We are in an era where women’s rights are gaining ground. Amongst the many issues that put the woman in an inferior position, both in a social and legal context, is the unfortunate reality of prostitution. Prostitutes have not only been stigmatised, but also treated as criminals and prosecuted. However, following worldwide campaigns which called for change due to the inherent sexual & mental violence prostitution entails, the matter is progressively undergoing a legal revamp and it is essential that Mauritius takes those reforms into consideration and apply them to our laws.
Prostitution is defined as the act or practice of engaging in sexual activity in exchange for payment. Legislation has classified it into a criminal offence for the purposes of discouraging people from engaging into it as well as upholding moral values. Prostitution usually involves a procurer(also known as pimp) whose purpose is to control prostitutes, sell them to clients and take a percentage of their money. Then there are the prostitutes themselves who are predominantly females and the buyers who are males. Under our current laws, all three types of people involved in prostitution can be imprisoned and fined. Can it be considered as fair?
The Criminal Code (Supplementary) Act 1870 sets out the offences which reads as follows:
91 A. Importuning
Any person who solicits or importunes another person in a public place for an immoral purpose, shall commit an offence and shall, on conviction, be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding 50,000 rupees.
26. Idle and disorderly person
(1) Every person shall be deemed an idle and disorderly person who –
(b) being a common prostitute, is found wandering in any public place and behaving in a riotous or indecent manner;
Additionally, our Criminal Code states:
253. Procuring, enticing and exploiting prostitute
(1) Any person who, to gratify the passions of another and for gain –
(a) procures, entices or leads away, for purposes of prostitution, another person;
(b) exploits, or is an accomplice in, the prostitution of another person, even with the consent of that person;
(c) draws a benefit from the prostitution of some other person, shares the earnings of, or receives subsidies from, another person who habitually indulges in prostitution, shall commit an offence.
The current legislations are not enough. Firstly, the prostitute can be cautioned, charged and convicted for offences relating to prostitution when evidence shows that these people are usually coerced and exploited. This creates two problems: It fails to recognise prostitution as a form of violence against women and girls, and secondly it fails to address the gender imbalance, therefore widening the gap of gender equality. Secondly, though the law covers some buyers and sellers, it does not tackle demand. Little attention has been focused on the sex buyer, the person responsible for creating the demand for prostitution markets, and it is time for that to change.
Causes for women engaging into prostitution generally include poverty, abuse, and violence. According to statistics, most of them have been groomed, abused, and sold since a young age. Procurers sell them against the promise of money and others buy them for sexual gratification. Those women are victims. A victim is defined as a person that suffers harm, injury or death as a result of a crime, accident, or other event or action. It also includes people who are tricked or swindled. How come then both perpetrators and victims face prosecution?
To fight against this unfairness, human rights lawyers have developed a system, together with researchers called the Nordic Model. It is also known as the ‘’Sex Buyer Law’’ or ‘’The Abolitionist Law’’. The main purpose behind this approach is to criminalise prostitution for purchasers and sellers only and not the prostitute herself. Thus, she cannot be arrested, charged, and convicted. This model treats the prostitute as a victim thus not liable to prosecution. The principle behind not criminalising the prostitute was stated in the Swedish 1997 government proposition, that “..it is unreasonable to also criminalise the one who, at least in most cases, is the weaker party who is exploited by others who want to satisfy their own sexual desires”. It instead shifts the offence on procurers and buyers who are the real offenders as they are not being sold, harmed, or coerced. This system at the same time reduces the demand for prostitution. It would also remove the stigma on prostitutes as they would be treated as victims and not criminals. Additionally, this model provides support such as housing, education, training, legal help, psychological support, and rehabilitation services for those who wish to exit this industry.
The first country to implement the Nordic Model was Sweden in 1999 where it was initially part of its Government Bill Violence against Women (Kvinnofrid 1997/98:55). Nearly a decade later, its efficiency was analysed by a committee headed by the Swedish former Supreme Court Justice Anna Skarhed and its report showed that the Nordic Model was a real success as street prostitution had halved. It then expanded into other European countries such as Norway, Iceland, Ireland, Northern Ireland, and France which adopted this system into their respective laws. Canada also put it into its legislation in 2014, Israel in 2018, and recently it was a state in the US called Maine, who followed in 2023. The Council of Europe has even recommended that all member states adopt the Nordic Model.
Throughout the world, the law is gradually evolving to recognise women’s perceptions and reactions. The criminalisation of marital rape in UK is an example through the case of R v R [1991] 3 WLR 767 HL. Before that, a woman was not regarded as a victim if her husband raped her. Another example in the law in the UK is the change in the defence of loss of control through the case of R v Ahluwalia [1992] 4 All ER 889, where it is now recognised that a battered woman who kills her abuser is a victim. In Pakistan, honour-killing of women has been criminalised only since 2016 following international pressure. A recent change would be France in 2018 who pioneered the criminalisation of street harassment thus offering better protection for the victims. In that light, the Nordic Model system too treats the prostitute as a victim by decriminalising the offence for prostitutes and criminalises it only for procurers and buyers. Thus, we can see how the law is slowly changing to acknowledge the vulnerability of women and implement legislations to offer better protections regarding most forms of violence.
According to statistics in Mauritius, violence on women keeps increasing, whether it is domestic violence, harassment, sexual assault, rape, and murder. Most of these women have the option of reporting to the police. However, a prostitute experiencing violence is not seen as credible and may end up in prison herself for reporting. If the Nordic Model is implemented, a prostitute can report the violence to the police without the latter arresting her, therefore reducing violence on women. It might instead lead to the arrest of buyers and purchasers of sex.
Additionally, Mauritius has ratified the Palermo Protocol which requires States Parties to ‘adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking’. From this, Mauritius, has enacted the Combating of Trafficking in Persons Act 2009. However more needs to be done to reduce demand for exploitation, especially sexual exploitation, as there is a duty to protect all women, including prostitutes. It is thus urgent to move towards the Nordic Model as it would be a step closer to achieve this.
The law is a significant instrument in establishing what is socially acceptable behaviour. It has to send the strong message that women are not commodities to be bought and sold. In targeting those who buy and sell women, the demand in prostitution will be decreased. It will not only be a privilege for Mauritius to be part of the progress for recognizing prostitutes as victims but also a big step towards closing the gender gap.
Shaheen Cheeroo
Barrister-at-Law
