Woman trafficking is large-scale and growing. It is a human rights abuse as well as a crime crossing international, national and regional jurisdictions. India is a destination country for victims of trafficking, and evidence suggests the majority are women trafficked into debt-bonded prostitution. Recent years have seen many changes in international and national responses to, and legislation on, women trafficking. In this paper we review some of the causes, theoretical approaches to trafficking for the purposes of sexual exploitation, as well as examine the current legal and legislative policy. This paper also examines the effect of these policies on trafficking of Nepali girls and women to India. We aim to provide strategies against trafficking of Nepali girls and women to India’s brothels. Overall, this paper intends to serve as an informative resource for services, policy makers and researchers on the subject of trafficking in women for sexual exploitation in India and Nepal.
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There are different forms of violence on women such as Rape, Sexual Harassment, Abuse, Domestic Violence, Dowry Deaths, Prostitution and Pornography etc. which acts as ideological threats to establishing a woman’s independent identity and dignity. Out of these violence’s the trafficking of women for sexual exploitation is the most inhuman criminal phenomenon that violates basic human rights, and totally destroy woman’s lives. The trafficking of women for sexual exploitation is an international, organized, criminal phenomenon that has grave consequences for the safety, welfare and human rights of its victims.
Sexual Trafficking may be defined as the recruitment, transportation (within national or across international borders), transfer, harboring, or receipt of persons for the purposes of commercial sexual exploitation. Sexual trafficking is accomplished by means of fraud, deception, threat of or use of force, abuse of a position of vulnerability, and other forms of coercion. Sexual Trafficking force all its victims into prostitution. Prostitution devalues women’s dignity and stigmatises her as a ‘fallen’ woman in the society. Women’s identity as an individual is undermined by the objectification of her sexuality and the sale of sexual experience.
Causes and factors of women trafficking
Different theorists attribute different factors to the causes of trafficking depending on their theoretical approach to the issue of trafficking itself. Feminist theorists in particular tend to situate male demand as the primary cause of trafficking (Jeffreys 2003; Leidholdt 2003; Raymond, Hughes and Gomez 2001). The United States State Department has carried out some of the most extensive research into the efforts of governments to combat severe forms of women trafficking in. In their view, women trafficking have a global market: “Victims constitute the supply, and abusive employers or sexual exploiters represent the demand. The supply of victims is encouraged by many factors including poverty, the attraction of a perceived higher standard of living elsewhere, weak social and economic structures, a lack of employment opportunities, organized crime, violence against women and children, discrimination against women, government corruption, political instability, armed conflict, and cultural traditions. On the demand side, factors driving women trafficking include the sex industry, and the growing demand for exploitable labour. Sex tourism and child pornography have become worldwide industries, facilitated by technologies such as the Internet, which vastly expand choices available to consumers and permit instant and nearly undetectable transactions” (United States State Department 2004a: 19-20).
The main causes of women entering the sex industry according to us are
â€¢Development of urban-centered industrial and service sectors, leaving rural sectors underdeveloped
â€¢Traditional ideology and roles of women that emphasize familial responsibility for women
â€¢ Limited employment opportunities and gendered division of labour
â€¢Demand for services in the sex industry
â€¢Double standards in society that value chastity in women
â€¢ Violence in the family and failed marriages
The main factors that facilitate women trafficking according to us are
â€¢Lack of social support for women in difficult circumstances
â€¢Difficulties of obtaining contracts through official channels for women
â€¢Lack of information and understanding about the risks
â€¢Complicity of government officials
Trafficking in Asia- with special reference to India and Nepal It has been estimated that at least 200,000 to 225,000 women and children are trafficked from Southeast Asia annually. Most of the trafficking destinations are within the region (60 percent are major cities of the region; 40 percent are outside the region).In Asia, India is one of the major destination country for trafficked women, especially from the Nepal and Bangladesh (Nepal and Bangladesh are the main source countries in south Asia for trafficked children. In India the prosperous entertainment market has created a huge demand for commercial sexual workers, and such demand is being met by trafficking women and children from the Nepal and Bangladesh. Ever year, more than 10,000 women are trafficked from Nepal into India for commercial sex work through the infamous Makwanpur valley, which is a town situated midway between Kathmandu, Nepal´s capital and the Terai region of Chitwan which border India to the south. These women are sold to Indian commercial sex parlours in the cities of Mumbai, New Delhi, Bangalore and Kolkata involving nearly three to four middlemen. The girls who are impoverished in poverty until the ages of 12-16 years are sold off by their parents for as little as US$ 200 to the agents, who then group them in bunches of 10-15 and transport them across the porous border to the various Indian cities. Women are forced into street prostitution, dance bar and live sex acts. There are currently an estimated 300,000 women and children involved in the sex trade throughout Southeast Asia. It is common that Nepali women are lured to India and sold to brothels where they are forced to work off their price. As many as 200,000 Nepali girls, many under 14, have been sold into the sex slavery in India. Nepalese women and girls, especially virgins, are favored in India because of their light skin. The trafficking of girls from Nepal into India for the purpose of prostitution is probably the busiest ‘slave traffic’ of its kind anywhere in the world. Every year between 5,000 and 7,000 Nepalese girls are trafficked into the red light districts in Indian cities. Many of the girls are barely 9 or 10 years old. 200,000 to over 250,000 Nepalese women and girls are already in Indian brothels. The girls are sold by poor parents, tricked into fraudulent marriages, or promised employment in towns only to find themselves in Hindustan’s brothels. They’re locked up for days, starved, beaten, and burned with cigarettes until they learn how to service up to 25 clients a day. Some girls go through ‘training’ before being initiated into prostitution, which can include constant exposure to pornographic films, tutorials in how to ‘please’ customers, repeated rapes. Trafficking in women and girls is easy along the 1,740 mile-long open border between India and Nepal. Trafficking in Nepalese women and girls is less risky than smuggling narcotics and electronic equipment into India. Traffickers ferry large groups of girls at a time without the hassle of paperwork or threats of police checks. The procurer-pimp-police network makes the process even smoother. Bought for as little as Rs (Nepalese) 1,000, girls have been known to fetch up to Rs. 30,000 in later transactions. Police are paid by brothel owners to ignore the situation. Girls may not leave the brothels until they have repaid their debt, at which time they are sick, with HIV and/or tuberculosis, and often have children of their own. The areas used by traffickers to procure women and girls are the isolated districts of Sindhupalchow, Makwanpur, Dhading and Khavre, Nepal where the population is largely illiterate.
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Laws against women trafficking In India and Nepal The global nature of trafficking in women and children necessitates governments to develop strategies on domestic as well as international levels to combat the menace of such a transnational crime as well as preventing the gross violation of human rights. The dangerous repercussion of the rise in trafficking such as increase in illegal migrants and greater vulnerability in being exposed to HIV/ AIDS are extremely detrimental to the overall development of any country. INDIA’S LAWS Trafficking in human beings and the abuses associated with it are also explicitly prohibited under a wide range of India’s domestic laws, including the Indian constitution, specific anti-trafficking acts, the Indian penal code, and in state and local ordinances. The Indian constitution specifically prohibits trafficking in persons. Article 23, in the fundamental rights section of the constitution, states, “traffic in human beings…and other similar forms of forced labour are prohibited.” Article 39 guarantees equal treatment of men and women and obligates the state to ensure “that the health and strength of workers, men and women…and children are not abused…and that children and youth are protected against exploitation…” Article 42 provides protection against inhumane working conditions . The two principal laws that address trafficking and prostitution are the Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA), and the Immoral Traffic in Persons Prevention Act of 1986 (ITPPA), colloquially called PITA, an amendment to SITA. Neither law prohibits prostitution per se, but both target commercialized vice and forbid soliciting. ITPPA amended the 1956 SITA in important ways. However, its basic goals and premises remain much the same as those of SITA. Although prostitution as such is not prohibited under ITPPA, ITPPA contains nine punishable conditions, including brothel keeping, abetting in brothel keeping, living off brothel earnings, procuring, detaining, activity in vicinity of public places, seducing or soliciting. By implication, ITPPA recognizes that men and children can also be sexually exploited for commercial purposes. ITPPA includes new categories of offenses and punishments, making it easier to prosecute brothel-keepers and others involved in trafficking. Procurers of prostitutes or those found guilty of inducing someone to undertake prostitution are subject to a prison sentence of three to seven years and a fine of Rs.2000 [$66]; a second conviction carries a mandatory sentence of seven to fourteen years. A first conviction for brothel-keeping under the ITPPA carries a mandatory prison term of one to three years of rigorous imprisonment and a fine of Rs.2000 [$66]. A second conviction is punishable by two to five years of rigorous imprisonment and a fine of Rs.2000. ITPPA also expanded police power to prevent trafficking, but also recognized the potential abuse of power, such as verbal, physical and sexual harassment, by the police during raids. SITA had empowered a Special Police Officer to conduct a search of any premises without a warrant, but now ITPPA extended these powers to the accompanying trafficking police officers who entered the premises. However, ITPPA prohibited male police officers empowered under the act from making a search unless accompanied by two female police officers. Questioning of women and girls had to be undertaken by female police officers. If this was not possible, the women and girls could be questioned only in the presence of a female member of a recognized welfare organization. The act also mandated rehabilitation in “protective homes,” shelters or reformatories where education and living facilities were to be provided. ITPPA did not give police the power to actually close brothels. Unlike SITA, ITPPA was concerned about prostitution of minors and children, and introduced stiff penal measures against those who profited with punishment of not less than seven years and not more than ten years. ITPPA’s additional clause addressing the offense of procuring carried rigorous imprisonment of seven to fourteen years in the case of a minor, and seven years to life in the case of a child. Similarly, prostitution of a minor or child in a public place was punishable with seven years to life, or up to ten years along with a fine. Other existing legislation, including the Bonded Labour System (Abolition) Act and Article 376 of the Indian penal code (IPC), explicitly forbids the purchase and sale of human beings, forced labor and all forms of bonded labor. The IPC also prohibits the trafficking and sale of minors. In addition, since many brothel inmates are under eighteen and most report the systematic use of threats and physical assaults to force new girls to serve customers, existing rape, assault, and abduction laws can be used to address the systematic abuse of women and girls in brothels. Article 375 of the IPC defines rape as the act of engaging in sexual intercourse with a woman when the act is against her will; without her consent; with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or injury; with her consent when she is incapable of understanding the consequence of her consent; or when she is under sixteen years of age. Under the IPC a minimum term of seven years of imprisonment may be imposed for rape. Rape laws are applicable to both brothel staff and customers. India’s Ministry of Women and Child Development in 2008-09 has implemented three pilot projects – i) to combat trafficking of women and children for commercial sexual exploitation under the sanction of tradition ii) to combat trafficking of women and children for commercial, sexual exploitation in source area and iii) to combat trafficking of women and children for commercial sexual exploitation in destination areas. Based on the favorable feedback on the implementation of the pilot projects, it was converted into a comprehensive scheme in the 11th Plan. Accordingly, the Ministry of Women and Child Development has launched ‘Ujjawala’, a new Central Scheme “Comprehensive Scheme for Prevention of Trafficking and Rescue, Rehabilitation and Reintegration of Victims of Trafficking and Commercial Sexual Exploitation” last year. The scheme comprises of five components: 1) Prevention, which consists of formation of community vigilance groups/adolescents groups, awareness and sensitisation of important functionaries like police, community leaders and holding workshops, etc. 2) Rescue, safe withdrawal of the victim from the place of exploitation. 3) Rehabilitation, which includes providing safe shelter for victims with basic inputs of food, clothing, counseling medical care, legal aid, vocational training and income generation activities etc. 4) Reintegration, which includes restoring the victim into the family/community (if she so desires) and the accompanying costs. 5) Repatriation, to provide support to cross-border victims for their safe repatriation to their country of origin. NEPAL’S LAWS Nepal’s constitution, adopted in 1990, its civil code and several specific laws forbid the trafficking and sale of women and children and other forms of slavery and provide for prison sentences of up to twenty years for interstate trafficking and sale of human beings. Article 20 of the Nepali constitution states: Traffic in human beings, slavery, serfdom or forced labour in any form is prohibited. Any contravention of this provision shall be punishable by law. The constitution is supplemented by a national legal code called the Muluki Ain, which contains provisions against interstate and domestic trafficking in human beings. Section 1 of the law governing “traffic in human beings” decrees prison sentences of twenty years for international trafficking cases where the victim has already been sold and sentences of ten years of imprisonment for attempted sale, plus fines equivalent to the amount of the transaction. In cases where the purchaser is found within Nepal’s borders, he or she is subject to the same punishment as the seller. Section 2 prohibits the enticement and separation of children under sixteen from their legal guardians. Pimping and solicitation of prostitutes is forbidden under Section 5 of a law entitled “Intention to Commit Adultery.” Intercourse with a child under fourteen is considered rape, regardless of consent. Section 3 of the Muluki Ain also forbids slavery and all other “transactions in human beings.” Article 4 of the Traffic in Human Beings (Control) Act of 2043 (1986/1987) expressly forbids the sale of “human beings with any motive; the transport of “any person abroad with intent of sale,” the act of “compelling any woman to take to prostitution through allurement or enticement, deceit, threats, intimidation, pressures or otherwise; and “conspiracy for committing any of the acts mentioned.” The act applies the same penalties to these offenses regardless of whether they are committed inside or outside Nepal’s territorial boundaries and makes no distinction between crimes committed by Nepalis or by foreigners. The act dictates prison terms of ten to twenty years for trafficking in human beings and, disturbingly, reverses the burden of proof, requiring the accused in a trafficking case to disprove the charges. In 1990, the newly elected government of Nepal ratified the United Nations Convention on the Rights of the Child. In May 1992, Nepal passed the Children’s Act 2048. The act defines a child as any person under sixteen years of age and Section 15 states that: “No person shall involve or use any child in an immoral profession.” It also contains a number of provisions designed to prevent other kinds of sexual exploitation of children including child pornography and prohibits discrimination between daughters and sons, the use of children for begging, the sale of girl children as religious offerings to temple deities, or for child labor.
Effects of these laws on women trafficking in India and Nepal. Despite the fact that both India and Nepal have numerous laws criminalizing trafficking and prescribing severe penalties for abusers, trafficking in women and girls flourishes between the two countries. This statement can be easily substantiated by the help of the following data . Every year around 10,000 Nepalese girls, most between the age of nine and 16, are sold to brothels in India. More than 200,000 Nepalese girls are involved in the Indian sex trade. (Tim McGirk, 2007) 7,000 Nepalese women and girls are trafficked for prostitution to the Asia Pacific area.5,000 Nepalese women are trafficked into India yearly. There are now 100,000 Nepalese women in India in prostitution. (Coalition Against Trafficking In Women (CATW),2008) In 2007, the estimated number of Nepalese commercial sex workers in India was estimated anywhere in between 200,000 to 300,000. Nearly half of the women in Mumbai, who ply commercial sex work totaling 120,000, are estimated to be Nepalese. The women are not only subjugated to various forms of torture, gang rape and different sexual acts, they have the risk of contracting HIV/AIDS openly. According to recent available posted on BBC, HIV infection may have increased by more than 100 percent among Nepali women and by 200 percent among children in the past 18 months, according to several NGO officials working to bring relief to the Nepalese women in Mumbai. These data speaks for themselves. It is clear that laws against the women trafficking in India and Nepal are not fulfilling there goals. Therefore there needs to be change in the strategies and implementation of law.
Strategies that may control the Trafficking of Nepali Girls and Women to India’s Brothels Both the Indian and Nepali governments are complicit in the abuses suffered by trafficking victims. These abuses are not only violations of internationally recognized human rights but are specifically prohibited under the domestic laws of both countries. The willingness of Indian and Nepali government officials to tolerate, and, in some cases, participate in the burgeoning flesh trade exacerbates abuse. Although human rights organizations in Nepal have reported extensively on the forced trafficking of Nepali girls to Indian brothels, and sensationalist coverage of trafficking issues is a regular feature of the local press, the great majority of cases are never publicized, and even when traffickers have been identified, there have been few arrests and fewer prosecutions. Existing laws in both countries have had virtually no effect on curbing trafficking. Poor training, corruption and the lack of political will among senior government officials on both sides of the border means that the laws go unenforced. Officials also try to evade responsibility for the problem by categorizing trafficking as purely a social problem. Lack of transborder cooperation between India and Nepal compounds the problem. Apathy on the part of both governments, the highly organized nature of trafficking networks, police corruption and the patronage of influential government officials means virtual impunity for traffickers. Keeping these things in mind we suggest the following Strategies for India 1) The government of India should move to reform its prostitution and trafficking laws to ensure they are non-discriminatory and in line with international human rights standards, particularly those designed to protect the victims of trafficking. While Human Rights Watch takes no position on prostitution perse, we consider the disproportionate application of those articles of ITPPA and the Bombay Police Act which allow police to arrest persons for public prostitution but not brothel owners, pimps or traffickers to be discriminatory. At the same time, individuals forced into prostitution should be exempt from any punishment or involuntary remand to reform institutions. 2) India and Nepal’s five-hundred-mile open border makes it essential that both countries give priority to strict monitoring efforts to guard against the trafficking in women and girls, including the inspection of vehicles. Special training should be given to law enforcement officials at the border in the problem of trafficking and their obligation to protect trafficking victims and investigate those who engage in such abuse. 3) The government of India should actively investigate and prosecute all those involved in trafficking and brothel operations, with particular attention to its own police and officials who receive payoffs or protection money from brothel owners and/or agents, patronize illegal brothels, have financial holdings in, collect rent from, or in any other way are complicit in the operations of such brothels. 4) Investigations of official involvement must be both thorough and impartial. A hotline might be established to receive allegations of official involvement, with safeguards established for the protection of witnesses. Information could then be turned over to a commission of inquiry for investigation, with the record of the proceedings public to the extent that witness security permits. Prosecutions of officials, including members of the police, should take place in civilian courts in proceedings that are open to the public. 5) Officials found guilty of involvement in trafficking and/or brothel operations, or of failing to enforce the law with respect to those operations, should be prosecuted to the fullest extent of the law. Suspensions, transfers or public apologies for complicit law enforcement officials are not sufficient. 6) All laws which can lead to the prosecution of all others involved in trafficking and brothel operations, including recruiters, agents, brothel owners and pimps, should be strictly enforced. Brothel owners, for example, are responsible for forcible procurement of women, outlawed under the ITPPA, each time that they compel one of their workers to have sex with a client. Clients who engage in sex with children below the age of sixteen could and should be arrested for rape under the Indian penal code. 7) Any case involving the detention of a Nepali woman or girl following a raid on a brothel should be given particular attention with a view toward the speedy release of anyone found to be a trafficking victim. If the status of a woman or girl as a trafficking victim is not clear and she is arrested, the Indian government should ensure that her civil rights are fully protected, including that she understands the nature of the charges against her, has access to an interpreter and legal counsel and is tried without undue delay before a fair and impartial tribunal, with the right of appeal thereafter. Special efforts should be made to protect women from having to decide between lengthy detentions or being bailed out by pimps or brothel owners claiming to be family members. 8) To protect Nepali women and girls against abuse by Indian police, the Indian government should ensure the presence of women police officers in all places of detention. The government should also investigate any report of extortion and sexual abuse in detention and prosecute those responsible to the fullest extent of the law. The rights of detainees to be protected against abuse and the procedures for submitting complaints against officials should be available in the Nepali language in Indian jails and be explained fully to detainees on arrival. 9) The Indian government should ensure that all detention facilities conform fully to the U.N. Standard Minimum Rules for the Treatment of Prisoners. 10) The Indian government should ensure that arrangements with the Nepali government for the safe return of trafficking victims ensure the protections guaranteed by the Convention on the Suppression of Traffic in Persons. In the case of indigent women, it should bear the cost of their repatriation to the border and arrange for Nepal to bear any additional costs, a process that is now ad hoc at best. The agreement with the Nepali government should contain guarantees for the legal protection and privacy of women and girls returning from India. Under no circumstances should the Indian government agree to selective and discriminatory repatriation on the basis of the ethnic or racial background of the women and girls concerned. Because of the danger posed by organized crime, and the social stigmatization associated with prostitution, both governments should protect the women’s right to privacy by prohibiting access to confidential or biographical information about the women. The Indian and Nepali press should also agree on an ethical code that would restrict the use of names or identifiable photographs of these women from appearing in the print or broadcast media unless the women in question have specifically consented. 11) The Indian government should ensure that all HIV testing of prostitutes is of a non-compulsory nature and that when it is undertaken with the informed consent of the women and girls, those tested should be informed of the results if they so request. Strategies for Nepal 1) Nepal should accede to the international instrument most relevant to the trafficking i
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