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Is prostitution illegal per se?

31 May 2022

BY Chandana Jayaprada The word “prostitution” carries with it a certain taboo in society, where many condemn the very idea of it. While it has sometimes been referred to as the world’s oldest profession, the reasons as to why a certain individual would become a prostitute, or why they would select such a profession, is not something that can be easily stated with clarity; nor is this article going to analyse these reasons.  However, there is still a burning question that needs to be answered in this context, and that is whether prostitution is an offence under the legal system in Sri Lanka. The Penal Code Ordinance, No. 2 of 1883 does not make any reference to prostitution as a crime, nor does any other Ordinance or Act directly refer to the term and make it a criminal offence.  The relevant legislations that deal with prostitution are to be found in the Vagrant Ordinance, No. 4 of 1841 and the Brothels Ordinance, No. 5 of 1889. The Brothels Ordinance makes it an offence to “keep or manage or act or assist in the management of a brothel”. However, the Brothels Ordinance does not define what is meant by a brothel, and neither does it explicitly nor implicitly declare that prostitution is an offence per se.  In the case of Dorothy Silva v. Inspector of Police (IP), City Vice Squad, Pettah (1977-78 NLR 533), a brothel was interpreted as “a place where persons of both sexes resort to for the purpose of prostitution in the place itself”.  It also means a place where arrangements are made whereby females living at the premises or elsewhere are supplied for the purpose of prostitution – i.e., to commit acts of indecency or sexual intercourse either at the premises itself or elsewhere. However, it is to be remembered that the Brothels Ordinance does not make it an offence to engage in sexual intercourse or prostitution, to put it more bluntly. What is made an offence is the management or assisting in the business of a brothel.  This was illustrated in the case of Hewagam Koralalage Maximus Danny v. IP Sirinimal Silva, Police Station, Chilaw and Others (2001-I Sri L R 4), where the Supreme Court held that “In terms of the Brothels Ordinance, having sexual intercourse is not an offence”. In going further, it also cited the decision in Abeykoon and Another v. Kulathunga (1950-52 NLR 47), where Justice Chellappah Nagalingam stated that “(The) mere fact that she surrendered her flesh to enable persons who resorted to that place to gratify their sexual appetite cannot be regarded as indicating that she assisted in the management of a brothel” that is made an offence under the Brothels Ordinance. Therefore, unless a prostitute has either managed or assisted in the maintenance of a brothel, such a prostitute cannot be held liable under the Brothels Ordinance for prostitution per se.  In analysing the situation regarding the Vagrant Ordinance, Section 3(1)(b) provides that, “every common prostitute wandering in the public street or highway, or in any place of public resort, and behaving in a riotous or indecent manner…. shall be deemed an idle and disorderly person within the true intent and meaning of this Ordinance and shall be liable upon the first conviction to be imprisoned, with or without hard labour, for any term not exceeding 14 days, or to a fine not exceeding Rs. 10”. However, it is to be noted that it is the act of behaving in a riotous or indecent manner in a public place which is penalised, and not the act of prostitution per se. Section 9(1)(a) provides that “any person who knowingly lives wholly or in part on the earnings of prostitution”, shall be guilty of an offence. The question arises as to whether a prostitute living on the earnings of prostitution could be found guilty under this provision.  Answering in the negative, in the case of Saibo and Another v. Chellam and Others (1923-25 NLR 251), the court held that the word “knowingly” is very important in this context. The court opined that with the use of the word “knowingly”, it excludes prostitutes from being penalised for living on the earnings of prostitution. Otherwise, it would have been redundant to have emphasised the requirement of knowledge in the commission of the offence, as a prostitute could not have mistakenly lived out of prostitution. The court therefore concluded that prostitution is not an offence per se in Sri Lanka.  This is not only the case in Sri Lanka; many decisions pronounced by the courts in India have also pointed out that the act of prostitution is not penalised by the law. In commenting on the application of the Immoral Traffic (Prevention) Act of 1956, where prostitution is defined as “sexual exploitation or the abuse of persons for commercial purposes or for consideration in money or in any other kind”, the Gujarat High Court in Bai Shanta v. State Of Gujarat (1967-AIR Guj 211) pointed out that “what is aimed at under this Act, is not the abolition of prostitutes and prostitution as such and to make it per se a criminal offence or punish a female because she prostitutes herself, but that the purpose of the enactment was to inhibit or abolish commercialised vice, namely the traffic in females and girls for the purpose of prostitution as an organised means of living”. This also strengthens the argument that prostitution per se is not an offence and that the aim of the enactment was not to penalise prostitutes, but to provide protection to the vulnerable.  The above analysis clearly showcases that prostitution, when taken in isolation, is not an offence both in Sri Lanka as well as in India, and that it would only become an offence when associated with a particular act which legislation accounts for. For example, a prostitute will be penalised if found guilty of keeping a brothel under the Brothels Ordinance, but not because they engaged as a prostitute. While the law may not penalise the act of prostitution, whether it should be legalised or penalised is something that is to be decided by the law makers of the country, and if one were to keep the status quo going, it may favour legalisation than penalisation, as prostitution is not an offence per se. (The writer is an attorney-at-law in the private bar) …………………………………………………… The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.


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