increase women’s vulnerability to violence.

Why is it important to curb Human Trafficking? Both individuals and societies face negative consequences as a result of trafficking 1. Consequences for women

It increases incidences of violence against women, widening gender gaps and missing girls (for instance, there are some villages in Nepal and Thailand which have no adolescent girls left).

2. The public health consequences that reverberate through source, transit and destination countries

Public health consequences leads to stressed state social welfare services, increased HIV/AIDS and other sexually transmitted infection rates, repeated and forced abortions, psycho-social trauma, rape, beatings, tuberculosis, jaundice, mental health problems, alcoholism, drug addiction, alienation, malnutrition and death.

3. Weakened rule of law

Increased corruption, money-laundering and crime syndicates.

4. Economic Effects

Money shifts from the legitimate economy into the hands of organized crime syndicates, the value of labour is brought down and there is decreased agricultural and industrial production because many of the trafficked are from rural peasant families and many of the trafficked are youth who cannot lead a productive life after living in slavery for a few years.


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Trafficking has serious social, economic and health consequences. It not only affects women as individuals but entire communities, economic conditions and overall development. Trafficking should be seen as an issue related to: 1. Crime – Where exploiters need to be penalized as perpetrators of trafficking and sexual exploitation. 2. Development – Trafficking stunts the goals of development. Increase in incidences of violence against women and children leads to them being trafficked into prostitution, child labour and domestic servitude. Trafficking can and does deprive a significant percentage of our population of childhood, education, mental and physical health, thus increasing the number of unproductive or non-productive citizens who are unable to contribute or participate in the country’s economic, social or cultural growth. Additionally being alienated from family structures leads to the deterioration of a community’s social capital. 3. Economics – “Money” is used to fuel the illegal/black economy. 4. Health – The overall physical and mental health of women and communities are affected.

Notes 1. US Trafficking in Persons report 2005. 2. Asian Development Bank. 2002a. Combating Trafficking of Women and Children in South Asia: Regional Synthesis Paper for Bangladesh, India and Nepal. Manila 3. Patkar, Praveen and Priti 2001. 4. Gupta 2002. 5. Gupta 2003. 6. Gathia 2003: 9 SOS 2001. 7. SOS. 2001. South Asian Conference to Combat the Trafficking and Sexual Exploitation of Children. 14 to 17 October in Goa. Organized by Save Our Sisters Program. Mumbai: Women’s Institute for Social Education (WISE) 8. UNDP 2002. 9. Tumlin, Karen C. 2000. Trafficking in Children in Asia: A Regional Overview. Bangkok: Institute for Asian Studies, Chulaongkorn University. 10. SOS 2001. 11. UNDP 12. Joshi, Madhu. The Matrix: Commercial Sexual Exploitation in India. The Little Magazine III, no. 4 (2002): 35-37. 13. NHRC Action Research Study 2005 14. NHRC Action Research Study 2005 15. NHRC Action Research Study 2005 16. UNESCO, 1988. 17. NHRC Action Research Study, 2005 18. NHRC Action Research Study, 2005 19. Ghosh S.K. 1993. Women and Crime. Delhi: Ashish Publishing House. 131-136 and Nair 2002. Source? 20. Crime in India 2004, NCRB.


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2.4 LEARNING ACTIVITY 1. List three new trends in the nature of trafficking in India: a) __________________________________________________________________________ b) __________________________________________________________________________ c) __________________________________________________________________________

2.

What is the relevance of countering trafficking from your perspective? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

3.

Who constitutes the majority of the trafficked in your area? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

4.

Why are there trafficked women and girls in your area? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

5.

Grade the linkages that you think are most important between trafficking and prostitution. Give reasons why: Linkages Prostituted people are the majority of the trafficked Drugs, arms and human trafficking operated by same gangs Sexual exploitation is also a consequence of labour trafficking Women and girls are more vulnerable to trafficking

Reasons that you think are most important

Why


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6.

Grade the linkages that you think are most important between trafficking and organized crime. Give reasons why: Linkages

Reasons that you think are most important

Why

Money-laundering Use of trafficked women as drug and arms couriers Crime syndicates dealing with people smuggling and illegal migration also traffic humans Use of trafficked persons for petty crimes Use of trafficked persons as decoys

7.

8.

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Grade the consequences of trafficking in order that you think is the most important: 1. ___________________________________

2. _________________________________

3. ___________________________________

4. _________________________________

5. ___________________________________

6. _________________________________

Trafficking as an issue is related to: Crime Economy Health Development Human Rights

Because:


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What is Dhokha? The word dhokha in Hindi/Bengali does not really have an appropriate translation into English. It can mean treachery, or cheating, or simply – betrayal. The women of the Nat community of Bihar have an intimate connection with the word dhokha, as their lives have often been full of it. The account that follows, by a girl from the Nat community, illustrates how dhokha can change a young girl’s life and how many different forms dhokha can take. Forbesgunj, 2 November 2006: When I was 14, I fell in love with a young guy. He also appeared to love me very much. I dreamed that I would someday have a family with this guy – that he would be my husband and we would have a baby. One day, he came and told me that we were going to go out and have some fun. I was excited because that was the first time we had gone for an outing. I dressed up, and wore a beautiful churidar and some jewellery. When I was about to leave with that guy my mother said, “Please come home soon.” And then she asked me, “with whom are you going?” I lied to her, I said “I’m going with Ruma” who is a younger friend of mine. When I went out with this guy, we first went to see a film, and then we went to a restaurant where we ate biriyani. After some time I felt sleepy, so I told him that I wanted to return home quickly. He agreed with me and called a taxi, where I fell asleep, feeling safe with him. I woke up and found myself in a bed that I had never seen before. I was astonished and then even more surprised when a woman I didn’t know came into that room. She told me to go into the toilet and freshen up. I asked her, “Where am I?” and she replied, “This is a randi khana (whore house), the girls who come here are supposed to do prostitution. They are called randi”. I thought that she was mistaken or she way lying to me. But after a few minutes, an old man came into the room and told me to take off my dress. My life changed in that moment. I was raped: twice, thrice, ten times in a day. I used to love wearing new and colourful clothing and putting on make-up. Now I do that to attract the buyers who rent my body. I am not the only one – girls who are ten or twelve years old also stand in the streets wearing make-up and tight dresses. When I see this I break into tears. I lost everyone in my life. I lost my faith, my childhood, my dream and my love. I lied to my mother and now I have been punished for that. I have no one in my life. The guy I loved sold me for a high amount, so now I am prostituted. From the other girls I learned that some girls get cheated by a fake marriage, some are sold by their husbands after marriage, some are cheated by being told that they will have a good job, some are cheated by their parents, who force them into prostitution. So, you see, it has not only happened in my life. It has happened in many girls’ lives; girls who are in love, or who have poor economic backgrounds, or who have no legal guardian or who have bad parents. By Swapna, as told to Sraborni Sarkar Source: Red Light Despatch, Volume 1 Issue 2, November 2006


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3.1 INTRODUCTION

Sixty-three per cent of those who are prostituted and trafficked are from scheduled castes and tribes and often also minority religions, according to the NHRC report on trafficking in India. Most of them are women and children. Traffickers abuse the vulnerability of such women and children taking advantage of situations such as poverty, lack of social and economic options, stigmatized and marginalized status and extreme poverty which produce and exacerbate their vulnerability. Traffickers need to be tackled as criminals and those who are the trafficked and sexually exploited need to be treated as victims of a serious crime. Victims and survivors of trafficking as a result of repeated victimization suffer from lack of identity, psycho-social trauma, repeated abortions, suicide attempts, drug and alcohol dependency, sexually transmitted diseases including AIDS, jaundice, tuberculosis, and violence. They have no savings and are often discarded when they are older, burdened with disease-ridden bodies, no skills and children to support. The root causes of prostitution in India are: • The growing demand for prostituted women and children, which is fuelled by globalization, pornography, and sex tourism promotion. These are the most immediate causes of the expansion of the sex industry without which it would be highly unprofitable for pimps and traffickers to seek out a supply of women. Due to demand, trafficking destinations have moved from traditional ‘red-light areas’ to tourist destinations, holiday resorts, business centres, etc. These industries also give men moral and social permission to abuse women and children, portraying prostitution as harmless fun and as something men indulge in to enhance their masculinity. • The low status of women and girls has made them vulnerable to recruiters, traffickers and pimps who prey on their subordinate social, personal and economic situations. Isolation and lack of access to education and jobs, has made it easy for traffickers to abuse the vulnerability of women. • Exclusion, stigma, violence and discrimination of socially marginalized groups are the main reasons why the supply of vulnerable women and girls for exploitation does not stop. • Feminization of poverty and unequal development create pockets of poverty and islands of prosperity. • Non-recognition and non-acceptance of prostitution as being exploitative and a form of gender-based violence and crime.


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3.2 LEARNING OBJECTIVES After reading the information and participating in learning activities in this module, you should be able to: • Define a trafficked woman in your own culture • Define the typical age, sex, caste and ethnicity of a trafficked woman/girl • List five reasons why women or girls are trafficked and/or end up in prostitution • Describe the problems, basic needs, and daily activities of trafficked women • Describe the strengths that women in prostitution have • Describe the problems and basic needs of victims rescued from a brothel • Describe the economics of a woman in the red-light area


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3.3.1 Who are the Trafficked and Prostituted Persons in India? It is well documented that majority of the trafficked persons are women and girls from developing countries. Countries whose economies are either unstable or in transition, or countries which are facing long-term violent conflict. All these, along with the multiple forms of discrimination and conditions of disadvantage, contribute to the vulnerability of women and girls who are driven into prostitution. The majority of the trafficked belong to the economically and socially marginalized groups of India, followed by vulnerable women trafficked from Bangladesh and Nepal. The NHRC study shows that amongst the interviewed victims, 94% are from India, 1.1% from Bangladesh and 2.9% from Nepal. Teenage girls from poor families. The age profile of the trafficked victims presents an important dimension. Most adult women narrate that they were trafficked when they were young and had dreams of living a respectable life1. Additionally the increasing numbers of children, especially girls, being rescued in the few raids conducted by the police show that there is a rapid growth in the number of children exploited for prostitution and other forms of exploitation. Children, especially from poor families, are most vulnerable to trafficking. Women and girls from disadvantaged circumstances. The NHRC study attempted to understand the socio-economic condition of the family before the victims were induced into commercial sexual exploitation. The study found that only a fourth of the respondents had a monthly family income of Rs. 2,000 and above; 47.5% had an income below this level, and 27.7% were not able to give details. A vast majority of the respondents came from poor families. Women and girls from marginalized groups (scheduled castes and tribes, especially girl children from certain communities like Bedia, Kanjar, Gujjar, Devadasis and Nats). The socio-religious background of trafficked victims studied by NHRC found that almost a third of the victims, 32.3%, were from the Scheduled Castes, 5.8% were from the Scheduled Tribes, 21.9% from the Other Backward Classes and 17.4% from other castes. The rest were unable to state their caste. Thus, a large majority of the respondents (60%) belonged to socially deprived sections of society. Women and girls from drought prone areas or areas affected by natural disasters or human made disasters (conflict, wars, disability). 68.6%, of trafficking victims came from rural areas, 21.6% from urban centres and 9.8% from urban slums, according to the NHRC research. Exploitation of women and girls in disaster situations is a well-known, documented and reported phenomenon. Disasters increase vulnerability of women and girls, which is shamelessly exploited by the traffickers. Economic policies such as declining agricultural subsidies increase the urban-rural divide. Girls who are victims of incest, paedophilia. Women and girls who have lost their virginity outside the realm of marriage are seen as “immoral�. These victims of incest and child sexual abuse, under social and customary pressures, take to prostitution either on their own or are often induced into


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prostitution for lack of options or are forced into it by various perpetrators. It has been found that a staggering 69.8% of victims of trafficking had their first sexual experience as children, i.e., when they were below 18 years of age2 and that their first sexual experience had been forced on them by someone known to them. Victims of child marriage or women who are married at a very young age. 71.8 % of the respondents had been married when they were children (i.e., when they were under 18 years of age)3. This suggests that child marriage is among the key factors that make women and girls vulnerable to trafficking. Women and girls from isolated districts where the illiteracy rate is high. 70.7% of trafficked victims, according to NHRC were either illiterate or barely literate. Only 13.6% of the victims had received education up to the primary stage and around 15% beyond the primary stage. A mere 0.4% of the respondents were graduates or above. In the same study 60.8% of them also revealed that their first sexual experience was forced on them, and 63.8% accused a host of persons including those in school staff, teachers, and persons in positions of authority or who enjoyed their trust like friends, priests, fathers-in-law, brothers-in-law, counselors, police officials or domestic help of perpetrating the abuse.3

3.3.2 What are the Different Forms of Prostitution? Prostitution today occurs in various settings. Some of the different types are mentioned below: 1. In street prostitution the buyers solicit women and girls at street corners or walking alongside a street. 2. Prostitution occurs in some massage parlours and in some barber shops that are fronts for sexual activities/exploitation. 3. Where prostitution is more out in the open, solicitation is done at bars, even open-air bars. Thailand is famous worldwide for these establishments. 4. Brothels are establishments specifically dedicated to prostitution. 5. In escort or out-call prostitution, the act takes place at the buyer’s place of residence or more commonly at his or her hotel room. While escort agencies never claim to provide sexual activities, no escort service offers only social companionship. Even where this prostitution is legal, the euphemistic term “escort service� is common. Rarely, an escort may work independently of an agency and place advertisements on the internet or in newspapers and magazines, communicating with buyers of prostitution directly and setting up appointments on his/her own. 6. In sex tourism, travellers from rich countries travel to poorer countries such as Thailand, India, Sri Lanka and Indonesia in search of prostitution and sexual exploitation where their currency buys more. Other popular sex tourism destinations are Cuba, Costa Rica, and former Eastern bloc countries. What is Pimping? Pimping is one way in which young women and girls are recruited into prostitution; the pimp will provide financial and emotional support, acting as a boyfriend/ friend, but will eventually ask the young woman to perform sex acts for money. The relationship is volatile and dangerous to the young woman or girl. Female prostitutes, especially street prostitutes, may be subject to violence and in control of a pimp, a person who lives off the proceeds of one to several prostitutes.


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Pimps and traffickers exploit the socio-economic, cultural, and personal contexts to attract, coerce, intimidate or abduct women and girls for trafficking. They do so through systematic and repetitive infliction of psychological trauma by employing techniques of disempowerment, inducing fear by violent means, threatening family and others, and convincing the victim that they are omnipotent and thus effectively destroy the victim’s sense of autonomy. Seasoning “is a well institutionalized mechanism of control ensuring perfect obedience and enslavement. It subjects women to identification with and subordination to the brothel management or pimps... the woman begins to live only for the present realizing she has no control over her economic, emotional, physical and sexual life”4. Trafficked victims are first confronted by the immediate terror of kidnapping, deceit, and abuse. They try to make sense of what is happening and figure out a means of escape but all their external points of reference for maintaining identities are cut off. They find they cannot escape. They are often physically confined and concealed, and a strict vigil is maintained over their interactions and movements by the pimps and the agents5.

3.3.3 How do those, who are Trafficked, Survive? A day in the life of a trafficked girl (Interview by Tinku Khanna, Apne Aap Women Worldwide at a brothel in Ghutiary Sharief, West Bengal, 2005) Kajol (name changed): My father worked as a snake charmer. He fell ill and lost his cattle business during his illness. Whatever little we could save was used up for his treatment. He went to visit the doctor. There was a blockage in the artery. The doctor told that it would need Rs. 1,200 to remove the blockage. We went there but we could not find him. We moved into some shanties near a construction site and my mother began to work there. My mother fell while working. Then we had nothing to eat. My father asked an uncle for money and he said: “You have a grown up daughter. Sell her off and get cured.” That is how I ended up here. Old men want to have sex with very young girls. So they started sending buyers to my room. Some kicked me and beat me so much that I have bruises. Every day, I put on lipstick and makeup and wait. I stand in the line from 3 in the afternoon till 1 or 2 at night. If no one comes, I have to stand till 4 am. My feet hurt a lot. I can never sleep properly now. I sleep about 6 hours every day. Next day, I wake up at about 10 am, wash and clean and then I help with the household chores in the brothel like laundry, cooking, dusting etc. Then I eat. I only eat one meal a day. I don’t even feel hungry. Then I get ready. I don’t get time to play with my daughter. She plays on the floor while I am with the buyers. She is only two. Each buyer gives about Rs. 50 to the brothel madam for me. Sometimes there are nine or ten of them on one day. I feel nothing after some time. She keeps all the money and gives me Rs. 3,000 a month, out of which I have to pay her Rs. 1,100 for food and rent. I also have to buy my own toiletries and clothes for about Rs. 300. The medicines cost almost Rs. 500 a month. I also need Rs. 500 a month for drugs and alcohol. I have borrowed money to buy clothes and food for my daughter. I don’t know when I will leave this hell.


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Can victims of trafficking and prostitution save any money? The National Human Rights Commission of India Action Research on Trafficking (2005) is one of the best studies that examines the economic dynamics of prostitution. It establishes the nature of economic exploitation and levels of economic crime inherent in the entire trafficking process. The majority of the interviewed trafficking victims stated that they received around Rs. 3,000 per month as their income and that their major expenditures were food (mostly supplied by brothel keepers on payment), clothes, cosmetics and miscellaneous household items. Many of them spent a lot on alcohol, tobacco and medicines as well. Some of the respondents also had to support persons dependent on them out of their earnings. Around 61% of the victims interviewed in the NHRC study revealed that they had no savings whatsoever. Though the victims generate considerable income for the brothel, they have very little opportunity to save. The fact that the large majority of the respondents in the study did not have any savings testifies to the high levels of exploitation of girls/women in brothels. Most women in the field share that the initial years in which they were coerced to service 30 men a day they were not paid a single paisa, as the brothel owner extracted the price paid for the girl from the girl’s earnings. Do women in prostitution have any degree of financial independence over their earnings? Since prostituted women have to sustain themselves on their meagre earnings, it is obvious that they have little control over their earnings. Most earnings are used for daily living expenses and the little that is left is either given to the brothel owner, as payment for debt or to the police ‘hafta’. The traffickers perpetuate the image that most women enter prostitution of their own volition and do so for the greed of money. It should be clear by now that none of the women enter prostitution with the intent of being prostitutes. It should also be clear that these women are kept in a constant state of ‘need’ through a vicious circle of debt, which assists the brothel keeper in keeping the woman as ‘an economically profitable source of income’. Thus victims of trafficking and sexual exploitation have little money and their ‘condition’ is no better than the near starvation condition from which they were trafficked/lured. Trafficked women revealed that more often than not, they do not get any share whatsoever from their ‘earnings’. The victims are often compelled to borrow money from the brothel moneylender, who charges high rates of interest. A register maintained in a brothel shows the day-to-day financial transactions of a brothel and substantiates the fact that the girls and women get the least share. In the NHRC Study brothel owners were asked about the persons who have a share in the earnings of the women and girls. Around 29% said that a portion goes to the police. Over a third, 34.7%, stated that the women and girls share their incomes with their traffickers, 12.9% said that a portion of the income goes to the caretakers and managers of the brothels and 7.3% revealed that criminal elements also get a cut. Of the interviewed brothel owners, 16% did not disclose the identity of the persons who get a share of the earnings of the victims. Case studies from Delhi have shown that during rescue operations, the police and NGOs tend to be in a hurry. Consequently, any savings of the rescued persons are left behind in the brothels, and the victims lose what little money they have forever.


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3.3.4 Myths and Facts about Trafficked and Prostituted Women and Girls

Prostitution safeguards women from “good families”.

In fact, the majority of the men who seek the services of prostituted women view women in general as well as women in their families as gratifying objects. They often are sexually abusive and violent with women in their own families as well.

RESEARCH DATA: 82% of buyers of prostituted sex interviewed in three different redlight areas reported that they were violent with their wives at least once and that they did not think that the violence was wrong. (Survey conducted in 2004 by Cents of Relief and Apne Aap).

Prostitutes enjoy what they do.

Most women are induced or forced into sex trade, under conditions of near or absolute slavery. If prostituted women saw this as a lucrative option they would not be desperate to prevent their daughters from having to enter prostitution. 97% of the 1,350 members of Apne Aap in red-light areas in different parts of India are spending at least 45% of their income to educate their daughters to protect them from prostitution.

RESEARCH DATA: Ambu was urged to go to Mumbai by someone who promised her a job for Rs. 20,000 a month. The person, who brought her to Mumbai, got her drunk with alcohol and sold her. When she woke up and asked about the job she was told she would get it soon. She had no idea that she had been sold into prostitution. When she realized this, she resisted. To break her resistance she was beaten, very badly until she was black and blue - in fact she still has stomach and back pains from the terrible beating. She was not given a single rupee and served up to 20 men a day. (Ambu: Bhiwandi brothel, interview by B. Abasubel, That Takes Ovaries in December 2005).

“These women” can never be rehabilitated.

With appropriate measures the victims can be rescued, repatriated and reintegrated into society.

RESEARCH DATA: In the districts of Murshidabad in West Bengal state, from which are drawn 23% of Kolkata’s prostitutes, the Government of India, under the scheme of Support to Training and Employment Programme (STEP), sanctioned an integrated training and income generation project in the silk yarn production sector. The project targets young women from a group of villages which have high levels of female migration and of victims sold into the prostitution trade. This has helped in curbing the trafficking of young women into the flesh trade from this area while at the same time improving their quality of life.


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Prostitution is “the world’s oldest profession” and a necessary evil.

Prostitution is the world’s oldest oppression of women and girls.

RESEARCH DATA: The necessity of keeping up a steady supply of ‘attractive women’ to keep the British soldiers happy and disease-free prompted Indian authorities to set up licensed brothels. They imported young and healthy, Tibetan and Nepali women as registered prostitutes to the cantonment bazaars. This led to the birth of the Kamatipura red-light area in Mumbai. Many of the brothels in Mumbai still have license numbers given by the British saying Welcome House X. The brothels in Agra and Sonagacchi, Kolkata also came up to provide sex to British soldiers and clerks.

An adult woman should be free to make her own choice even if the choice is to be a prostitute.

It would be more accurate to say that a prostituted woman complies with the extremely limited options available to her. Her compliance is required by the fact of having to adapt to conditions of inequality that are set by power disparities based on gender, race, ethnicity and poverty. Moreover, given the substantial risk of physical, sexual and psychological injuries women face in prostitution, it is the harm to and exploitation of the person, not the consent of the person, that is the governing international standard.

CASE STUDY 5: At 18, I had a child. Then my husband left. I worked as a house servant and was given only food and old clothes. My mother-in-law kicked me out with the child. I had to put the child in an orphanage. I never saw her again. I came to the redlight district alone. I had seen the red-light area with girls in the neighborhood. Life was very hard. Twice I had to sell my blood to earn money. One time the police, a group of them, maybe 9, wanted to have sex without paying me. I wanted to leave prostitution but I had not been educated. My father had just sent my brother to school. My mother-in-law did not want me, if I could not earn enough money. I hate being here, but have no choice. I need to eat. (Binu, Watgunge red-light area in Kolkata, interviewed by Tinku Khanna from Apne Aap). CASE STUDY 6: A writ petition was filed in 1988 with the Supreme Court of India regarding protections for the rights of children in prostitution. When the petition was pending, the Supreme Court appointed an expert committee, known as the Mahajan Committee, to conduct a field study and report to the Supreme Court on the status of children in prostitution. The Committee reported that at any given point in time, at least 35% of the persons in prostitution are below the age of 18 years. In addition, increasingly younger children are being forced into commercial sexual exploitation. The Mahajan Committee found that as many as 60% of persons in prostitution are brought into prostitution as children.


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Poor women can earn a lot of money through prostitution.

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In fact, the majority of women’s time in prostitution is spent in debt bondage. A whole chain of traffickers, from recruiters, to transporters, to pimps and brothel managers, ensure that the woman gets a very small cut of her earnings. At the end of the day, women are left with disease-ridden bodies, children and no savings.

CASE STUDY 7: I was barely 12 years old when someone sold me to a Mumbai brothel. The men would come and do ‘dirty work’ with me. I tried to escape several times, and got caught every time. After each escape, I used to be beaten up like a beast by the Nepalese madam. Everyday I had to entertain at least 10 customers. The madam would keep everything that she earned by selling me. The police raided the brothel and rescued me and put me to Mumbai Home. Later I have been sent to the Liluah Home. There, after the compulsory Eliza Test, I have been found HIV+. From Liluah, I have been brought to the Home of Sanlaap in Kolkata. When I came here, I was suffering from TB, hepatitis and genital herpes, for which I used to get regular medical treatment. Here, I have shelter; I get to eat well, receive vocational training and am cared for. I am still being treated regularly and do emotional sharing through one-to-one counseling and HIV+ Support Group. I cannot go back home. I have no money and I have so many diseases. (Renu, Sanlaap Shelter home in Narendrapur). CASE STUDY 8: Activists discovered interstate trafficking in teenaged girls from poor families in 24 Parganas North districts. More than 300 teenagers from Deganga, Harwa and Bashirhat have been lured by false marriages to Bihar, Uttar Pradesh, and Punjab. Thirty-two victims from six villages have been identified. After the girl was taken from her home village she would be sold for Rs 2,500 to Rs 10,000, depending on the number of middlemen involved. Those who escaped said the girls were watched all the time and not allowed to speak to anyone outside their room. Any attempt to resist resulted in brutal torture. The so-called husbands or mistresses took all their ‘earnings’ away. The ‘husbands’ would occasionally write from fake addresses to their parents to avoid arousing any suspicion. (Mumtaz Khatun, Kolsur Nari Vikas Kendra, Centre of Communication and Development, Madhyamgram, The Times of India News Service, 1 October 1997). Brothel owners interviewed for an NHRC study said that 27.4% women in prostitution in their old age become inmates of old-age homes or take shelter in NGOs, 18.7% are totally helpless and take to begging or do nothing and 8.5% are maidservants in brothels. Negligible percentages become brothel madams or traffickers.

How does the legalization of prostitution affect sex trafficking? The commodification and commercialization of women’s and girls’ bodies is often tolerated and even encouraged to satisfy male sexual needs and to make a high profit in the market. For instance, there are those who argue that prostitution has always existed and should be legalized and tolerated as work. This is a dangerous approach for several reasons.6 Experience in various parts of the world has shown that by legalizing prostitution the problem actually grows bigger. Legalization, decriminalization or regulation of prostitution by the State would amount to the sanctioning of all aspects of the sex industry. State legitimatization of prostitution would give men moral and social permission to practice the prostitution of


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women and girls, which in turn encourages an increase in the demand that fuels sex trafficking. Pimps would be transformed into businessmen and legitimate sexual entrepreneurs. Brothels and other sites of prostitution activities would become legitimate establishments for commercial sexual acts with few restraints. In effect, through legalization and decriminalization of the sex industry, dirty money becomes clean. Criminal acts become legal. The consequences would also be harmful, because the government would become increasingly dependent on the sex sector. Moreover, if prostituted women are counted as workers, the result would be lack of responsibility for making decent and sustainable employment available to women. In short, validating prostitution as work dignifies the sex industry and the male buyers, not the women in it. Serious concerns have been raised with respect to sex trafficking in countries with legalized prostitution. For instance, the United Nations Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, Especially Women and Children, noted in her 2006 annual report that: For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking. Thus, State parties with legalized prostitution industries have a heavy responsibility to ensure that the conditions which actually pertain to the practice of prostitution within their borders are free from the illicit means delineated in subparagraph (a) [of Article 3] of the Protocol definition, so as to ensure that their legalized prostitution regimes are not simply perpetuating widespread and systematic trafficking. As current conditions throughout the world attest, States’ parties that maintain legalized prostitution are far from satisfying this obligation. In fact, in countries that have legalized or decriminalized the sex industry such as parts of Australia, the rates of illegal prostitution have skyrocketed because the buyers still want to purchase children, ‘exotic’ women from abroad, and sex acts that may be off limits in the legal venues. In the Netherlands, where prostitution is legal, a 1999 study showed that 80% of the women in the country’s brothels were trafficked from other countries.7 Furthermore, many women choose to remain illegal as they do not want to register and create a permanent record of their prostitution activities. Legalization of prostitution was promoted in The Netherlands as a way to help end child prostitution. Amsterdam based Child Right estimated that between 1996 to 2001, the number of children in prostitution increased by over 300%, going from 4,000 to 15,000.8 It is estimated that 5,000 of these children were trafficked from other countries. In Victoria, Australia, child prostitution has increased dramatically in comparison to other Australian provinces where prostitution has not been legalized.9 Advocates of legalized prostitution often focus on the social stigma against prostitution as its primary harm. Yet the contempt against women in prostitution remains regardless of prostitution’s legal status. More importantly, legalization does not eliminate the harm of prostitution, such as physical and sexual violence. The health effects experienced by women and girls in the sex industry—both legal and illegal—include injuries inflicted by beatings and rapes by traffickers, pimps and buyers; psychological devastation, including trauma, depression, and suicide; HIV/AIDS and other sexually transmitted diseases; and alcohol and drug abuse induced by pimps or by the women’s attempts to self-medicate.10


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3.3.5 Myths and Facts about Legalizing Trafficking and Prostitution

Legalization brings the sex industry under control.

Experience in various countries which have legalized prostitution has shown that by legalizing prostitution the problem actually expands. For instance, Victoria, Australia has experienced a massive expansion of the sex industry after legalization. In addition to prostitution, other forms of sexual exploitation, such as tabletop dancing, bondage and sadomasochist centres, peep shows, phone sex, and pornography have increased and have generated enormous profits for the sex industry and the State but not for the woman trapped in prostitution.

Legalization will dignify the women in prostitution.

Legalization does not dignify the women, but only legitimizes the sex industry.

Women in prostitution will be better protected if prostitution was legalized.

Studies of victims of commercial sexual exploitation show that prostitution establishments – legal or illegal – did little to protect them. A study that interviewed victims of trafficking in five countries showed that 80% of them had suffered physical violence from pimps and buyers; immaterial of whether the sex industry was legal or illegal. Usually the buyer’s interests take precedence over the woman’s in prostitution. Also, ‘safety policies’ in brothels do not protect women from harm. The sexual exploitation and violence in prostitution is viewed as sex and often tolerated as part of the so-called job.

Prostituted women would be protected against infectious diseases in a legalized system.

A legalized system of prostitution often mandates health checks and certification for the women in prostitution, but not the male buyers. Public health proposals mandate health checks for women to protect the male buyers and not the women in prostitution. Reducing the demand, and thus the size of the sex industry and the amount of trafficking victims, is an important step in stopping the spread of HIV/AIDS. Condom use policies are only an emergency measure to try to protect trafficking victims from contracting disease.


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Such policies are ineffective as buyers are frequently averse to using condoms, and brothel owners compel women to give into buyers’ demands. For example, only 77% of trafficking victims in India took regular preventative measures against disease,11 while 67.9% of buyers stated that they used condoms.12 A majority of the buyers interviewed preferred submissive girls who were willing to give into their demands, such as sex without a condom.13

Legalization helps to end the exploitation of women who have been trafficked.

Legalization promotes sex trafficking. In The Netherlands, where prostitution is legal, a 1999 study showed that 80% of the women in the country’s brothels were trafficked from other countries. And in Germany, 10 years after steps toward legalization of prostitution started in the 1980s, it was found that 75% of the women in sex industry were foreigners. After the fall of the Berlin Wall, 80% of the estimated 10,000 women trafficked into Germany were from the former Soviet bloc countries.

Source: Janice G. Raymond: Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution. Published simultaneously in Journal of Trauma Practice, 2, 2003: pp. 315-332; and in Prostitution, Trafficking and Traumatic Stress. Melissa Farley (Ed.). Binghamton: Haworth Press, 2003.

Understanding the Victim while Countering Sex-trafficking The very fact that victims are survivors of trafficking means that they are witnesses to the crimes perpetrated against them and hence should never be treated as criminals. An insensitive application of the law can be instrumental in violating the rights of trafficked women and children, when it is they who are arrested convicted for a crime of which they are victims. “Judges trying this class of cases, unless especially trained or put through courses, prove to be judicial obstacles rather than social justice vehicles. The masculine lethargy at every stage is written large”. – Justice Krishna Iyer in A Critique of the Social Audit of Immoral Trafficking Prevention Act, S.C. Bhatia (ed), University of Delhi, 1988. Victims’ / Survivors’ Perceptions and Experience with Law-enforcement (based on NHRC study) 88.4% of the survivors interviewed were not aware of any law against trafficking. Similarly, 79.7% said that they had no knowledge about any law prohibiting child sexual abuse and child commercial sexual exploitation. 49.9% stated they did not know if any action was taken against their traffickers and 40.3% said that the traffickers had never been arrested. 9.8%, maintained that the police had arrested the traffickers. 42.1% of survivors interviewed revealed that the brothel owners get advance information about impending police raids and move the victims to other places; 32.3% stated the


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victims are concealed in different hideouts like dungeons and boxes, which are kept specifically for this purpose; and 24.6% were of the view that they had escaped arrest because the brothel owners had bribed the police. Brothel owners are careful that the women/girls who are arrested by the police use different names in each instance. 57.9% of survivors questioned about their arrests said that they had been arrested by the police earlier. The maximum count was from Karnataka, where a respondent had been arrested 15 times before. 39.4% of the respondents stated that they were arrested on charges of soliciting; the majority of them (close to 60%) said that the police had arrested them while conducting raids in brothels. However, they did not know the specific reason or charge on which they were arrested. When asked about the behaviour of policemen during rescue and post-rescue operations, 43.3% of the respondents stated that they were caring, 27.1% said that they were uncaring and 10.5% spoke about abusive behavior by the police. Almost a fifth of the survivors chose not to respond. Regarding post-rescue treatment, 53.1%, stated that women police officials were not present when their body searches were conducted nor when they were being interviewed. Over 90% stated that they were neither aware of their rights after rescue nor were they informed about them by the police. 16.8% survivors gave suggestions for improving police behaviour during the rescue operations and the post-rescue stage. They emphasized that any rescue and post-rescue activity should necessarily involve women police officials. The remaining survivors were adamant in recommending that the police should be properly sensitized before they are deputed for rescue work. Only a fourth of the respondents stated that the police visit brothels frequently. Fewer than 32% said that policemen pay occasional visits, 14.4% said the visits were rare and the rest were unaware for any visits by the police. The purpose of these visits was also probed. The responses were as follows: • to arrest the victims (19.5%) • for sex (15%) • to conduct investigations (11.9%) • to prevent soliciting (20%) • to extort money (33.6%)


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Notes 1. NHRC Action Research Study, 2005 2. NHRC Action Research Study, 2005. In the same study 60.8% of them also revealed that their first sexual experience was forced on them, and 63.8% accused a host of persons including those in school staff, teachers, and persons in positions of authority or who enjoyed their trust like friends, priests, fathers-in-law, brothers-in-law, counselors, police officials or domestic help of perpetrating the abuse 3. NHRC Action Research Study, 2005 4. O’ Connor, M.Healy, G. 2006. The links between Prostitution and Sex trafficking: A briefing Handbook, CATW and EWL 5. D’Cunha, Jean. 2002. ‘Trafficking in persons: a gender and rights perspective’, Paper presented at Expert Group Meeting on Trafficking in women and girls 18-22 November. Glen Cove 6. See Janice G. Raymond, Ten reasons for not legalizing prostitution and a legal response to the demand for prostitution, in Melissa Farley (Ed.), Prostitution, trafficking, and traumatic stress (pp. 315-332). Binghamton, NY: Haworth; also available online at http://action.web.ca/home/catw/ readingroom.shtml?x=32972. See also Ministry of Industry, Employment and Communications, “Seminar on the effects of Legalisation of Prostitution Activities-A Critical Analysis” (2003), available at http:// www.sweden.gov.se/content/1/c4/22/84/0647d25a.pdf. 7. Budapest Group, The Relationship Between Organised Crime and Trafficking in Aliens, International Centre for Migration Policy Development (June 1999). 8. Carin Tiggeloven, Child Prostitution in the Netherlands, Radio Netherlands (Dec. 18, 2001). 9. Mary Sullivan, What Happens When Prostitution Becomes Work?: An Update on Legalisation of Prostitution in Australia, (2005) (citing 1998 ECPAT study). 10. Melissa Farley, Prostitution in nine countries: Update on violence and posttraumatic stress disorder (2003). 11. Sen, Sankar and P.M. Nair, Trafficking in Women and Children in India at 95 (2005). 12. Sen at 101. 13. Sen at 99.


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3.4 LEARNING ACTIVITY – 1 1.

Definition of a woman in prostitution: What is your definition of a) woman in prostitution b) prostituted child. a) b)

2.

Why are there women in prostitution in your area? a) b)

3.

Describe the reasons why women are trafficked into prostitution: The reasons that you identify may be based on the ways in which buyers, traffickers, madams and other aspects of the demand contribute to trafficking and prostitution.

4.

The needs of women in prostitution are (Grade the needs that you think are most important Mark the needs that are probably most important in the eyes of the woman or child. These are called ‘felt needs.’ Are their needs and your priorities the same? Give reasons as to why their priorities and yours may be similar or different). Needs

Needs that you think are most important

Needs that are probably most important in the eyes of the woman or child

Acceptance Affection Clothing Companionship Food Sleep Medical care Shelter Security Money Protection Recreation Relaxation 5.

What does a trafficking victim spend her money on and what percentage of her income does she spend on each item?

6.

From your experience, discuss the positive and negative attributes of the activities each women in prostitution undertake in your local context. Mark in red the positive and in blue the negative attributes. Give reasons why: Begging

Violence

Beatings

Cooking

Friendship

Fighting

Affection

Dancing

Child-caring

Relaxing

Playing

Running errands

Scavenging

Selling blood

Rape

Prostitution

Stealing

Using alcohol and other drugs

Vending (selling items often in the market)

Soliciting


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LEARNING ACTIVITY – 2 1.

Please fill for each hour a typical 24 hours in a prostitute’s life is: 6-7 am

7-8

8-9

9-10

10-11

11-12 noon

12-1

1-2

2-3

3-4

4-5

5-6

11-12 midnight

12-1

1-2

2-3

3-4

4-5

5-6

2.

Every month her average income is:

3.

In your area, every month how much she spends on:

6-7

7-8

8-9

10-11

food

rent

clothes

school fees

medicines

police

extortion

pimp

madam

drugs

alcohol

toiletries

4.

What is the percentage of money that a woman in prostitution or a prostituted child gets after all the above get paid?

5.

How many trafficking victims in your locality: – Live on the street –

Rent a room in shifts

Are locked in brothels for 24 hours

Are violent

Get regular medical checkup

Have been rounded up for soliciting

Have been arrested on a police raid

6.

Profile six characteristics of those likely to be trafficked and reasons for that characteristic:

7.

List at least three reasons why victims of trafficking are not aware of laws against trafficking:


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“On March 3rd, last year, while I was cooking, a man came with my father. He was the husband of some chairman. He carried a lot of money in his purse. My stepmother took me to the man and asked me to greet him. That man left that day. When I asked my stepmother about the man, she beat me up. I went to sleep without eating that night. On March 5th, that man returned again. My father welcomed him into the house. When I asked my father who the man was he rebuked me. My stepmother asked me to take a bath. I bathed in anger. She told me that I have to listen to everything the man says as my father had taken money from the man against me. He was my grandfather’s age-he had white hair. I started crying. She asked me to wear new clothes that she had bought for me. I threw them away. She started beating me and forced me to wear new clothes. My mother was telling me not to get scared as he was a nice man. Then they locked me inside the room with the man. The man told me to lock the room from inside. I slapped him. That man raped me. He beat me. I got high fever afterwards and had to be given saline water. Later in Purnea, my father and mother used to sell my body to different buyers. Within the last three months around 30 to 40 men have sexually exploited me. My father runs the business with the help of many people. My father used to bring customers and his brother used to ask for money from them. He used to tell the buyers that I was his “thing” and that he had bought my mother Meena into prostitution. These people have spoiled many women’s lives. Source: Naina Kahtoon, 14, Katihar, Bihar in statement to police on March 14, 2007


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4.1 INTRODUCTION

The male demand for prostitution is the most immediate cause for trafficking in women and children. Without the expansion of the sex industry it would be highly unprofitable for pimps and traffickers to seek out a supply of women and children. ‘Demand’ includes all those who benefit directly as well as indirectly from trafficking. It ranges from prostitute users, to the sex entrepreneurs (traffickers, procurers, pimps, brothel owners, managers and money lenders) who make a profit by trading in women and girls. Many of these also fall within the definition of ‘traffickers’. It is the nexus between the buyer of prostituted women and children, the trafficker and the brothel manager that creates the demand, perpetuates trafficking and leads to the gross violation of the rights of women and children. In the NHRC Study (2005), everyone associated with trafficking, including traffickers, brothel owners, police, survivors in rescue homes and victims presently in commercial sexual exploitation, accepted that male demand is the primary reason for the existence of prostitution and that this demand exploits the vulnerable and marginalized populations. According to this study, most traffickers state that they identify the demand areas before indulging in trafficking to ensure ‘prompt delivery’ which is collaborated by responses of the users of prostituted women and girls. Brothel owners admit that trafficking is demand driven and that there are specific demand patterns, which fluctuate with seasons1. Brothel owners also state that majority of the users of prostitution demand ‘particular types of women’, with the highest demand for ‘virgin girls’2. There are certain sectors that create the desire for demand. These include the pornography industry. Not only have the needs of women been commodified but also women themselves have become commodities in an increasingly globalized world. Women’s bodies are used to sell everything from cars to chips. This demeaning use of women’s and girls’ bodies fits within the present era of ‘sexual gratification’ where lust and exploitation are fulfilled with the use of victims trafficked for sexual exploitation. By curbing the issue of demand not only do we give respect to the woman who had no choice but to ‘render her own body for exploitation,’ we also give her the space and the ‘right to the integrity of her own body’. Traffickers supply women on Demand Providing services to women in prostitution and instituting preventive mechanisms at the source point are the current, prevalent methods of dealing with the issue of trafficking and prostitution. However, all efforts have proved to be largely ineffective because of the ever increasing “demand”. According to the NHRC Study 82.5% of traffickers stated that they supply women/ children on demand. When areas in Karnataka, supplying trafficked victims to the Baina red-light area of Goa, ‘dried up’ the demand in Goa did not reduce. The continued and even increased demand ‘created’ other source areas in Andhra Pradesh. Similarly, when increased vigilance and new laws prevented traffickers from sourcing women and children from Nepal to Mumbai and Kolkata, they simply shifted their area of operations to Bihar, West Bengal, the hill states of the northeast and Jharkhand.


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4.2 LEARNING OBJECTIVES After reading the information and participating in learning activities in this module, you should be able to: • Define demand for trafficked sex • Understand who constitutes the demand in trafficking • Describe a buyer of prostituted women and children • Describe a trafficker • List the businesses that profit from trafficking • Understand the need to address demand


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4.3.1 How do you Define Demand for Trafficked Sex? The Palermo Protocol is the first United Nations instrument to address demand in the context of trafficking. Article 9, paragraph 5, of the Protocol states: “States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking.� Three issues deserve particular emphasis1: 1. Demand must be understood in relation to exploitation, irrespective of whether that exploitation also constitutes trafficking; 2. Demand must be understood as that which fosters and perpetuates exploitation, not necessarily as a demand directly for that exploitation; 3. It is not necessary for demand itself to lead to trafficking; rather, it is sufficient that the exploitation fostered by the demand leads to trafficking. It includes a range of activities, which could include anything from verbally abusing the woman, burning her with cigarettes, bodily mutilation, and sex without condoms or other forms of sexual and other violence.

4.3.2 Why should one Criminalize the Demand in Sex Trafficking? The identification of traffickers and buyers of prostituted sex, bringing them to book, confiscating the illegal assets created out of trafficking, making the traffickers compensate for the damages and penalizing them, all act as a deterrent to traffickers and buyers and restores a sense of justice to the survivor. Unless the buyers feel threatened under the law and fear losing their social standing, they will not stop exploiting women. Sex trafficking is a system of gender-based domination where exploiters prey on women and girls made vulnerable by poverty, discrimination, and violence and leaves them traumatized, sick, and impoverished. Moreover, sex trafficking and prostitution are inextricably linked: the demand for prostituted sex is the engine that drives the worldwide crisis of trafficking in women and children, particularly girls. It is the demand for prostitution and other commercial sexual services that makes vulnerable women and girls such enticing and profitable cargo for traffickers. Reasons to criminalize the demand for sex-trafficking Demand fuels sex-trafficking The prostitution-user is simultaneously both the demand-creator and (by virtue of his receipt of the trafficked person) part of the trafficking chain; 82.5% of traffickers interviewed in the NHRC study stated that they supply women/children on demand. Specific attributes of the trafficked persons, which were sought after by the buyers of prostituted sex according to them were: 1. Good physical features and body shape 2. Virgins and those young in age 3. Readiness to succumb to exploitation 4. Mix of various parameters


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The human rights of women and children are violated By engaging in the act of commercial sex, the prostitution-user is thereby directly inflicting an additional and substantial harm upon the trafficking victim, tantamount to rape. The demand for pretty, young, nubile girls who are submissive and willing to surrender in itself shows the exploiters bent of mind. It shows that a girl who would acquiesce to all their perversions, have sex without condoms, cater to their sex’ pleasure needs like verbal abuse, and several types of physical torture is high in ‘demand’. This reveals the multitude of human rights exploitation. There is good reason to believe that many prostitute-users are aware that the women and children they use in prostitution are forced or trafficked into prostitution The manifestation of the crime of trafficking presents itself in the following essential ingredients: a) Exploitation: which could be physical, sexual, emotional, etc. b) Commodification: the trafficked person is sold, purchased or bartered like any non-living object c) Commercialization: the traffickers and other vested interests derive benefit, usually pecuniary, from the exploitation of the trafficked person. Therefore, the criminals linked with the crime are i) Exploiters ii) Traffickers Source: Action Research on Trafficking in Women and Children by the National Human Rights Commission, Report on Human Trafficking (2005)

4.3.3 Who Constitutes the Demand for Trafficking? ‘Demand’ includes all those who benefit directly as well as indirectly from trafficking. It ranges from prostitute users to the sex entrepreneurs (traffickers, procurers, pimps, brothel owners, managers and money lenders) who make a profit by trading in women and girls. Many of these also fall within the definition of ‘traffickers’. The primary role of the police is to prevent the purchase of sexual services along with arrest and prosecution of traffickers and buyers of prostituted and trafficked women and girls. The trafficking chain consists of three elements – the three Bs – the Buyer, the Business and the Bought. The nexus between the Buyer and the Business form the demand for trafficking.

BUSINESS BOUGHT BUYER

The Business – (traffickers/sex entrepreneurs) This includes traffickers, transporters, financiers, abettors, conspirators and all those who are involved, by their acts of omission and commission, which lead to exploitation. The group also includes the buyers of prostitution who exploit women and children. Interestingly, according to the NHRC research, over 60% of the traffickers were literate, with 22.5% being educated up to higher secondary and above. Around 56% of the respondents were married and a quarter of them were unmarried; the rest were divorced, widowed or separated. Most of them had large families.


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Traffickers

Transporters

Conspirators

Abettors

Financiers

Abusers/Direct exploiters

Recruiters

Those who transport

Buyers of prostituted sex

Arrange transport

Their bosses

Arrange halting places

All those who abet the various processes through their presence, their involvement or by acts of omission/ commission

All those who finance the various activities

Their agents

All those who contribute to the various steps involved in trafficking & exploitation

The masterminds

Pimps Those who contribute to the perpetration of the debt bondage of the trafficked victims in the places of exploitation

Managers

Madams

According to the NHRC study, the majority of the traffickers (58.1%) stated that they supply girls on demand. The greater the demand, the more they supplied. According to a fifth of the respondents, profit considerations prompted them to select the supply area. Very few traffickers were concerned about the risks involved. Around 6% stated that they supply women and girls to those areas where they can remain anonymous, and 15% of the traffickers said that they supply to areas where law enforcement is poor. How much do traffickers earn? Trafficking is a very lucrative business for traffickers as it requires low investment and ensures high profits. Around 29% of the traffickers stated that they earn more than Rs. 1 lakh per year from trafficking with a small expenditure. This confirms the widely acknowledged fact that trafficking is a highly profitable business, which generates a substantial surplus. The cost per trafficked person varies from place to place and depends on the demand factors. The ‘cost’ of a girl depends on whether or not she measures up to the following hierarchy of ‘demand factors’: – Physical appearance (features/looks, build) – Age (younger girls are more in demand) – Region (girls from a particular region are more in demand in certain brothels) – Complexion (fair-skinned girls are preferred) – Submissiveness (readiness to surrender to all kinds of abuse and exploitation) During interviews for the NHRC research on trafficking, it transpired that not only the traffickers, but even the law enforcement officials were mostly unaware of any provision in the law whereby illegal incomes (those generated from criminal activities) can be confiscated and forfeited. The trafficking chain An organized crime group is defined by the United Nations Convention on Organized Crime as a structured group of three or more, existing for a period of time and ‘acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this convention in order to obtain directly or indirectly a financial or other material benefit.’ (United Nations 2000).


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Survivors’ tales of violence have often revealed the presence of three to five persons in the trafficking ring. They mention the minimum presence of an initial procurer, secondary procurer, transporter and finally the brothel owner. In the NHRC study three-fourths of the survivors spoke about the active involvement of more than one person in the trafficking link. More than 50% of the respondents said that the trafficking chain included three or more persons. The master trafficker has to establish a network, which provides linkages with demand, and supply areas, transit points and routes. S/he appoints persons as primary traffickers/procurers to carry out various tasks at several places. These persons at the ground level require intelligence to identify the supply sources as well as the demand areas. Given that intelligence has a very important role to play in this ‘business’, the master trafficker has his/her own network of intelligence gatherers. The trafficking hierarchy consists of several tiers. The field research shows that at least the following levels exist: – Master trafficker/kingpin – Primary traffickers/procurers – Secondary traffickers – ‘Spotters’ or the grass-roots chain of intelligence gatherers Traffickers do not operate on their own. They establish a network and develop linkages with other exploiters, like buyers of prostitution, brothel keepers, moneylenders, transporters, border officials, pimps, hoteliers, and corrupt officials. There are several other stakeholders who support the main trafficking structure mentioned above. These include (a) financiers who finance the transactions at various levels; (b) the goons/goondas who provide security at various levels; (c) the hoteliers who provide accommodation during transit; (d) the transporters who provide or arrange transport; (e) paramedical persons who attend to the illnesses of the trafficked victims during transit; (f) officials who, in lieu of sexual services or bribes, provide several services, including immigration clearance and security; and (g) the final exploiters and abusers who may also be part of the network. They dictate terms regarding supply and demand and modulate the trafficking process. Modus operandi of traffickers Traffickers look for the most vulnerable women and children who have no assets and hardly any alternatives.1 The accessibility of the trafficker to the prospective victim is an important factor in trafficking. The method adopted is usually influenced by the proximity or otherwise of the trafficker to the victim Offering them jobs as domestic servants

Promising jobs in the film world

Coercion

Offering money

Luring them with ‘pleasure trips’

Making false promises of marriage

Befriending them by giving goodies

Offering shelter to girls who have run away from home or are street children

Offering to take them on pilgrimages

Making other kinds of false promises


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Four phases of entrapment of young women into prostitution • -

Ensnaring Impressing the young girl Winning her trust and confidence Making her think he is the only one who understands her - Ensuring she fall in love with him by giving a present signifying stability in relationships - Claiming the status of her ‘boyfriend’

• Creating Dependence - Becoming more possessive - Convincing her to destroy important objects or reject those she is close to - Changing her name - Destroying her connections to her previous life - Isolating her

• Taking Control - Deciding where she goes, who she sees what she wears, eat, thinks - Using threats, and if necessary, violence - Enforcing petty rules - Being inconsistent and unreliable - Demanding that she prove her love

• -

Total Dominance Creating a willing victim Ensuring she complies to his wishes Convincing her to have sex with his friend - Convincing her to be locked in the house - Convincing her that he needs the money and the easiest way is through selling sex

Profiles of buyers of prostituted women and children Buyers of prostitution are the final exploiters and heap further abuses on trafficked victims when they visit brothels. The laws have to be enforced stringently on those men who willfully exploit women and children, thereby perpetuating trafficking. It is common knowledge from field experience that the majority of buyers look for sex with children and, therefore, such exploiters have to be dealt with stringently as it amounts to rape even with consent (vide IPC Section 375). It must be noted that the buyers do not constitute a homogenous group, but as the table below shows, they are quite a heterogeneous group. Myth about buyers of prostituted women and children

Facts about buyers of prostituted sex

Most buyers of prostituted women and children are unmarried.

Many of the buyers of prostituted sex are married as substantiated by the NHRC study in which 45.5% of the interviewed buyers were married men.

If they are married, the buyers are separated from their wives.

Most of the buyers are not only married but also staying with their spouses. This negates the fact that men ‘go to prostitutes out of need’. This is again well documented in the NHRC study in which 72.9% of the interviewed married buyers had spouses staying with them.


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Myth about buyers of prostituted women and children

Facts about buyers of prostituted sex

Most have ‘sexually dysfunctional” wives and hence they need some ‘outlet’.

This is a myth propounded by the patriarchal society, which calls all women who do not submit to men’s desires as ‘sexually dysfunctional’. In the NHRC study again it was seen that 54.3% of the interviewed married men had wives who were in the age group of 26–35 years old.

Most buyers are illiterate.

This myth is also exploded by the NHRC study which has shown that of the interviewed 582 clients, 22.7% had studied up the graduate level or more and 79.6% were literate.

Most buyers are migrant labourers.

This myth has been circulated over the years to shield the ‘respectable men’ visiting brothels. In the NHRC study though a majority of the buyers. 41.9% were from the working class, 8.8% were students, 26.1% were employed in government service and 18.4% were in business.

Police and politicians never visit a brothel.

The recent spate of media reports and the NHRC study clearly show that police officials regularly visit the brothels whereas other ‘decent’ people who were frequent visitors included politicians, lawyers, doctors, foreigners, tourists, etc.

Men visit a brothel only when they are frustrated in their mid years.

A majority of the buyers in the NHRC study had started visiting brothels during their adolescence.

Men look for ‘mature love’ in brothels.

There is fair amount of evidence from the world over which is also substantiated by the NHRC study that men desire ‘perverted and violent sex’ and thus a large number of buyers demand ‘young, nubile virgins’. In the study a large majority (39.2%) of buyers admitted they looked for young girls in brothels, the highest preference being for virgin girls. 53.3% of the respondents stated that they look forward to having sex with girls who are submissive and willing to surrender to all their demands.


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Buyer’s attitude and commercialization of Women thereof A study by International Organization for Migration (IOM) revealed that most buyers view “prostitutes as being dirty, meant for sexual relief as it is quick, easy and momentarily satisfying”. The IOM study clearly demonstrates that buyers did not perceive them as consenting subjects or even as human beings. Instead, they seemed to think that in prostitution, women/girls actually became objects or commodities, and that buyers could therefore acquire temporary possession over them. This was well illustrated in an interview with a client who described prostitution as “a market where the woman is selling herself” [emphasis added], and remarked: “When there is violence – it is mostly the prostitute’s fault. See, I am going to buy something. If I am satisfied with what I am buying, then why should I be violent? I will be violent when I am cheated, when I am offered a substandard service, when I am abused or ill treated – Sometimes [violence] is because the prostitute wants the client to use condoms. They force it on the client – He will naturally be disgruntled, and there will be altercations.” (A clerk from an Indian bank, married, aged 54).1 Another client stated “If [the prostituted woman] takes money and does not perform what she is expected to then the customer will get angry. See, I understand that the prostitute is there in the first place because she has no choice or is forced there. I feel bad about this, especially if she is forced or sold. But the fact is that she is in the flesh market. The rules of the market apply to her as well as to one who has come out of her own choice... It may sound bad, but the fact is that she is a commodity offering a service and she should accept that.” (An Indian civil servant, married, aged 39)2. Why criminalize buyers of prostituted sex? Unlike the purchaser of consumer goods produced through trafficked labour, the prostitute-user is simultaneously both the demand-creator and (by virtue of his receipt of the trafficked person) part of the trafficking chain. By engaging in the act of commercial sex, the prostitution-user is directly inflicting an additional and substantial harm upon the trafficking victim, tantamount to rape, above and beyond the harmful means used by others to achieve her entry or maintenance in prostitution. There is good reason to believe that many prostitute-users are aware that the women and children they use in prostitution are subjected to the illicit means delineated in the Protocol, and that widespread cultural norms encourage the use of prostituted persons despite this knowledge.

Under the law both the clientele or customer and the trafficker are liable Trafficker Liability: Under Section 5 of ITPA, trafficking committed, contemplated or even attempted is punishable, regardless of consent of the trafficked person. The modus operandi could include procuring, attempting to procure, inducing, taking, attempting to take, causing a person to be taken, causing or inducing a person to prostitute etc. If the offence of trafficking is committed against the will of the person, then the offender is liable for graver punishment. If the trafficked victim is a child, the minimum punishment is seven years of rigorous imprisonment.


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Depending on the facts and circumstances of the case, the traffickers are also liable under Section 4, 6, 9 of ITPA. Moreover, as abettors and/or conspirators they are also liable under IPC. Customer Liability: whether ‘customer’ is liable? The answer is yes. Firstly, he should be booked under Section 5(1) (d) and under Section 7(1) of ITPA. He is a person who ‘causes’ or ‘induces’ another person to carry on prostitution and is, therefore, liable under Section 5(1)(d). (Cherain Vs. Kerala, 1973, Crl.L.J. 839). Moreover, he is a person ‘with whom prostitution is carried on’ and is therefore liable under Section 7(1). Further subsection IA of Section 7 ITPA makes it clear that if the offence of ‘prostitution’ is committed in respect of a child or minor then the person committing the offence (i.e. including the customer/ clientele) is liable for graver punishment and fine with a mandatory minimum imprisonment of 7 years. Besides these provisions of ITPA, he is an abettor to all violations on the victim, which attracts Section 114 IPC. If the victim is a child, Section 376 IPC (rape) should be added to the charges against the ‘customer’. If the victim is an adult, Section 376 IPC will come into operation if it can be established that she had not given informed or willing consent. Moreover perverse sexual acts on the victim invite liability under Section 377 IPC.

4.3.4 Demand Patterns 1. Demand fluctuates with seasons. The demand is high during festivals, vacations and holidays. Similarly, demand is higher during winter than in the summer. The NHRC study shows that surplus funds accumulated by the neo-rich class of farmers after harvest lead to a rise in trafficking during the following three months or during salary time, or when the clients make high profits, gains, income, etc. in their vocation. The influx of tourists also leads to increase in demand. 2. Demand is area-specific and location-specific. There are certain places in which there is high demand for trafficked women and children. These include railway stations, bus stands, market places, beaches, cinema halls, gardens, parks, hospitals, hotels, guest houses, parking places, industrial townships, brothels, red-light areas, college campuses, highways and even secluded places. Easy accessibility of the public to the concerned place is what decides the demand. This is the reason why most of the red-light areas are situated near railway stations or bus stands. 3. Clients prefer to go to brothels or places where they can remain anonymous. Demand increases in those places where anonymity is assured. 4. There are linkages between hotels, brothels and traffickers. If the trafficker is ready to supply the kind of girls who are in demand to the hotels or brothels then that area becomes a pull for demand. 5. Poor law enforcement decides the area of demand. When law-enforcement is properly done, the demand will come down and there will be less exploitation. Wherever lawenforcement is not appropriate, demand will go up. 6. The highest demand is for young girls, particularly virgin girls. Many clients are also particular about body shape and demand girls/women with good figures. Also, they want and expect the victim to tolerate a high level of exploitation and perversions.


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The kingpin in the trafficking chain is not the brothel madam. She is the manager and often the link between the buyer, the brothel-owner and the prostituted woman or girl. Her arrest alone does not make a dent in the trafficking industry. The sex-entrepreneur or the brothel owner simply replaces her with another formerly prostituted woman, who is so grateful not to be raped every night that she does exactly what the owner demands of herchecking the demand patterns, managing the accounts, subjugating the girls and liaising with the law-enforcement officers. In the gendered nature of law-enforcement, she is often the most visible face of the trafficker, whereas the male buyer, the male brothel owner, the male traffickers and the male moneylender are never detected or arrested.

4.3.5 Survivors’ Response to Interventions Aimed at Curbing Demand Prostituted women who have examined the potential effects of criminalizing demand agree that penalization of clients would reduce the demand for sexual exploitation. They also consider that it would reduce street prostitution as well as the activities of procurers if the profit margins decrease. We are the women of the Bhiwandi red-light area. Here, you mostly find Devadasi women. Devadasi is an old tradition which is passed from generation to generation. We have been violated time and time again, so we are now protesting against this tradition. We want our daughters to have lives free from violence. Our children should have a better future. Even though the government has banned this practice, you can still find women of the Devadasi tradition in parts of Maharashtra and Karnataka. Many of us who live in Bhiwandi have gotten no benefits from being Devadasis. We want buyers to be punished so that our daughters can feel secure and go to school. Only then can they achieve their hopes and dreams in an independent India. — Bhiwandi Devadasi Mahila Mandal, October, 2004 We, the women of the Nat Community, Forbesgunj, Bihar, traditionally pushed into inter-generational prostitution, represent survivors of prostitution who can attest to the violence and harm that are inherent in prostitution, whether legalised or not. We strongly feel that the criminalization of the buyer will lead to a reduction of trafficking and sexual exploitation. We feel that the pimps, the traffickers, madams and the brothel owners should also be penalized, as there is collusion between the client and the trafficker and the gharwali. Why are women and girls arrested every time and not those who rape us or buy and sell us? — Apne Aap Nat Mahila Mandal, Forbesgunj, Bihar October, 2004


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The Bagong Kamalayan Collective Inc., an organization of survivors in street prostitution in the Philippines, fought for the Philippine law that punishes buyers of persons trafficked for sexual exploitation. We fully support the criminalization of the demand side, which includes the customers, recruiters, and people who manage the transactions of trafficking or sexual exploitation. Because of them, the lives of women are endangered. Women’s earnings are not threatened by criminalizing the buyers. Women, in the first place are not the ones who earn from trafficking and prostitution. The police earn from protecting the system, the pimps do, and the buyers by using women’s bodies in all ways they know how. We lose, we are wounded, the value of our humanity is diminished. For our group, the use of the term ‘prostitutioner’ is not acceptable. We cannot consider prostitution as work, because it deprives us of our humanity. This is an issue not only for women in prostitution but an issue for all women. If we do not penalize the male perpetrators, it is like telling them that they could always have the power over us – to buy us. We call on the state in the Philippines to stop arrests of women. Instead, the focus of arrests should be on the pimps and the customers. Sexual exploitation or the selling of women is violence. If we do not start with punishing the buyers, our vision of eliminating trafficking and sexual exploitation will never come to be. — Minda Pascual, President

4.3.6 Countries that have Addressed Demand Successfully Country

How it Addresses Demand

Success

Sweden

To prevent the purchase of sexual services along with arrest and prosecution of the perpetrators

A 300% increase in arrests, one year after the programme began in 2003

Republic of Korea

Tougher penalties on brothel owners and buyers, while protecting prostituted victims

Increase in arrest of traffickers instead of victims

Philippines

Anti-trafficking in Persons Act of 2003 makes it a crime to hire any person to engage in prostitution or pornography

Discouragement to brothel owners as onus shifts from victim to business

India has proposed revisions to its anti-trafficking legislation by introducing The Immoral Traffic (Prevention) Amendment Bill, 2006 in which it has included a subsection on Criminalizing Demand. However, this amendment needs to be expanded to include penalizing all prostitute-users, not just those who knowingly use trafficked women.


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Good Practices Against Demand throughout the World

NATIONAL LEGISLATION—SWEDEN’S LEGISLATIVE FOCUS ON DEMAND Similar to other countries throughout the world, Sweden has been concerned about the problem of prostitution and sex trafficking. Studies in Sweden show that one man in eight buys sex at least once in his lifetime. The buyers, who are men of all ages and social classes, are frequently married or cohabitating and have children. An example of a good practice toward eliminating this form of violence and in targeting the demand is violence against women legislation in Sweden. Sweden has adopted a law that recognizes that without male demand there would be no female supply1. In combating the problem of prostitution, Sweden has taken a stand and recognized that prostitution is a form of male violence against women, and “is harmful not only to the individual prostituted woman or child, but also to society at large.”2 In examining why prostitution exists, the Swedish government concludes that “Prostitution and trafficking in human beings requires a demand among men for women and children, mainly girls. If men did not regard it as their self-evident right to buy and sexually exploit women and children, prostitution and trafficking in human beings for sexual exploitation would not exist.”3 Thus prostitution and trafficking are seen as harmful practices that cannot and should not be separated. Since January 1, 1999, purchasing, or attempting to purchase, ‘sexual services’ has constituted a criminal offence in Sweden. The punishment is a fine or up to six months imprisonment. On April 1, 2005, the legislation prohibiting the purchase of a sexual service was extended to include cases where the payment has been promised or made by some one else. (Swedish Penal Code, chapter 6, Section 11) This offence comprises all forms of sexual services, whether they are purchased on the street, in brothels, in so-called massage parlours, hotels, etc. While the buyer is criminalized the person in prostitution, usually a woman or girl, is not. The law is gender neutral and is a fundamental part of the comprehensive Swedish strategy to combat prostitution and trafficking in human beings, and polls show that approximately 80% of the Swedish population supports the law. The law’s primary purpose is to prevent the purchase of sexual services. Accordingly, the Swedish police is meant to intervene before a crime is committed. However, arrest and prosecution of the perpetrators is of equal importance. Between January 1999 and April 2004, 734 men had been arrested under the Law. Approximately 140 male individuals have been convicted of purchasing sexual services or have pleaded guilty between the years 1999 to 2002. The oldest man arrested was 70 years of age and the youngest 16 years. The average age of the buyers was 44 years. There has been criticism that the number of arrests and convictions has been low, but that overlooks the purpose of the Law, which is normative. The specific task of the police in enforcing the Law is to work preventively – to intervene before a potential buyer commits a crime rather than when the crime is a fait accompli. Moreover, since the Law came into force, over a thousand male buyers have been punished with fines, although none have been sentenced to jail. The number of men who buy sexual services has decreased, as has the recruitment of women into prostitution. Further, there has been a dramatic drop in the number of women in street prostitution according to police and social service agencies. Swedish NGOs that work with women in prostitution maintain that


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since the Law’s passage, increased numbers of women in prostitution contact them for assistance. According to the National Criminal Investigation Department the law acts as a deterrent to trafficking and deters traffickers from establishing a base in Sweden. The Swedish government has found that there are clear indications that the Law has had direct and positive effects in limiting the trafficking of women for prostitution in Sweden. For instance, Sweden’s number of trafficking victims is lower than that of her neighbours. Enforcement of the law by the police has been a key to its success. Initially, representatives of the police were critical of the law, saying that it would be difficult to enforce. In order to increase the police’s competence and knowledge about prostitution and trafficking in human beings, the National Criminal Police in collaboration with the Division for Gender Equality and with local community groups established educational programmes for police personnel. This brought positive results and the initial criticism about the Law being difficult to enforce has ceased. A year after the programme began in 2003, there was a 300% increase in arrests. There have been educational programmes for police on prostitution and trafficking. When the Law came into force and then again in 2003, there was funding allocated for the police to enforce the Law and combat trafficking.

NATIONAL LEGISLATION AND POLICIES—OTHER EXAMPLES TARGETING DEMAND Other countries have also targeted demand in their anti-trafficking legislation. The Philippines, for example, has a national legislation to eliminate trafficking in persons that criminalizes the act “to maintain or hire a person to engage in prostitution or pornography.”4 In the United States, where the laws against buyers of commercial sex fall under the jurisdiction of the individual states, there is national legislation requiring the federal government to publish information about best practices for State and local law enforcement to target demand5. The Home Office in England and Wales has addressed demand in its strategy to tackle sexual exploitation, particularly street prostitution. The Section on demand states that “Tackling kerb crawling must be at the heart of local enforcement strategies,” particularly since “Evidence suggests that relatively low-resource operations will have a significant deterrent effect.”6 Further, both the United States and Norway have banned their military personnel from buying prostituted women. Additionally, Norway has prohibited its civil servants from buying anyone in prostitution during official travel.

LEGISLATION—TARGETING DEMAND FOR SEX TOURISM The growing demand for sex tourism is one of the main reasons for the increase in sex trafficking in various regions throughout the world. In addition to committing an offence in the host country, a child sex tourist may also be violating the laws in the country of which he is a citizen or resident. Countries such as Canada, Finland, Sweden, and the United States have national legislation to prosecute their own citizens and permanent residents for sexual abuse of children while outside the country.


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The United States, for example, is targeting American sex tourists abroad in Brazil, Cambodia, Costa Rica, Mexico and Thailand by funding media campaigns in these countries to deter child sex tourists and warn them that they could be prosecuted and convicted in the US for their actions abroad. An American child sex tourist is subject to a maximum sentence of 30 years (18 U.S.C. § 2423(c)). The US state of Hawaii has passed its own legislation against the sex tourism business by making the promotion of travel for the purpose of prostitution a felony and grounds for revoking a travel agent’s license. In its findings, the Hawaiian act recognizes that sex tourism contributes to trafficking in persons, and declares its opposition “to any form of sex tourism”—both of children and adults.

CURBING DEMAND UNDER INTERNATIONAL LAW Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others Over fifty years after its ratification, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others is still relevant today. The Preamble establishes a vital human rights norm regarding trafficking and prostitution: “[P]rostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Thus establishing or maintaining penalties against trafficked and prostituted persons is inconsistent with the Convention. Moreover, there is no distinction made between “free” or “forced” prostitution, and prostitution is inextricably linked to trafficking. The Convention requires States Parties to penalize all those who traffic in persons or exploit the prostitution of another person, even with the consent of that person, regardless of the means used (Article 1). Brothel keeping is prohibited (Article 2). Further, understanding that regulation of prostitution protects traffickers, the Convention states that countries cannot regulate prostitution or subject prostituted persons to registration or other administrative controls (Article 6). Thus State Parties may not regulate or legalize prostitution, as it is inconsistent with combating trafficking. While it establishes important human rights, the Convention’s enforcement mechanisms are weak. Moreover, the buyers who are critical in contributing to the demand are invisible in this Convention. Article 16, for example, which concerns prevention, does not address it, although it does call for States to take “measures for the prevention of prostitution.” Convention on the Elimination of all forms of Discrimination Against Women (1979) Article 6 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) provides that: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” Although demand is not explicitly mentioned, legislation as well as other measures to discourage the demand that causes prostitution and trafficking is amongst the obligations to suppress trafficking. The importance of this obligation has been confirmed by the CEDAW Committee, to whom States Parties must report about their compliance and implementation of CEDAW. The Committee has been increasingly prioritizing trafficking and prostitution in their questioning of States Parties, and has stressed the importance of discouraging the demand to several States.


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Convention on the Rights of the Child (1989) Under Article 34, the Convention of the Rights of the Child (CRC) requires state parties to protect children from all forms of sexual exploitation and sexual abuse, including the “exploitative use of children in prostitution or other unlawful sexual practices” and the “exploitative use of children in pornographic performances and materials.” Moreover, Article 35 requires that States “shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.” Similar to CEDAW, one of the measures to prevent trafficking in children in the CRC is to pursue, punish and thus decrease demand. Subsequently, these provisions were supplemented by the adoption of an Optional Protocol on the Sale of Children, Child Prostitution and Pornography, which came into force in January 2002. The preamble specifically recognizes a need “to raise public awareness... to reduce consumer demand for the sale of children, child prostitution and child pornography”. The Optional Protocol requires States Parties to ensure that offering, obtaining, procuring or providing a child for prostitution is fully covered under its criminal law. (Article 3). Also, States Parties must strengthen international cooperation “for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.” (Article 10). As of the beginning of 2006, India was not a signatory to the Optional Protocol. South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002) India is a party to the South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The key definitions in the SAARC Convention include: “trafficking” as the “moving, selling or buying of women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking;” “prostitution” as “the sexual exploitation or abuse of persons for commercial purposes” (which is identical to the ITPA); and “persons subjected to trafficking” means women and children victimized or forced into prostitution by the traffickers by deception, threat, coercion, kidnapping, sale, fraudulent marriage, child marriage, or any other unlawful means. Demand is not explicitly mentioned in Article VIII, which includes measures on prevention. However, it can be incorporated in Section 2 – “The State Parties to the Convention shall sensitize their law enforcement agencies and the judiciary in respect of offences under this Convention and other related factors that encourage trafficking in women and children” and Section 8 – “The State Parties to the Convention shall promote awareness, inter-alia, through the use of media, of the problem of trafficking in Women and Children and its underlying causes including the projection of negative images of women.” It should be noted that Article XI indicates that measures in this SAARC Convention are “without prejudice to higher measures of enforcement and protection accorded by relevant national laws and international agreements.”


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GOOD PRACTICES TARGETING THE DEMAND FOR PROSTITUTION AND TRAFFICKING

Source: Coalition Against Trafficking in Women (CATW) Compiled by Barbara C. Kryszko and Janice G. Raymond

Location

Actions Taken Against Male Buyers

Comments

NATIONAL LEGISLATION AGAINST MALE BUYERS Philippines

National legislation to eliminate trafficking in persons that criminalizes the act “to maintain or hire a person to engage in prostitution or pornography.”1

Passed in 2003.

Sweden

National legislation defining prostitution as a form of male violence against women, and which criminalizes the purchase and attempt to purchase of “sexual services.” Prostituted women do not face any criminal sanctions.2

Since this law went into effect January 1, 1999, there has been a dramatic drop in street prostitution. Similar legislation is being considered in Finland3 and Iceland.

Great Britain

Proposal by the Solicitor General to draw up national legislation criminalizing men who buy sex from women who are victims of international sex trafficking.4

The Solicitor General has found that to address trafficking, buyers should be criminalized since the demand is what makes the sex industry profitable for the traffickers.

France

National legislation passed in 2002 criminalizing the buyers of minors who are under 18 years of age.

The communication adviser of the Prime Minister was arrested and found guilty after trial under this law. He has filed an appeal. The law is significant in protecting children between the ages of 16 and 18. Prior to this law, buyers raised the age of consent as a defense for buying children between 16 and 18.

France

National legislation since 2003 criminalizing solicitation. Note that this law could be implemented against the buyers.

Only a few men have been arrested under this law.

United States

National legislation directing the Secretary of Health and Human Services to publicize best practices for State and local law enforcement to prosecute buyers and establishing a grant program for law enforcement to investigate and prosecute buyers.5

This is the first national legislation to combat domestic trafficking in persons and reduce the demand for commercial sex.

LOCAL LEGISLATION AND PROSECUTION OF MALE BUYERS Glasgow, Scotland

Proposed legislation to make kerb-crawling a criminal offense. Kerb-crawlers could also be banned from driving.6

Aim is to reduce the demand and make men accountable for their actions.


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Perugia, Italy

Men who sexually use trafficked women and underage girls are being prosecuted for colluding in the crime of “reducing anyone to a state of slavery.”7

The invoking of this older law is also educational to teach the community that exploitation, enslavement, trafficking and victimization of women and girls is a serious crime and unacceptable.

France

In many cities, such as Nantes, Bordeaux, Strasbourg, men have been arrested performing a sexual act in their car under a law prohibiting sexual exhibition in public spaces. law could be implemented.

Prosecution under this law has raised the issue of whether a car is a public or a private place. Since any act in a car can be seen from a public space, the

POLICE AND COMMUNITY EFFORTS TO PENALIZE MALE BUYERS Harare, Zimbabwe

“Operation No To Prostitution,” which targets men who drive around and loiter in certain areas known for prostitution.8 Undercover female officers are employed in the operation to catch the buyers.

Police noted a sharp decrease in motorists soliciting prostituted women following implementation of the program.9 Names of those arrested are published in local newspapers.

Richmond, Virginia United States

Proposed amendment to city’s anti-cruising ordinance to charge motorists up to a $100 traffic infraction for passing by the same point in the same direction more than twice in a three-hour time span between 9 pm and 3 am.10

An anti-cruising ordinance has already been in effect since 1994. The amendment would add the three-hour time span.

Detroit, Michigan & Oakland, California United States

Seizing and impounding the vehicles of men who buy women in prostitution. When the man is arrested for solicitation or other prostitution offenses in Detroit, for example, he is fined $900 to get the car back. If someone else owns the vehicle, the owner, who may be the buyer’s spouse or family member, must accompany the prostitution buyer to retrieve the vehicle.11

Detroit officials report that about 53 percent of the vehicles seized were in cases where buyers were from the suburbs. Police hope this will serve as a deterrent to men who attempt to buy women for prostitution.

Perugia, Italy

Cement barriers have been erected along the roads of Perugia to make it difficult for potential buyers of prostituted women to stop and solicit for prostitution.12

This is part of a larger program that Perugia offers foreign women in prostitution in which they can obtain social services, emergency help, and temporary accommodation.

Madrid, Spain

In 2004, pursuant to a plan of action of the city of Madrid against sexual exploitation, the presence of the municipal police increased in areas with significant prostitution.13 The police dissuade buyers by asking them for their ID card, even though under the law the police have no power to arrest buyers.

The police have the right to ask for the buyers’ ID card, and anticipate that taking away the buyers’ anonymity as buyers will serve as a deterrent to men who buy women for prostitution.

This plan of action also includes a large prevention campaign with posters posted in Madrid to discourage the demand and educate the public about the problem of demand for prostitution. The poster campaign includes images of men and statements such as

Simultaneously, social programs and information centers have been created to help women get out of prostitution with legal assistance and social services.


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Comments

“Prostitution exists because you pay for it. Don’t contribute to the exploitation of human beings.” Teesside, England

Two men who were guilty of soliciting women for prostitution were banned from driving for 2 to 4 weeks.14

The driving bans were given to the men as a warning from the magistrates that soliciting would not be tolerated.

Bristol, England

Upon application by the Crown Prosecution, the Court made a man, who was guilty of soliciting, the subject of an Anti-Social Behavior Order to stop him from kerb crawling or performing any public obscene acts.15

The Court ruled that soliciting women for prostitution was anti-social.

Strathclyde, Scotland

Proposal by local police of mailing warning letters to buyers found repeatedly driving in areas known for prostitution.16

Police aim to discourage buyers. Also, they aim to encourage prostituted women to use support services to exit prostitution.

Leith, Scotland

Community activists have formed “citizens’ patrols” to drive away “kerb-crawlers” from Leith.17 Volunteers in cars will alert patrol members to incoming kerb-crawlers. Members will patrol the streets and confront the kerb-crawlers by waving placards with messages such as “You can’t get no satisfaction in Leith,” and “Get Back Where you Once Belonged.”

Patrol members hope the actions will shame and deter the men from coming into the area at all hours of the days and night.

Helsinki, Finland

Police want to tap the phones of suspected pimps to uncover prostitution rings.18 Police believe that if buyers know that pimps’ phones are being tapped that they will think twice before arranging a prostitution encounter.

Police believe that anonymity is one of the major attractions of commercial sexual exploitation. Risk of being recorded might deter buyers.

SHAMING MEN - PUBLICATION OF MALE BUYERS’ NAMES, PHOTOS AND VIDEOS IN NEWSPAPERS AND ON THE INTERNET AND TELEVISION Winnipeg, Canada

In “Operation Snapshot,” police videotape men as they pick up women in prostitution and broadcast the video on the Internet.19

Police aim to discourage buyers on certain residential streets by posting these surveillance videos. To succeed these techniques of ‘outing’ have to be consistently employed, rather than used on occasion.

United States Denver, Colorado, Detroit, Michigan, Dallas, Texas, Philadelphia, Pennsylvania, Richmond Virginia

Publication of names and photos of convicted buyers on a “Johns TV” show and the Internet.20 In some cities, the buyers shown have been charged but not convicted.

Denver officials report that such publication has helped cut solicitation by buyers by about 40 percent. Both the Denver TV program and website include information for prostituted women relating to services. In Dallas, police put not only pictures of the men arrested for soliciting but also their names, birth dates and hometowns.21 In the first 24 hours that the site was operative, there were 4,100 hits.

The aim is to “out” and make public those who buy women for prostitution and to serve as a deterrent for these men and others.


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Comments In Philadelphia, photos of the men’s “mug shots” are posted on a government access cable television channel (64) when they are booked and charged, and before they appear in court.

United States St. Paul, Minnesota

Publication by the city of names of photos of arrested buyers and, unfortunately, also of prostituted women.22

The website is updated to include information that the individual was convicted.

United States Oakland, California

A shaming campaign that includes large billboards with blurred photos of convicted buyers in Oakland were put up in the city in June 2005.23 The campaign also uses surveillance cameras from local businesses to obtain evidence for convictions of soliciting women in prostitution.

City officials indicated that in the future, photos might not be blurred to obscure the buyers’ identities.

United States Frederick, Maryland

City released 82 pages of prostitution business records, including the names of 500 men who bought women in prostitution.24 The names of public officials and other prominent citizens were included. Records had been seized in a brothel raid by the police.

This program also includes billboards with a help line for women in prostitution. The release of names was in response to newspapers who sought access to the documents amid allegations that the brothel’s customers included public officials.

LEGISLATION AND PROSECUTION OF SEX TOURISTS Canada, Finland, Sweden, United States

National legislation to prosecute a country’s own citizens for sexual abuse of children while outside the country.25 The United States is targeting American sex tourists abroad in Cambodia, Costa Rica, Thailand, Mexico

In the summer of 2004, Canadian prosecutors brought the first

and Brazil by funding a media campaign to deter sex tourists and reminding them that they could be prosecuted and convicted in the US.26

under the law since it went into effect seven years ago.

United Kingdom

A project developed by British Home Office that provides a freephone ‘Crimestoppers’ for British tourists in Gambia to report child abuse abroad.27

Travel companies agreed to distribute awareness-raising information about child prostitution to inform tourists what to look out for.

United States Hawaii

Legislation (House Bill 2020) passed in the Hawaii House of Representatives to make the promotion of travel for the purpose of prostitution a felony crime and grounds for revoking a travel agent’s license.28

Declares Hawaii’s unequivocal opposition to any form of sex tourism. Protects women and girls exploited by sex tourists and exploited by the agencies that arrange for their tours.

prosecution

PROHIBITING SEXUAL EXPLOITATION BY MEMBERS OF INTERNATIONAL AGENCIES AND THE MILITARY United Nations Department of

The UN DPKO policy on human trafficking recognizes that the use of prostituted women in mission areas is

Even if prostitution is not a crime in the jurisdiction in which the peacekeepers


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Peacekeeping Operations (DPKO)

exploitative. The DPKO thus prohibits the purchase of sexual services by UN peacekeeping personnel, and also prohibits the patronage of bars, nightclubs, brothels or hotels where sexual exploitation and prostitution are present.29 This groundbreaking policy does not distinguish its prohibition of the purchase of sexual services between locally prostituted women and those who are trafficked internationally.

operate, this UN policy still prohibits the purchase of sexual services since it identifies such as an act of sexual exploitation.

United Nations Staff

There is also a code of conduct for all UN staff members entitled “Special measures for protection from sexual exploitation and sexual abuse.” Staff members are prohibited from exchanging “money, employment, goods or services for sex, including sexual favours.”30

UN staff members are also required to report any staff or co-worker suspected of sexual exploitation or sexual abuse.

Organisation for Security and Co-operation in Europe (OSCE) —Mission to Bosnia and Herzegovina

A code of conduct for all mission members entitled “Prohibiting the Promotion or Facilitation of Prostitution and Trafficking in Persons.” The Code precludes mission members from visiting an establishment which facilitates prostitution or which has nude or partially nude “dancers”.31

Mission members are also prohibited from affiliating with anyone who is suspected of sex trafficking.

United States and Norway

Both the United States32 and Norway33 have banned their military from visiting prostituted women.

To theoretically ensure its troops do not exploit women while serving in the countries’ armed forces.

Norway34 prohibits civil servants, during official travel, from buying women in prostitution.

To awaken the global responsibility of countries’ military and civil servants and to provoke awareness of sexual exploitation.

26 countries agree that their troops will not facilitate sex trafficking by going to prostituted women known to be controlled by traffickers.35

Depends on a distinction between trafficking and prostitution. Do the NATO forces ask the women if they have been trafficked?

NATO

CHALLENGING AND CHANGING THE SEXUAL ATTITUDES AND PRACTICES OF MEN AND BOYS EDUCATING MEN Philippines

The Coalition Against Trafficking in Women-Asia Pacific has initiated an educational project targeting young boys and men in communities known for prostitution. The project challenges men in recognizing their role as buyers of women in prostitution and educates men and boys in the harm of prostitution and trafficking.36

The project conducts educational workshops for men and boys in 12 regions of the Philippines and reach out to hundreds of men and boys.

Indonesia

Poster campaign – aimed at men who visit Indonesia’s Batam Island, notorious for sex jaunts by men from Singapore and Malaysia.37 Posters state: “How Would you Feel if Someone did this to Your Daughter?” 40% of those in prostitution are girls under 18 years of age.

Aimed at bringing about men’s change in behavior.


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Sweden

National campaign against prostitution and trafficking targets the demand for prostitution.38 Campaign is launched at Solvalla racetrack in Stockholm. Buyers of women in prostitution are commonly hustled by pimps who provide the men with rides from the track to the sex clubs. The racetrack dedicated its first race of the evening to advertising the campaign, with then-Minister for Gender Equality, Margareta Winberg, speaking to 5,000 racing fans about the demand for prostitution.

Designed to increase public awareness and to spotlight the men who buy women for sex.

Colorful posters were displayed in transportation centers throughout Sweden. One poster depicted well-dressed Swedish sex tourists wearing wedding bands who travel to Baltic countries with the caption: “Time to flush the johns out of the Baltics.”

The campaign attracted much public attention within and outside Sweden.

United States Washington, DC

Conference organized by Girls Educational and Mentoring Services (GEMS) bringing together 22 teenage survivors of prostitution to speak to Congressional representatives and the press about the realities of prostitution.39 Teens described violence at the hands of pimps and buyers and denounce the glamorization of “pimp culture.”

This was the first national summit for commercially and sexually exploited youth in the US.

France

Campaign urging men to sign a statement recognizing prostitution as violence and to pledge not to engage in rape and prostitution.40

The statement, which has been signed by a number of prominent men, stresses that men recognize a form of masculinity based on mutual respect, not domination.

Canada & United Statesvarious cities

“Johns School” Programs - In most programs, such as in Toronto, Canada,41 or Brooklyn, New York, USA,42 first time offenders (men who buy women in prostitution) can avoid a criminal record if they pay a fine and attend a one-day “Johns School” to learn why they should not buy sex from prostituted women, including information about sexually transmitted diseases and impact on the local community. In some programs, survivors of prostitution “teach” the offending men about the harm of prostitution to women, to themselves, to neighborhoods and to society.

Preliminary studies in cities with “johns schools” indicate that offenders are rarely re-arrested in these areas. Some women’s organizations working against violence against women take the position that “johns schools” are diverting men out of the criminal justice system and allowing men to escape responsibility for the sexual abuse of women in prostitution. Some women’s groups advocate that men who buy women in prostitution should attend “johns schools” as part of a rehabilitation program after a criminal conviction.


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NOTES 1

“Anti-Trafficking in Persons Act of 2003.” Republic Act 9208, Philippines. (2003).

2

Ministry of Industry, Employment and Communications, Sweden. (January 2004). “Fact Sheet: Prostitution and trafficking in women.”

3

The Baltic Times. (10 July 2003). “Finland may ban buying of sex.”

4

Hinsliff, Gaby. (21 Nov. 2004). The Observer. “Law to target men who fuel sex trade.”

5

Trafficking Victims Protection Act of 2005.

6

Robertson, Alex. (21 Feb. 2003). Evening Times. “1100 vice girls, some as young as 12, are working in Glasgow’s east end.” See also Cowie, Eleanor. (21 June 2004). The Herald. “Mixed response over fresh plans to ban drivers for kerbcrawling offences.”

7

Widmann, Lin. (25 May 2004). International Herald Tribune. “In Italy, a new approach to tackling prostitution.”

8

The Herald. (28 July 2004). “Police get vehicles for fight against prostitution.”

9

The Herald. (24 July 2004). “Blitz flushes out street vice.”

10 Redmond, Jeremy. (23 July 2004). “Pantele to drive out prostitution?” 11

Schmitt, Ben. (4 March 2003). Detroit Free Press. “Johns beware: Detroit has show for you.” Oakland Tribune. (16 Aug. 2004). “75 people arrested in prostitution sting in Oakland.”

12

Widmann, Lin. (25 May 2004). International Herald Tribune. “In Italy, a new approach to tackling prostitution.”

13

Madrid, Area de Gobierno de Empleoy Servicios a la Ciudadania, Direccion General de Igualdad de Opportunidades.

14

Emmerson, Joanne. (19 Nov. 2004). Evening Gazette. “Banned for vice.”

15

BBC News. (22 Sept. 2004). “Man ordered to stop kerb crawling.”

16

Adams, Lucy. (16 Aug. 2004). The Herald. “Kerb-crawlers face letter from the law.”

17

Halstead, Sam. (25 Jan. 2003). Evening News. “Citizens Are Ready to Curb Crawlers.”

18

The Baltic Times. (10 July 2003). “Finland May Ban Buying of Sex.” See also Baltic News Service. (20 July 2004). “Estonia, Finland to Step Up Fight Against Prostitution.”

19

Smith, Graeme. (26 Aug. 2004). Globe and Mail. “Winnipeg police post Web video of johns.” See also Winnipeg Police Service at http://www.winnipeg.ca/police/moralsunit/operation_snapshot.htm; Girard, Daniel. (5 Feb. 2005). Western Canada Bureau. “Sex-trade customers get Candid Camera treatment.”

20

City and County of Denver [Colorado]. (25 July 2002). “’Johns TV’ Debuts to Help Combat Prostitution.” Available at www.denvergov.org/johnstv . Schmitt, Ben. (4 March 2003). Detroit Free Press. “Johns beware: Detroit has show for you.” Detroit Free Press. (1 Oct. 2004). “Detroit raises bond for hookers, johns to $500.” Richmond Times-Dispatch. (4 Feb. 2005) “Police site posts johns’ names, photos.” (citing webpage at www.richmondgov.com/police )

21 Associated Press. (10 June 2004). “Arrested ‘Johns’ shamed with photos on Web.” See Dallas Police Department, (Texas, USA), “Indecency Related Offenses.” Available at http://www.dallaspolice.net/index.cfm. 22

City of St. Paul, (updated weekly) “This Week’s Prostitution Arrest Photos.” Available at http://www.ci.stpaul.mn.us/ depts/police/prostitution_photos_current.html.

23

Reuters. (3 Jun. 2005). “City unveils sex solicitor billboards of shame.” Lee, Henry K. (25 Feb. 2005). San Francisco Chronicle. “City promises billboard fame to shame ‘johns’.”

24

Barker, Jeff. (12 Feb. 2004). The Baltimore Sun. “A big scandal but little detail.” Kunkle, Frederick. (15 Feb. 2004). The Washington Post. “Frederick’s Little Black Book.”

25

“PA” News. (24 July 2004). “First Asian Sex-Tourism Prosecution.” Helsingin Sanomat. (18 Feb. 2002). “Man convicted after having sex with minor abroad.” Penal Code ch. 6, §1; ch. 2, §§ 2, 3, Sweden. Porter, M. Charlene. (12 Oct. 2004). Washington File, Bureau of International Information Programs, Dept. of State. “New Program Targets Child-Sex Tourists.”

26

World Vision. (Accessed on 3 Jun 2005). “Slavery in the 21st Century…” http://www.worldvision.org/worldvision/ wvususfo.nsf/stable/globalissues_stp


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27 Scotsman. (20 Aug. 2004). “British tourists urged to report child abuse abroad.” 28 Equality Now. (May 2004). “Hawaii: Legislation Passed to End Sex Tourism and Hold Sex Tour Operators Accountable.” Available at http://www.equalitynow.org/english/actions/action_2402_en.html. 29 United Nations Department of Peacekeeping Operations. (Dec. 2004). “Human Trafficking Resource Package.” Available at http://pbpu.unlb.org/pbpu/library/Trafficking%20Resource%20Package.pdf. 30 United Nations. (9 Oct. 2003). “Secretary General’s Bulletin: Special measures for protection from sexual exploitation and sexual abuse.” ST/SGB/2003/13. 31 Ging, John. Mission to OSCE, Bosnia & Herzegovina. (2 Aug. 2002). “Mission Directive 52: Prohibiting the Promotion or Facilitation of Prostitution and Trafficking in Persons.” Available at http://www.osce.org/documents/odihr/2002/08/ 2115_en.pdf. 32 Quigley, Samantha L. (21 Sept. 2004). American Forces Press Service. “DoD Fights Human Trafficking with Training, Awareness.” 33 Washington File, Bureau of International Information Programs, Dept. of State. (9 July 2004) “U.S., Norwegian Envoys to NATO Brief on Anti-Trafficking Policy.” 34 Ministry of Justice and the Police, Norway. (undated) “Ethical Guidelines for Government Employees prohibiting the Purchase and Acceptance of Sexual Services.” Available at http://odin.dep.no/jd/engelsk/publ/veiledninger/012101990367/index-dok000-b-n-a.html. See also Norwegian Ministry of Children and Family Affairs. (undated) “Trafficking in Women and Children.” Available at http://www.norway.org/policy/gender/trafficking/trafficking.htm. 35 North Atlantic Treaty Organization (“NATO”). (29 June 2004). “NATO Policy on Combating Trafficking in Human Beings.” Available at http://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic.htm. NATO. (9 July 2004). “Briefing on combating trafficking in human beings.” Available at http://www.nato.int/docu/speech/2004/s040708a.htm. NATO. (5 Oct. 2004). “Trafficking in human beings.” Available at http://www.nato.int/issues/trafficking/index.html. 36 Coalition Against Trafficking in Women. (2003). “Coalition Report.” Available at http://action.web.ca/home/catw/attach/ catw2003report.pdf. 37 Tan, Theresa. (16 June 2004). The Straits Times. “Curbing Batam sex: Stop, she’s too young.” 38 Ekberg, Gunilla. (2003). Nordic Baltic Campaign Against Trafficking in Women 2002. Final Report. Nordic Council of Ministers. Stockholm, Sweden. 39 ECPAT. (Nov. 2003). ECPAT-USA News. “Youth Speak Out Against Glamorized ‘Pimp Culture.’” Available at http:// www.ecpatusa.org/documents/Oct.newsletter.final.pdf. 40 Montreynaud, Florence. (2004). “Faire L’Amour, Pas La Haine.” Available at http://encorefeministes.free.fr/payer.php3. 41 Pron, Nick, Small Peter. (22 July 2004). Toronto Star. “First batch of alleged offenders in court.” 42 Kings County District Attorney. (9 July 2002). Press Releases. “Kings County District Attorney Charles J. Hynes Announces Start of Johns School Program. Available at http://www.brooklynda.org/News/ press_releases%202002.htm#039.


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Policies at the United Nations and NATO – Prohibiting Sexual Exploitation The United Nations has similarly begun to recognize that the demand for prostitution must be targeted to curb trafficking and the exploitation of women and girls. On October 9, 2003, the Secretary-General released a Bulletin regarding Special measures for protection from sexual exploitation and sexual abuse, which applies to all UN staff. (ST/SGB/2003/ 13). (Annexure IX). In the Bulletin, the Secretary-General emphasizes that “sexual exploitation and sexual abuse violate universally recognized international legal norms and standards” and thus prohibits the “[e]xchange of money, employment, goods or services for sex.” The UN Department of Peacekeeping Operations has also adopted an anti-trafficking policy curbing demand: “The use of prostitutes by UN personnel in mission areas constitutes exploitation and is prohibited. Even where prostitution is not a crime, the purchase of sexual services by UN peacekeeping personnel constitutes an act of sexual exploitation.” (UN DPKO Stop Abuse Report Abuse pamphlet). This code of conduct is similarly significant as it does not distinguish between the sexual exploitation in prostitution and trafficking. Further, the 26 country members of the North Atlantic Treaty Organization (NATO) have an anti-trafficking policy on discouraging the demand created by their military and civilian personnel, as well as guidelines prohibiting personnel from facilitating trafficking, such as by going to prostituted women known to be controlled by traffickers.7

Local Legislation and other efforts to Stop Demand Many jurisdictions are considering or have adopted legislation against buyers for soliciting or patronizing another person for prostitution. Police in these jurisdictions, from Harare, Zimbabwe to Detroit, United States, have implemented operations targeting men, often employing undercover female officers to catch the buyers. In addition to facing the deterrent of arrest, men who drive around and solicit or commit other prostitution offenses may have their vehicle seized and impounded. Some jurisdictions have also used other laws on the books against the buyers. In Perugia, Italy, officials invoked an old law for the crime of “reducing anyone to a state of slavery” against men who sexually use trafficked women and girls. In some cities in France, men have been arrested under a law prohibiting sexual exhibition in public places for such incidents as performing a sexual act in their cars. “Naming and shaming” buyers has increasingly been used by the police and other community members. Buyers’ names and their photos or videos have been published in newspapers, on television and/or the Internet. The aim of these operations has been to out and make public those who buy women for prostitution, thus attempting to deter both those men who are publicized as well as others. In some jurisdictions the publicized buyers have been convicted; in others they have not. Various cities, particularly in the United States and Canada, have adopted “Johns School” programmes, in which first time offenders (people arrested for patronizing) attend a oneday course to educated them about the health risk of prostitution, such as sexually transmitted diseases, the adverse impact on the local community, and the negative effect on the women in prostitution. While preliminary studies in cities with “Johns Schools” indicate that the offenders are rarely re-arrested in these areas, there is concern, such as by some women’s organizations, that such programmes are diverting men out of the criminal justice system and allowing them to escape responsibility for the abuse of women in prostitution. Thus


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some NGOs advocate that buyers should attend “Johns Schools” as part of a rehabilitation programme only after a criminal conviction.

Educational Efforts Challenging and changing men’s practices and attitudes

Another approach to curb demand has been to educate men and boys about the harm of prostitution and trafficking and a form of masculinity based on the inequality and exploitation of women or girls. For instance, the Coalition Against Trafficking in Women-Asia Pacific has initiated an educational project in the Philippines targeting boys and young men in communities known for prostitution to reduce the demand side of trafficking. The project aims to change the sexual attitudes and practices of young men who purchase or are potential buyers of women and girls in prostitution through popular education. Campaigns have also targeted potential buyers and tried to change their behaviour in other ways, such as a poster campaign that was launched in Batam Island in Indonesia, where there are many sex tourists from Singapore and Malaysia. The posters stated: “How would you feel if someone did this to your daughter?” Approximately 40% of those in prostitution are girls under 18 years of age. Sweden has focused on preventing the demand for prostitution by ingenious public activities such as opening a campaign against trafficking and prostitution at a racetrack, which generally attracts a large population of men who are potential and actual buyers of women in prostitution, and by displaying posters in public transport vehicles and stations, which state that “it is a crime to buy sex.”8 One of the posters, for example, had a well-dressed Swedish sex tourist, wearing a wedding band, who travels to Baltic countries. The caption states “Time to flush the Johns out of the Baltics”. Another poster showed a young man at a computer, stating “More and more Swedish men do their shopping over the Internet”. Notes 1. NHRC Action Research Study (2006) 2. NHRC Action Research Study (2005) 3. NHRC Action Research Study (2005) 4. IOM. 2003. Labour migration in Asia: trends, challenges and policy responses in countries of origin. Geneva. International Organisation for Migration. 5. IOM. 2003. Labour migration in Asia: trends, challenges and policy responses in countries of origin. Geneva. International Organisation for Migration. 6. Minda Pascual, a trafficking survivor, suffered 7 years in prostitution. She is also one of the leaders of the National Network of Survivors in the Philippines. 7. Gunilla Ekberg, The Swedish Law that Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings, Violence Against Women 1187-1218 (2004). 8. Ministry of Industry, Employment and Communications, “Prostitution and trafficking in human beings,” Fact Sheet, (April 2005) 9. Anti-Trafficking in Persons Act of 2003, Republic Act 9208. 10. Trafficking Victims Protection Act of 2005 11. Home Office, “A Coordinated Prostitution Strategy and a summary of responses to Paying the Price” (January 2006 12. NATO, “NATO Policy On Combating Trafficking In Human Beings” (Aug. 2004); NATO, “NATO Guidelines on combating trafficking in human beings for military forces and civilian personnel deployed in NATO-led operations” (Aug. 2004). 13. See copies of the posters at http://www.sweden.gov.se/content/1/c6/02/64/83/cdb044c8.pdf. Reference: - Trafficking Women and Children for Sexual Exploitation: Handbook for Law enforcement agencies in India, Dr. P. M. Nair - on laws relating to ‘Customer’.


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4.4 LEARNING ACTIVITY 1.

What is the most immediate cause for trafficking in women and children? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

2.

Who constitutes demand for trafficking? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

3.

List three reasons why demand should be addressed: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

4.

How is demand maintained? ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

5.

Trafficking is a well organized crime and traffickers indulge in ‘base’ tactics to lure women. Mention and list the different modes of luring women into trafficking: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

6.

Describe how traffickers break the trust of women they exploit: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

7.

From your experience list the characteristics of the buyers of prostituted women and children: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

8.

List facts about buyers of prostituted women and children: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

9.

Role play a case study of trafficking for sexual exploitation/prostitution with two other members in the group and identify the traffickers and users of prostituted women. Write the enacted case study: Traffickers

Buyers

____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________


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The 21st-Century Slave Trade ALONG THE INDIA/NEPAL BORDER by Nicholas D. Kristof Anyone who thinks that the word “slavery” is hyperbole when used to describe human trafficking today should meet Meena Khatun. She not only endured the unbearable, but has also shown that a slave trader’s greed sometimes is no match for a mother’s love. Human trafficking is the big emerging human rights issue for the 21st century, but it’s an awful term, a convoluted euphemism. As Meena’s story underscores, the real issue is slavery. Meena was kidnapped from her village in north India by a trafficker and eventually locked up in a 13-girl brothel in the town of Katihar. When she was perhaps 11 or 12 — she remembers only that it was well before she had begun to menstruate — the slaver locked her in a room with a white-haired customer who had bought her virginity. She cried and fought, so the mother and two sons who owned the brothel taught Meena a lesson. “They beat me mercilessly, with a belt, sticks and iron rods,” Meena recalled. Still, Meena resisted customers, despite fresh beatings and threats to cut her in pieces. Finally, the brothel owners forced her to drink alcohol until she was drunk. When she passed out, they gave her to a customer. When she woke up, Meena finally accepted her fate as a prostitute. “I thought, ‘Now I am ruined,’ ” she remembered, “so I gave in.” Meena thus joined the ranks of some 10 million children prostituted around the world — more are in India than in any other country. The brothels of India are the slave plantations of the 21st century. Every night, Meena was forced to have sex with 10 to 25 customers. Meena’s owners also wanted to breed her, as is common in Indian brothels. One purpose is to have boys to be laborers and girls to be prostitutes, and a second is to have hostages to force the mother to cooperate. So Meena soon became pregnant. The resulting baby girl, Naina, was taken from Meena after birth, as was a son, Vivek, who was born a year later. The two children were raised mostly apart from Meena. Meena alerted the police to her children’s captivity (the police were uninterested), so her owners decided to kill her.


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At that, Meena fled to a town several hours away and eventually married a pharmacist who protected her. Every few months, Meena would go back to the brothel and beg for her children. She was never allowed inside, and the children were told that their mother had died. Still, Naina and Vivek regularly heard their mother’s shouts and pleas and occasionally caught glimpses of her. Other enslaved girls told them that she was indeed their mother. When Naina turned about 12, the brothel owners prepared to sell her as well. At that Vivek, who was being forced to do the brothel’s laundry, protested vigorously. The owners beat Vivek, an extremely bright boy who was never allowed to go to school, but he continued to plead that his big sister not be sold. Finally, he escaped to search for his mother, in hopes that she could do something. Eventually, they found each other. They received help from a terrific anti-trafficking organization called Apne Aap (www.apneaap.org), run by a former journalist named Ruchira Gupta. Ms. Gupta covered trafficking and was so horrified by what she found that she quit her job and devoted her life to fighting the brothel owners. Ms. Gupta agitated for a police raid (apparently the first such raid on behalf of a trafficked mother ever in the state of Bihar) that rescued Naina last month. The girl, who is now about 13, is still recovering in a hospital from severe beatings and internal injuries. The brothel is still operating, and the police have not arrested the main traffickers. But the brothel owners are threatening to kill Meena, her children and the Apne Aap staff, because they are potential witnesses in a criminal case against the traffickers. One Apne Aap staff member was stabbed a few days ago. But whatever happens to Meena or Vivek, they are in the vanguard of a new global abolitionist movement. (Video of them and the brothels can be found on my blog, www.nytimes.com/ ontheground.) This is an issue crying out for world leaders — and community groups — to seize and run with. President Bush has pressed the issue more than his predecessors, but he could do much more. If a little boy like Vivek can stand up to modern slavers, why can’t world leaders do the same? The New York Times, April 22, 2007

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5.1 INTRODUCTION

Both traffickers and buyers of prostituted women and girls need to be penalized as exploiters and tackled as criminals. The law recognizes that without male demand there would be no female supply. The UN anti-trafficking protocol, to which India is a signatory, calls upon all State Parties to specifically address the demand for trafficking. Both traffickers and buyers of prostituted women and girls need to be penalized as the ultimate exploiters and tackled as criminals. All the penal sections of the Indian anti-trafficking law, ITPA, and some sections of the Indian Penal Code are relevant to address the demand factor, as they hold the range of exploiters guilty for their acts. While curbing demand, the police officials should investigate the entire process involved in trafficking and extend the scope of investigation to the various stakeholders involved in the exploitation. Policies and strategies to prevent and combat the problem of trafficking can be effective only when they address these linkages in the chain of exploitation. The best method of preventing trafficking is by integrating it with prosecution and protection. Prosecution includes several tasks such as the identification of the traffickers and buyers of prostituted sex, bringing them to book, confiscating the illegal assets created out of trafficking, making the traffickers and buyers compensate for the damages and ensuring that they do not cause any further harm. Stringent prosecution also acts as a deterrent measure against human trafficking. India has proposed further revisions to its anti-trafficking legislation by introducing the Immoral Traffic Prevention (Amendment) Bill, 2006, in which it has included a subsection on criminalizing demand. This amendment may be expanded to include penalizing all prostitute-users, not just those who knowingly use trafficked women, as it is very difficult to prove a buyer’s knowledge of the victim being trafficked.


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5.2 LEARNING OBJECTIVES After reading the information and participating in learning activities in this module, you should be able to: • Understand the gaps in law enforcement • Identify loopholes in the practice of penalization of exploiters • List the benefits of curbing demand • Understand the sections of ITPA from the police perspective • List good practices in law enforcement to combat trafficking • Understand gender-sensitive law enforcement

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5.3.1 Shifting the Blame from the Victim to the Perpetrator National Crime Data (2004) shows that it is the victims of trafficking who are usually punished, and not the traffickers. Unless the traffickers/exploiters are brought to book, and made to compensate for the damage and harm done to the victims, there can be no justice for the victims and no real solution to the problem of trafficking. (Annexure VII). The police are at the frontline of the criminal justice system and thus have the dual responsibility of not just being efficient but also of being sensitive, just, and compassionate in dealing with victims/survivors. How the Victim gets Criminalized: Use of Section 8 over Section 5 of ITPA • The NHRC study shows that during the six-year period of 1997-2002, Goa had 100% of its convictions under Section 8 and nil convictions under Section 5. This means that all the females who were arrested under Section 8 were convicted by the courts of law. • The pattern in Kerala is not much different though there is a noticeable improvement. During 1997-98, there was 100% conviction under Section 8. During 1999, 83% of the convictions were under Section 8. In the year 2002 three were under Section 8 and three were under Section 5. • In Tamil Nadu the conviction rate under Section 8 is as follows: 85% in 1997, 58% in 1998, 89% in 1999, 86% in 2000, 89% in 2001 and 90% in 2002. More women arrested than men In Mumbai, cases are registered under Section 110 of Mumbai Police Act against persons suspected of various offences like public nuisance, etc. However, a large number of cases registered under this Section are against persons on charges of ‘soliciting’. During the year 2002, Santa Cruz Police Station had registered 1201 cases under S.110 Mumbai Police Act and arrested 1219 persons, all of whom have been convicted. Though the break-up of the arrested and convicted persons for the entire year could not be obtained, the data received from the DCP, Mumbai, shows that in January 2002, when 124 cases were registered under S. 110 Mumbai Police Act, leading to the arrest of 124 persons, this included 96 women who were arrested as ‘prostitutes’ for ‘soliciting’. This shows that 77.4% of the arrested persons were females who had been charged with ‘soliciting’. The unusually high percentage of arrests of women is a manifestation of gender bias in law-enforcement. Higher arrests of children and youth than adult trafficking kingpins The data received from the states of the NHRC study shows that of the arrested persons, a large number is that of children under 18 years of age. Crime in India data reveals that among the arrested persons those falling under the age group of 18-30, followed by 30-45 years and then 45-60 years account for the maximum arrestees under the crimes listed above. Only the Child Marriage Restraint Act and the Indecent Representation of Women (P) Act show a slight variation with 30-45 years taking the lead followed by the age group of 18-30 and then 45-60.


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How to shift the blame from the victim to the perpetrator Current Practice

Recommendation

Despite the fact that buyers of prostituted women and children can be effectively penalized under Section 7 of Immoral Traffic Prevention Act (ITPA), this Section is very rarely used against them. Buyers of prostituted children are liable to imprisonment for a minimum period of seven years if the victim of sexual assault is a child under 18 years of age. But this provision has never been invoked in many states. Further, sexual assault on a child under 16 years of age, even with ‘consent’, amounts to rape under the Indian Penal Code, which prescribes grave punishment.

Police should increase use of Section 7 of ITPA. Section 7 of ITPA and certain sections of the IPC, if properly implemented, can act as a deterrent against the buyers of prostituted children, who are sexually assaulting children under the age of 18.

The practice and field indicators show that the police invariably invoke Section 8 to penalize the women who are actually the victims and fail to invoke Section 5 which penalizes the traffickers.

Police should make more use of Section 5 of the ITPA -which penalizes the trafficker and all those associated with trafficking. The crime of trafficking has remained suppressed under the alleged crime of soliciting.

Field experiences, data from agencies working with trafficked women and children, the NHRC study and data in the Crime in India report, all reveal that most of those arrested for trafficking offences are women and most are arrested under Section 8 of the ITPA (for soliciting in a public place). It can be safely extrapolated that most of those charge sheeted under ITPA are also women and are actually victims and not traffickers or buyers of prostitution.

Police should cease the use Section 8 against women who have been prostituted and trafficked.

The data received from the states of the NHRC study shows that of the arrested persons, a large number is that of children less than 18 years of age.

Police should cease the arrest of prostituted children and juveniles.


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Current Practice

Recommendation

The NHRC research also states these practices only serve to further victimize the prostituted women and girls. Thus the practice of booking prostituted victims under Section 92/93 of the Delhi Police Act, Section 110 of the Bombay Police Act, misusing Section 145 (b) of the Indian Railways Act has to be discontinued. Law enforcement agencies should reorient themselves on the gravity of the issues related to trafficking and the opportunities that curbing demand can provide in containing trafficking.

Police should stop the practice of booking women on charges of indecent exposure, public nuisance, etc. under different laws.

5.3.2 Prostitution is not a Victimless Crime The crime of trafficking has remained suppressed under the alleged crime of soliciting. Both Crime in India and NHRC data clearly indicate that the women and children who are actually victims have been penalized as ‘criminals’. The basic problem is that many consider prostitution among victimless or consensual crimes; because it is assumed that those present at the scene of the crime are willing participants. However, interviews with survivors of prostitution contradict this. Prostitution is sexual exploitation, physical and mental abuse, harassment, rape, battering, verbal abuse, domestic violence, a racist practice, a violation of human rights, childhood sexual abuse, a consequence of male domination of women and a means of maintaining male domination of women. • 78% of 55 women who sought help from the Council for Prostitution Alternatives in USA in 1991 reported being raped an average of 16 times a year by pimps, and were raped 33 times a year by buyers. • 62% of persons in prostitution reported having been raped in prostitution. • 73% reported having experienced physical assault in prostitution. • 72% were currently or formerly homeless. • 92% stated that they wanted to escape prostitution immediately. • 83% were victims of assault with a weapon. • 75% of women in escort prostitution had attempted suicide. • 67% met diagnostic criteria for post-traumatic stress disorder (PTSD). Source: Melissa Farley

5.3.3 Role of Police As the perceived guardians of the law, it is the police whom the victims of crime approach for justice. Moreover, by the very role they play in enforcing law, police officials come into contact with traffickers and other violators of the law. A mandate of the police is to prevent crimes by developing intelligence not only about the prospective abusers, but also the vulnerable victims and, thereupon, taking appropriate steps to end the abuse and exploitation.


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Ethical and safe conduct of interviews with victims: WHO Ethical and Safety Recommendations for Interviewing Trafficked Women Background Interviewing a person who has been trafficked raises a number of ethical questions and safety concerns. The World Health Organization (WHO) has developed a set of recommendations intended primarily for use by researchers, members of the media and service providers unfamiliar with the situation of trafficked victims. These recommendations are based on a set of 10 guiding principles to the ethical and safe conduct of interviews with women who have been trafficked. Even though the recommendations are focused on female victims they apply also to other victims of human trafficking. 1. Do not harm Treat each woman and the situation as if the potential for harm is extreme until there is evidence to the contrary. Do not undertake any interview that will make a woman’s situation worse in the short term or longer term. 2. Know your subject and assess the risks Learn the risks associated with trafficking and each woman’s case before undertaking an interview. 3. Prepare referral information: Do not make promises that you cannot fulfil Be prepared to provide information in a woman’s native language and the local language (if different) about appropriate legal, health, shelter, social support and security services and to help with referral, if requested. 4. Adequately select and prepare interpreters and co-workers Weigh the risks and benefits associated with employing interpreters, co-workers or others and develop adequate methods of screening and training. 5. Ensure anonymity and confidentiality Protect a respondent’s identity and confidentiality throughout the entire interview process - from the moment she is contacted through the time that details of her case are made public. 6. Get informed consent Make certain that each respondent clearly understands the content and purpose of the interview, the intended use of the information, her right not to answer questions, her right to terminate the interview at any time, and her right to put restrictions on how the information is used. 7. Listen to respect each woman’s assessment of her situation and risks to her safety Recognize that each woman will have different concerns and that the way she views her concerns many be different from how others might assess them. 8. Do not re-traumatize a woman Do not ask questions intended to provoke an emotionally charged response. Be prepared to respond to a woman’s distress and highlight her strengths. 9. Be prepared for emergency intervention Be prepared to respond if a woman says she is in imminent danger. 10. Put information collected to good use Use information in a way that benefits individual woman or that advances the development of good policies and interventions for trafficked women generally. Source: World Health Organization, WHO Ethical and Safety Recommendations for Interviewing Trafficked Women (Geneva, 2003)


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Methods that can be used to Address Anomalies in Law Enforcement Anomaly / Recommendations Gender discrimination in arrests The distorted practice of arresting the rescued victims needs to be stopped. Trafficked victims should be treated as ‘victim/survivors’ and not as the accused. Stop unwarranted arrest of victims under Section 8 of ITPA Undue attention to Section 8 of ITPA has led to criminalization and re-victimization of trafficking victims. Thus the focus needs to be shifted from Section 8 to Sections 3, 4, 5, 6, 7 & 9. Misguided use of Sections of The Police Act, 1861 The practice of using of Section 92/93 of the Delhi Police Act by the Delhi Police, Section 110 of Mumbai Police Act by the Mumbai Police, again penalizes the victim and not the exploiter. Lack of priority to the issue of trafficking as an issue of organized crime Most investigations are confined to brothels or the place of soliciting. But the fact is that trafficking extends to the source area, the transit points, the transit route, etc. and incorporates the roles of a host of exploiters all of which need to be investigated, charge sheeted and convicted with the help of substantive laws (like IPC, etc.) and special laws (JJ Act, laws dealing with organized crime, etc.) along with ITPA. Lack of focus and orientation to book the criminals The practice of using Section 8 shows that the police fails to collect the incriminating evidence which would help to book the criminals effectively. Failure in confiscation of assets The assets created by the traffickers and other stakeholders by exploiting the trafficking victims should be confiscated and forfeited. Uncovering and confiscating the assets requires professional investigation, which calls for specialized training. Age verification not done appropriately after rescue of minor girls Field experience shows that there is a need to ensure accountability of the doctors who carry out age verification and also of the police officers who record the age of the victim immediately after rescue. There is also an urgent need to sensitize the doctors, police officers as well as other stakeholders in the justice system about the various issues and dimensions of the problem. Failure in collection of victims’ assets and children during or post rescue This practice is seen as a tool of economic and psychological subjugation of the victim to pressurize her to either accept that she is in this trade on ‘her own’ or to impress on her the material loss of belongings if she decides to testify against the ‘exploiters’ in the court of law. Prosecution Effective prosecution is an essential element to ensure conviction of the traffickers and other exploiters. Many times, despite the best efforts of the investigators, the accused are let off due to problems in the prosecution system.


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Use of ITPA to address the Demand Moving from the mindset of seeing prostitution as a public order crime and not viewing it as organized crime would involve a reorientation of the ITPA. The following is just an attempt to portray the Act from a “curbing the demand” perspective and thus “viewing it as organized crime”. The Strengths of ITPA and how best to use them ITPA is a fairly comprehensive legislation which gives power and strength to the law enforcement/justice delivery agencies to combat and prevent trafficking. Since its enactment in 1956, the legislation was amended by the Indian Parliament twice, in 1978 and 1986. The latter amendment focused on prevention, a provision which is not so common in the legal regime across the world. However, for various reasons, the different provisions of this special law are not being used and, furthermore are often misused and abused. One of the main reasons, as research has shown, is ignorance and lack of understanding of these provisions. Therefore this checklist is a reference guide to the law enforcement agencies and other stakeholders, providing answers to several frequently asked (or not yet asked) questions and frequently overlooked aspects. 3.1 The legal regime relevant in the context of trafficking • Immoral Traffic (Prevention) Act, 1956 (ITPA). • The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act 2000). • The Goa Children’s Act, 2003 (applicable only in the state of Goa). • The Indian Penal Code, 1860 (applicable sections of IPC have been discussed earlier). • Procedural laws (Criminal Procedure Code i.e. CrPC, The Indian Evidence Act, etc.). • Preventive Sections of CrPC. • Other special laws relevant to the context (e.g., if the trafficked victim is exploited to develop pornographic materials and the porn is circulated through electronic media or internet, then the Provisions of Information Technology Act, 2000 [Say, Section 67 IT Act] will also be attracted).

3.2 The inherent strengths of ITPA 3.2.1 General provisions • The law applies to trafficking of males and females. • Commercial sexual exploitation of anybody (irrespective of age or sex) is an offence. •

The law gives specific attention to women’s rights and child rights. The law provides a specific mandate for NGO’s and civil society in addressing trafficking. Perhaps there is no parallel where NGOs have been given powers in law enforcement on anti human trafficking.

• The thrust of the law is addressing trafficking and not prostitution, as is often misunderstood. • This legislation gives specific powers to judicial magistrates and also to executive magistrates. • This legislation gives special protection to the police officers and NGOs taking part in search, rescue etc. from any criminal or civil proceedings against them (S.15(6) ITPA).


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3.2.2 The offences under ITPA • S. 3 ITPA: Keeping or managing (or assisting in keeping or managing) a brothel or allowing premises including vehicles to be used as a brothel. • S .4 ITPA: Living on the earnings of prostitution (even partly). • S. 5 ITPA: Procuring, inducing, trafficking or taking persons for the sake of prostitution. Even attempt to procure or take would constitute this offence. • S. 6 ITPA: Detaining a person in any premises (brothel or any other) where prostitution is carried out. • S. 7 ITPA: Any body who carries on prostitution, or any body with whom such prostitution is carried on, in the vicinity of public places (which includes hotel, vehicles, etc.). • S. 8 ITPA: Seducing or soliciting for the purpose of prostitution in any public place or within sight of a public place. • S. 9 ITPA: Seduction of a person in custody (including causing or abetting seduction for prostitution of a person in custody). 3.2.3 Whether “clientele” (“customer”) is liable: The answer is yes. Firstly, he should be booked u/s 50) (d) and u/s 7(1) ITPA. He is a person who ‘causes’ or ‘induces’ another person to carry on prostitution and is, therefore, liable u/ s 5 (1) (d). (Cherian Vs. Kerala, 1973 CrI.L.J 839) Moreover he is a person “with whom prostitution is carried on” and is therefore liable u/s 7(1). Further subsection IA of Section 7 ITPA makes it clear that if the offence of ‘prostitution’ is committed in respect to a child or minor then the person committing the offence (i.e. including the customer/clientele) is liable for a graver punishment and fine with a mandatory minimum imprisonment of 7 years. Besides these provisions of ITPA, he is an abettor to all violations on the victim, which attracts S.114 IPC. If the victim is a child, S.376 IPC (rape) should be added to the charges against the “customer”. If the victim is an adult, S.376 IPC will come into operation if it can be established that she had not given informed or willing consent. Moreover perverse sexual acts on the victim invite liability under S.377 IPC. 3.2.4 Liability of traffickers U/S 5 ITPA, trafficking committed, contemplated or even attempted is punishable, regardless of consent of the trafficked person. The modus operandi could include procuring, attempting to procure, inducing, taking, attempting to take, causing a person to be taken, causing or inducing a person to prostitute etc. If the offence of trafficking is committed against the will of the person, then the offender is liable for graver punishment. If the trafficked victim is a child, the minimum punishment is 7 years of rigorous imprisonment. Depending on the facts and circumstances of the case, the traffickers are also liable u/s 4, 6, 9 ITPA. Moreover as abettors and/or conspirators they are also liable under IPC (as discussed earlier). 3.2.5 Jurisdiction of Police and Courts: In which police station can a trafficking offence be registered? Which Court has jurisdiction? Trafficking is a ‘continuing offence’ and therefore may be tried in either of the following places: (Refer provisions u/s 5(3) ITPA).


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• The place from where the person (victim) has been procured, induced to go, taken or caused to be taken or from where an attempt to procure or take the person (the victim) is made. This means the place where trafficking took place i.e., the source point. • At the place to which the person (the victim) may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made. This means the destination point or the point of exploitation and the transit points where the exploitation continues. Since the court of law has jurisdiction in the source, transit and the destination points, the police stations in all these points also have jurisdiction. In this context, the following are the do’s and don’t’s. • In a case of trafficking, police agencies at the source point, the transit point and at the destination point have a duty and responsibility to register FIR in their police station. • There is no legal bar in having FIRs registered both at the source point and destination point if the former is only on charge of trafficking and the latter is only on the charge of sexual exploitation. However, the best situation would be to have the FIR at one of the two places and, thereafter, the investigation should cover the entire spectrum of the offences from its origin to the last part. • In the event of registration of two FIRs at both the source and destination points, the investigation can be clubbed together, as and when the linkage is established in evidence. Thereafter, police is free to file a charge report before the court of law at either place (i.e. the source point or the destination point) and simultaneously close the investigation in the other place, so as to avoid double jeopardy. • Since attempt to trafficking is also a specific offence under this Section, it gives very strong weapon to the law enforcement agencies to bring to book the traffickers as well as abettors and conspirators in trafficking. Law of double jeopardy will not be attracted if the offences alleged (though they are essentially part of a continuing offence) are independently acted upon. For e.g., there is no legal wrong if the FIR in one place is u/s 5 ITPA for trafficking and the FIR in another place is for exploitation u/s 7 ITPA, 376 IPC etc., both with respect to the same victim. 3.2.6 The doctrine of presumption as a good weapon for preventing and combating trafficking: ITPA gives so much strength to the law enforcement agencies by virtue of the fact that the specific provisions of presumption casts onus of proof on the accused. The following are the provisions. • Section 3 provides punishment for keeping a brothel or allowing premises to be used as a brothel. It shall be presumed, u/s 3 (2A), that the concerned person (owner, tenant, lessee, occupier, in-charge of any such premises) has knowledge of the same if : > a report is published in a newspaper with local circulation that the premises concerned are being used for prostitution, as revealed during a search. > a copy of the search list is made available to the person concerned. If any person A, over 18 years of age, is proved to have exercised control, direction or influence over the movements of another person B, in such a manner as to show that A is aiding, abetting or compelling B to prostitute, it shall be presumed that A is knowingly living on the earnings of prostitution of another person and is liable u/s 4 ITPA.


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• If a person is found with a child in a brothel, it will be presumed that the person has detained the child for Commercial Sexual Exploitation (CSE) and is, therefore, liable for the same u/s 6(2) ITPA. • If the medical examination shows that the child, who has been detained in a brothel, was sexually assaulted, it will be presumed u/s 6 (2A) ITPA that the child was detained for CSE and was sexually exploited. This legal presumption is a good tool to establish liability of the person. • According to S.6 (3) ITPA, a person shall be presumed to have detained a woman or girl (of any age) in a brothel or upon any premises for CSE, if the person withholds from her any of her property (like jewellery, dress, money etc.), with intent to compel/ induce her to remain there. He is also liable if he threatens her with action if she takes away any such property lent/supplied to her by, or on the direction of, such a person. 3.2.7 CSE of child/minor Law views CSE of children/minors as a grave offence and therefore, has the following special provisions u/s 7 ITPA: • Consent is immaterial. • Enhanced punishment for prostituting a child/minor. • Minimum punishment is rigorous imprisonment for 7 years. • Mandatory fine along with jail. • If sexual exploitation of a child takes place in a Hotel, the hotel license can be cancelled. (See proviso of S-7(2) (c). 3.2.11 How to prevent/combat misuse of public places? The legal provisions u/s 7 ITPA envisage a very important role of law enforcement agencies in not only taking action against the offenders who misuse public places, but also in preventing such misuse. In this context, the following aspects be taken note of. 3.2.11.1 What is a public place? Public place, u/s 7 ITPA, includes the following: • Any premises within an area notified by the Government. • Any premises within a distance of 200 meters of any place of public worship, educational institution, hotel, hospital, nursing home or other official/public domain. • Any hotel (As defined under S.2(6) of the Hotel Receipts Tax Act, 1980, any place where residential accommodation is provided by way of business, for a monetary consideration, is a hotel). • Any transport or vehicle to which public has access. • “Any place intended for use by, or accessible to the public” is a public place. “It is not necessary that it must be public property”, “Even if it is a private property, it is sufficient that the place is accessible to public”. Gaurav Jain vs UOI, AIR 1997 SC 3021. 3.2.11.2 Can a hotel licence be suspended if prostitution is carried on in the hotel? Yes, u/s 7(2) (c) ITPA, if the public place which is misused happens to be a hotel, the hotel licence may be suspended for a period not less than 3 months and may be extended to one year. Therefore in such circumstances, the police officer should move the concerned court (District Magistrate is the competent court) for the suspension of the hotel licence.


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3.2.11.3 Can the hotel licence be cancelled? Yes, u/s 7(2) (c) ITPA, if it can be proved that the victim of prostitution or CSE in the hotel happens to be a child or minor (i.e. any person, male or female, who is under 18 years of age), then the hotel licence is liable to be cancelled. The police officer has to move the court of the District Magistrate for the same. 3.2.11.4 Who are all liable for misuse of public places? U/s 7 ITPA, the persons liable are: • Any person who carries on prostitution. • Any person with whom such prostitution is carried on (customers/clientele etc.). • Any keeper of a public place who permits such misuse. • Any tenant, lessee, occupier or person in charge of any premises (as discussed earlier) who permits the place or part thereof for misuse. • Any owner, lesser, landlord of any such place, or their agents, who lets the place or part thereof for misuse or is willfully a parry to the same. 3.2.11.5 Closure and Eviction of Brothels after notice: • The District Magistrate (DM) u/s 18(1) ITPA, can act on information from police or NGO or anybody else. The Commissioner of Police or any other official who has been vested with the powers of DM is also empowered to take action under this Section of law. • The information should be that any house, room, place or portion thereof, located within a distance of 200 meters of any public place is being used as a brothel by any person, or is being used for commercial sexual exploitation of anybody. DM can issue notice to the owner, lesser, landlord (of the house, room, place or portion thereof) or their agent, as well as the tenant, lessee, occupier of, or any other person in charge of such house, room, place or portion thereof. The notice sent to them by the DM directs that show cause be filed within 7 days of the receipt of the notice stating why the property should not be attached for misuse. • The DM should hear the party before taking a decision. • After hearing, if the DM is satisfied about the misuse, he can (a) direct eviction of the occupier within 7 days of the order and (b) direct that prior approval of the DM be obtained before letting out the place again during the following one year (and during the following 3 years if a child or minor has been found during the search of the premises). • The order of the DM is non appealable nor stayable as per S. 18(3) ITPA. Since closure of brothel would entail loss of ‘income’ for the exploiters, and no relief is available by way of appeal, this is a stringent Section of law which the administrators, police, prosecutors and NGO’s can effectively utilize to combat and prevent trafficking. • The Sub Divisional Magistrate (SDM) also can exercise all these powers. 3.2.11.6 Closure and eviction of brothels without notice: According to S.18 (2) ITPA, the court convicting a person of any offence under S.3 ITPA (keeping a brothel, etc.) or S.7 ITPA, (misuse of public places for CSE) may pass orders of closure and eviction without any notice to any such person. Therefore in the event of a conviction u/s 3 or 7 ITPA, the police/ prosecutor should immediately move the court for closure/eviction u/s 18 ITPA. However, the eviction order of the judicial magistrate is a sequel to the conviction of the person to be evicted, and cannot precede conviction (A. C. Aggarwal and another Vs. Mst. Ram Kuli, 1968 Cri L.J.82).


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3.2.11.7 No appeal against order of closure/eviction According to S. 18 (3) ITPA, orders passed by the DM u/s 18(1)1_1_PA and orders by the convicting court u/s 18(2) ITPA shall not be subject to appeal and shall not be stayed or set aside by any court, civil or criminal. Therefore, the finality of order by a competent court is a very powerful tool to combat CSE. 3.2.11.8 Special provisions against CSE of child (under 16) and minor (under 18) Anybody involved in CSE of a child/minor is liable for conviction for a minimum term of 7 years imprisonment which may go upto life imprisonment, u/s 7(lA). • In such convictions, along with imprisonment, fine is also mandatory. • If the abuse takes place in a hotel, and the victim is a child or minor, the hotel license shall be liable to be cancelled u/s 7(2) (c) ITPA. 3.2.12 Surveillance of convicted persons According to S 11 ITPA, any person, who has earlier been convicted under ITPA or relevant sections of IPC (363, 365, 366, 366A, 366B, 367, 368, 370, 371, 372 or 373 ), is again convicted under ITPA, for a period of 2 years or more, may be subjected by the court to notify, according to the rules made by the State Government in this regard, of any change of his residence or any absence from such residence after release, for a period upto 5 years. If the State rules exist, this is a potent weapon for the law enforcing agencies to keep surveillance on the movement and activity of the convicted person so as to prevent any such crime in future. If there are no rules, the state government be moved for bringing out comprehensive Rules under ITPA. 3.2.13 Externment of convicted persons According to S. 20 ITPA, the District Magistrate, Sub-Divisional Magistrate, or an Executive Magistrate authorized by the State Govt, has power to extern (remove) a convicted person to another place within or outside the limits of his jurisdiction. This is a powerful weapon against convicted exploiters so that they are prevented from carrying on further exploitation. The police has to move the concerned Magistrate immediately after conviction so that the Magistrate can start the externment proceedings. 3.2.14 Finality of proceedings and fast-track mechanisms ITPA is a special legislation which has certain inherent provisions to ensure that the legal proceedings are not long drawn. These provisions and restrictions are meant to be invoked by the agencies concerned (police, prosecutors and judiciary) so that the trial is expedited and justice is delivered without delay. The following are the provisions. • U/s 18 ITPA, there is neither appeal nor stay against the order of eviction by a Magistrate or Court. • Any appeal against the order for protective custody u/s 17 (4) ITPA, issued by the Magistrate (SDM, DM, MM or JM), shall go to the Court of Sessions, whose decision shall be final. Therefore, there is no appeal beyond the Sessions Court. • Special Courts (including Exclusive Courts) for the trial of offences under ITPA can be constituted not only by State Government (u/s 22 A) but also by the Central Government (u/s 22 AA ITPA). • Summary Trial: Whenever necessary, the State Government may authorize the Court to try cases summarily (in accordance with the provisions of CrPC dealing with Summary Trial, i.e.. Sections 262, 263, 264 and 265 CrPC). However, the maximum punishment in Summary Trial is up to 1 year. If the Court thinks that enhanced punishment is called for, then the case can be reverted to regular trial.


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4.4.4 Arrest of Accused: The Legal Provisions in ITPA • The cognizable offences are S.3, 4, 5, 6, 7, 8 and 9 ITPA. Utilize appropriate sections of ITPA and also IPC as well as other laws which are attracted. Graver sections of law will act against easy bail. Invoke the provisions of special laws wherever applicable (for example, the Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Children (Pledging of Labour) Act, 1933, Maharashtra Control of Organized Crime Act 1999, Goa Children’s Act, etc.). • A notified SPO is fully empowered to arrest without warrant (u/s 14(i) ITPA. • SPO can authorize and order any police officer in writing for arrest (u/s 14(ii) ITPA. • SPO can authorize any police officer u/s 14(iii), even without a written approval, in case of urgency if > The accused is likely to escape. > The identity of the accused is suspect. • The grounds for authorization should be specifically recorded in police documents (General Diary and Case Diary). • The authorization should be by name and not a general authorization. • Authorization for arrest is distinct from authorization for investigation. • Only the competent and notified official can take up the investigation of the crime. Technical errors often lead to discharge of the case in the court. • The arrest of the accused is guided by the provisions of CrPC and Evidence Act, as it applies to any other offence. Source: Trafficking of Women and Children for Sexual Exploitation: A Handbook for Law Enforcement Agencies in India, by Dr. P.M. Nair, 2007.

India has many laws criminalizing trafficking for sexual exploitation. ITPA prohibits trafficking in persons, criminalizes sexual exploitation and provides enhanced penalties for offences involving minors. Police, during investigation, often do not utilize all provisions of the ITPA and as a result minimize potential criminal penalties against traffickers and brothel owners for exploiting women and girls/minors. Additionally they fail to use the numerous provisions of the IPC and Juvenile Justice Act (where applicable) to prosecute traffickers. They fail to take advantage of specific state legislations which exist in numerous states to prohibit the dedication of girls to religious shrines for sexual exploitation. The police has to realize that penalties for trafficking for sexual exploitation commensurate with penalties for rape or forcible assault.

5.3.4 Present trends of Police Investigation The national data clearly indicates that the sections under ITPA, that address demand are not invoked or used and hence the buyers have no culpability and the traffickers operate with impunity. The police have to start charging all offences of prostitution under: • Section 3, which prescribes punishment for keeping a brothel or allowing premises to be used as brothels. • Section 4, which provides punishment for living on the earnings of prostitution. • Section 5, which invites punishment to the traffickers, abettors, etc. for procuring, inducing and taking women and girls for prostitution. • Section 6, which deals with the offence of detention of a person in a brothel and similar places.


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• Section 7, which addresses the issue of prostitution in public areas. Section 9 deals with seduction of a person in custody. • The major sections dealing with various offences under the Indian Penal Code that address demand are 366A (procuration of minor girls under 18), 366B (importation of girls under 21 years from a foreign country), 367 (kidnapping for slavery, unnatural lust, etc.), 372 (selling minors under 18 years for prostitution), 373 (buying minors under 18 years for prostitution), 376 (rape), and 377 (unnatural offences), which have to be used in conjunction with the above to invite stringent penalties for the exploiters. • The checklist below would go a long way in eliminating most of the gaps related to law enforcement issues in trafficking of women and children for sexual exploitation. How to respond in cases related to trafficking Police Response to Trafficking in Women and Children: Checklist of good practices Source: Dr. P. M. Nair

1. Registering the First Investigation Report (FIR): do’s and don’ts. (a) Register the FIR without any delay. (b) The FIR can be based on the statement of the complainant, the victim or could be based on the cognizance of the police official him/herself. (c) There should be no dispute regarding jurisdiction. If there is lack of clarity, file the report in the zero register and ensure immediate action and investigation. (d) Give a copy of FIR to the complainant free of cost and interview the victim in a comfortable place. (e) Ensure that the victim and the complainant are informed of the progress of information/case. (f) REGISTER THE FIR AGAINST THE ACCUSED AND NOT THE VICTIM, i.e. USE OF SECTIONS 3, 4, 5, 6, 7 and 9. (g) Include prima facie evidence such as the condition of the victim etc. to add substantive evidence. (h) Record statements of violence endured by the women and use it with IPC sections of harm. (i) Do not hesitate to use ITPA with other sections of IPC and SLL. (j) UNDERSTAND TRAFFICKING IS A GRAVE CRIME TO BE GIVEN THE SAME STATUS AS “HEINOUS CRIMES”. (k) IF YOU HAVE ANY DOUBTS, CLARIFY. DON’T BOOK THE VICTIM AS ACCUSED. 2. Investigation: do’s and don’ts. (a) Do not treat victims as suspects or accused. (b) Ensure the victims rights are protected by: • • • • •

avoiding publicity to ensure anonymity and dignity of the victims. ensuring that victims get possession of all her belongings and assets. ensuring care and protection of the children of the victims. helping the victims get all their dues and rightful claims. ensuring dignified and proper medical examination of the victims.


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(c) Do not intimidate or use abusive language with the victims. (d) Remember the victim is traumatized and thus needs sensitivity to be able to get all vital information and collect effective evidence to file a charge sheet. (e) Since trafficking is a grave crime ensure the maximum elements of the offence are booked under proper sections of ITPA/IPC and other SLL. (f) Make a trafficking map and move backwards from the scene of crime to the source of crime, i.e. from the destination to the source point. (g) Collect evidence in all forms including electronic information by way of photographing and video. Identifying Victims of Trafficking The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children and the Trafficking Victims Protection Act, 2000 (TVPA) of the USA call on governments to take adequate steps to protect victims of trafficking. Such protection is only possible if there is an adequate identification of the victims of trafficking. The US TVPA 2005 Report emphasized the need to screen vulnerable groups of people in order to identify victims of trafficking. The assessments contained in the Report reveal that much work remains to be done. Self-Identification: A myth: Some governments continue to rely on a “complaint-based” system of identifying trafficking crimes and trafficking victims. Assuming that an individual victim of trafficking will report the crime to appropriate authorities or will identify his or her status as a trafficking victim at the first opportunity, these governments respond only to reported cases. This reactive approach to trafficking is not adequate and does not fulfill the TVPA’s standard for victim protection. The Reality: Few victims are willing to identify themselves upon initial contact with law enforcement authorities. They are fearful of real or imagined reprisals and are still undergoing trauma from the servitude experience. They cannot and should not be expected to immediately report objectively on the dimensions of their exploitation. Proactive Screening: The Standard: Adequate victim protection requires measures by governments to identify trafficking victims through careful and thorough interviews and counseling. Law enforcement authorities should be given training on how to identify indications of trafficking. Granting victims temporary shelter in a comfortable environment allows suspected victims of trafficking to receive counseling and to assess options, including their assistance with the prosecution of trafficker.

5.3.5 Police-NGO Partnership to Address Demand ITPA is a social legislation, which envisages a large and active role for NGOs and CBOs. Past experience has shown that most police personnel are skeptical of networking with NGOs, and vice versa. This insecurity basically stems from the lack of information and a lopsided perception that NGOs are usually there only to find faults with the police. This concern addressed by Section 15 of ITPA, which provides a safety clause for bonafide work. It states that for any bonafide work in connection with or for purposes of the search carried out within the ambit of ITPA, the police officer is not liable for any legal proceedings, civil or criminal. Thus to facilitate their work, the police should proactively engage with credible NGOs. Source: Dr. P.M. Nair


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ASSOCIATING NGOs IN LAW ENFORCEMENT PROCEDURES 7.1 How to begin: • The SP/DCP should call a meeting of NGOs working in the related fields. Do associate other government departments too. The discussion should focus on generating awareness, networking and developing synergy in preventing and combating trafficking. This would entail addressing the larger dimensions of women’s rights and child rights. • In the Police Station, do maintain a list of NGOs showing their expertise, specialization as well as contact address, telephone, e-mail, etc. • Notification of an advisory body, including NGOs, u/s 13(3)(b) ITPA should be got issued from Government. Suggest appropriate NGOs. • Home verification by NGOs u/s 17(5) and u/s 17(a) ITPA is essential. Hence associate NGOs during rescue and post rescue activities. Maintain list of NGOs and provide this list to Magistrate. • NGOs play an effective role in rescue operations as witnesses, advisors, and partners and as human rights ombudsmen. This should be appreciated and acted upon. • Association with NGOs can be a good source for intelligence collection. They can help identifying victims, vulnerable persons and carrying out risk assessment. NGOs can give intelligence on traffickers and exploiters. Involve them even before planning rescue. 7.2 Post-Rescue Role of NGOs: NGOs can play a large role in the post-rescue activities. This includes: • Counseling of victim and de-traumatisation. • Interviewing the victim, as mandated u/s 15(6A) ITPA. • Helping the police to identify the best interest of the victim so that police officers can act accordingly. • Helping police to get clues in investigation, especially regarding the traffickers and the process of trafficking. • Providing translators, when required. • Facilitating victim empowerment and rehabilitation programmes such as: > Providing orientation and motivation to the victim. > Identifying the appropriate programmes for the victim. > Empowering the victim with knowledge, skills and resources for rehabilitation. Resources should include adequate funding sources. Do involve MNCs and those dealing with CSR of corporates. > Providing networks to sustain the programmes. > Marketing the products and facilitating marketability. > Ensuring sustenance of the programmes and thereby preventing re-trafficking of the victim. • NGOs provide the appropriate linkage between police and civil society as well as between the victim and civil society. The box presents a few examples of rehabilitation by NGO’s.


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7.3 Role of NGO’s in the trial of cases in courts: NGOs can pay a constructive role in the process of trial of accused persons and, thereby, help in the conviction of offenders. This is an area which is largely untapped, though there are some examples of ‘good practices’ in the past. The police and prosecutors can associate NGOs in the following ways: • NGOs are of great help as counselors to orient and prepare the victim/ witness to face the court and proceedings in the court. They can assist in interpreting children’s perceptions and views. • NGOs can act as ‘child minders’ in the court to help out the child victim. The Supreme Court of India, in its judgement dated 26' May 2004, (Sakshi vs UOI) directed that such provision be made in the trial of all cases of sexual assault on children. • NGOs can assist in providing translators when the victim speaks a different language (i.e. STOP, a Delhi-based NGO assisted the court in translating Bengali to Hindi when child victims trafficked from Bangladesh to Delhi were tendering their evidence in the Delhi Court). • NGO Networks are a very good tool for police in addressing inter state and trans-border trafficking. Several strong and effective networks of NGOs are available. Their services can be utilized for rescue, repatriation, transfer of information and such other services and processes in combating and preventing trafficking. Since government agencies are bound by rules and procedures which have jurisdictional restrictions, NGOs come handy as they have no such limitations. However, all such information and intelligence need to be formally brought through official channels, if they are to be utilized as evidence in the court of law. Moreover confidentiality of the information and the integrity of the NGO are relevant issues in decision making. • NGO Resource centres: Many NGOs have set up vast resource centres and networks which can be effectively utilized by the police in understanding the issues, for training and sensitization, as reference manuals and as guide books. (for example, the Resource centre of Prerana, an NGO based at Mumbai). These resource centres are also helpful for evidence collection against offenders and in understanding the processes involved in trafficking. • Training police and other law enforcement agencies: Experience shows that NGO association has been fruitful and effective in the training processes, for developing training modules, getting appropriate resource persons, organizing training camps, supplying resource materials, process documentation of training programmes and impact assessment. During training sessions, NGO’s can present the ‘other side of the story’ which the law enforcement official may not be aware of. This would help in getting a complete picture and a holistic understanding of the issues. • Research: The services of NGOs can be effectively utilized for carrying out macro and micro research projects. The NHRC research on Trafficking in India, (20022004) carried out through an NGO, Institute of Social Sciences, was a macrostudy and a pioneering work in the field. (Also see studies by Balaji Pandey, Sanlaap etc.) There are several issues which require micro studies and research. Impartial research by NGOs can provide appropriate inputs to the law enforcement agencies to modify and orient their activities and services. Source: Trafficking of Women and Children for Sexual Exploitation: A Handbook for Law Enforcement Agencies in India, by Dr. P.M. Nair, 2007.


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Police-NGO Partnership to Address the Demand for Sex Trafficking General practice in all police stations • Notification under S. 13(3)(b) of ITPA • Home verification by NGO’s under S. 17(5) and S. 17A of ITPA

• Maintain a list of NGOs’ expertise/ specialization and contact information

Role in intelligence collection

• Use the experience of the field workers to mark source and destination points of trafficking.

Role in rescue operations as witnesses, as advisors, as partners, as human rights ombudsmen

• Under S. 13 NGOs can be used as effective collaborative partners to assist the police in rescue operations. This strengthens the rights based approach in victim rehabilitation.

• In order to facilitate victim rehabilitation and Partner with NGOs for linkage effective evidence collection, the police can be between victim and society, victim the link between society, the victim and the and other stakeholders. NGOs. NGO role in the trial of cases

• • • • •

Assistance to the court Language translator Interpretation of a child’s perception Trainer of victim/survivor witnesses Child and woman sensitive escort

Networking of NGOs

• Inter-country and trans-border • Access to victim witnesses/survivors for evidence • Care & protection of victim/survivor witness • Ensuring best interest of victim/survivor witness

Research in Law Enforcement

• Utilizing NGOs for micro research • Utility of research: Proper feedback • Saving resource & time/optimum utilization of resources • Ensuring best interests of victim • Intelligence gathering on buyers and traffickers

Resource Centre & Documentation

• NGO/police linkage in developing data base to identify and prosecute traffickers and buyers. • Utilizing the data base. • Data surveillance • Seminars & workshops for information sharing • Implementing the findings • Sensitization & orientation of all concerned


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Partnerships with NGOs will help the police overcome some of the obstacles in law enforcement Failure of convictions is due to the lack of witnesses and their evidence in the court of law.

Law enforcement has expressed that public cooperation is seriously wanting in such cases. Even if witnesses are examined, the delayed process of trial remains an impediment in getting them to the court for giving evidence.

Infrastructure shortcomings in police stations.

Police may find it difficult to provide assistance to a female victim and more so if she is a trafficked victim.

Lack of notified police officers who can investigate these crimes and lack of women police officials.

Police is of the opinion that special officers should be deputed for this issue—the officer should not be burdened with the regular activities of the police station.

Ignorance of laws.

Police admitted having limited or no knowledge about victims of trafficking and prostitution as they felt the culture of acceptance of sexual exploitation in society; hence the police did not warrant any serious attention to the issue.

Lack of GO-NGO Partnership to Ensure Rehabilitation of the Victim.

Trafficking is a serious violation of the human rights of its victims. Therefore, the trafficked survivor needs to be extended care and attention in a sensitive and victim-friendly manner. Since the police machinery is not equipped to deal with all aspects of assistance to a trafficked victim, it is essential that appropriate persons from civil society are involved in the process. One of the important aspects of post-rescue assistance is the rehabilitation of the survivor. The process commences immediately after rescue. Rehabilitation of the victim is a combination of several steps and, therefore, cannot be a shortsighted affair. Ideal rehabilitation should involve steps towards psychological empowerment, social empowerment, economic empowerment and reintegration with the appropriate community, prevention of re-trafficking, etc. The police need to use S. 13(3)(b) of ITPA, which has a provision for the states to constitute an Advisory Body.

Rescue Homes

The lack of enough rescue homes is a major impediment in rescue operations.


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The lack of training of many police officials on pressing contemporary issues, including trafficking and sexual exploitation, is a serious lacuna afflicting the force nationally. Law-enforcement officials and others in the criminal justice system need to be trained, sensitized and oriented towards proper utilization of provisions in ITPA such as the provision of surveillance (S. 11), eviction (S. 18), externment (S. 20), etc., as powerful tools in the law, which remain almost unused and unutilized across the country.

Specialized Training

Reasons for low number of arrests and convictions of traffickers: Despite the fact that traffickers are the kingpins in the organized crime of trafficking, the data shows that conviction of traffickers has been an exception and not the rule.1 Reasons

S.O

I.O.

Total

Lack of information / witnesses

72 (61.5%)

305 (41.5%)

377 (44.3%)

Corruption in police

13 (11.1%)

110 (15%)

123 (14.4%)

Political backing of traffickers

11 (9.4%)

181 (24.6%)

192 (22.5%)

Lapses in law

17 (14.5%)

113 (15.4%)

130 (15.3%)

Lacunae in the judicial system

4 (3.5%)

26 (3.5%)

30 (3.5%)

Total

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735

852

Challenges for law enforcement Law enforcement agencies everywhere face some difficult challenges in their attempt to prevent and control human trafficking. Primary among theses is the fact that trafficking is frequently a crime of an international nature, crossing national borders and jurisdictions or interstate boundaries. Law enforcement efforts can often be confounded by the need to conduct investigations or pursue criminals across international borders. Stopping human trafficking is a complex problem for law enforcement. Human trafficking is in fact better understood as a collection of crimes bundled together rather than a single offence; a criminal process rather than a criminal event. It is often difficult to identify and harder still to convict traffickers. In many States, existing laws are not enforced. The crime of trafficking often goes unreported because victims of trafficking are frightened to give evidence, may have been brutalized and be in need of care, and may sometimes have been treated as criminals themselves by some enforcement agencies. As is evident, legal reforms are required to ensure that human trafficking and related offences are treated as serious crimes and that adequate powers are granted to law enforcement authorities in order to enable effective domestic investigations and prosecutions and facilitate international judicial and law enforcement cooperations.


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Nevertheless, there are law enforcement personnel around the world who are arresting, prosecuting and punishing trafficker in persons. Some are achieving success by tracing the profits and money generated by this crime. Others have found that linking the efforts of law enforcement in destination areas with the skills and activities of law enforcement in the origin areas can bring about arrests and convictions. Others find that increasing training of police at all levels and making sure that law enforcement personnel recognize indications and clues that trafficking in persons is taking place, lead to increased intervention and arrests. Challenges for Non-governmental organizations and service providers Non-governmental organizations and victim services providers often find themselves in the front line in the fight against trafficking in persons. They usually need to meet the immediate and pressing needs of victims of trafficking, to act as their advocates, to help them understand national laws and regulations and identify the recources that they may have under the law, to provide them with shelter and care, and to work closely with State agencies. There are some non-governmental organizations that have been specifically established to do this work. Many were initially developed to serve women in need or to help individuals in need of basic services. Many non-governmental organizations have taken on work with trafficking victims in addition to their other heavy commitments to offer services. The work of non-governmental organizations has been important in bringing to the fore the human face of trafficking victims. Some of the organizations are working to sensitize policy makers and law enforcement officials to the need to protect victims of human trafficking in order to empower them to participate in the battle against traffickers. In many States, closer links have been developed between non-governmental organizations and various state agencies, usually with excellent results. For example, in some instances representatives of non-governmental organizations can now accompany police on raids on establishments that may house trafficking victims. This appears to increase the victims’ willingness to testify against those who have exploited and abused them. Many non-governmental organizations also play a crucial role with respect to public education and information. They can thus prevent some individuals from becoming victimized by traffickers and they can help victims of trafficking to escape from the control of their exploiters.

Note 1 NHRC Study


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5.4 LEARNING ACTIVITY 1.

Is trafficking a public order crime or an organized crime? List reasons for your choice: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

2.

List two IPC sections dealing with prostitution: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

3.

List any two trends pertaining to national data on trafficking: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

4.

List six sections of ITPA which shift the blame from the victim to the perpetrator: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

5.

List five anomalies in the context of law enforcement and trafficking in India: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

6.

List the elements of law and at least three types of evidence possible in each of the sections mentioned: Section

Element of Law

Evidence Possible

3 ________________________________________________________________________ 4 ________________________________________________________________________ 5 ________________________________________________________________________ 6 ________________________________________________________________________ 7 ________________________________________________________________________ 8 ________________________________________________________________________ 9 ________________________________________________________________________ 18 ________________________________________________________________________


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5.4 LEARNING ACTIVITY 7.

List five problems which police face in enforcing the ITPA

List corresponding actions that can help overcome the problems you mentioned.

1.

____________________________________________________________________________

2.

____________________________________________________________________________

3.

____________________________________________________________________________

4.

____________________________________________________________________________

5.

____________________________________________________________________________

8.

List three good practices of rescue: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

9.

List three good practices to be followed in post rescue: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

10.

List three good practices to be followed to register an effective FIR: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

11.

List three good practices to be followed during investigations: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

12.

Mention five reasons for involving NGO’s in law enforcement: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

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Section 2

Resources

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Bibliography Articles, Books, Reports and Unpublished Sources 1. Adenwalla, Maharukh. 2000. Child Sexual Abuse and the Law. Mumbai: Indian Centre for Human Rights and Law. 2. Afonso, Ave Cleto. 1996. Child Prostitution in Western India. Goa: INSAF. 3. Apte, V. and K.M., Lata. 1997. ‘Child Sexual Abuse, A Hard Look at the Arena: Perspective in Social Work’. Vol.12, No.2, May-August 1997. 4. Asian Development Bank. 2002a. ‘Combating Trafficking of Women and Children in South Asia: Regional Synthesis’. Paper for Bangladesh, India and Nepal. Manila. 5. Bajpai, Asha. 2003. Child Rights in India, Law, Policy and Practice. Delhi: Oxford Publications. 6. Barnardos, I. 1998 .Whose daughter next? Children abused through Prostitution. UK. 7. Barse, Sheela. Child sexual abuse, assault, exploitation and slavery – A user’s handbook. Mumbai: Neelgaurav Foundation. 8. Bhamati, B, ‘Report of the Regional Consultation on Child Prostitution and Trafficking’. Prepared for UNICEF, 1996. 9. Blackwill, Robert D. 2003. ‘Dealing with Trafficking in Persons: Another Dimension of US-India Transformation’. Mumbai, India. 10. Cannon, J. I. 2005. Primer on the Male Demand for Prostitution. Estonian Women’s Studies and Resource Centre (ENUT), Tallinn. www.catwinternational.org. 11. Center for Women’s Development Studies. 2002. Crimes Against Women: Bondage and Beyond—Revelation of Data. New Delhi. 12. Chakraborty, I., 2006. ‘Tracking Our Children.’ Sanlaap Kolkata. 13. Commonwealth Human Rights Initiatives. 2001. Prevention of Trafficking from an Indian Perspective and CHRI’s Initiative. 14. D’Cunha, Jean. 1987. ‘Prostitution in a Patriarchal Society: A Critical Review of the SIT Act’. Economic and Political Weekly, 7 November. 15. D’Cunha, Jean. 1998. ‘Prostitution and sex trafficking: A review of contemporary feminist perspectives and strategies, in

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Violence Against Women’ by Shirin Kudchedkar and Sabiha Al-Issa. New Delhi: Pencraft International. D’Cunha, Jean. 2002. ‘Trafficking in persons: a gender and rights perspective’. Paper presented at Expert Group Meeting on Trafficking in women and girls, 18-22 November. Glen Cove, New York. D’Cunha, Jean. 2002. ‘Trafficking and Prostitution from a Gender and Human Rights Perspective: The Thai Experience’; in A Comparative Study of Women Trafficked in the Migration Process (Indonesia, the Philippines, Thailand, Venezuela and the United States) CATW. www.catwinternational.org. D’Cunha, Jean. ‘The legislation of prostitution—A sociological inquiry into the laws relating to prostitution in India and the West’. New Delhi: Joint Women’s Programme. Department of Woman and Child Development. 2001c. India’s Report on World Summit for Children 2000. Government of India: DWCD, Ministry of Human Resource Development. Derks, Annouska. 2000a. ‘From White Slaves to Trafficking Survivors: Notes on the Trafficking Debate’. Working Paper Series. Princeton University: Conference on Migration and Development, 4-6 May. Desai, M. December 2001. Child Protection—Current Status and Recommendations of Strategies for the India Country Programme for 2003-2007. Tata Institute of Social Sciences. New Delhi: UNICEF India Country Office. Desai, M. 2002. ‘Child abuse: Overview Poor Child - Child Protection Current Status and Recommendations of Strategies for the India Country Programme for 2003– 2007’. Humanscape. Dias-Saxena, Fiona. 1997. ‘Commercial Sexual Abuse of Children in Goa’. Paper presented at NCCI-URM workshop. Durga Ghimire, ABC Nepal. Bring Our Daughters Home. 2001. Durga, G. 2001. ‘Save Our Sisters (SOS)’. South Asian Conference to Combat Trafficking and Sexual Abuse of Children (14–17 October). Country Paper Presentations: Nepal.


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26. Economic and Social Commission for Asia and the Pacific. 2003. Combating human trafficking in Asia: A resource guide to international and regional legal instruments, political commitments and recommended practices. New York: United Nations. 27. Economic and Social Commission for Asia and the Pacific. 2002. Evaluation report of ESCAP resolution 53/4 on the Elimination of Sexual Exploitation of Children and Youth in Asia and the Pacific. UN. 28. Ekberg, Gunilla. 2004. ‘The Swedish Law that Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings’, Violence Against Women, 11871218. www.catwinternational.org. 29. Equations. 2003. A Situational Analysis of Child Sex Tourism in India (Kerala and Goa). ECPAT. 30. Ganguli, Geetanjali. 1998. ‘The Regulation of Women’s Sexuality through the Law: Civil and Criminal Laws’, Economic and Political Weekly, 7 March 1998. 31. Gathia, Joseph. 1999. Child Prostitution in India. New Delhi, Concept Publishing Company. 32. Gathia, Joseph. 2003. Asia Me Deh Vyapar. New Delhi. Concept Publishing Company. 33. Ghosh, S.K. 1993. Women and Crime. Delhi: Ashish Publishing House. 34. Giri, Mohini. Girl’s rights, society responsibility, taking action against sexual exploitation & trafficking. National Commission for Women, New Delhi. 35. Gupta Ruchira. 2002. ‘The slavery of women in Asia’. Asiaweek, March 2002. 36. Gupta, Ruchira. The Selling of Innocents, CBC documentary. 37. Gupta, G. R. 2003. ‘Review of Literature for ARTWAC: Delhi’. New Delhi, Institute of Social Sciences. 38. Haladi, Anita. 1997. ‘Child prostitution in India: Issues for policy and action’. A paper presented at NCCI-URM workshop. 39. Haq Centre for Child Rights. Child trafficking in India. New Delhi. 40. Hindu. 1999. ‘Child trafficking on the rise.’ 6 February. 41. Hindustan Times. 2006. ‘Ex-Ministers unmasked: More arrests in Srinagar sex scam’, 21 June. 42. Hindustan Times. 2006. ‘Prostitutes held after Rohini raids’, 25 June.

43. Hindustan Times. 2001. ‘Child trafficking racket busted, AP tightens laws’. 22 April. 44. Home Office, 2006. A Coordinated Prostitution Strategy and a summary of responses to Paying the Price. 45. Huda, S. 2006. ‘Integration of the human rights of women and a gender perspective’. Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children, Commission on Human Rights, Sixty-second session, 20 February 2006. 46. Human Rights Watch – Asia. 1995. ‘Rape for profit—Trafficking of Nepali girls and women to India’s brothels’. Human Rights Watch, Vol. 12, No, 5 (A). 47. ICRW. 2004. Violence Against Women: A Review of Trends, Patterns and Responses. UNFPA. 48. IDS. 2003. Review of literature for ARTWAC: Rajasthan. Institute of Development Studies, Jaipur, Rajasthan. 49. ISS. 2002. National baseline study of trafficking in women and children: Trends, dimensions, factors and responses. Institute of Social Sciences, New Delhi. 50. Joshi, Madhu. ‘The Matrix: Commercial Sexual Exploitation in India’. The Little Magazine III, no. 4 (2002): 35-37. 51. Karat, B. 2005. Survival and Emancipation: Notes from Indian Women’s Struggles. Three Essays, Delhi. 52. Khanna, T. 2003. ‘Consequences of Female Trafficking in Bihar’. Apne Aap Women Worldwide, India. 53. Leidholdt, Dorchen A. ‘Demand and the Debate’. Co-Executive Director, Coalition Against Trafficking in Women. www.catwinternational.org. 54. Menon, M. ed.. 1997. A Training Manual for Police on Human Rights. Human Rights Centre, National Law School of India, Bangalore. 55. Ministry of Industry, Employment and Communications, Sweden Prostitution and trafficking in human beings, Fact Sheet, (April 2005). http://www.sweden.gov.se/ content/1/c6/04/28/96/88110928.pdf. 56. MNCWA & UN-IAP 2002 Handbook of Trafficking in Persons: Myanmar Initiatives, Yangon. 57. Nair, P.M. 2002. Combating Organized Crime, Konark Publishers. 58. Nair, P.M. 2002a. Combating Trafficking in Women and Children. CBI Bulletin, Vol. 10, No. 4, April.


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59. Nair, P.M. 2007. Trafficking Women and Children for Sexual Exploitation: Handbook for Law Enforcement Agencies in India, UNODC and UNIFEM. 60. Nair, P.M. and Sen, S., 2005, Trafficking in Women and Children in India. NHRC, Orient Longman. 61. National Commission for Women. 2001. Trafficking, A Socio-Legal Study. 62. National Crime Record Bureau. Crimes in India 2003, 2004. NCRB, Ministry of Home Affairs, Government of India, Delhi. 63. O’Connor, M. and Healy, G. 2006. The Links between Prostitution and Sex Trafficking: A Briefing Handbook, CATW and EWL. www.catwinternational.org. 64. Office to Monitor and Combat Trafficking in Persons. 2003. Model Law to Combat Trafficking in Persons. Washington. 65. Parikh and Radhakrishna. 2002. India Development Report. Oxford Publication. 66. Patkar, Pravin and Priti Patkar. 2003. Child trafficking: Issues and Concerns. Childline India Foundation, Mumbai. 67. Patkar, Pravin and Priti Patkar. Sexual Exploitation of Children and Children of Victims of CSE. Madhyam. Vol.XIV, No.2. 68. Patkar, Priti and Patkar, Pravin. 2004. Home Investigation Report: An effective guide in Post Rescue Operation in fight against commercial sexual exploitation and trafficking of children. Prerana, Mumbai. 69. Penrose, Angela, Edda, Ivan-Smith and Marilyn, Thomson. August 1996. Kids for hire: A child’s right to protection from commercial sexual exploitation. Save the Children, London. 70. Phinney, Alison. 2001. Trafficking of Women and Children for Sexual Exploitation in the Americas. Inter American Commission of Women (Organisation of American States), Washington D.C. 71. Pradhan, Gauri. 1998. CWIN. ‘Innocent victims: Trafficking in women and girls across Nepal-India border’. Paper for Regional Conference on Trafficking in Women. Bangkok. 72. Prayas & UNIFEM. 2001. ‘Regional consultation on trafficking of women & children and law enforcement’. Concept Paper, 20-21 February. 73. Raymond, Janice G. 2000. ‘A Comparative Study of Women Trafficked

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in the Migration Process’. CATW 2000. www.catwinternational.org. Rosenberg, R. 2003. Trafficking of Women and Children in Indonesia. Solidarity Centre, Indonesia. Sengupta, Rina and Shireen Huq, ‘Trafficking of Persons and Gender Inequality in South Asia’. Unpublished paper, October 2001. Sinha, Indrani. 1996. Where has humanity gone. SOS. 2001. South Asian Conference to Combat the Trafficking and Sexual Exploitation of Children. 14 to 17 October, Goa. Organized by Save Our Sisters Programme. Mumbai: Women’s Institute for Social Education (WISE). Times of India. 2006. ‘Trafficking case IFS officer is reinstated but gets no post’, 6 July. ‘Trafficking in Persons (Russia)’. Natalia Kigai. Paper Commissioned by the Swedish Ministry of Foreign Affairs; 2001. Trafficking Victims Protection Act of 2005. United States. Tumlin, Karen C. 2000. Trafficking in Children in Asia: A Regional Overview. Institute for Asian Studies, Chulaongkorn University, Bangkok. Uma, Segal. 1991. ‘Child Abuse in India: A Theoretical Overview,’ Indian Journal of Social Work. UNESCAP. 2002. Recommended Principles and Guidelines on Human Rights and Human Trafficking. Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council. UNESCAP, New York. UNICEF, United Nations Office of the High Commissioner for Human Rights (UNOHCHR), Organization for Security and Co-operation in Europe/Office for the Development Institution and Human rights (OSE-ODIHR); 2002. Virani, Pinki, 2000. Bitter Chocolate: Child Sexual Abuse in India. Penguin Books, New Delhi. Voluntary Health Association of India. 2002. Seen, but not heard: India’s marginalized, neglected and vulnerable children. New Delhi.


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Legislation / Conventions and Protocols

• Bonded Labour System (Abolition) Act, 1976 and Rules 1976

• International Convention for the Suppression of the Traffic of the Women and Children, 1921

• Child Labour (Prohibition and Regulation) Act, 1986 and Rules 1988

• International Convention on Economic, Social and Cultural Rights (ICESCR), 1966

• Child Marriage Restraint Act, 1929

• International Covenant on Civil and Political Rights, 1966

• Bombay Police Act, 1951

• Code of Civil Procedure • Constitution of India: The preamble, Articles 14, 15, 19(1)(g), 21, 23(1), 39(a), 39(f), 46, 49 • Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 • Convention Against Transnational Organized Crime, 2000 • Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 • Convention on Protection of Rights of Migrant Workers, 1990 • Convention on the Elimination of all forms of Discrimination Against Women, 1979 • Convention on the Prostitution and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1998 • Convention on the Rights of Child, 1989 • Criminal Law Amendment Ordinances, 1944 • Criminal Procedure Code • Factories Act, 1954 • Foreign Marriage Act, 1956 • Guardianship and Wards Act, 1890 • Hindu Adoption and Maintenance Act, 1956 • Immoral Trafficking Prevention Act, 1956 (and as amended in 1986) • Indecent Representation of Women (Prohibition) Act, 1986 • Indian Evidence Act, 1872 especially Sections 114A, 151, 152 • Indian Penal Code, 1860 • Information Technology Act, 2000 • International Convention for the Suppression of the Traffic in Women of Full Age, 1933 (Amended by the 1947 protocol)

• Juvenile Justice (Care and Protection of Children) Act, 2000 • Maharashtra Control of Organized Crime Act • National Charter for Children, 2003 • National Commission for Children Act, 2006 • National Commission for Minorities Act, 1990 • National Commission for Women Act, 1990 • Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women, 1999 • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography • Protection of Human Rights Act, 1993 • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 • South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 • Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention) • Tourism Bill of Rights and the Tourist Code, 1985 • Transplantation of Human Organs Act, 1994 • Universal Declaration of Human Rights, (UDHR) 1948.


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Website Resources • mha.nic.in/scena.htm • nhrc.nic.in/ • apneaap.org • catwa.com • catwinternational.org • catw-ap.org • captivedaughters.org • december18.net/web/general/ page.php?pageID=45&menuID=36&lang=EN • ecpat.net/eng/index.asp • iom.int • ohchr.org/english/issues/trafficking/ index.htm • prostitutionresearch.com • sagesf.org/index.htm • state.gov/g/tip • umn.edu/humanrts/index.html • unicef.org • unifem.org/ • unifem-eseasia.org/index.html • unodc.org/unodc/en/ trafficking_human_beings.html • uri.edu/artsci/wms/hughes/ • wcd.nic.in

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Annexure I

UN PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME Preamble The States Parties to this Protocol, Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights, Taking into account the fact that, despite the existence of a variety of international instruments containing rules and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument that addresses all aspects of trafficking in persons, Concerned that, in the absence of such an instrument, persons who are vulnerable to trafficking will not be sufficiently protected, Recalling General Assembly resolution 53/ 111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international convention against transnational organized crime and of discussing the elaboration of, inter alia, an international instrument addressing trafficking in women and children, Convinced that supplementing the United Nations Convention against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons, especially women and children, will be useful in preventing and combating that crime, Have agreed as follows: I. General provisions Article 1 Relation with the United Nations Convention against Transnational Organized Crime 1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It shall be interpreted together with the Convention. 2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein. 3. The offences established in accordance with Article 5 of this Protocol shall be regarded as offences established in accordance with the Convention.


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Article 2 Statement of purpose The purposes of this Protocol are: (a) To prevent and combat trafficking in persons, paying particular attention to women and children; (b) To protect and assist the victims of such trafficking, with full respect for their human rights; and (c) To promote cooperation among States Parties in order to meet those objectives. Article 3 Use of terms For the purposes of this Protocol: (a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this Article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this Article; (d) “Child” shall mean any person under eighteen years of age. Article 4 Scope of application This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with Article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences. Article 5 Criminalization 1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in Article 3 of this Protocol, when committed intentionally.


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2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences: (a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance with paragraph 1 of this Article; (b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this Article; and (c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this Article. II. Protection of victims of trafficking in persons Article 6 Assistance to and protection of victims of trafficking in persons 1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential. 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. 4. Each State Party shall take into account, in applying the provisions of this Article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. 5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. 6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.


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Article 7 Status of victims of trafficking in persons in receiving States 1. In addition to taking measures pursuant to Article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. 2. In implementing the provision contained in paragraph 1 of this Article, each State Party shall give appropriate consideration to humanitarian and compassionate factors. Article 8 Repatriation of victims of trafficking in persons 1. The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay. 2. When a State Party returns a victim of trafficking in persons to a State Party of which that person is a national or in which he or she had, at the time of entry into the territory of the receiving State Party, the right of permanent residence, such return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary. 3. At the request of a receiving State Party, a requested State Party shall, without undue or unreasonable delay, verify whether a person who is a victim of trafficking in persons is its national or had the right of permanent residence in its territory at the time of entry into the territory of the receiving State Party. 4. In order to facilitate the return of a victim of trafficking in persons who is without proper documentation, the State Party of which that person is a national or in which he or she had the right of permanent residence at the time of entry into the territory of the receiving State Party shall agree to issue, at the request of the receiving State Party, such travel documents or other authorization as may be necessary to enable the person to travel to and re-enter its territory. 5. This Article shall be without prejudice to any right afforded to victims of trafficking in persons by any domestic law of the receiving State Party. 6. This Article shall be without prejudice to any applicable bilateral or multilateral agreement or arrangement that governs, in whole or in part, the return of victims of trafficking in persons. III. Prevention, cooperation and other measures Article 9 Prevention of trafficking in persons 1. States Parties shall establish comprehensive policies, programmes and other measures:


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(a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. 2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. 3. Policies, programmes and other measures established in accordance with this Article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. 5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. Article 10 Information exchange and training 1. Law enforcement, immigration or other relevant authorities of States Parties shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) Whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; (b) The types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and (c) The means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them. 2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 3. A State Party that receives information shall comply with any request by the State Party that transmitted the information that places restrictions on its use.


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Article 11 Border measures 1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons. 2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with Article 5 of this Protocol. 3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State. 4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this Article. 5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol. 6. Without prejudice to Article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies by, inter alia, establishing and maintaining direct channels of communication. Article 12 Security and control of documents Each State Party shall take such measures as may be necessary, within available means: (a) To ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated or issued; and (b) To ensure the integrity and security of travel or identity documents issued by or on behalf of the State Party and to prevent their unlawful creation, issuance and use. Article 13 Legitimacy and validity of documents At the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonable time the legitimacy and validity of travel or identity documents issued or purported to have been issued in its name and suspected of being used for trafficking in persons.


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IV. Final provisions Article 14 Saving clause 1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. 2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons. The interpretation and application of those measures shall be consistent with internationally recognized principles of non-discrimination. Article 15 Settlement of disputes l. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol through negotiation. 2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court. 3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it does not consider itself bound by paragraph 2 of this Article. The other States Parties shall not be bound by paragraph 2 of this Article with respect to any State Party that has made such a reservation. 4. Any State Party that has made a reservation in accordance with paragraph 3 of this Article may at any time withdraw that reservation by notification to the SecretaryGeneral of the United Nations. Article 16 Signature, ratification, acceptance, approval and accession 1. This Protocol shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York until 12 December 2002. 2. This Protocol shall also be open for signature by regional economic integration organizations provided that at least one member State of such organization has signed this Protocol in accordance with paragraph 1 of this Article. 3. This Protocol is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of


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the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. In that instrument of ratification, acceptance or approval, such organization shall declare the extent of its competence with respect to the matters governed by this Protocol. Such organization shall also inform the depositary of any relevant modification in the extent of its competence. 4. This Protocol is open for accession by any State or any regional economic integration organization of which at least one member State is a Party to this Protocol. Instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession, a regional economic integration organization shall declare the extent of its competence with respect to matters governed by this Protocol. Such organization shall also inform the depositary of any relevant modification in the extent of its competence. Article 17 Entry into force 1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession, except that it shall not enter into force before the entry into force of the Convention. For the purpose of this paragraph, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization. 2. For each State or regional economic integration organization ratifying, accepting, approving or acceding to this Protocol after the deposit of the fortieth instrument of such action, this Protocol shall enter into force on the thirtieth day after the date of deposit by such State or organization of the relevant instrument or on the date this Protocol enters into force pursuant to paragraph 1 of this Article, whichever is the later. Article 18 Amendment 1. After the expiry of five years from the entry into force of this Protocol, a State Party to the Protocol may propose an amendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate the proposed amendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of considering and deciding on the proposal. The States Parties to this Protocol meeting at the Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a twothirds majority vote of the States Parties to this Protocol present and voting at the meeting of the Conference of the Parties. 2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote under this Article with a number of votes equal to the number of their member States that are Parties to this Protocol. Such organizations shall not exercise their right to vote if their member States exercise theirs and vice versa.


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3. An amendment adopted in accordance with paragraph 1 of this Article is subject to ratification, acceptance or approval by States Parties. 4. An amendment adopted in accordance with paragraph 1 of this Article shall enter into force in respect of a State Party ninety days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification, acceptance or approval of such amendment. 5. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consent to be bound by it. Other States Parties shall still be bound by the provisions of this Protocol and any earlier amendments that they have ratified, accepted or approved. Article 19 Denunciation 1. A State Party may denounce this Protocol by written notification to the SecretaryGeneral of the United Nations. Such denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General. 2. A regional economic integration organization shall cease to be a Party to this Protocol when all of its member States have denounced it. Article 20 Depositary and languages 1. The Secretary-General of the United Nations is designated depositary of this Protocol. 2. The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Protocol.


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Annexure II

THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 INTRODUCTION

In some of the States legislation on the subject of immoral traffic was prevalent but their provisions were not uniform. Many of the States had no such legislation. It was found necessary and desirable that a Central law should be passed which will not only secure uniformity but also would be deterrent. In the meanwhile the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of Others, held at New York on the 9th of May, 1950. With a view to implement the provisions of the said Convention the Suppression of Immoral Traffic in Women and Girls Bill was introduced in the Parliament. The Bill was referred to the Select Committee for its recommendations. The Select Committee submitted its report to the Lok Sabha on 21st November, 1956 along with the Bill incorporating its recommendations in the Bill. STATEMENT OF OBJECTS AND REASONS:

(1) In 1950 the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. Under Article 23 of the Convention, traffic in human beings is prohibited and any contravention of the prohibition is an offence punishable by law. Under Article 35 such a law has to be passed by Parliament as soon as may be after the commencement of the Constitution. (2) Legislation on the subject of suppression of immoral traffic does exist in a few States but the laws are neither uniform nor do they go far enough. In the remaining States there is no bar on the subject at all. (3) In the circumstances it is necessary and desirable that a Central law should be passed which will not only secure uniformity but also would be sufficiently deterrent for the purpose. But a special feature of the Bill is that it provides that no person or authority other than the State Government shall establish or maintain any protective home except under a license issued by the State Government. This will check the establishment of homes which are really dens for prostitution.� ACT 104 OF 1956 The Suppression of Immoral Traffic in Women and Girls Bill having been passed by both the Houses of Parliament received the assent of the President on 30th December, 1956. It came on the Statute Book as the Suppression of Immoral Traffic in Women and Girls Act, 1956. By Section 3 of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986) the nomenclature of the Act has been changed with effect from 26th January, 1987. Now it stands as THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 (104 of 1956). LIST OF AMENDING ACTS: 1. The Suppression of Immoral Traffic in Women and Girls (Amending) Act, 1978 (46 of 1978). 2. The Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986).


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THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 (104 of 1956) [30th. December, 1956] An Act to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for 2[the Prevention of immoral traffic]. Be it enacted by Parliament in the Seventh Year of the Republic of India as follows:1. Short title, extent and commencement (1) This Act may be called [the Immoral Traffic (Prevention)] Act, 1956. (2) It extends to the whole of India. (3) This Section shall come into force at once; and the remaining provisions of this Act shall come into force on such date4 as the Central Government may, by notification in the Official Gazette, appoint. 2. Definitions. - In this Act, unless the context otherwise requires (a) “brothel” includes any house room, 5[conveyance] or place or any portion of any house, room, 5[conveyance] or place, which is used for purposes 6[of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes; (aa) “child” means a person who has not completed the age of sixteen years;] [[(b)] “corrective institution” means an institution, by whatever name called (being an institution established or licensed as such under Section 21), in which 3 [persons], who are in need of correction, may be detained under this Act, and includes a shelter where 4[undertrials] may be kept in pursuance of this Act;] [(c) “magistrate” means a magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the Section in which the expression occurs and which is specified in the first column of the Schedule;] [(ca) “major” means a person who has completed the age of eighteen years; (cb) “minor” means a person who has completed the age of sixteen years but has not completed the age of eighteen years;] (d) “prescribed” means prescribed by rules made under this Act; (f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly;] (g) “protective home” means an institution by whatever name called (being an institution established or licensed as such under Section 21), in which 11[persons], who are in need of care and protection, may be kept under this Act 12[and where appropriate technically qualified persons, equipment and other facilities have been provided], but does not include(i) a shelter where 13[undertrials] may be kept in pursuance of this Act, or (ii) a corrective institution;] (h) “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance; (i) “special police officer” means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act;


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[(j) “trafficking police officer” means a police officer appointed by the Central Government under sub-section (4) of Section 13. COMMENTS

(i) Prostitution involves indiscriminate employment of a woman’s body for hire. [In re: Deva Kumar, 1972 Madras Law Journal (Criminal) 150]. (ii) Any person who keeps or maintains or acts or assists in the keeping and management or a brothel, is liable to be punished under this Section; State of Rajasthan v. Mst. Wahida, 1981 RCC 42. (iii) Solitary instance of prostitution in a place does not make the place a “brothel”. [Sushila v. State of Tamil Nadu, 1982 Cri LJ 702 (Mad). (iv) Prostitution of a woman should be for the gain of another person as to the premises to be called as brothel. [In re: John, AIR 1966 Madras 167. (v) A place used once for the purpose of prostitution may not be a brothel. [Krishnamurthy v. Public Prosecutor, 1967 Crl. L.J. 544 (SC). [2A. Rule of construction regarding enactments not extending to Jammu and Kashmir.- Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to the State, be construed as a reference to the corresponding law, if any, in force in that State]. 3. Punishment for keeping a brothel or allowing premises to be used as a brothel. (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. [(2A) For the purposes of sub-section (2) it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case maybe, has knowledge that the premises or any part thereof are being used as a brothel, if, (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have


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been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person]. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction. COMMENTS

Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be liable to be punished with (a) rigorous imprisonment for not less than 1 year but upto 3 years and also fine upto Rs. 2,000, on first conviction; and (b) rigorous imprisonment for not less than 2 years but upto 5 years and also fine upto Rs. 2,000 and when any person who being (a) the tenant lessee, occupier or person in charge of any premises, (i) uses, or (ii) knowingly allows any other person to use, such premises as a brothel; or who being (b) the owner, lessor or landlord of any premises or his agent, (i) lets such premises with the knowledge that the same is intended to be used as a brothel; or (ii) is wilfully a party to the use of such premises as a brothel, he shall be liable to be punished with (i) imprisonment upto 2 years and fine upto Rs. 2,000, on first conviction; and (ii) rigorous imprisonment upto 5 years and also fine, in the event of a second or subsequent conviction. 4. Punishment for living on the earnings of prostitution. - (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years]. [(2) Where any person over the age of eighteen years is proved (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meanings of Sub-section (1).] COMMENTS

Any person over the age of 18 years who knowingly lives on the earnings of the prostitution of any other person, shall be liable to be punished with (i) imprisonment upto 2 years, or (ii) fine upto Rs. 1,000, or (iii) imprisonment upto 2 years and fine upto Rs. 1,000. But, where such earnings relate to the prostitution of a child or a minor, the offender shall be liable to be punished with imprisonment for a term of (i) not less than 7 years and (ii) not more than 14 years. Where it is proved that any person over the age of 18 years (i) is living


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with, or is habitually in the company of, a prostitute ; or (ii) has exercised control, direction or influence over the movements of a prostitute; or (iii) acts as a tout or pimp on behalf of a prostitute, it shall be presumed that he knowingly lives on the earnings of prostitution of another persons. However, such presumption shall be subjected to rebuttal. 5. Procuring, including or taking person for the sake of prostitution. (1) Any person who (a) procures or attempts to procure a 1[person], whether with or without his consent, for the purpose of prostitution; or (b) includes a [person] to go from any place, with the intent that he, may for the purpose of prostitution become the inmate of or frequent, a brothel; or (c) takes or attempts to take a [person], or causes a 1[ person] to be taken, from one place to another with a view to his carrying on or being brought up to carry on prostitution; or (d) causes or induces a 1[person] to carry on prostitution; [ shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years : Provided that if the person of whom an offence committed under this subsection,(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years]. (3) An offence under this Section shall be triable (a) in the place from which a 1[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 1[person] is made; or (b)in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made. COMMENTS

Any person who (i) procures or induces any person for the purpose of prostitution; or (ii) takes, causes or induces any person to carry on prostitution, shall be punishable with (a) rigorous imprisonment for not less than 3 years but upto 7 years; and (b) fine upto Rs. 2,000. If an offence is committed against the will of any person, the offender shall be liable to be punished with the maximum term of 7 years imprisonment but shall extend to that of 14 years. 6. Detaining a person in premises where prostitution is carried on. (1) Any person who detains 2[any other person, whether with or without his consent], (a) in any brothel, or


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(b) in or upon any premises with intent 2[that such person may have sexual intercourse with a person who is not the spouse of such person] shall be punishable 2[on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine : Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years]. [(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1). (2A) Where a child or minor found in a brothel, is on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes]. (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there, (a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or (b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or the recovery of any money alleged to be payable by such woman or girl. COMMENTS

Any person who detains any other person in any brothel, or in or upon any premises, for the purpose of prostitution, shall be liable to be punished with (a) imprisonment for not less than 7 years but upto for life; or (b) imprisonment upto 10 years and also fine. 7. Prostitution in or in the vicinity of public places. [(1) Any [person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises,(a) which are within the area or areas, notified under sub-section (3), or (b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months]. [(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:


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Provided that the court may, for adequate and special reasons to be mentioned in the judgement impose a sentence of imprisonment for a term of less than seven years]. (2) Any person who(a) being the keeper of any public place knowingly permits prostitution for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or (c) being the owner, lessor or landlord, of any premises referred to in sub-section (1) or the agent of such owner, lessor or landlord, lets the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine 2[which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled. Explanation.- For the purposes of this sub-section, “Hotel� shall have the meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980)]. [(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification. (4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued. COMMENTS

A person who carries on prostitution and a person with whom prostitution is carried on, in any premises within the notified areas or in the vicinity of public places, shall be punishable with imprisonment upto 3 months. Any person who commits an offence under sub-section (1) is in respect of a child or minor, shall be punishable with (i) imprisonment for not less than 7 years but for life; or (ii) imprisonment upto 10 years and also fine. Any person who being the keeper of any public place knowingly permits prostitution or permits prostitutes to remain there or being the tenant, lessee, occupier or person in charge of any public place knowingly permits the same to be used for prostitution or being the owner, lessor, landlord or the agent lets the same to be used for prostitution or is willfully a


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part to such use shall be punishable with (i) imprisonment upto three months or with fine upto Rs. 200 (on second and subsequent conviction). 8. Seducing or soliciting for purpose of prostitution. - Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not (a) by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavors to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to five hundred rupees, and also with fine which may extend to five hundred rupees: Provided that where an offence under this Section is committed by a man he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months. COMMENTS

Any woman who (a) tempts, or attracts, or endeavours to tempt or attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or loiters or acts to cause obstruction or annoyance to persons or to offend against public decency, for the purpose of prostitution, shall be punishable with (i) imprisonment upto 6 months or fine upto Rs. 500 or both, on first conviction; and (ii) imprisonment upto 1 year and fine upto Rs. 500, in the event of a second or subsequent conviction. But, a man who commits any of offences under this Section, shall be punishable with imprisonment for not less than 7 days but upto 3 months. 9. Seduction of a person in custody. - Any person who [having the custody, charge or care of, or a position of authority over any [person], causes or aids or abets the seduction for prostitution of that [person] 5[shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years]. COMMENTS

Any person who causes or aids or abets the seduction for prostitution of a person (in whose custody, charge or care such person is) shall be punishable with (i) imprisonment for a term of not less than 7 years but for life; or (ii) imprisonment upto 10 years and also fine. 10. Release on probation of good conduct or after due admonition.Rep. by Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986), s. 13 (w.e.f. 26-1-1987).


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10A. Detention in a corrective institution. (1) Where(a) a female offender is found guilty of an offence under Section 7 or Section 8, and (b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subjected to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, in lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit: Provided that before passing such an order (i) the court shall give an opportunity to the offender to be heard and shall also consider any representation which the offender may make to the court as to the suitability of the case for treatment in such an institution, as also the report of the probation officer appointed under the Probation of Offenders Act, 1958 (20 of 1958); and (ii) the court shall record that it is satisfied that the character, state of health and mental condition of the offender and the other circumstances of the case are such that the offender is likely to benefit by such instruction and discipline as aforesaid. (2) Subject to the provisions of sub-section (3), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to appeal, reference and revision and of the Limitation Act 1963 (36 of 1963), as to the period within which an appeal shall be filed, shall apply in relation to an order of detention under sub-section (1) as if the order had been a sentence of imprisonment for the same period as the period for which the detention was ordered. (3) Subject to such rules as may be made in this behalf, the State Government or authority authorised in this behalf may, at any time after the expiration of six months from the date of an order for detention in a corrective institution if it is satisfied that there is a reasonable probability that the offender will lead a useful and industrious life, discharge her from such an institution, without condition or with such conditions as may be considered fit, and grant her a written license in such form as may be prescribed. (4) The conditions on which an offender is discharged under sub-section (3) may include requirements relating to residence of the offender and supervision over the offender’s activities and movements.] COMMENTS

The court may pass an order that a female offender who is found guilty of an offence under Section 7 or 8, be detained in a corrective institution for a term not being less than two years and not being more than five years. The State Governments may discharge the detenu from a corrective institution at any time but not before 6 months from the date of an order for detention. 11. Notification of address of previously convicted offenders. (1) When any person having been convicted (a) by a court in India of an offence punishable under this Act or punishable under


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Section 363, Section 365, Section 366, Section 366A, Section 366B, Section 367, Section 368, Section 370, Section 371, Section 372 or Section 373 of the Indian Penal Code (45 of 1860), with imprisonment for a term of two years or upwards; or (b) by a court or tribunal in any other country of an offence which would, if committed in India, have been punishable under this Act or under any of the aforesaid Sections with imprisonment for a life term, is within a period of five years after release from prison, again convicted of any offence punishable under this Act or under any of those Sections with imprisonment for a term of two years or upwards by a court, such court may, if it thinks fit, at the time of passing the sentence of imprisonment on such person, also order that his residence, and any change of, or absence from such residence after release be notified according to rules made under Section 23 for a period not exceeding five years from the date of expiration of that sentence. (2) If such conviction is set aside on appeal or otherwise, such order shall become void. (3) An order under this Section may also be made by an Appellate Court or by the High Court when exercising its powers or revision. (4) Any person charged with a breach of any rule referred to in sub-section (1) may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified as his residence is situated. 12. [Security for good behaviour from habitual offenders.] Rep. by the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986) s. 13 (w.e.f. 26-1-1987).] 13. Special police officer and advisory body. (1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally : Provided that no such power shall be conferred on (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time if his retirement, was holding a post not below the rank of a commissioned officer]. (3) For the efficient discharge of his functions in relation to offences under this Act(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.


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[(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India]. COMMENTS

The State Government is empowered to appoint any police officer not below the rank of an Inspector of Police as a special officer for dealing with offences under this Act in specified area. The Magistrate may confer upon any retired police or military officer all or any powers conferred on a special police officer with respect to particular cases or cases generally. A non-official advisory body may be associated with the special police officer to advise him on questions of general importance regarding the working of this Act. The Central Government has power to appoint any number of trafficking officers who shall exercise powers and discharge functions in relation to the whole of India. 14. Offences to be cognizable. - Notwithstanding anything contained in 1[ the Code of Criminal Procedure, 1973 ( 2 of 1974)] any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,(i) arrest without warrant may be made only by special police officer or under his direction or guidance, or subject to his prior approval; (ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of 2[ sub-inspector] specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made. COMMENTS

Every offence punishable under this act shall be cognizable. Arrest without warrant can be made only by the special police officer or under his direction or guidance or subject to his prior approval.


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15. Search without warrant. (1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer 1[ or the trafficking police officer, as the case may be,] has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a 2[ person] living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant. (2) Before making a search under sub-section (1), the special police officer 1[ or the trafficking police officer, as the case may be,] shall call upon two or more respectable inhabitants (at least one of whom shall be a women) of the locality in which the place to be searched is situated, to attend and witness the search, and may issue an order in writing to them or any of them so to do: Provided that the requirement as to the respectable inhabitants being from the locality in which place to be searched is situate shall not apply to a woman required to attend and witness the search]. (3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860). [(4) The special police officer or the trafficking police officer, as the case may be, entering any premises under sub-section (1) shall be entitled to remove therefrom all the persons found therein]. (5) The special police officer 1[or the trafficking police officer, as the case may be, after removing 5[ the 2[person]] under Sub-section (4) shall forthwith produce him before the appropriate Magistrate. [(5A) Any person who is produced before a Magistrate under sub-section (5), shall be examined by a registered medical practitioner for the purposes of determination of the age of such person, or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases. Explanation.- In this sub-section, “registered medical practitioner “ has the same meaning as in the Indian Medical Council Act, 1956 (102 of 1956)]. (6) The special police officer 1[or the trafficking police officer, as the case may be,] and other persons taking part in , or attending, and witnessing a search shall not be liable to any civil or criminal proceedings against them in respect of anything lawfully done in connection with, or for the purpose of the search. [(6A) The special police officer or the trafficking police officer, as the case may be, making a search under this Section shall be accompanied by at least two women police officers, and where any women or girl removed under sub-section (4) is required to be interrogated, it shall be done by a woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognized welfare institution or organization. Explanation - For the purposes of this sub-section and Section 17A, “recognized welfare institution or organization “ means such institution or organization as may be recognized in this behalf by the State Government.]


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[(7) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974) shall so far as may be apply to any search made under this Section as they apply to any search under the authority of a warrant issued under Section 94 of the said Code]. COMMENTS

This Section empowers the special police officer or the trafficking police officer (i) to enter and search premises without warrant; (ii) to call upon 2 or more respectable inhabitants of the locality to attend and witness the search; (iii) to remove from the premises all the persons found therein. Any woman or girl who has been removed under sub-section (4) can be interrogated (i) by a woman police officer; or (ii) in the presence of a lady member of a recognized welfare institution or organization. [16. Rescue of person. (1) Where a magistrate has reason to believe from information received from the police or from any other person authorised by the State Government in this behalf or otherwise, that 2[any person is living, or is carrying on or is being made to carry on, prostitution in a brothel,] he may direct a police officer not below the rank of a sub-inspector to enter such brothel, and to remove therefrom such [person] and produce him before him. (2) The police officer, after removing the 3[person], shall forthwith produce him before the magistrate issuing the order. ] COMMENTS

A magistrate may direct a police officer not below the rank of a sub-inspector to enter brothel and remove person therefrom. After removing the person, the police officer must forthwith produce him before the magistrate. [17. Intermediate custody of persons removed under Section 15 or rescued under Section 16.- (1) When the special police officer removing a 3[person] under sub-section (4) of Section 15 or a police officer rescuing a 3[person] under sub-section (1) of Section 16, is for any reason unable to produce him before the appropriate magistrate as required by subsection (5) of Section 15, or before the magistrate issuing the order under sub-section (2) of the Section 16, he shall forthwith produce him before the nearest magistrate of any class, who shall pass such orders as he deems proper for his safe custody until he is produced before the appropriate magistrate, or, as the case may be, the magistrate issuing the order : Provided that no [person] shall be (i) detained in custody under this sub-section for a period exceeding ten days from the date of the order under sub-section; or (ii) restored to or placed in the custody of a person who may exercise a harmful influence over him. (2) When the 3[person] is produced before the appropriate magistrate under sub-section (5) of Section 15 or the magistrate under sub-section (2) of Section 16, he shall, after giving him an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under sub-section (1) of Section 16, the age, character and antecedents of the 1[person] and the suitability of his parents, guardian or husband for taking charge of him and the nature of the influence which the conditions


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in his home are likely to have on him if he is sent home, and, for this purpose, he may direct a probation officer appointed under the Probation of Offenders Act, 1958, (20 of 1958), to inquire into the above circumstances and into the personality of the 1[ person] and the prospects of his rehabilitation. (3) The magistrate may, while an inquiry is made into a case under sub-section (2), pass such orders as he deems proper for the safe custody of the person: Provided that where a person rescued under Section 16 is a child or minor, it shall be open to the magistrate to place such child or minor in any institution established or recognized under any Children Act for the time being in force in any State for the safe custody of children : Provided further that, ] no 1[person] shall be kept in custody for this purpose for a period exceeding three weeks from the date of such an order, and no [person] shall be kept in the custody of a person likely to have a harmful influence over him. (4) Where the magistrate is satisfied, after making an inquiry as required under sub-section (2), (a) that the information received is correct; and (b) that he is in need of care and protection, he may, subject to the provisions of sub-section (5), make an order that such 1[person] be detained for such period, being not less than one year and not more than three years, as may be specified in the order, in a protective home, or in such other custody as he shall, for reasons to be recorded in writing, consider suitable : Provided that such custody shall not be that of the person or body of persons of a religious persuasion different from that of the 1[person] and that those entrusted with the custody of the 1[person] including the persons in charge of a protective home, may be required to enter into a bond which may, where necessary and feasible, contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the 1[person] as well as supervision by a person appointed by the court, which will be in force for a period not exceeding three years. (5) In discharging his functions under sub-section (2), a magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in 1[persons]. (6) An appeal against an order made under sub-section (4) shall lie to the Court of Session whose decision on such appeal shall be final.] 17. A Conditions to be observed before placing persons rescued under Section 16 to parents or guardians.- Notwithstanding anything contained in sub-section (2) of Section 17, the magistrate making an inquiry under Section 17 may, before passing an order for handing over any person rescued under Section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognized welfare institution or organization.] 18. Closure of brothel and eviction of offenders from the premises.- (1) A magistrate may, on receipt of information from the police or otherwise, that any house , room, place or any


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portion thereof within a distance of 3[two hundred meters] of any public place referred to in sub-section (1) of Section 7, is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor or landlord of such house, room, place, portion or the agent of the owner, lessor or landlord or on tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper uses thereof; and if, after hearing the person concerned, the magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution, then the magistrate may pass orders (a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place or portion; (b) directing that before letting it out during the period of one year, or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years,] immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the magistrate: Provided that, if the magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same, to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein. (2) A court convicting a person of any offence under Section 3 or Section 7 may pass orders under sub-section (1), without further notice such person to show cause as required in that sub-section. (3) Orders passed by the magistrate or court under sub-section (1) or sub-section (2) shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal and the said orders shall cease to have validity after the 2[expiry of one year or three years , as the case may be ] : Provided that where a conviction under Section 3 or Section 7 is set aside on appeal on the ground that such house, room, place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1) shall also be set aside. (4) Notwithstanding anything contained in any other law for the time being in force, when a magistrate passes an order under sub-section (1), or a court passes an order under sub-section (2), any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative. (5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that sub-section, he shall be deemed to have committed an offence under clause (b) of sub-section (2) of Section 3 or clause (c) of sub-section (2) of Section 7, as the case may be, and punished accordingly. COMMENTS

If the magistrate is satisfied that house, room, place, or portion thereof is being used as a brothel or for carrying on prostitution then he may pass orders directing (a) the occupier to evict the house, room, place or portion; (b) the owner, lessor or landlord or his agent not to


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let the house, room, place or portion without his previous approval; or (c) that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person. 19. Application for being kept in a protective home or provided home or provided care and protection by court.- (1) A person who is carrying on or is being made to carry on prostitution, may make an application to the magistrate within the local limits of whose jurisdiction he is carrying on, or is being made to carry on prostitution, for an order that he may be (a) kept in a protective home, or (b) provided care and protection by the court in the manner specified in sub-section (3). (2) The Magistrate may, pending inquiry under sub-section (3), direct that the 2[person] be kept in such custody as he may consider proper, having regard to the circumstances of the case. (3) If the magistrate, after hearing the applicant and making such inquiry as he may consider necessary, including an inquiry by a probation officer appointed under the Probation of Offenders Act, 1958 (20 of 1958), into the personality, conditions of home and prospects of rehabilitation of the applicant, is satisfied that an order should be made under this Section, he shall, for reasons to be recorded, make an order that the applicant be kept, (i) in a protective home, or (ii) in a corrective institution, or (iii) under the supervision of a person appointed by the magistrate, for such period as may be specified in the order]. COMMENTS

After an inquiry and for reasons to be recorded, the magistrate may make an order that the applicant be kept (i) in a protective home, or (ii) in a corrective institution, or (iii) under the supervision of a person appointed by him, for a period specified in his order]. 20. Removal of prostitute from any place.- (1) A magistrate on receiving information that any 1[person] residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received and issue a notice to such person requiring him to appear before the magistrate and show cause why he should not be required to remove himself from the place and be prohibited from re-entering it. (2) Every notice issued under sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the notice on the [person] against whom the notice is issued. (3) The magistrate shall after the service of the notice referred to in sub-section (2), proceed to inquire into the truth of the information received, and after giving the 1[person] an opportunity of adducing evidence, take such further evidence as he thinks fit, and if upon such inquiry it appears to him that such [person] is a prostitute and that it is necessary in the interests of the general public that such [person] should be required to remove himself therefrom and be prohibited from re-entering the same, the magistrate shall, by order in writing communicated to the [person] in the manner specified therein, require him after a date (to be specified in the order) which shall not be less than seven


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days from the date of the order, to remove himself from the place to such place whether within or without the local limits of his jurisdiction, by such route or routes and within such time as may be specified in the order and also prohibit from re-entering the place without the permission in writing of the magistrate having jurisdiction over such place. (4) Whoever (a) fails to comply with an order issued under this Section, within the period specified therein, or whilst an order prohibiting him from re-entering a place without permission is in force, re-enters the place without such permission, or (b) knowing that any 1[person] has, under this Section, been required to remove himself from the place and has not obtained the requisite permission to reenter it, harbours or conceals such person in the place, shall be punishable with fine which may extend to two hundred rupees and in the case of continuing offence with an additional fine which may extend to twenty rupees for every day after the first during which he has persisted in the offence. COMMENTS

After complying with the procedure laid down in sub-sections (1) to (3), the magistrate can require the person (who is a prostitute) to remove himself from the place and not to reenter the same subject to conditions specified in his order. Any person who (i) fails to comply with an order issued under sub-section (3); or (ii) harbours or conceals the prostitute (against whom an order under sub-section (3) is issued) in the place, shall be liable to be punished with (i) fine upto Rs. 200; and (ii) in the case of a continuing offence an additional fine upto Rs. 20 for every day. 21. Protective Homes. (1) The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions], when established, shall be maintained in such manner as may be prescribed. (2) No person or authority other than the State Government shall after the commencement of this Act, establish or maintain any 2[protective home or corrective institution] except under and in accordance with the conditions of, a license issued under this Section by the State Government. (3) The State Government may, on application made to it in this behalf by a person or authority, issue to such person or authority a license in the prescribed form for establishing and maintaining or, as the case may be, for maintaining a 1[protective home or corrective institution] and a license so issued may contain such conditions as the State Government may think fit to impose in accordance with the rules made under this Act : Provided that any such condition may require that the management of the 1[protective home or corrective institution] shall, wherever practicable, be entrusted to women : Provided further that a person or authority maintaining any protective home at the commencement of this Act shall be allowed a period of six months from such commencement to make an application for such license : [Provided also that a person or authority maintaining any corrective institution at the commencement of the Suppression of Immoral Traffic in Women and Girls (Amendment)


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Act, 1978 (46 of 1978), shall be allowed a period of six months from such commencement to make an application for such license]. (4) Before issuing a license the State Government may require such officer or authority as it may appoint for this purpose, to make a full and complete investigation in respect of the application received in this behalf and report to it the result of such investigation and in making any such investigation the officer or authority shall follow such procedure as may be prescribed. (5) A license, unless sooner revoked, shall remain in force for such period as may be specified in the license and may, on application made in this behalf at least thirty days before the date of its expiration, be renewed for a like period. (6) No license issued or renewed under this Act shall be transferable. (7) Where any person or authority to whom a license has been granted under this Act or any agent or servant of such person or authority commits a breach of any of the conditions thereof or any of the provisions of this Act or of any of the rules made under this Act, or where the State Government is not satisfied with the condition, management or superintendence of any 1[protective home or corrective institution], the State Government may, without prejudice to any other penalty which may have been incurred under this Act, for reasons to be recorded, revoke the license by order in writing : Provided that no such order shall be made until an opportunity is given to the holder of the license to show cause why the license shall not be revoked. (8) Where a license in respect of a [protective home or corrective institution] has been revoked under the foregoing sub-section such protective home shall cease to function from the date of such revocation. (9) Subject to any rules that may be made in this behalf, the State Government may also vary or amend any license issued or renewed under this Act. [(9A) The State Government or an authority authorised by it in this behalf may, subject to any rules that may be made in this behalf, transfer an inmate of a protective home to another protective home or to a corrective institution or an inmate of a corrective institution to another corrective institution or to a protective home, where such transfer is considered desirable having regard to the conduct of the person to be transferred, the kind of training to be imparted and other circumstances of the case : Provided that, (a) no person who is transferred under this sub-section shall be required to stay in the home or institution to which he is transferred for a period longer than he was required to stay in the home or institution from which he was transferred; (b) reasons shall be recorded for every order of transfer under this sub-section]. (10) Whoever establishes or maintains a 1[protective home or corrective institution] except in accordance with the provisions of this Section, shall be punishable in the case of a first offence with fine which may extend to one thousand rupees and in the case of second or subsequent offence with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees, or with both. COMMENTS

No person or authority other than the State Government has a right to establish or maintain


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any protective home or corrective institution without a license to be issued by the State Government. The State Government or an authority authorised by it in this behalf may transfer any inmate of a protective home or corrective institution to another protective home or corrective institution and vice-versa. However, reasons are to be recorded for every order of transfer. Any person or authority who establishes or maintains a protective home or corrective institution in violation of the provisions of this Section shall be liable to be punished with (a) in case of a first offence, fine upto Rs. 1,000; and (b) in case of a second or subsequent offence, imprisonment upto a year, or fine upto Rs. 2,000 or both. [21A. Production of records. - Every person or authority who is licensed under sub-section (3) of Section 21 to establish or maintain, or as the case may be, for maintaining, a protective home or corrective institution shall, whenever required by a court, produce the records and other documents maintained by such home or institution before such court]. 22. Trials. - No court inferior to that of 2[a Metropolitan Magistrate or a Judicial Magistrate of the first class] shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8. [22A. Power to establish Special Courts. (1) If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the first class, or as the case may be, Metropolitan Magistrates, in such district or metropolitan area. (2) Unless otherwise directed by the High Court, a court established under sub-section (1) shall exercise jurisdiction only in respect of cases under this Act. (3) Subject to the provisions of sub-section (2), the jurisdiction and powers of the presiding officer of a court established under sub-section (1) in any district or metropolitan area shall extend throughout the district or the metropolitan area, as the case may be. (4) Subject to the foregoing provisions of this Section a court established under sub-section (1) in any district or metropolitan area shall be deemed to be a court established under sub-section (1) of Section 11, or as the case may be, sub-section (1) of Section 16, of the Code of Criminal Procedure 1973 (2 of 1974), and the provisions of the Code shall apply accordingly in relation to such courts. Explanation- In this Section, “High Court� has the same meaning as in clause (e) of Section 2 of the Code of Criminal Procedure 1973 (2 of 1974)]. [22AA. Power of Central Government to establish special courts.(1) If the Central Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act and committed in more than one state, it may, by notification in the Official Gazette and after consultation with the High Court concerned, establish one or more courts of Judicial Magistrates of the first class or Metropolitan Magistrates for the trial of such offences. (2) The provisions of Section 22A, shall so far as may be, apply to the courts established under sub-section (1) as they apply to courts established under that Section]. [22B. Power of Court to try cases summarily.- Notwithstanding anything contained in the Code of Criminal Procedure 1973 ( 2 of 1974), the State Government may, if it considers it


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necessary so to do, direct that offences under this Act shall be tried in a summary way by a magistrate [including the presiding officer of a court established under sub-section (1) of Section 22A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial : Provided that in the case of any conviction in a summary trial under this Section it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of a summary trial under this Section, it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the magistrate shall, after hearing the parties, record an order to that effect and, thereafter, recall any witness, who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code]. 23. Power to make rules. (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for (a) the notification of any place as a public place; [(b) the placing in custody of persons for whose safe custody orders have been passed under sub-section (1) of Section 17 and their maintenance;] [(bb) the discharge of an offender under sub-section (3) of Section 10A from a corrective institution and the form of license to be granted to such offender;] [(c) the detention and keeping in protective homes or, as the case may be, in corrective institutions of [persons] under this Act and their maintenance;] (d) the carrying out of the provisions of Section 11 regarding notification of residence or change of or absence from residence by released convicts; (e) the delegation of authority to appoint the special police officer under subsection (1) of Section 13; (f) the carrying into effect of the provisions of Section 18; [(g) (i) the establishment, maintenance, management and superintendence of protective homes and corrective institutions under Section 21 and the appointment, powers and duties of persons employed in such homes or institutions; (ii) the form in which an application for a license may be made and the particulars to be contained in such application; (iii) the procedure for the issue or renewal of a license, the time within which such license shall be issued or renewed and the procedure to be followed in making a full and complete investigation in respect of an application for a license; (iv) the form of license and the conditions to be specified therein; (v) the manner in which the accounts of a protective home and a corrective institution shall be maintained and audited;


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(vi) the maintenance of registers and statements by a licensee and the form and such registers and statements; (vii) the care, treatment, maintenance, training, instruction, control and discipline of the inmates of protective homes and corrective institutions; (viii) the visits to and communication with such inmates; (ix) the temporary detention of 2[persons] sentenced to detention in protective homes or in corrective institutions until arrangements are made for sending them to such homes or institutions; (x) the transfer of an inmate from (a) one protective home to another or to a corrective institution, (b) one corrective institution to another or to a protective home, under sub-section (9A) of Section 21; (xi) the transfer in pursuance of an order of the court from a protective home or a corrective institution to a prison of a 2[person] found to be incorrigible or exercising bad influence upon other inmates of the protective home or the corrective institution and the period of his detention in such prison; (xii) the transfer to a protective home or corrective institution of persons sentenced under Section 7 or Section 8 and the period of their detention in such home or institution; (xiii) the discharge of inmates from a protective home or corrective institution either absolutely or subject to conditions, and their arrest in the event of breach of such conditions; (xiv) the grant of permission to inmates to absent themselves for short periods; (xv) the inspection of protective homes and corrective institutions and other institutions in which [persons] may be kept, detained and maintained;] (h) any other matter which has to be, or may be, prescribed. (3) In making any rule under clause (d) or clause (g) of Sub-section (2) the State Government may provide that a breach thereof shall be punishable with fine which may provide that breach thereof shall be punishable with fine which may extend to two hundred and fifty rupees. (4) All rules made under this Act shall, as soon as may be, after they are made, be laid before the State Legislature. 24. Act not to be in derogation of certain other Acts.- Nothing in this Act shall be construed to be in derogation of the provisions of the Reformatory Schools Act, 1897 (8 of 1897), or any State Act enacted in modification of the said Act or otherwise, relating to juvenile offenders. 25. Repeal and savings. (1) As from the date of the coming into force in any State of the provisions other than Section 1 of this Act, all State Acts relating to suppression of immoral traffic in 2[persons] or to the prevention of prostitution, in force in that State immediately before such date shall stand repealed. (2) Notwithstanding the repeal by this Act of any State Act referred to in sub-section (1), anything done or any action taken (including any direction given, any register, rule or order made, any restriction imposed) under the provisions of such State Act shall in so


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far such thing or action is not consistent with the provisions of this Act be deemed to have been done or taken under the provisions of this Act as if the said provisions were in force when such thing was done or such action was taken and shall continue in force accordingly until superseded by anything done or any action taken under this Act. Explanation.- In this Section the expression “State Act” includes a “Provincial Act”. [THE SCHEDULE [See Section 2(c)] Section

Magistrate competent to exercise the powers

7(1)

District Magistrate

11(4)

Metropolitan Magistrate or Judicial Magistrate of the first class.

15(5)

Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.

16

Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.

18

District Magistrate or Sub-Divisional Magistrate.

19

Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-Divisional Magistrate.

20

District Magistrate, Sub-Divisional Magistrate or any Executive Magistrate specially empowered by the State Government.

22B

Metropolitan Magistrate or Judicial Magistrate of the first class.]


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Annexure III

THE IMMORAL TRAFFIC (PREVENTION) AMENDMENT BILL, 2006 Bill No. 47 of 2006 INTRODUCED IN LOK SABHA THE IMMORAL TRAFFIC (PREVENTION) AMENDMENT BILL, 2006 A BILL further to amend the Immoral Traffic (Prevention) Act, 1956 and the Prevention Money-Laundering Act, 2002. BE it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:— CHAPTER I: PRELIMINARY Short title and commencement. 1. (1) This Act may be called the Immoral Traffic (Prevention) Amendment Act, 2006. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act. CHAPTER II Amendment of Section 2. 2. In Section 2 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the principal Act),— (i) in clause (aa), for the words “sixteen years”, the words “eighteen years” shall be substituted; (ii) clauses (ca) and (cb) shall be omitted; (iii) in clause (f), after the words “for commercial purposes”, the words “or for consideration in money or in any other kind” shall be inserted. Amendment of Section 3. 3. In Section 3 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely:— “(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than two years and which may extend to three years and also with fine which may extend to ten thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which shall not be less than three years and which may extend to seven years and shall also be liable to fine which may extend to two lakh rupees.” Amendment of Section 4. 4. In Section 4 of the principal Act, in sub-section (1), the words “or a minor to” shall be omitted. Amendment of Section 5. Insertion of new sections 5A, 5B and 5C. 5. In Section 5 of the principal Act, in sub-section (1), for the proviso, the following proviso shall be substituted, namely:— “Provided that if the person in respect of whom an offence committed under this subsection, is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life”. 6. After Section 5 of the principal Act, the following sections shall be inserted, namely:—


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Trafficking in persons. “5A. Whoever recruits, transports, transfers, harbours, or receives a person for the purpose of prostitution by means of,— (a) threat or use of force or coercion, abduction, fraud, deception; or (b) abuse of power or a position of vulnerability; or (c) giving or receiving of payments or benefits to achieve the consent of such person having control over another person, commits the offence of trafficking in persons. Explanation.—Where any person recruits, transports, transfers, harbours or receives a person for the purposes of prostitution, such person shall, until the contrary is proved, be presumed to have recruited, transported, transferred, harboured or received the person with the intent that the person shall be used for the purpose of prostitution. Punishment for trafficking in persons. 5B. (1) Any person who commits trafficking in persons shall be punishable on first conviction with rigorous imprisonment for a term which shall not be less than seven years and in the event of a second or subsequent conviction with imprisonment for life. (2) Any person who attempts to commit, or abets trafficking in persons shall also be deemed to have committed such trafficking in persons and shall be punishable with the punishment hereinbefore described. Punishment for visiting a brothel. 5C. Any person who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons shall on first conviction be punishable with imprisonment for a term which may extend to three months or with fine which may extend to twenty thousand rupees or with both and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to fifty thousand rupees.”. Amendment of Section 6. 7. In Section 6 of the principal Act,— (i) in sub-section (1), in clause (b), after the words “liable to fine”, the words “which may extend to one lakh rupees” shall be inserted; (ii) in sub-section (2A), the words “or minor” occurring at both the places shall be omitted. Amendment of Section 7. 8. In Section 7 of the principal Act, in sub-section (1A) and in the proviso to sub-section (2), the words “or minor” shall be omitted. Omission of Section 8. 9. Section 8 of the principal Act shall be omitted. Amendment of Section 10A. 10. In Section 10A of the principal Act, in sub-section (1),— (i) in clause (a), the words and figure “or Section 8” shall be omitted; (ii) in clause (b), for the words “five years”, the words “seven years” shall be substituted. Amendment of Section 13. 11. In Section 13 of the principal Act,— (i) in sub-section (2), for the words “an Inspector”, the words “a sub-inspector” shall be substituted;


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(ii) in sub-section (3), in clause (b), for the word “may”, the word “shall” shall be substituted. Insertion of new sections 13A and 13B. Constitution of Central Authority and Constitution of State Authority. 12. After Section 13 of the principal Act, the following sections shall be inserted, namely:— “13A. (1) The Central Government may constitute an Authority for the purposes of effectively preventing and combating the offence of trafficking in persons. (2) The members of the Authority shall be appointed by the Central Government and shall be of such number and chosen in such manner as may be prescribed. (3) The Chairperson of the Authority shall be one of the members appointed under subsection (2) to be nominated by the Central Government. (4) The term of office of the members of the Authority, the manner of filling vacancies among and the procedure to be followed in the discharge of their functions by the members shall be such as may be prescribed. 13B. (1) The State Government may constitute an Authority for the purposes of effectively preventing and combating the offence of trafficking in persons. (2) The members of the Authority shall be appointed by the State Government and shall be of such number and chosen in such manner as may be prescribed. (3) The Chairperson of the Authority shall be one of the members appointed under sub-section (2) to be nominated by the State Government. (4) The term of office of the members of the Authority, the manner of filling vacancies among and the procedure to be followed in the discharge of their functions by the members shall be such as may be prescribed”. Amendment of Section 17. 13. In Section 17 of the principal Act, in sub-section (3), in the first proviso, the words “or minor” occurring at both the places shall be omitted. Amendment of Section 18. 14. In Section 18 of the principal Act, in sub-section (1), in clause (b), the words “or minor” shall be omitted. Omission of Section 20. 15. Section 20 of the principal Act shall be omitted. Amendment of Section 22. 16. Section 22 of the principal Act shall be re-numbered as sub-section (1) thereof and, — (i) in sub-section (1) as so re-numbered, for the words and figures “Section 5, Section 6, Section 7 or Section 8", the words, figures and letters “Section 5, Section 5B, Section 5C, Section 6 or Section 7” shall be substituted; (ii) after sub-section (1) as so re-numbered, the following sub-section shall be inserted, namely:— “(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of the proceedings under this Act shall be conducted in camera.’’. Amendment of Section 23. 17. In Section 23 of the principal Act, in sub-section (2),— (a) in clause (g), in sub-clause (xii), the words and figure “or Section 8” shall be omitted; (b) after clause (g), the following clauses shall be inserted, namely:— “(ga) number of the members of the Authority and the manner in which


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such members shall be chosen for appointment under sub-section (2) of Section 13B; (gb) the term of office of the members of the Authority and the manner of filling vacancies among, and the procedure to be followed in the discharge of their functions by, the members under sub-section (4) of Section 13B;”. Insertion of new Section 23A. Power to make rules. 18. After Section 23 of the principal Act, the following Section shall be inserted, namely:— “23A. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for,— (a) the number of the members of the Authority and the manner in which such members shall be chosen for appointment under sub-section (2) of Section 13A; (b) the term of office of the members of the Authority, the manner of filling vacancies among, and the procedure to be followed in the discharge of their functions by the members under sub-section (4) of Section 13A. (3) Every rule made by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”. Amendment of the Schedule. 19. In the Schedule to the principal Act, the figures and words “20 District Magistrate, SubDivisional Magistrate or any Executive Magistrate specially empowered by the State Government” shall be omitted.


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Annexure IV

TRAFFICKING IN OTHER SPECIAL LOCAL LAWS • The Bonded Labour System (Abolition) Act, 1976 • The Child Labour (Prohibition and Regulation) Act, 1986 • The Transplantation of Human Organs Act, 1994 • The Foreigners Act, 1946 • The Juvenile Justice (Care and Protection of Children) Act, 2000


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Annexure V

INTERNATIONAL FRAMEWORK OF LAWS RELATED TO TRAFFICKING • International Agreement for Suppression of White Slave Traffic, 1904 The agreement was formulated with the intention of securing to women of full age who have suffered abuse or compulsion, as also underage girls, effective protection against criminal traffic known as the “White Slave Traffic”. • International Convention for Suppression of White Slave Traffic, 1910 This convention criminalized procurement, enticement or leading away of a woman or girl under the age of 21, even with her consent for immoral purposes irrespective of the fact that the various acts constituting the offence may have been committed in different countries. • International Convention for the Suppression of the Traffic of the Women and Children, 1921 The treaty prohibits the enticing or leading away of a woman or girl for immoral purposes, to be carried out in another country. • Slavery Convention, 1926 States Parties are enjoined to discourage all forms of forced labour. Slavery means control over another person, without full informed consent, for the purpose of exploitation. • International Labour Organisation Forced Labour Convention, 1930 Article 1 of this convention calls for suppression of the use of forced or compulsory labour in all its forms within the shortest possible period. • International Convention for Suppression of Traffic in Women of Full Age This convention imposes a duty on the signing countries to prohibit, prevent, prosecute and/or punish those engaged in trafficking in women. • Universal Declaration of Human Rights, 1948 Article 4 of the Declaration prohibits all forms of slavery and the slave trade. Article 13 recognizes the right of persons to freedom of movement and residence and Article 15 recognizes the right to nationality. • Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 This convention is a compilation of four previous international conventions (Conventions of 1904, 1910, 1921 and 1933). This convention made procurement, enticement, etc. for purposes of prostitution punishable irrespective of the age of the person involved and his/her consent to the same (Article 1). Brothel keeping was also denounced to be illegal and punishable (Article 2). The Convention provided for repatriation (Article 19) and rehabilitation (Article 20) measures. • Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention) This Convention condemned a variety of slavery-like practices, including debt bondage and forced marriage. States Parties undertook to establish suitable minimum ages of marriage and registration of marriages.


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• Abolition of Forced Labour Convention, ILO, 1957 Under this convention, States Parties undertook to suppress any form of forced or compulsory labour as a means of political coercion, economic development, labour discipline, or racial, social, national or religious discrimination. • International Covenant on Civil and Political Rights, 1966 Forced labour and slavery are prohibited by Article 8 of the ICCPR. Article 24 outlines the rights of children. • International Convention on Economic, Social and Cultural Rights (ICESCR) 1966 Article 10 of this convention stipulates that States are responsible for protecting children from exploitation and must lay down the minimum age for their employment. • Minimum Age Convention, 1973 The aim of this convention was to prohibit and regulate child labour and restrict engagement of children in hazardous work. • Convention on the Elimination of all forms of Discrimination against Women, 1979 (CEDAW) Article 6 of CEDAW requires States Parties to take all appropriate measures, including legislation, to suppress all forms of traffic in women. • United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 The convention provides against the expulsion or return of a person to another state if there are substantial grounds for deeming her to be in danger of torture. Victim compensation measures are also stipulated in the convention. • Tourism Bill of Rights and the Tourist Code 1985 Adopted by the WTO, the Code enjoins that the State should preclude any possibility of the use of tourism to exploit others for purposes of prostitution. • Convention on the Rights of the Child, 1989 Article 11 requires States Parties to take measures to combat the illicit transfer and non-return of children abroad. Under Article 34 and 35, States Parties must take appropriate national, bilateral and multilateral steps to protect the child from all forms of sexual exploitation and sexual abuse as also to prevent the abduction, sale of or traffic in children. • Convention on Protection of Rights of Migrant Workers, 1990 This Convention seeks to put an end to the illegal or clandestine recruitment and trafficking of migrant workers and lays down binding international standards for their treatment, welfare and human rights. • The ILO Convention 182 on the Worst Forms of Child Labour, 1998 Article 3 of this Convention defines the worst forms of child labour comprising all manifestations of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and servitude and forced or compulsory labour, etc. • Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, 1999 The Protocol enables individuals or groups who have exhausted national remedies to directly approach the Committee under the Protocol.


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• UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 The UN Trafficking Protocol seeks to create a global language to define trafficking in persons, especially women and children, assist victims of trafficking, and prevent trafficking in persons. It supplements the United Nations Convention Against Transnational Organized Crime, 2000. • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography This process seeks to raise standards for the protection of children from all forms of sexual exploitation and abuse. • Recommended Principles and Guidelines on Human Rights and Human Trafficking: These standards were developed by the UN High Commission for Human Rights so as to strengthen the human rights principles and perspective of the Trafficking Protocol. The document sets down 17 Recommended Principles and 11 Recommended Guidelines, which are meant to facilitate effective implementation of the key provisions.


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Annexure VI

REGIONAL INITIATIVES RELATED TO TRAFFICKING At the regional level, there have been several initiatives by the governments of South Asia and Asia-Pacific regions. The Bangkok Accord and Plan of Action to Combat Trafficking in Women, 1998; Asian Regional Initiative Against Trafficking in Persons, especially Women and Children, (ARIAT) 2000; The ASEM (Asia Europe Meeting) Action Plan to Combat Trafficking in Persons, especially Women and Children, 2000; The Bali Conference Cochair’s Statement on People Smuggling, Trafficking in Persons and Related Transnational Crime, 2002; are illustrations of their concerted efforts. SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 The aim of this convention is to promote cooperation amongst member states to effectively deal with various aspects of prevention, interdiction and suppression of trafficking in women and children; repatriation and rehabilitation of victims of trafficking and preventing the use of women and children in international prostitution networks, particularly where the SAARC member countries (Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka) are the countries of origin, transit and destination. The convention is legally binding on its signatory parties and is the first regional antitrafficking treaty to emerge from the Asian continent. As of March 2004, the convention has been ratified by all member countries except Nepal and Sri Lanka. The SAARC Convention defines ‘child’, ‘prostitution’, ‘trafficking’, ‘traffickers’ and ‘persons subjected to trafficking’ under Article 1. It provides for ‘aggravating circumstances’, which are factual circumstances that enhance the gravity of the offence (Art. 4). It also provides for the protection of victims (Art. 5), mutual legal assistance (Art. 6), training and sensitization of enforcement officials (Art. 8), rehabilitation of victims (Art. 9). Offences under the Convention are extraditable (Art. 7). Article 8(3) requires the States Parties to establish a Regional Task Force comprising officials from the Member States, to facilitate implementation of the provisions of this Convention and to undertake periodic reviews.

Convention on Regional Arrangement for the Promotion of Child Welfare, 2002 This Convention seeks to create regional arrangements among SAARC countries in order to promote understanding and awareness of the rights, duties and responsibilities of children and to develop the full potential of the South Asian child.


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Annexure VII

CRIME DATA The crime statistics of India give a comprehensive picture of the conviction rate of people arrested in crimes related to prostitution. The crimes, which have been analyzed, are Section 366(A) - Importation of Girls and Section 359-366 for Kidnapping & Abduction of Women and Girls along with the SLL of ITPA, Child Marriage Restraint Act and Indecent Representation of Women (P) Act. A comparison of the crime rate vis a vis arrest rate (no of arrests per lakh population) and number of arrests per case for the crimes of Importation of Girls and Kidnapping & Abduction reported under IPC during 2004 presented in Table 1 provides us with food for thought. The crime rate of Kidnapping and Abduction of Women and Girls is double (1.4) that than Kidnapping & Abduction of Others (0.7) and yet the number of arrests made per case of the latter is only marginally better. This definitely brings out the vulnerability of women and children to trafficking and resultant lack of emphasis on the issue from the law enforcement agencies. Table 1: Crime Rate vis-Ă -vis Arrest Rate for IPC crimes during 2004 Sl. No.

Crime Head

1.

Importation of Girls

2.

Persons Arrested

Crime Rate

Arrest Rate

No. of Arrest Per Case

68

0.0

0.0

0.8

Kidnapping & Abduction

31104

2.1

2.9

1.3

Kidnapping & Abduction of Women and Girls

19250

1.4

1.8

1.2

Kidnapping & Abduction of Others

11854

0.7

1.1

1.5

The number of persons arrested under SLL crimes of under Immoral Traffic (P) Act, Child Marriage Restraint Act, Indecent Representation of Women (P) Act shows the number of arrests has increased significantly for Child Marriage Restraint Act (49.6% from 224 in 2003 to 335 in 2004) and Indecent Representation of Women (P) Act (59.5% from 1066 in 2003 to 1700 in 2004 whereas the Immoral Traffic (P) Act shows a dismal increase of only 2.9%. Persons arrested under IPC and SLL Crimes by Age Groups and Sex During 2004 Age group and gender distribution of persons arrested under IPC cases of Importation of Girls and Kidnapping & Abduction and SLL cases Immoral Traffic (P) Act, Child Marriage Restraint Act, Indecent Representation of Women (P) Act in Table 2 (refer Annexure III) shows that the percentage of female arrestees under the IPC heads was relatively less than those recorded in SLL crimes. Further, it shows that the share of female arrestees was highest for cases under Immoral Traffic (P) Act followed by Indecent Representation of Women (P) Act and Child Marriage Restraint Act. It adds credence to the NHRC Action Research, which shows that most of the women and girls are booked under Section 8 of the ITPA for soliciting in a public place. It also shows that among the arrested persons those falling under the age group of 18-30, followed by 30-45 years and then 45-60 years account for the maximum arrestees under the


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crimes listed above. Only Child Marriage Restraint Act and the Indecent Representation of Women (P) Act show a slight variation with 30-45 years taking the lead followed by the age group of 18-30 and then 45-60. The most disturbing phenomenon in this aggregated data is that the “economically active” considered age group has the largest quantum of arrestees. This means that the traffickers are in this crime for the sole reason that provides them with a viable and relatively profitable option. This data, however, does not reflect the “juvenelising of trafficked victims” i.e. the demand for “young nubile virgin girls”. The NHRC study succeeds where this data falls short. The data received from the states of the NHRC study shows that of the arrested persons, a large number is that of children less than 18 years of age. (see Table 2) Disposal of persons arrested under IPC/SLL crimes by Police during 2004 The crime details on the disposal of persons arrested by police for Importation of Girls and Kidnapping & Abduction and SLL cases Immoral Traffic (P) Act, Child Marriage Restraint Act, Indecent Representation of Women (P) Act is presented in table 6. Information in table 3 actually gives us an insight into the true picture of the police role in cases pertaining to trafficking.

Crime Head

Below 18 Years

Male

(1) Importation of Girls

18-30 Years

Female

Male

30-45 Years

Female

Male

45-60 Years

Female

60 Years & Above

Male Female

Male

Total of Overall Age Group

Female Male

Female

Grand total of all persons. Col 12+13

Table 2 Persons arrested under IPC and SLL crimes by Age Groups and Sex During 2004

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

(14)

0

0

38

2

18

1

9

0

0

0

65

3

68

Kidnapping & Abduction

270

23 15493

711

10509

707

2952

216

195

28

29419

1685 31104

Kidnapping & Abduction of Women and Girls

196

17

9977

584

6117

574

1495

172

92

26

17877

1373 19250

Kidnapping & Abduction of Others

74

6

5516

127

4392

133

1457

44

103

2

11542

312 11854

Immoral Traffic (P) Act

10

48

1502

5007

1245 2811

350

393

38

24

3145

8283 11428

Child Marriage Restraint Act

8

5

73

17

103

34

61

25

7

2

252

83

335

Indecent Representation of Women (P) Act

6

102

419

195

413

213

185

166

1

0

1024

676

1700


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Of the total 95 persons arrested for Importation of Girls, 59 persons i.e. 62.1% have been charge sheeted with 36 i.e. 37.9% cases purported to be under investigation. Figures for Kidnapping & Abduction of Women and Girls also show a similar trend with 61.3% charge sheeted, 31.5% under investigation and only 7.3% of persons arrested released before trial. Figures for Immoral Traffic (P) Act show that 85% of the total arrested were charge sheeted with 14.5% arrestees under investigation. For Child Marriage Restraint Act, 92.5 % cases were charge sheeted with 6.1% under investigation. Indecent Representation of Women (P) Act shows a similar trend of 88.8% charge sheets with only 11.1 % of cases under investigation. A cursory glance of these figures would probably indicate “good investigation� as all the figures show that a minimum of 60% of the cases were charge sheeted. A charge sheet means that after the case has been registered, the investigation has generated enough evidence to prove the guilt of the offender.

Table 3 Disposal of persons arrested under IPC/SLL crimes by police during 2004 Crime Head

Total No. of Persons Under Arrest Including Those From Previous Year

Persons Released Before Trial

No.

% age to Total

Persons Charge Sheeted

Persons Under Investigation at the End of the Year

No.

No.

% age to Total

% age to Total

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Importation of Girls

95

0

0.0

59

62.1

36

37.9

43064

3136

7.3

26480

61.5

13448

31.2

Kidnapping & Abduction of Women and Girls

26319

1911

7.3

16124

61.3

8284

31.5

Kidnapping & Abduction of Others

16745

1225

7.3

10356

61.8

5164

30.8

13482

60

0.4

11465

85.0

1957

14.5

358

5

1.4

331

92.5

22

6.1

1791

1

0.1

1591

88.8

199

11.1

Kidnapping & Abduction

Immoral Traffic (P) Act Child Marriage Restraint Act Indecent Representation of Women (P) Act


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Annexure VIII UN SECRETARY-GENERAL’S BULLETIN AND INFORMATION a) United Nations Secretariat ST/SGB/2003/13 9 October 2003

Secretary-General’s Bulletin Special measures for protection from sexual exploitation and sexual abuse The Secretary-General, for the purpose of preventing and addressing cases of sexual exploitation and sexual abuse, and taking into consideration General Assembly resolution 57/306 of 15 April 2003, “Investigation into sexual exploitation of refugees by aid workers in West Africa”, promulgates the following in consultation with Executive Heads of separately administered organs and programmes of the United Nations: Section 1: Definitions For the purposes of the present bulletin, the term “sexual exploitation” means any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another. Similarly, the term “sexual abuse” means the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions. Section 2: Scope of application 2.1 The present bulletin shall apply to all staff of the United Nations, including staff of separately administered organs and programmes of the United Nations. 2.2 United Nations forces conducting operations under United Nations command and control are prohibited from committing acts of sexual exploitation and sexual abuse, and have a particular duty of care towards women and children, pursuant to Section 7 of Secretary-General’s bulletin ST/ SGB/1999/13, entitled “Observance by United Nations forces of international humanitarian law”. 2.3 Secretary-General’s bulletin ST/SGB/253, entitled “Promotion of equal treatment of men and women in the Secretariat and prevention of sexual harassment”, and the related administrative instruction1 set forth policies and procedures for handling cases of sexual harassment in the Secretariat of the United Nations. Separately administered organs and programmes of the United Nations have promulgated similar policies and procedures. Section 3: Prohibition of sexual exploitation and sexual abuse 3.1 Sexual exploitation and sexual abuse violate universally recognized international legal norms and standards and have always been unacceptable behaviour and prohibited conduct for United Nations staff. Such conduct is prohibited by the United Nations Staff Regulations and Rules. 3.2 In order to further protect the most vulnerable populations, especially women and children, the following specific standards which reiterate existing general obligations under the United Nations Staff Regulations and Rules, are promulgated: (a) Sexual exploitation and sexual abuse constitute acts of serious misconduct and are therefore grounds for disciplinary measures, including summary dismissal; 1 Currently ST/AI/379, entitled “Procedures for dealing with sexual harassment”.


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(b) Sexual activity with children (persons under the age of 18) is prohibited regardless of the age of majority or age of consent locally. Mistaken belief in the age of a child is not a defence; (c) Exchange of money, employment, goods or services for sex, including sexual favours or other forms of humiliating, degrading or exploitative behavior, is prohibited. This includes any exchange of assistance that is due to beneficiaries of assistance; (d) Sexual relationships between United Nations staff and beneficiaries of assistance, since they are based on inherently unequal power dynamics, undermine the credibility and integrity of the work of the United Nations and are strongly discouraged; (e) Where a United Nations staff member develops concerns or suspicions regarding sexual exploitation or sexual abuse by a fellow worker, whether in the same agency or not and whether or not within the United Nations system, he or she must report such concerns via established reporting mechanisms; (f) United Nations staff are obliged to create and maintain an environment that prevents sexual exploitation and sexual abuse. Managers at all levels have a particular responsibility to support and develop systems that maintain this environment. 3.3 The standards set out above are not intended to be an exhaustive list. Other types of sexually exploitive or sexually abusive behaviour may be grounds for administrative action or disciplinary measures, including summary dismissal, pursuant to the United Nations Staff Regulations and Rules. Section 4: Duties of Heads of Departments, Offices and Missions 4.1 The Head of Department, Office or Mission, as appropriate, shall be responsible for creating and maintaining an environment that prevents sexual exploitation and sexual abuse, and shall take appropriate measures for this purpose. In particular, the Head of Department, Office or Mission shall inform his or her staff of the contents of the present bulletin and ascertain that each staff member receives a copy thereof. 4.2 The Head of Department, Office or Mission shall be responsible for taking appropriate action in cases where there is reason to believe that any of the standards listed in Section 3.2 above have been violated or any behaviour referred to in Section 3.3 above has occurred. This action shall be taken in accordance with established rules and procedures for dealing with cases of staff misconduct. 4.3 The Head of Department, Office or Mission shall appoint an official, at a sufficiently high level, to serve as a focal point for receiving reports on cases of sexual exploitation and sexual abuse. With respect to Missions, the staff of the Mission and the local population shall be properly informed of the existence and role of the focal point and of how to contact him or her. All reports of sexual exploitation and sexual abuse shall be handled in a confidential manner in order to protect the rights of all involved. However, such reports may be used, where necessary, for action taken pursuant to Section 4.2 above. 4.4 The Head of Department, Office or Mission shall not apply the standard prescribed in Section 3.2 (b), where a staff member is legally married to someone under the age of 18 but over the age of majority or consent in their country of citizenship. 4.5 The Head of Department, Office or Mission may use his or her discretion in applying the standard prescribed in Section 3.2 (d), where beneficiaries of assistance are over the age of 18 and the circumstances of the case justify an exception.


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4.6 The Head of Department, Office or Mission shall promptly inform the Department of Management of its investigations into cases of sexual exploitation and sexual abuse, and the actions it has taken as a result of such investigations. Section 5: Referral to national authorities If, after proper investigation, there is evidence to support allegations of sexual exploitation or sexual abuse, these cases may, upon consultation with the Office of Legal Affairs, be referred to national authorities for criminal prosecution. Section 6: Cooperative arrangements with non-United Nations entities or individuals 6.1 When entering into cooperative arrangements with non-United Nations entities or individuals, relevant United Nations officials shall inform those entities or individuals of the standards of conduct listed in Section 3, and shall receive a written undertaking from those entities or individuals that they accept these standards. 6.2 The failure of those entities or individuals to take preventive measures against sexual exploitation or sexual abuse, to investigate allegations thereof, or to take corrective action when sexual exploitation or sexual abuse has occurred, shall constitute grounds for termination of any cooperative arrangement with the United Nations. Section 7: Entry into force The present bulletin shall enter into force on 15 October 2003.

(Signed) Kofi A. Annan, Secretary-General

b) Implementation Guidelines for the Field on the Secretary-General’s Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse (ST/ SGB/2003/13) Responsibilities of Representatives of the Secretary-General (RSG), UN Resident Coordinators (RC): a) Representatives of the Secretary-General and Resident Coordinators are in the best position to ensure that the Bulletin is implemented coherently at the field level. As the SecretaryGeneral has noted, they therefore bear specific responsibility for ensuring implementation of the Bulletin on the ground. b) Where a UN peacekeeping or peace-building mission is in place the RC is responsible for liaising with the SRSG/RSG to agree on respective responsibilities for ensuring overall implementation of the Sexual Exploitation and Abuse (SEA) prevention strategy and the SG’s Bulletin. c) The RC is responsible for ensuring the establishment and functioning of the in-country Networks on Sexual Exploitation and Abuse. The Networks will function under the auspices of the RC, and report to him/her. (See TORs for Networks.) d) Under the auspices of the RC, the Network is responsible for ensuring that the local community, including refugees and other beneficiaries of assistance, is properly informed of the existence and role of the SEA Focal Points and their field counterparts and how to contact them. All communications to staff and local populations about (a) prevention of


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and reporting on SEA and (b) channels of recourse for victims of SEA should be issued in the relevant languages by the in-country Network to prevent local communities from being inundated with conflicting information about where to turn. e) The RC is responsible for ensuring that rumoured or ‘in-the-air’ allegations of sexual exploitation and abuse are dealt with appropriately, and for liaising with the (S)RSG where Mission personnel may be involved. (See TORs for Networks.) f) The RC is responsible for reporting annually to the Inter-Agency Standing Committee Working Group (in a humanitarian crisis context) or the United Nations Development Group (in a development context) on progress made toward preventing and responding to sexual abuse and exploitation. (See TORs for Networks.) General management responsibilities (applicable to all organizations in the field): a) Managers are responsible for creating and maintaining an environment that prevents sexual exploitation and sexual abuse, and for taking appropriate measures for this purpose. b) Managers are responsible for ensuring that all staff (national and international) receive a copy of the SG’s Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse. c) The field manager of any organisation with a substantial presence in a particular country is responsible for appointing a senior- level (in the UN system, P4 level and above) Focal Point and Alternate on SEA. Either the Focal Point or the Alternate will be a female staff member. Managers should ensure that the Focal Points appoint fieldlevel focal points at all the organisation’s field/sub-offices with significant staff presence. The Focal Point’s role is to receive complaints and reports on cases of sexual abuse and sexual exploitation and to take the lead in developing and implementing SEA preventive measures. d) Managers are responsible for taking appropriate action where there is reason to believe that any of the standards of conduct listed in the SG’s Bulletin have been violated, or that other sexually abusive or sexually exploitive behaviour has occurred. e) When entering into cooperative arrangements with non-UN entities or individuals (including consultants), UN managers shall inform them of the standard of conduct contained in the SG’s Bulletin and receive a written undertaking that these standards are accepted. Responsibilities of Headquarters officials dealing with SEA (applicable for UN agencies/ departments) f) Upon receipt of a complaint from a field Focal Point, the Headquarters official responsible for sexual exploitation and abuse must take appropriate action to launch a preliminary investigation. g) S/he must also inform the Department of Management of all investigations into cases of sexual exploitation and sexual abuse and the actions taken as a result of such investigations. Responsibilities of staff h) Where a staff member develops concerns or suspicions regarding sexual exploitation or sexual abuse by a fellow worker, whether in the same agency or not, he or she must report such concerns via established reporting mechanisms.


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c) Model Information Sheet for Local Communities

Special Measures for Protection from Sexual Exploitation and Sexual Abuse WHAT YOU NEED TO KNOW • The United Nations and its partner organisations are present in [insert location] to help restore peace, security and human rights. [For development situations, change to: help promote economic development and reconstruction]. • Staff members of the United Nations and its partner organisations are expected to uphold the highest standards of personal and professional conduct at all times. Sexual exploitation and sexual abuse of members of the local population (including refugees and other beneficiaries of assistance) by such staff will not be tolerated. • This leaflet explains what you should know on the issue of sexual exploitation and sexual abuse, including what conduct is prohibited and what you can do if you have a complaint or allegation on this matter. What is sexual exploitation and sexual abuse? • Exchanging money, shelter, food or other goods for sex or sexual favours from someone in a vulnerable position is sexual exploitation. • Threatening or forcing someone to have sex or provide sexual favours under unequal or forced conditions is sexual abuse. What kinds of sexual conduct are prohibited? Any acts of sexual exploitation and sexual abuse by an international or national United Nations staff member and anyone working with the following organisations [list implementing partners and partner agencies participating in the in-country SEA prevention strategy] is serious misconduct and may lead to disciplinary measures. Specifically: a) Sexual activity with anyone under the age of 18 is prohibited, regardless of consent; b) Purchasing sexual acts with money, employment, goods or services is prohibited; c) Exchanging humanitarian assistance (e.g. food rations, shelter supplies) for sexual acts is prohibited; d) Any forced, coercive or degrading sexual acts are prohibited; In addition, sexual relationships between staff and beneficiaries of assistance are strongly discouraged, because of the difference in power and the potential for this to be abused Do these rules apply to UN Peacekeeping Forces and Civilian Police? United Nations peacekeeping forces (military members of national contingents), UN Military Observers and UN civilian police must not commit acts of sexual exploitation and sexual abuse, and have a particular duty of care towards women and children. They are expected to uphold the same standards as civilian staff members. MODEL INFORMATION SHEET FOR LOCAL COMMUNITIES What should I do if I have a complaint about sexual exploitation and abuse? • If you are a victim of sexual exploitation and abuse, or if you are aware of someone who is, contact one of the Focal Points (see below). If you know the organisation that the accused person works for, you should try to contact the Focal Point within that organisation (e.g. the Peacekeeping Focal Point if your complaint is about a UN soldier, a UNICEF Focal Point if your complaint is about a UNICEF staff member).


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If you feel at all uncomfortable taking the complaint to the relevant organisation’s Focal Point, you may contact any of the Focal Points, who will ensure your complaint is dealt with in a timely and sensitive manner. • The person you report to will ask you for your consent, and then record your complaint and ask you to sign it. They will also be able to advise or assist you with any immediate safety, security, health and legal needs, by helping you (or the victim, if different) get in touch with the right services. • Your complaint will be kept as confidential as possible. Only those people involved in investigating your complaint, the person you are complaining about and the Headquarters of the organisation where s/he works, will be informed about your complaint. • Your safety and security will always be taken into account when following up on a complaint. • Following your complaint, you will be contacted by the appropriate investigation team. • The Focal Point will also try to keep you informed of the progress and outcomes of the investigation, and to explain investigation process will work. Can I make a complaint on behalf of another person? • Yes. If you suspect sexual exploitation is being committed by staff of any agency or organization listed above. You are encouraged to make a report. REMEMBER: ACTS OF SEXUAL EXPLOITATION AND ABUSE COMMITTED AGAINST YOU ARE NEVER YOUR FAULT. PLEASE REPORT ANY SUSPICIONS OR CONCERNS YOU HAVE ON THESE MATTERS TO ONE OF THE FOCAL POINT(S) LISTED IN THE ATTACHED SHEET.

Produced by the Inter-Agency Standing Committee Task Force on Protection from Sexual Exploitation and Abuse.


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d) Scenarios covering prohibited acts of Sexual Exploitation and Sexual Abuse for the various categories of United Nations personnel The following scenarios demonstrate examples of prohibited acts under the current standards of conduct expected of all categories of UN personnel (civilian, civilian police, military observers and military members of national contingents) as set out in the UN Staff Rules and Regulations and/or the DPKO Disciplinary Directives (including the Ten Rules: Code of Personal Conduct for Blue Helmets). These acts also specifically violate standards listed in: ST/SGB/2003/13 on Special Measures for Protection from Sexual Exploitation and Sexual Abuse; and ST/SGB/1999/13 on Observance by United Nations Forces of International Humanitarian Law. N.B. Allegations and reports of sexual harassment are covered by separate procedures described in ST/SGB/253 and ST/AI/379 (as may be amended). The acts described below constitute misconduct and could lead to the appropriate disciplinary and administrative measures, such as summary dismissal or recommendation to repatriate. More information on determining the relevant procedures to be followed when alleged acts of misconduct occur should be obtained from the relevant Department/Agency Headquarters. EXAMPLE OF PROHIBITED ACT

WHY IT CONSTITUTES MISCONDUCT

Betty is a 16 year old girl living in a small village. Betty has four younger brothers and sisters. Her parents do not have very much money and find it very difficult to provide the costs for education, clothing and food for all of the children. There had even been some discussion about Betty dropping out of school to assist her mother in working at the market. However, all the problems have been solved as Betty has started a sexual relationship with Johnson, a senior UNHCR officer. He has promised to pay for her school fees and help to pay for her brothers and sisters to continue with their education. Betty’s parents are very relieved that this opportunity has come and encourage Betty to maintain the relationship. It has really helped the family and now all the children can continue in school.

Under Section 3.2 (b) of the SecretaryGeneral’s Bulletin ST/SGB/2003/13, Johnson is prohibited from sexual activity with anyone under 18, regardless of the local age of consent. This encounter also constitutes sexual exploitation as defined in Section 3.2 (c) of ST/SGB/2003/13: Johnson has abused a position of differential power for sexual purposes, by exchanging money for sexual access.

Carlos, a military commander posted in the southern district, has helped set up a boys’ soccer club in the town where his national contingent is deployed. Carlos enjoys the soccer games, but he particularly enjoys the access the club gives him to local adolescents. He gives presents (magazines, candy, sodas, pens) to various boys in exchange for sexual acts. He thinks there’s nothing wrong with this, since the boys like the presents he gives them.

Carlos’ acts are in violation of the Ten Rules: Code of Personal Conduct for Blue Helmets and ST/SGB/1999/13 on Observance by UN Forces of International Humanitarian Law. He has abused a position of differential power for sexual purposes, by exchanging money and goods for sexual favours. Such acts constitute serious misconduct. In addition, Carlos is in breach of the same policy for performing sexual acts with children (anyone under 18, regardless of the local age of consent).


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EXAMPLE OF PROHIBITED ACT

WHY IT CONSTITUTES MISCONDUCT

Joey is a locally-hired driver for a UN agency, who transports relief items from the warehouse to the refugee camp where the items are distributed. On one of his trips he recognized a 15-year old refugee girl walking on the side of the road and gave her a lift back to the camp. Since then, to impress her and win her over, he frequently offers to drive her wherever she is going and sometimes gives her small items from the relief packages in his truck, which he thinks she and her family could use. The last time he drove her home she asked him inside her house to meet her family. The family was pleased that she had made friends with a UN worker. Joey really likes the girl and wants to start a sexual relationship with her. He knows her family will approve.

Under Section 3.2 (b) of the SecretaryGeneral’s Bulletin ST/SGB/2003/13, Joey is prohibited from sexual activity with anyone under 18, regardless of the local age of consent. Moreover, the rules also strongly discourage sexual relationships between UN staff and beneficiaries of assistance, since they are based on inherently unequal power dynamics and undermine the credibility and integrity of the work of the UN (see Section 3.2 (d) of ST/SGB/2003/13).

Marie is a 30-year-old refugee whose desperate circumstances have forced her into prostitution. On Saturday night she was picked up by John, a UNICEF staff member in a UN car, as he was driving back home after dinner. John took her home and paid her for sex. As prostitution is not illegal in the country where he is posted, he figured he was doing nothing wrong.

The exchange of money for sexual services violates the standards of conduct expected of any category of UN personnel. In this case, (involving a civilian staff member) the act violates Section 3.2 (c) of the SecretaryGeneral’s Bulletin ST/SGB/2003/13.

Josie is an adolescent refugee girl in one of the camps. Pieter, one of the food distribution staff, who works for WFP, has offered to give her a little extra during the distribution if she will be his “special friend”. She agrees willingly. Both of them agree that they should start a sexual relationship and neither one of them think that anything is wrong. Josie hopes that the relationship will be a passport to a new life in another country, and Pieter does nothing to discourage these hopes.

Pieter’s relationship with Josie constitutes sexual exploitation: exchange of goods for sex or sexual favours is explicitly prohibited under Section 3.2 (c) of ST/SGB/ 2003/13. This includes any exchange of assistance that is due to beneficiaries of assistance. Moreover (and irrespective of the local age of consent) if Josie is under 18, Pieter is in violation of Section 3.2 (b) of ST/SGB/2003/13.

Darlene is a CIVPOL. She’s always on the lookout for good business opportunities since she has to support her family back home. She’s asked by another CIVPOL, Stanislas, to contribute some of her MSA towards renovating a bar in the town, in return for a cut of the bar’s profits. Darlene

Darlene and Stanislas are aiding sexual exploitation. This violates the Ten Rules: Code of Personal Conduct for Peacekeepers. The peacekeepers, UNMOs and CIVPOLs who frequent the bar are engaged in sexual exploitation. For these categories of personnel, using a prostitute


Confronting the Demand for Sex-trafficking

EXAMPLE OF PROHIBITED ACT

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WHY IT CONSTITUTES MISCONDUCT

soon finds she’s getting a steady income from the bar, and gives more money to hire more staff, including security, and so on. She herself doesn’t go to the bar, but she knows that there is a lot of prostitution going on there and that several peacekeepers and CIVPOLs use the bar often. However, she doesn’t think that concerns her, since she isn’t directly involved in those issues. She’s just glad of the extra money.

violates the Ten Rules: Code of Personal Conduct for Blue Helmets and the ST/SGB/ 1999/13 On Observance by UN Forces of International Humanitarian Law.

Sven is a Military Observer. He has developed a close relationship with his landlady, Amanna, who also does his cleaning. They eat meals together and talk in broken English. Amanna’s family (her husband and three young children) was killed in the violence that engulfed the country five years ago, so she is very lonely and enjoys the opportunity to talk. One night Sven returns from a reception for the Force Commander who has been visiting the district where he is deployed. Sven is drunk. He has not had sex for eight months. He presses Amanna to come to his bedroom, urging her to make love with him. Amanna looks extremely embarrassed, and tries to leave the room. Sven’s sure she likes him, but is just being shy. Then he changes tactics, and tells her he will have to think of leaving her house and finding a new home if she won’t come to bed with him. Amanna is horrified at the prospect of losing her only source of income, so she complies with his demands. After all the violence she has seen, she has come to expect this kind of behaviour from men, but she had thought that Sven would be different. She was wrong about that.

Sven has breached the Ten Rules: Code of Personal Conduct for Peacekeepers, by using his differential position of power to coerce Amanna into having sex with him.

Produced by the Inter-Agency Standing Committee Task Force on Protection from Sexual Exploitation and Abuse Acknowledgement: A number of the scenarios above have been adapted from materials contained in the Facilitator’s Guide: Understanding Humanitarian Aid Worker Responsibilities: Sexual Exploitation and Abuse Prevention, produced by the Coordination Committee for the Prevention of Sexual Exploitation and Abuse in Sierra Leone.


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e) Model Complains Referal Form (Sexual Exploitation and Abuse)

Name of Complainant: ......................

Ethnic origin/Nationality: ...................................

Address/Contact details: ....................

Identity no:..........................................................

Age: ...................................................

Sex: .....................................................................

Name of Victim: ................................

Ethnic origin/Nationality: ...................................

(if different from Complainant)

Address/Contact details: ....................

Identity no:..........................................................

Age: ...................................................

Sex: .....................................................................

Name(s) and address of Parents, if under 18: ..................................................................... ........................................................................................................................................... Has the Victim given consent to the completion of this form?

YES

NO

Date of Incident(s): ............................

Time of Incident(s): .............................................

Location of Incident(s): .....................

............................................................................

Physical & Emotional State of Victim (Describe any cuts, bruises, lacerations, behavior, and mood): ......................................................................................................................... ........................................................................................................................................... ........................................................................................................................................... ........................................................................................................................................... Witnesses’ Names and Contact Information: ..................................................................... ........................................................................................................................................... Brief Description of Incident(s) (Attach extra pages if necessary): ...................................... ........................................................................................................................................... ........................................................................................................................................... ........................................................................................................................................... Name of Accused person(s): Job Title of Accused person(s): .............................................. Organization Accused person(s) Works For: ...................................................................... Address of Accused person(s) (if known): .......................................................................... ........................................................................................................................................... Age: ...................................................

Sex: .....................................................................

Physical Description of Accused person(s): ......................................................................... ........................................................................................................................................... ........................................................................................................................................... ...........................................................................................................................................


Confronting the Demand for Sex-trafficking

Have the police been contacted by the victim?

YES

NO.

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If yes, what happened?

........................................................................................................................................... If no, does the victim want police assistance, and if not, why? .......................................... ........................................................................................................................................... Has the victim been informed about available medical treatment?

YES

NO

If Yes, has the victim sought Medical Treatment for the incident?

YES

NO

If Yes, who provided treatment? What is the diagnosis and prognosis? ............................. ........................................................................................................................................... What immediate security measures have been undertaken for victim? ............................... ........................................................................................................................................... ........................................................................................................................................... Who is responsible for ensuring safety plan (Name, Title, Organisation): ......................... ........................................................................................................................................... Any other pertinent information provided in interview (including contact made with other Organisations, if any): ............................................................................................... ........................................................................................................................................... Details of referrals and advice on health, psychosocial, legal needs of victim made by person completing report: .................................................................................................. ........................................................................................................................................... Report completed by: ......................................................................................................... Name Position/Organisation Date/Time/Location .............................................................. Has the Complainant been informed about the Ogranisation’s procedures for dealing with complaints? YES NO Signature/thumb print of Complainant signaling consent for form to be shared with relevant management structure* and SRSG/RC/HC: .......................................................... ........................................................................................................................................... Complainant’s consent for data to be shared with other entities (check any that apply): ........................................................................................................................................... Police. Camp leader (name) ................................................................................................ Community Services agency ............................................................................................... ........................................................................................................................................... ...........................................................................................................................................


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Health Centre (name) ......................................................................................................... ........................................................................................................................................... Other (specify) . .................................................................................................................. Date Report forwarded relevant management structure*: .................................................. Received by relevant management structure*: .................................................................... Name .................................................

Position ...............................................................

Signature ............................................................................................................................ (*Relevant management structure is the official(s) responsible for sexual exploitation and abuse issues in the Headquarters of the Organisation where the Accused person works)

ALL INFORMATION MUST BE HELD SECURELY AND HANDLED STRICTLY IN LINE WITH APPLICABLE REPORTING AND INVESTIGATION PROCEDURES


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Annexure IX LIST OF ABBREVIATIONS UNESCAP

United Nations Economic and Social Commission for Asia and Pacific

ITPA

Immoral Trafficking Prevention Act, 1986

SITA

Suppression of Immoral Trafficking Prevention Act of 1956

UN Protocol Cr. PC

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children Criminal Procedure Code

IPC

Indian Penal Code

SLL

Special Local Laws

CEDAW

Convention for Elimination of Discrimination Against Women

UNODC

United Nations office on Drugs and Crime

NCRB

National Crime Records Bureau

NHRC

National Human Rights Commission

STEP CSE IOM R.I.

Support to Training and Employment Programme Commercial Sexual Exploitation International Organization For Migration Rigorous Imprisonment


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Annexure X LIST OF PARTICIPANTS Name

Organization

Designation

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Ms. Ruchira Gupta Ms. Neela Satyanarayan Mr. P.P. Srivastav Mr. K.K. Kashyap Mr. A.N. Roy Mr. J. Virkar Mr. Jawahar Singh Mr. Sandeep Bishnoi Dr. Satypal Singh Mrs. Sridevi Goyal Mr. A.K. Shinde Mr. Pratap Dighawkar Dr. Sanjay Aparanti Mr. J. Omranikar Mrs. M.C. Borwankar Mr. Hemant Nagarale Mr. Ashok Dhiware Mr. Udhav Kamble Mr. Suresh Kakkar Mr. K.L. Prasad Mrs. Tripti Panchal Mr. V. Kachui Mr. Sadanand Jadhav Ms. Melissa Farley

Apne Aap Home Department Home Department Mumbai Police Mumbai Police

Executive Director Principal Secretary, A & Security Principal Secretary, Special D.G.P. C.P. Mumbai Addl. D.G., Law & Order, Mumbai D.I.G. Training D.I.G. PAW I.G. Konkan Range I.G. Railways D.C.P. Zone 4 D.G.P. Zone 2 D.C.P. Enforcement D.G. Crime Jt. C.P. Crime Addl. C.P. Crime Addl. C.P Crime, Pune I.G. PCR, AG Office Addl. C.P. Crime, Thane JCOS, Mumbai

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

Ms. Jean Enriquez Dr. P.M. Nair Mr. Pratap Dighavkar Dr. Sanjay Aparanthi Mr. M.S. Ingle Mr. Datta S. Dhawale Mr. Rajan Kuldhar Mr. A.B. Deshpande Mr. A.P. Gadhade Mr. Yashwant R. Tawde Mr. R.R. Joshi Dr. G.G. Wankhede Ms. Lagade Mr. Dinkar Namdeo Mohite Mr. Dinesh Agrawal Mr. Ashok Patil Mr. Nand Kumar Gopale Mr. Jatin Desai Mrs. Bhangar Mr. Bharat Gaekwad Ms. Neha Naik Ms. Chavan Mr. Anurag Chaturvedi Mr. Sushil D Vyas Mr. Bhaskar Kakad Mr. Deepak Nepani Mr. K.K. Varghese Ms. Vandana Aparanti Ms. Barbara Kryszko

CATW – AP CRPF Mumbai Police Mumbai Police Mumbai Police Mumbai Police Mumbai Police Mumbai Police Mumbai Police Mumbai Police Mumbai Police TISS D B Marg Police Station Mumbai Police V.P. Road Police Station Nagpada Police Station Nagpada Police Station

State Intelligence Dept. Save the Children India Home Department

Mumbai Police Mumbai Police Mumbai Police Mumbai Police Apne Aap Apne Aap Apne Aap Apne Aap Apne Aap CATW

National Director Dy. Secretary, Special Prostitution Research and Education Director Deputy Director I. G. Police Dy. Commissioner Dy. Commissioner Asst. Commissioner Asst. Commissioner Senior Inspector Senior Inspector Police Inspector Senior Inspector Senior Inspector Professor Inspector Inspector Inspector Inspector Sub-Inspector Freelance Journalist Asst. Commissioner Inspector Constable Sub-Inspector Trustee Freelance Advocate Coordinator Trustee Rapporteur Coordinator Resource person


You can help us by volunteering in our work Please tell us in what way can you volunteer your time in our ongoing work? Please specify your skill, availability of time, previous experiences in social development work (if any). You can help us in online volunteering grant writing, workshop designing, contributing to our newsletter, translating, data analysis, or in any other way you want. You can also help us by donating toys, books, clothes in good condition, educational material and computers, fax machines, photocopying machines or any other office utilities. E-mail us at: apneaap2003@rediffmail.com ruchiragupta@gmail.com

an initiative to end sex-trafficking


Vision and Mission Vision:

Our actions are informed and framed by two Gandhian beliefs; Antodaya and Ahimsa Antodaya (uplift of the last woman): Antodaya, lexically means the awakening of the last person. Change is possible and sustainable only if it is led by the last wo/man and affects and elevates the lives of the poorest of the poor. Apne Aap will ONLY undertake work that touches this person, in this case she being the prostituted child or woman. Ahimsa (Non-violence): Sex-trafficking and prostitution are forms of violence against women. Any attempt to end sex-trafficking and deal with prostitution would first of all require our own internalization of the principles of non-violence.

Mission:

To end the sex-trafficking of women and chilren.

CONFRONTING THE DEMAND FOR SEX-TRAFFICKING

an initiative to end sex-trafficking

Confronting the Demand for Sex-trafficking A Handbook for Law-enforcement JULY 2007

Objectives: -

To support community-based initiatives of those trapped by the sex industry Mitigate the circumstances of those caught in prostitution Develop leadership among the affected to end sex-trafficking Prevent inter-generational prostitution Build linkages between grassroots activisim and policy makers on issues related to ending sex-trafficking - Create awareness in society on discrimination against women and girls, particularly on issues realted to sex-trafficking, prostitution, sex, sexuality and violence against women and girls.

COALITI N

Handbook for Law Enforcement Agencies  

Manual on Trafficking in Human beings

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