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What does Sri Lanka say about the world’s oldest profession?: Is sex work legal in Sri Lanka?

2 years ago

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[caption id="attachment_144230" align="alignright" width="264"] Attorney-at-Law Harshana Nanayakkara[/caption] “Is sex work legal in Sri Lanka?” Well, technically,  it’s not illegal in Sri Lanka; however, there's a lot more to it than that.   Attorney-at-Law Harshana Nanayakkara sets out the existing laws. When we are talking about sex work, Sri Lankan law doesn’t have a legal provision for “prostitutes”, but rather roundabout laws which address the act of sex work from various different angles, and according to Nanayakkara, these include the provisions in the Vagrants Ordinance and the Brothels Ordinance.  Both these archaic laws, the Vagrants Ordinance enacted in 1842 and the Brothels Ordinance in 1889, address the subject in the following manner: Vagrants Ordinance Section 9 (1) (a) incriminates “any person who knowingly lives wholly or in part on the earnings of prostitution”. Section 3 (1) (b) penalises “every common prostitute wandering in public…and behaving in a riotous and indecent manner”, and Section 7 (1) (a) criminalises soliciting in public places “any person for the purpose of the commission of any act of illicit sexual intercourse or indecency”. Brothels Ordinance Section 2 incriminates any person who is part of the management of a brothel, or is in some manner part of a premises which is knowingly for the purpose of “habitual prostitution” or, with the knowledge that such premises is to be “used as a brothel”. When looking at the law, we can also look at the Penal Code’s Section 360A (1), which refers to the act of “procuring a person to become a prostitute”.    [caption id="attachment_144229" align="alignleft" width="264"] Trans Equality Trust Director Sakuni Mayadunne[/caption] The court’s interpretation of the law These laws, however archaic they may be, still remain part of our current justice system, and to overcome its dated nature, the courts have made attempts to interpret them in a way that makes sense to our present times.  For example, the Sri Lankan Supreme Court (SC) ruled in Saibo v. Chellam that “sex work is not an offence per se under our law…” stating that what is penalised is “the making of a living out of the corruption and Senaka Perera also stated that the courts have interpreted the law stating that sexual acts between consenting adults should not be subject to interference by the state, and shouldn’t be criminalised. That said, Perera also shared that it is very clear that the courts have repeatedly taken the stance against the criminalising of individuals engaging in sexual acts for the sake of their own personal livelihood. [caption id="attachment_144228" align="alignright" width="275"] Attorney-at-Law Senaka Perera[/caption] Despite court judgments pronouncing that sex work per se cannot be penalised, the Vagrants Ordinance is routinely used to incriminate sex workers in Sri Lanka, especially street sex workers who are most vulnerable to violence and exploitation. According to Trans Equality Trust Director Sakuni Mayadunne, who is an activist at the grassroots level often interacting with sex workers in her area, there is a serious lack of awareness amongst the law enforcement authorities when it comes to the rights of sex workers.  Mayadunne said that the way the Police handles matters, including sex workers, is incredibly problematic and that their attitude is as if “the night does not belong to women”, adding that often if a woman, sex worker or not, is travelling on the street at night, she is suspected of being a sex worker, especially if she happens to have a condom on her person. Mayadunne shared that as per the “Laws concerning Commercial Sex and HIV AIDS Prevention”, a woman in a public place with a condom does not illustrate the commission of any offence, as condoms are considered a medical device and not a tool to prove sex work.  Mayadunne shared that often, she encounters trans persons who are sex workers, and in her experience, many of them have had unpleasant run-ins with the Police, and would often be presented before the judge under numerous claims. They do not fight these accusations because they do not have the resources to fight it and more often than not, when they are before the magistrate on bogus claims, they would plead guilty to simply pay a fine and be released, as they do not wish to butt heads with the system, which is against them, she said.  degradation of others”. Going further, it states that “according to the intention of the (Vagrants) Ordinance and the words of the sub-section itself, the latter has no application to prostitutes who live on their own earnings or prostitution”. In February 2020, a magistrate, citing the aforementioned judgment, ruled that a sex worker can only be arrested under Section 3 of the Vagrants Ordinance only if they behave in a “riotous or disorderly manner in any public street or highway” and not merely for engaging in commercial sex. And, in the case of Rosemary Judy Perera v. State, it is stated that the offence of procuration under Penal Code S360A has stated that “the desire of the legislature had been in safeguarding the public interest in morality than the chastity of the individual”. Therefore, it can be interpreted that the laws do not exist to hunt down those who engage in the profession. Attorney-at-Law and longtime outspoken advocate for the rights of sex workers Sex workers during the pandemic  We were able to speak with a number of sex workers from the Gampaha area, and while they wished to remain anonymous to protect their identities, they all shared their struggles and the difficulties they are facing during the pandemic, with many of them commenting that unlike many of the higher-end sex workers, they earn their living by walking on street corners, and lockdown has made it impossible to reach their customers.  They said that unlike in the past prior to the pandemic, they now go out in search of customers during the early hours of the morning, around 2 a.m.-3 a.m., in an attempt to avoid the Police. They said that while they understand it is against the travel restrictions in place, they have no choice but to step out because some of them are single mothers who do not have a partner to take care of their child, and others do not have any savings and must earn to pay rent and eat. They shared that there have been occasions where the Police have caught them, and unlike in the past, these days they simply give them a beating and send them on their way. However, there have been occasions where they have been arrested and presented to the magistrate and the judge has ordered them to get tested for STDs (sexually transmitted diseases), which takes three to four days to process, and the system mandates that they remain remanded for that time period, which is incredibly unfair and inhumane, they shared. “Does the law not say that we are innocent until proven guilty?” one sex worker asked. “So why do we have to stay in remand until the test results come?” Many of the sex workers shared that their struggles are often overlooked because their work is considered taboo by society, and looked down on by the general public. They said that despite our country claiming to be filled with religious people whose religions preach love, equality, and tolerance, they rarely experience Sri Lankans practicing these teachings in dealings with them. It is incredibly heartbreaking to hear these testimonials spoken of so matter-of-factly, as if it is no big deal, by people who have accepted their unfortunate circumstances, as they do not have the means to continually fight the system which repeatedly oppresses them. And while we may make an attempt to educate and create some awareness, we hope that society learns to practice a little bit more empathy. While we can all argue back and forth in perpetuity on what the law allows and disallows, those who engage in sex work to survive remain vulnerable, particularly during this pandemic.  It is incredibly heartbreaking to hear these testimonials spoken of so matter-of-factly by people who have accepted their unfortunate circumstances, because they do not have the means to continually fight a system which repeatedly oppresses them.   

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