HC Clarifies on Applicability of Trafficking Laws Against Customers of Sex Workers and Brothel Houses
“A customer of a sex worker cannot be termed a trafficker merely because he avails sexual services,” the bench observed
Hyderabad: In a ruling clarifying the applicability of human trafficking laws, the Telangana High Court has held that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 of the Indian Penal Code (IPC), presently Section 143 under Bharatiya Nyaya Sanhita (BNS).
However, the court held that the customer may face prosecution under Section 370A(2) of the IPC, or Section 144 of the BNS, if the sex worker was a trafficked person and the customer knew or had reason to believe so.
A division bench comprising Justice K. Lakshman and Justice B.R. Madhusudhan Rao delivered the judgment while answering a reference arising from a batch of criminal petitions filed by persons accused of being customers of sex workers during raids conducted by the police on brothels and prostitution rackets.
Emphasising that voluntary sex work was not illegal, the High Court reiterated and stressed that Section 370A(2) of the IPC would not apply in cases where sexual services were offered voluntarily by the sex worker directly to a customer. The court specified that the question of whether or not a sex worker voluntarily engaged with the customer or was a victim of trafficking was one of fact that must be determined before invoking human trafficking laws against customers.
Giving clarity on the issue of whether mere presence of a person in the vicinity of a brothel house or on premises where the business of prostitution is being carried on is sufficient to prosecute a person under Section 370A(2) of the IPC, the High Court said that it depended on the facts and circumstances of each case. The court clarified that it was insufficient grounds to prosecute a person under Section370A(2) IPC for mere presence in the vicinity of a brothel house. However, if the facts and circumstances indicated that such person was present in the premises and had engaged a trafficked sex worker with requisite mens rea (guilty mind), the provision shall be attracted. It is not necessary that specific acts of exploitation be established or that such person be found in the company of the sex worker, the court said.
The court noted that a person can be prosecuted under Section 370A(2) IPC even in the absence of evidence establishing specific acts of sexual exploitation, provided the material on record indicated engagement of a trafficked person for the purpose of sexual exploitation, with the requisite knowledge or reason to believe that the victim was trafficked.
The bench was called upon to resolve conflicting decisions of single judges on whether customers of sex workers could be prosecuted under Sections 370 and 370A(2) of the IPC and whether presence at a brothel was sufficient to attract criminal liability.
The court held that Section 370 IPC, which dealt with trafficking of persons, targeted traffickers who recruited, transported, harboured, transferred or received persons for exploitation and did not apply to customers seeking sexual services. “A customer of a sex worker cannot be termed a trafficker merely because he avails sexual services,” the bench observed.
The judges clarified that Section 370A(2) IPC, which penalises the exploitation of trafficked persons, can be invoked against customers if the prosecution establishes that the sex worker was a victim of trafficking and that the customer had knowledge or reason to believe that fact. The provision, the court said, was intended to punish the “end user” who fuels the demand for trafficked persons.
