Legal system, particularly police and lawyers exploit SL sex workers: Study

One of the main injustices meted out to commercial sex workers is that they are forced to take police officers as either non-paying clients or discount hunters, says a recent study.

The First ever national study, “Status of Sex Workers in Sri Lanka 2022 – 2023”, launched at the Ecumenical Institute for Study and Dialog in Colombo last week says that every single sex worker who participated in the study had spoken of violence perpetrated upon them by the police.

“They spoke of arbitrary detention; sexual violence on the street and in police stations often by multiple officers of the law; an established system of sexual bribery; being forced to take police officers as clients for no money or less than the normal amounts; and trans sex workers being thrown in male holding cells thus making them vulnerable to further sexual violence. One trans sex worker spoke of a group of policemen who stopped her on the road, forced her to undress and bathe in drain water on the side of the road. She spoke of the sheer horror and humiliation of this especially as passers-by watched her.

“Generally all workers cis-gendered and trans, acknowledge that they try to avoid the police at all costs as they see them as the group of people who pose the biggest threat to their physical safety. The best case scenario is where workers state that they do not get any trouble from police as they have ‘come to an understanding’ with them – which means that they trade sex, in return for the police ensuring not harassing them or perpetrating violence upon them. These arrangements are barely even recognised as abusive by workers, understandably so given how normalised such abuse of power is. While police are also an important client base for workers they are the 45 most unsafe as they enjoy the most impunity in all aspects, including if they pay for the services or not. Workers are caught in a bind where they feel they can ensure their safety if police are among their clientele while fully knowing that there is no professional safety in having them as clients.

Workers are well aware of the systemic nature of the violence meted out to them as being connected to them being discriminated against on the basis of their profession. Given this awareness, the same 1/3rd of the sample answered that they changed their place of work, sought help from other sex workers or from community based organisations/NGOs. An equal number also said they did not respond in any way. Of the 92 respondents to this question, two persons said that they approached the police to file a complaint. As will become clear in the section on violence, the plight meted out to the workers by multiple actors including clients, hotel owners, family members etc. is rather severe. However, they do not have any trust in law enforcement that they will even recognise them as victims of violence, leave alone fulfilling their duties of undertaking enquiries to ensure that justice is done. When asked why they did not file a complaint with the police, even fewer wanted to answer the question out of fear even though this was a peer run, completely anonymous survey. That alone is an indication of the deep fears in the community with regards to the police. Half of the 55 respondents who answered the question stated that they feared that their profession will be exposed to the police and then by extension to society at large. A substantial number said that previous experiences had taught them that they will not receive assistance from the police and an equal number said they feared a backlash from the police. A small number worried about losing clients and thus their livelihood; did not have NIC which is required to file a complaint or thought the process was too cumbersome for them to pursue in their already otherwise stressful life circumstances.

Most workers we spoke with, close to 40%, said that they think sex work is neither illegal nor legal in Sri Lanka i. e., it has an unclear and in between status. 35% believed that sex work is not illegal in Sri Lanka while 20% believed that it is. This shows clearly that workers are aware of the ambiguous treatment of the act of providing sexual services for money within Sri Lankan law. While other acts such as soliciting and brothel keeping are more clearly criminalised, this specific act is not explicitly criminalised. Further, soliciting, even though criminalised, is often extremely difficult to prove which has led to a host of extra-legal practices in lower courts in Sri Lanka that victimise sex workers. 56% of the workers we interviewed had not been arrested due to sex work while a very close 44% were. Thus, it is amply clear that in spite of the vagueness of the law almost half of the workers in our sample were targeted and arrested. It is important to note here that when taken along with our data that workers experience sustained harassment and violence of different kinds from law enforcement personnel, lack of arrest does not mean lack of harassment or violence. In a sense, the situation is only made direr by the fact that the violence and harassment is being perpetrated outside of the rule of law, thus making it unrecorded, unnoticed and thus enabling it to exist with full impunity. The remainder of this section on the impact of the law on sex workers will focus on those workers who have faced concerns mediated by formal entanglements with the law i.e. 44% of our respondents. The other issues caused by law enforcement officials, beyond formal legal processes, will be covered in other parts of the report such as the sections on violence and workplace safety. As a socio-economically and culturally marginalized community, sex workers should be entitled to legal services that are free or are at a nominal cost. The inadequacy of such services in general in Sri Lanka, combined with the prevailing social stigma with regards to sex work has meant that 99% of the workers we spoke with answered no when we asked if they had received free legal services. Many of them, our researchers report, were not aware that free legal services existed for anyone anywhere. They had never come across the concept before. This means that upon arrest all workers pay lawyers in their respective areas who pay no heed to their socio-economic status and charge them, often more than the full fee, due to the social stigma against sex workers. This often pushes workers further into debt cycles that they were already living with. A comparable number of workers who were arrested, 31% and 25% were arrested under the Vagrancy Ordinance2 or are not aware of the nature of the case against them respectively.

As the Vagrancy Ordinance is the most commonly used statute against sex workers, it is reasonable to conclude that the 25% too were arrested under this law. 18% of those arrested were arrested under the Brothels Ordinance, 13% in drug related offences and 5% in Quarantine related laws during COVID. The effect of being arrested under this law isn’t just about what is in the letter of the law, but more about how this law is (mis)used among lawyers and police with the full knowledge of Judges. The common practice is to ask workers to plead guilty and pay a nominal fine. This way the police do not have to bear the burden of proving the often unprovable offences of soliciting and ‘vagrancy’ more generally, which does not have a clear legal definition. As a result, close to 50% of the workers who were arrested, especially under the Vagrancy Ordinance were asked to plead guilty. ALL of them were asked to do so by either the Police or by their lawyer. Of all those who had to face a court case 85% said that they have never not pleaded guilty. This then means that a large number of workers are bearing the burden of having a criminal record to their name not because they have committed any crime or because such alleged crime was proved as per proper legal procedures, but simply because they were told, instructed or threatened by lawyers and police to plead guilty. Of those who have faced legal battles 40% of sex workers who were convicted on various crimes have been in prison for a period ranging from 7 days to 3 years. Among them, the majority have been in prison between 14 days to 6 months. 70% of the workers who reported as having been arrested in this study, said that they were sent for STI tests.

Overall, there exists a climate of assumed criminality with regard to sex work in Sri Lanka although that is not the letter of the law. Law enforcement officials and members of the legal community, including lawyers and judges are actively supporting practices of imposing criminality on sex workers when they are already burdened with eking out a living for themselves and their families. This further reiterates the already made calls to remove the Vagrancy Ordinance from the law books5 as the vagueness of this law has made it a weapon in the hands of the legal community and law enforcement who use it to exploit and unleash legally sanctioned violence upon already severely oppressed sex workers. Other laws such as the Brothels Ordinance is not meant to be used against sex workers and yet it almost always is. Drug related offences are often pinned on sex workers by the police to show exaggerated numbers of drug cases they have ‘caught’ within any given time period.

While there are multiple instances of brutal violence that come up in sex workers’ life stories, it is important to understand the persistence of different forms of violence- not just blatant physical or sexual violence- in their lives. The persistence of violence throughout their lives is the clearest evidence of such violence being systemic. Thus this section will take the life cycle approach and add to that the two foundational forms of systemic violence that lay at the core of all other violence – that which is perpetrated by law enforcement and social stigma. The framework for violence used here is that violence isn’t restricted to individual incidents that sex workers endure, the brutality of which is not to be minimised, but that a condition of violence of different kinds is a default state in the lives of sex workers. The following section is based on some quantitative data but largely relies on workers’ testimonies at the Experts Panel.

The other significant way by which the police enact violence upon sex workers is by constantly letting clients, hotel owners and others in the service go scot free when they exploit and/or perpetrate violence against sex workers. Numerous workers speak of how police let clients, hotel owners and others go during raids while they are arrested and harassed by the police. Further, the police are not even approached when others in the business perpetuate violence against workers as they know the police will not address such violence and protect them. On top of this, police routinely arrest workers on false charges such as those related to drugs. Workers are easy targets for the police to use to fill up their quota of arrests under numerous laws. When workers survive the illegal and extralegal violence from the police and reach the doors of the court, they face more exploitation by lawyers. Most workers who mentioned having dealt with court cases in their testimonies have no clarity on what the process of the case was or in some instances, under which law they were even arrested. They pay money to these lawyers who prolong their cases instead of expediting them. Judges who are aware of these practices turn a blind eye to them thus participating in this exploitation. As a result, the judicial system, which should ideally be a relief for them from the violence and impunity they witness with the police, simply continues such systemic discrimination, exploitation and violence.