WOW | Men Speak

Should Prostitution Be Legalised ?

Compiled by: Pabita Dahal
wow photo file © Ram Tandukar/ Gokul Shrees

Ishan Raj Onta
Advocate, Kantipur Law Associates 

Rudyard Kipling coined the phrase “the world’s oldest profession” in his 1888 story about a prostitute. Kipling begins the story by writing “Lalun (the character) is a member of the most ancient profession in the world”. Thus, it can be established that the idea of offering one’s physical body for sex in return of compensation is as old as human civilisation.

The question of recognising prostitution today as an honoured profession carries both a legal and a social dimension. The Constitution of Nepal 2072 BS (2015 AD) establishes the fundamental rights of the people of Nepal and secures the right to freedom under Article 17. The right to freedom encompasses the right to practice any profession freely under Article 17(f) of the constitution. This right, however, limits an individual’s right to practice any profession which may undermine the harmonious relations between communities or if such practices diffuse public decency and morality.

Furthermore, the Human Trafficking and Transportation (Control) Act, 2064 BS (2007AD) criminalises the act of being engaged in prostitution under Section 4(d). It further makes provisions for punishment of a person engaged in prostitution, which can range from one month to up to three months imprisonment and a fine of Rs 2000 to 5000. If anyone commits this offence repeatedly, for every offence he or she is liable for an additional one-fourth punishment in addition to the regular punishment. The law, therefore, while recognising the right to practice any profession freely as a fundamental right has, on the other hand, criminalised prostitution. The state, in the reflection of the society, has thus not considered prostitution as a lawful profession.

In framing any law, it is vital to keep into consideration the social, economic, cultural, political and moral values of the community the law is governing. In a society that is largely dominated by conservative values, the legalisation of prostitution as a profession could potentially damage a delicate social structure. Where the unity of the bodies of a man and a woman is highly considered to be ‘sacred’, the society may violently reject any ideologies that aim at promoting the act of sex as an economic transaction. When there is no acceptance of the law, it will automatically be valued less unless it is autocratically enforced. History has shown that whenever there is tyranny, violence is the ultimate outcome.

Even if accepted, legalising prostitution also means inviting a significant ratio of the country’s stagnant domestic labour force in the act of sex trade. An uneducated and low skilled labour or force may choose to engage in prostitution, further increasing poverty in the country as the opportunity cost for this choice will be higher education and skill enhancement. This may further aid in creating a vicious poverty cycle which could take a lot of energy and time to break.

The World Health Organisation’s ranking of the world’s health system (last published in 2000 and since discontinued) placed Nepal in the 150th position. This shows how vulnerable we are to health problems. The legalisation of prostitution could thus also be a breeding ground for diseases and unwanted pregnancies as there is an obvious deficiency of sex education in the system, which could affect many generations of the country. As a result of exploitation which can be associated with the sex trade, we could see a rise in deteriorating mental health, which also ultimately affects the entire nation and its prosperity.

Some could argue that legalising prostitution while closely regulating the profession could be a possible opening to creating employment opportunities. However, the moral values of the society will definitely be challenged and jeopardised. We are still a society that considers sexual relations as a holy bond between two bodies and thus, any law that glorifies this will face resistance.

A way forward: The Nordic Model approach to prostitution decriminalises those who have prostituted (offered sex for money), rehabilitates them, and facilitates their exit out of the trade. It is based on a strong logical assumption that those who practice prostitution do so not as a result of free choice, but out of coercion, abuse, betrayal, and poverty. This model has been pioneered by the Swedish legal system and aims to tackle the practice of prostitution despite its unlawfulness. This model is unique, as it puts sanctions on those who use the money to buy sex. This disperses the message that while the state respects the right of individuals to practice any profession, it does not support the buying of a human body for sex. This model has now been adopted in Iceland, Norway, Canada, France, Ireland, and recently in Israel.

In conclusion, the legality of prostitution as a profession needs to be dealt with sensitivity, logic, and reasonableness keeping in mind the societal context. This also means that it is important to create laws that will effectively solve the problem of sex trade without further penalising those who provide such services out of necessity. The Nordic Model could be a way forward for the Nepalese legal system to take a progressive step towards creating a harmonious community.