Is prostitution legal in Nepal? This article will help you to find out the legality of prostitution in Nepal.
Is Prostitution Legal in Nepal?
Sex work is the practice of selling consensual sexual services in exchange for money or economic favors. Sex work, also interchangeably called prostitution or colloquial hooking, exists in all forms in all places and its legal status varies from state to state. Countries like the Netherlands, Germany, Argentina, Austria, and Bangladesh have liberal policies related to prostitution whereas countries like North Korea, Sudan, Iran, and Saudi Arabia consider prostitution a serious crime where the punishment is death if found guilty.
There is no uniformity among European nations regarding the legalization of prostitution. Even though illegal, it is practiced in various disguised forms in Nepal and neighboring countries like India, Bhutan, and Pakistan.
Sex work has always existed throughout history and civilizations. Prostitution, the controversial so-called “most ancient profession in the world”, raises moral and economic issues such as social stigma, health risks, and tax evasion. Although common to all, it is not considered a noble pursuit and has been looked down upon through the lens of public morality.
While some feminist argues that it proliferated along with the inequality within the patriarchal hierarchy, some philosophers think that promoting the abolition of prostitution confronts advocacy for laissez-faire.
Sex work remains a highly stigmatized taboo topic. No matter whatsoever expressions are used to define a –prostitute – in all their shade it has only reflected blame and stigma.
Prostitution or sex work has always been stigmatized and the persons who engage in such occupations have had to bear the brunt of the consequences that follow from such stigma and face discrimination, besides the emotional, mental, sexual, or physical trauma they may face.
Prostitution is illegal in Nepal under the Human Trafficking and Transportation (Control) Act and criminalizes the act, and living off its earnings, by including it in the definition of human trafficking. However, prostitution has not been defined nor has it been recognized as an offense under the act.
The Supreme Court has interpreted prostitution as a profession “prostitution is a profession or occupation irrespective of whether it is legal or non-legal. However, the legal status of prostitution remains in dilemma. Exploiting this gray area of law, the number of people who are being introduced to sex work has magnified thrice fold, in recent observations.
Since prostitution is illegal in Nepal, brothel owners do so through massage parlors and dance bars rather than on the streets as they can be safe from police raids and also maintain their social status with better earnings. UNICEF estimates that 11,000 to 13,000 girls and women are working in the “night entertainment industry” in the Kathmandu Valley alone.
The Joint United Nations Program on HIV and AIDS suggests that there are about 49,000 prostitutes in the country living with underlying harassment, abuse, and crime. Nonregulation of sex work leaves room for exploitation and violence leaving many in vulnerable conditions.
Society seems to be divided on whether sex work should be decriminalized or remain criminalized. On one side of the spectrum, people consider sex work as immoral, degrading, and despicable work relating it to vulgarity and obscenity. Sex work is to be strictly criminalized and sex workers are to be punished.
This group believes in the eradication of prostitution which they consider a ‘problem’ or ‘disease’ in society. And, on the other side of the spectrum, people believe that decriminalization and legalization of sex work are the only way to solve the problems of sex work.
Sex work has always existed throughout history and hence to assume a sex work-free society in the future will only create more problems. The only way forward would be its legalization.
Constitution of Nepal,2072
According to Article 17(2f) ( Right to Freedom) of the Constitution of Nepal,
“Each person has …freedom to engage in any occupation or be engaged in employment, establish and operate industry, trade, and business in any part of Nepal.”
According to Article 33( Right to employment) ,
“Every citizen shall have the right to select employment”.
National Penal Code,2074
(1) No person shall solicit prostitution.
(2) A person who commits, or causes to be committed, the offense referred to in sub-section (1) shall be liable to a sentence of imprisonment for a term not exceeding three years and a fine not exceeding thirty thousand rupees.”
(1) No person shall knowingly provide his or her house, land, or means of transport for prostitution or having sexual intercourse with a prostitute.
(2) A person who commits the offense referred to in subsection (1) shall be liable to a sentence of imprisonment for a term not exceeding six months or a fine not exceeding five thousand rupees or both sentences.
A person who does, or causes to be done, any act referred to in Section 211 or 212 shall be liable to a sentence of imprisonment for a term of seven to ten years and a fine of seventy-five thousand to one hundred thousand rupees.
Condition for such Punishnment
If the person does or causes to be done, such act to cause death, causing injury by subjecting to hurt, committing rape or unnatural sex, trafficking or enslaving, or subjecting to forced labor, engaging into prostitution, subjecting to torture, compelling to do or cause to be done any act, taking ransom or compelling to do any other act which constitutes any offense under the law in force, and to a sentence of imprisonment for a term of three to five years and a fine of thirty thousand to fifty thousand rupees if the person does, or causes to be done, such act for any other purpose.
Using someone for prostitution or going in for prostitution is an act of trafficking that is punishable under the Human Trafficking and Transportation (Prevention) Act, of 2064.
Although the act of sex work itself is not specifically criminalized, sex workers may be prosecuted for other offenses. In practice, sex workers are most often arrested for public order offenses dealing with disturbing the peace or obscenity under the Some Public (Crime and Punishment ) Act, of 2027. Police also use this Act to raid parks and premises such as hotels and massage parlors where sex work is suspected.
Nepal has entertained very few cases regarding sex work, so there isn’t much substantial precedent laid down regarding sex work. However, the Supreme Court of Nepal has recognized the constitutional rights of sex workers.
In 2002, the Supreme Court of Nepal ruled that provisions of the criminal law that purported to apply a lighter penalty to rapists in cases where the survivor is a sex worker were unconstitutional and invalid.
The Court stated that: “prostitution is a profession or occupation irrespective of whether or not it is legal”. The Court held that sex workers should not be discriminated against in the criminal law concerning rape, given the constitutional rights to equality and to choose one’s profession.