Resource

The issue of forced institutionalisation of adult women in shelter homes

Joshua Caroll, a freelance journalist based in Myanmar, wrote a piece on 23rd November, in The Guardian, damning forced institutionalisation and mistreatment of women and children in a shelter home by Hyderabad based NGO Prajwala, and particularly targeting Sunitha Krishnan who runs the shelter in his piece. https://www.theguardian.com/global-development/2018/nov/23/prison-better-women-cry-foul-over-celebrated-indian-charity. While he makes a cursory mention of 150 such shelters across India which are meant for survivors of sexual exploitation, he focuses on Prajwala and Sunitha alone, claiming that a resident of the shelter home reported force and torture. It is not clear from his research whether he intended to question the approach of rescue and institutionalisation of adult women in prostitution as a whole or report on malfunctions of one particular organisation and its shelter, or forced rescue of adult women in Hyderabad alone. Sunitha believes that Joshua was paid to write this damning report and is nothing but a slur campaign, which questions Mr. Caroll's credibility as a journalist. However, issues of consent, adults, institutionalisation and shelter homes have been contentious issues and need a closer examination.

The issue of forced institutionalisation of girls and women in shelter homes is not an issue restricted to Prajwala. It is a nationwide issue, wherein not only girls and women who are ‘rescued’ by the police from brothels are institutionalised, there are hundreds and thousands of destitute women who are in various government homes, who are adults, and they are institutionalised either because there is no family or custodians for the State to ‘hand over’ these women to, or because the State has decided, for stated reasons of protection and safety.

 

What is the legality of forced institutionalisation of girls and women ‘rescued’ from prostitution?

The Immoral Traffic Prevention Act says that after the police has rescued a victim of sex trafficking, the victim is to be produced to the court (in case of an adult) within 28 days, along with a detailed report of the family, its willingness and capacity to protect the woman from further exploitation. In case family reunification does not seem to be in the best interests of the woman, the woman is to be placed in a protective home, for rehabilitation with appropriate services. Nowhere, does the Immoral Traffic Prevention Act (the current law on sex trafficking) specify, that this home should be a closed institution.


So, where has the practice of making shelters closed come from?

These shelters are closed because the agencies that run them are liable for penalisation by the Court and the State when children or women ‘run away’ from the shelters. Therefore, the superintendent of the government shelter home or the NGO that runs any shelter as a protective home under the Swaadhar or any other state scheme, is liable to be pulled up by the court. This is particularly applicable for girls and women who are taken from brothels and other places of prostitution, because they are ‘State witnesses’ in the cases lodged against the accused. Therefore, the responsibility of ensuring that this witness does not go away and appear at the time of trial for deposition is the court’s concern.

While the activist or NGO may be also moralistic and believe that sex workers need to be re- formed and justify why women in prostitution, especially adults, who may not want to be institutionalised, should be forcibly institutionalised, the legal sanction of this institutionalisation comes from ITPA which prescribes 1 to 3 years of institutionalisation.


Is there any argument for institutionalisation of children and women?

The arguments for institutional care for victims of sex trafficking are below: 

1. When a woman or a child has been rescued by the police upon presumption that they are victims of trafficking, the immediate requirement is of a shelter, where the person can be placed. At least for a short period of time. The ITPA provides intermediate shelter first for a period of 28 days, and then if the court believes that the victim needs longer term institutionalisation and rehabilitation services, then for 1 to 3 years. However, the law does not specifically mention that this shelter has to be a closed institution. In practice however, the custodian NGO who may be running a protective home or a children’s home is required to take permission from the court (in the case of an adult) or the Child Welfare Committee (in the case of a child) to take them out of the premises, complain many activists who run such shelters.

2. The second argument put forth for shelters is that the family of the victim may not be equipped to protect the victim, provide support for recovery or rehabilitation. In some cases, the victim may have been trafficked by someone in the family or amongst relatives, and therefore, returning back to the family means risking the safety of the victim and putting her in the threat of being re-trafficked. In such cases, the children or women may require longer term rehabilitation and reintegration in a new community without having to return to her family or village.

3. The third reason offered for running heavily guarded shelter homes is the threat of traffickers. When a child or woman is rescued from a brothel, pimps, madams or brothel managers try to get in contact with her, threaten, coerce or manipulate her to not depose to the court, deny about being trafficked or exploited. A child, or even a young woman in her late teens, is vulnerable to such manipulation, coercion or threat. The relationship between exploiters and victims of abuse is complex - and psychologically, a victim is often under strong control of abusers. This is why agencies running these NGOs maintain strong control over outsiders’ access to children and women in shelter homes, monitor phone calls and minimise contact with the outside world.

4. The fourth reason offered in justification of running shelter homes is that trafficked and sexually exploited children and women require specialised services and therefore it is necessary to create a shelter that is customised to their needs for care, protection and recovery.


So then, what are the criticisms about institutionalisation?

No one is denying the need for shelters for victims of sexual exploitation or trafficking. No one is denying that a child or a woman rescued from sexual exploitation needs a shelter immediately, and without such shelters, the police would be unable to rescue any child or woman who is a victim of trafficking.

However, the criticism is against forced institutionalisation of adults women who are unwilling to stay in such shelters. The arguments, though obvious, are as follows:

1. Many adult women are institutionalised in these shelter homes, even if they do not want to. They are kept there for months and years, with no accountability of the NGO or the government (the department of women and child development or the police) on how long they would have to stay there or why. Many of these women may have wanted to get out of the brothel because she may want to get out of prostitution. Some of them may have wanted to get out of debt bondage and the clutches of the brothel manager or pimp or traffickers because she was being subjected to torture or violence. But they may not have wanted to stay in a shelter home, especially one that is closed, where they are locked up, where they are controlled and prevented from communicating with whoever they wish to talk to. In the argument of protection and safety, the shelter takes control for her actions and her options, decisions and choices. NGOs and activists who run these shelters and rehabilitation programmes fear that if they do not maintain these controls, the safety and protection of all children or women may be compromised.

2. The period of stay in the shelters are arbitrary and indefinite. Most such women or children may have been trafficked from another state or country. For repatriation, the NGOs need to contact another NGO in the home state of the survivor, and ask them to study the family of the survivor to assess the feasibility and safety of the survivor to be repatriated and reunified with the family. In India, this interstate coordination mechanism is left entirely to NGOs and the government (The Departments of Women and Child Development) have done little to build systems and services to make this communication, coordination faster. Moreover, the survivors are often afraid to reveal their addresses to the social workers because they are often afraid that their families would get to know about them having been in prostitution, which, they fear, would result in rejection and stigma. This further delays the repatriation process. So, a survivor spends years in these shelters, for reasons of delays in coordination and state permission for her to get out of these shelters.

3. The rules on institutionalisation does not differentiate between children and adults. The present law (Immoral Traffic Prevention Act) does not specifically recognise the issue of consent of adults for institutionalisation. If the police rescues adult women, specially women in their late twenties or thirtees, who may have been trafficked a decade or more ago in their adolescence may no longer be in debt bondage or servitude. She may have gone through servitude and debt bondage, but over time gained more autonomy (even if they continued sex work as the only means of livelihood). Institutionalisation and repatriation and family reunification may not be feasible options for her, or even in their best interests, or something that they want.

4. By focussing on shelter homes, governments and NGOs have neglected the option of community based rehabilitation. Community based rehabilitation (CBR) is when a survivor of trafficking and/or sexual exploitation is assisted in rehabilitation in a community, where she stays in an independent shelter or with her family, and social workers assist her in availing health services, legal aid, access welfare schemes and income opportunities. Researches like Where Have All The Flowers Gone (http://lastradainternational.org/doc-center/2716/where-have-all-the-flowers-gone-an-evidence-based-research-into-sex-trafficking-of-girls) and and Bringing It All Back Home (http://www.sanjogindia.org/wp-content/uploads/2015/09/Bringing-it-all-back-home-Low-Res.pdf?mc_cid=b8becf9582&mc_eid=[UNIQID]) show that when survivors return home or get out of these shelter homes eventually, they suffer stigma, poverty and violence in their families and communities, and therefore the focus of rehabilitation services needs to be focussed there, to help them access services without discrimination and prejudice.

5. The issue of children rescued from prostitution is different. Here, the issue of consent has to be treated differently. Children also suffer harms of closed institutionalisation, confinement in shelters, indefinite periods of institutionalisation, inadequate services and conditions in shelters. And to that extent, they must be heard and their concerns must be addressed. They need freedom, they need mainstream schooling, and vocational training in professional institutes. Confining them in closed shelter homes adds to their trauma and psychological harm. While they may not have a right to autonomous and independent decision making and NGOs and the CWC must take the responsibility to take decisions on their best interests, often decisions are taken not in the children’s interest but in the interests of the prosecution, law enforcement, NGOs and the CWC itself. For example - often they are not returned back home even if the family is eager to have their child back, because the police and prosecution (and the custodian NGO) fears that they may not be able to produce the child to the court at the time of trial for deposition, and that would lead to acquittal of traffickers, and therefore the burden of delayed trial often is placed onto the child, who is then held back and institutionalisation is prolonged.


Are there any safeguards against forced institutionalisation? 

Technically, if an adult woman has been held in a shelter home against her will upon the instructions of a magistrate, then she has the right to approach a higher court of law, and challenge that order. However, while in a shelter home, she has no access to independent legal services. While an NGO may have a lawyer in its team, this lawyer is often assigned the role to help the Public Prosecutor in the prosecution’s case, which includes preparing the survivor for deposition, or ad- vising the PP on how to proceed with the case if the PP may not have adequate experience. In this case, the client of the lawyer in the NGO, and acts in interest of the NGO.

Till date, there have been very few cases where lawyers have assisted survivors of trafficking entrapped in these shelters to challenge forced institutionalisation. Harish Bhandari, a lawyer, who practices in the Pune court, when posed with this problem had suggested that - if the magistrate has ordered for a year’s institutionalisation and the survivor believes that the services offered to her in the shelter is not helpful to her, then the custodian (the NGO or shelter superintendent) can approach the court with justifications and alternatives and plead de-institutionalisation.

Till date, there have been very few cases where lawyers have assisted survivors of trafficking entrapped in these shelters to challenge forced institutionalisation. Harish Bhandari, a lawyer, who practices in the Pune court, when posed with this problem had suggested that - if the magistrate has ordered for a year’s institutionalisation and the survivor believes that the services offered to her in the shelter is not helpful to her, then the custodian (the NGO or shelter superintendent) can approach the court with justifications and alternatives and plead de-institutionalisation.

Presently, the current law (Immoral Traffic Prevention Act) is one that is vulnerable to be abused for forced institutionalisation of adult women, who may be in prostitution. The Trafficking Of Person’s Bill, 2018, has provisions (proviso to 17 (4)), wherein an adult who may be ‘rescued’ by the police, has a right to reject rehabilitation and forced institutionalisation.


Has the MWCD or DWCD no role to play in this? What is their stance?

In reality, the budgets for rehabilitation of survivors of trafficking from the State is pitifully low. In the early 90s, many NGOs took to opening rehabilitation shelters with the argument that the government shelters are badly run and therefore they, with their expertise and passion, would create a better alternative to the government shelters. And that they would, once these models would have been set, be handed back to the government. In reality, there has been a privatisation of the rehabilitation programme to private agencies (NGOs), mostly funded by international NGOs and foundations. Even though the US is often blamed for these policies and funding, and in some cases it is true, a considerable number of private small foundations in Europe are also sources of funding for these NGOs to run these shelters.

The DWCD has built little expertise over the years to monitor or build standards to run these institutions. They depend on these NGOs to take care of what would otherwise be the State’s responsibility. So, for example - the bulk of survivors earlier kept in government shelter homes like Deonar in Maharashtra, Liluah in Calcutta are now sent to NGO run shelters by Sanlaap, Prajwala and Rescue Foundation.


Does the new anti trafficking bill have an alternative?

Earlier this year, the Ministry of Women and Child Development, Government of India, introduced a new bill on human trafficking that tries to address all forms of human trafficking, not just for sexual exploitation, into a common legislation. The bill has been passed by the Lok Sabha (the Lower House of the Parliament) and awaits being placed and passed in the Rajya Sabha (the Upper House of the Parliament).

The bill has the following provisions wherein a ‘rescued person’ may, when produced to the court, have the right to reject institutionalisation and rehabilitation (proviso to 17(4)).

The period of stay in the shelters is restricted to a short term stay. 

The bill recognises the right of adults to autonomy.

The one missing piece, which was in the earlier draft versions, but was taken out due to the strong lobby of pro-institutionalisation NGOs was the mention of community based rehabilitation. However, the law holds the District Magistrates or Collectors of every district responsible authority for rehabilitation of survivors of labour or sex trafficking, and therein creates way to focus on community based rehabilitation instead of shelter based rehabilitation. However, it is important for stakeholders to work this into the State rules or the National Model rules if and when the bill gets passed.


Should we then oppose the bill, if the strong provisions are not mentioned clearly?

Even if the bill gets opposed, ITPA - whose provisions are currently responsible for these travesties will continue to stay. What is required is the repealing of ITPA, a suggestion that was opposed by anti prostitution activists.

The bill has some improved provisions on many other counts - including de-conflating trafficking from prostitution by bringing in all forms of trafficking as a central focus of the legislation - therefore bringing in the elements of deception, fraud, trickery, abuse of power, etc - for purposes of exploitation - to be judged by debt bondage, confinement, forced labour, etc. I am including other tools which will tell you more about the bill.


Should ‘rescue’ of adults be banned?

As of now, available statistics show that the bulk of entry into sex work is between the ages of 15 and 18, and bulk of rescues are between 18 and 21. Sex work continues to rely on girls and women in poverty, from marginalised castes and class, to provide services. These girls and women are mostly rural, peri-urban and grow with values of patriarchal families, wherein prostitution is taboo and stigmatised. Therefore, the supply necessarily involves coercion, deceipt, abuse of power and vulnerability of a girl or woman without choices.

When Utthan - a collective of survivors of sex trafficking were posed with the question 'why girls and women from shelters run away?', this is what they had to say:

- In a brothel of 100 girls and women, the ones who are recent entrants - who may have been trafficked - who resist prostitution - are subject to force, violence, starvation, etc - would be most willing participants in a rescue operation. Because they are terrified, tortured and fight hard to find escape. However, at any given point of time, this would not be more than 5 or 6 out of 100. The others who may have been trafficked a few months ago, or a couple of years, who may still be in debt bondage (paying off the debt to the brothel manager, but also getting some money from the tips) may also be keen to get out. However, they are also told that if rescued, they would be put into prisons and how terrible the conditions of shelters are, how they would be stigmatised once back home, etc. So, they may have their apprehensions and fears about being ‘rescued’. For the older women, those who may have paid off their debt, gained some control and power in the brothel, coped with the violence or whatever they were initially guilty or ashamed of, may have children, ‘rescue and returning back home’ is irrelevant. So, these women if forcibly institutionalised, are very angry and they rebel.

- In a brothel of 100 girls and women, the ones who are recent entrants - who may have been trafficked - who resist prostitution - are subject to force, violence, starvation, etc - would be most willing participants in a rescue operation. Because they are terrified, tortured and fight hard to find escape. However, at any given point of time, this would not be more than 5 or 6 out of 100. The others who may have been trafficked a few months ago, or a couple of years, who may still be in debt bondage (paying off the debt to the brothel manager, but also getting some money from the tips) may also be keen to get out. However, they are also told that if rescued, they would be put into prisons and how terrible the conditions of shelters are, how they would be stigmatised once back home, etc. So, they may have their apprehensions and fears about being ‘rescued’. For the older women, those who may have paid off their debt, gained some control and power in the brothel, coped with the violence or whatever they were initially guilty or ashamed of, may have children, ‘rescue and returning back home’ is irrelevant. So, these women if forcibly institutionalised, are very angry and they rebel.

- NGOs who run these shelters, and staff therein, have little accountability. They may be physically, emotionally and psychologically abusive, especially if this person is not trained in being non judgemental. When such staff were asked in a research why they do what they do, they responded saying ‘because this is noble work, because I feel that I am contributing towards society in a good cause, because these girls and women need me/ us to protect them’. Deeper analysis of their motivations also showed that they hold strong morals against prostitution and therefore any girl or woman resisting ‘rehabilitation’ (which includes protest against being institutionalised, or against joining in the in-house training programmes) is then subject to admonishment, penality, abuse and even violence.

When survivors were asked - what should the solution be? Where and how should consent be taken? Should consent be taken in the brothel? And this is what they had to say -

If a woman is in a brothel and the police or social worker asks her whether she was being forced into prostitution, she is often unable to say so because of fear, in front of her exploiters. Moreover, she does not know whom she can trust or not. While in the brothel, she may have also seen the brothel manager paying off corrupt police officers and therefore she believes that the police are also in cahoots with the brothel managers.

This is what they had to suggest - 

(a) Consent should be taken in that period of 28 days before she is asked by the magistrate. She should have the right to reject institutionalisation and shelter based rehabilitation even if she is a victim of trafficking. The State and NGOs should have alternatives, where she can be free and not incarcerated.

(b) The process of consent taking should be done by independent professionals, mental health professionals who do not have a stake in running of shelters or have biased positions on prostitution.

(c) Shelters ought to be open. And if someone, especially an adult woman chooses to leave, the NGO should not be penalised for it. The prosecution mustn’t hold her in incarceration for be- ing a witness. If she gets services and if there is a relationship of trust between her and the state, she would voluntarily depose in the case.

The report by Joshua Caroll, notwithstanding the journalist's bias and slant, speaks of a dysfunction that partly belongs to the NGO and partly to the law and the State. While accountability of the NGO (and other NGOs like it) must be set, the ITPA must be challenged and the new law may be supported for now, and efforts should be made to see that some of these processes of consent taking, independent legal aid to survivors should be set in place.