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Sri Lankan Law Forum » Criminal Law Forum » What kind of offence is Prostitution?

What kind of offence is Prostitution?

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1 What kind of offence is Prostitution? on Fri Oct 20, 2017 8:23 pm

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Prostitution is a criminal offence in Sri Lanka under the Vagrants Ordinance-1841, Brothels Ordinance-1889 and the Penal Code (as amended). However, the relevant provisions in the Vagrants Ordinance, as highlighted below, discriminate against women by punishing only the female prostitutes without imposing any penalty on the male clients whose demand has kept this illicit trade going for centuries.

Section 3(1)(b) of the Vagrants Ordinance enacts 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, and shall be liable upon the first conviction to be imprisoned, or to a fine"; and section 3(2) of the Vagrants Ordinance further provides that "A police officer may arrest without a warrant every person deemed to be an idle or disorderly person".

It is to be noted at this juncture that the term 'common prostitute' in the above section is not defined in the Vagrants Ordinance and it remains a vague term giving broad powers to the Police to arrest without warrant any person deemed to be an idle or disorderly.

Section 7 of the Vagrants Ordinance also stipulates that "Any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not, shall be guilty of an offence, and shall be liable on summary conviction to imprisonment, or to a fine, or both".

According to Dharmadasa v. Thiadoman 56 NLR 278, it's not required to solicit willingly or forcibly; if someone indirectly solicits, it's sufficient for the commission of this offence of soliciting; Accordingly, if a woman invites somebody to have sex at a public place expressly or impliedly, the legal ingredients of this offence are fulfilled.

Perusal of the above legal provisions elucidates how men are allowed to buy sex at the expense of female prostitutes who are prone to be arrested, detained and further abused by the laws' processes, when male clients are freed from all blame.

It's also pertinent to enumerate the justifications for legalising prostitution for penalizing prostitution has many repercussions on our society -

* Criminalising prostitution allows the sex trade to be carried out in a clandestine manner and, thereby, leaving it unmonitored which could, in turn, increase the spread of sexually transmitted diseases including HIV/AIDS;

* It's unfair to criminalise sexual intercourse between consenting adults as it hampers their liberty and privacy;

* Criminally targeting sex workers subjects them to isolation and social stigma, and also hinders their access to medical treatment and HIV-prevention for fear of punishment;

* Burning state funds on prosecuting a demand-driven trade like the sex trade, could be futile when the country is already indebted to the world;

* Legalising prostitution can also help in the recognition and prosecution of offences committed against the marginalised female sex workers who are often subjected to rape, forced impregnation and sexual assault by men.

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