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Sex Work, Criminalization and HIV: Lessons From Advocacy History

Summer/Fall 2010

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Gay Men: From "Vectors" to a Voice at the Table

HIV has, without question, elicited overt and covert homophobic reactions all over the world. The U.S. has progressed substantially on this front since the 1980s, when AIDS was widely regarded as a "gay disease" undeserving of any significant federal response. In 1988, Senator Jesse Helms (who, on television, advocated quarantining people with HIV) personified this widely shared disdain by introducing a federal budget amendment prohibiting use of tax dollars for AIDS prevention materials that "promote or encourage homosexuality."

To illustrate the need for this language, he showed fellow senators a gay-themed comic book, produced by Gay Men's Health Crisis, that used explicit HIV prevention language and images to reach men among whom HIV incidence was skyrocketing. Known colloquially as "no promo homo," Helms' amendment was eventually replaced with language stipulating that federal funds could not be used for materials that could be "objectionable to the American public."

The growing visibility of HIV/AIDS service organizations led largely by gay men and their allies helped to discourage the overt expressions of homophobic attitudes. Gay Men's Health Crisis (and its Institute for Gay Men's Health), the Gay Men's Health Summit, the Black Gay Men's Network (a project of the Black AIDS Institute) and the Global Forum on MSM and HIV (an international coalition based in the U.S.) are just a few of the groups formed by advocates and service providers determined to highlight the specific needs of this population and demand that those needs be addressed.

Their success is evident in the "Young MSM of Color Initiative," created in the Ryan White CARE Act under Special Programs of National Significance; the inclusion of MSM as an eligible category for grant applications within the Minority Substance Abuse/HIV Prevention Initiative; and in the President's MSM Initiative, which provides CDC funding in fiscal year 2011 to address the disproportionate impact of HIV on MSM.

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Meanwhile, overt homophobic and transgender-phobic responses to HIV are still gaining traction in several African and Asian countries, where existing stigma is exacerbated by the worsening pressures of the epidemic. A report released at the Vienna conference by the United Nations Development Programme and the Asia Pacific Coalition on Male Sexual Health indicated that sex between consenting adult men is criminalized in 19 Asian countries and police frequently use these laws to target MSM and transgender people in ways that drastically hinder their access to HIV prevention services and educational programs.

The report goes on to note that, while HIV prevention services are currently reaching only 9% to 20% of MSM in the Asia-Pacific region overall, the highest rates of access and uptake of these services by MSM are occurring in the eight countries in the region that prohibit discrimination against them.

Recent efforts to increase criminal penalties against MSM in Uganda and Rwanda have particularly commanded public attention, as the media has presented us with pictures of politicians and church leaders openly endorsing homophobic violence. Yet while some African countries are debating enhanced penalties for MSM, others are making progress in the opposite direction.

Joel Nana, Director of African Men for Sexual Health and Rights (based in South Africa), told press at the Vienna conference that "we now have 14 countries out of 54 that include men who have sex with men in their national HIV strategic plans. It doesn't mean the services will be delivered to those populations, but it is an acknowledgment. That's a first step."


Criminalizing HIV Exposure and Transmission

Many countries are also criminalizing HIV transmission itself, possibly as a surrogate for persecuting the groups to whom they attribute such transmission. A report by the International Planned Parenthood Federation points out that 58 countries have passed laws that specifically criminalize HIV transmission or have in place non-HIV-specific laws with which to prosecute people accused of spreading the virus. Another 33 countries are reported to be considering similar legislation.

In sub-Saharan Africa alone, more than 20 countries have passed legislation ranging from mandatory HIV testing and disclosure to criminalizing exposure to or transmission of HIV. Similar laws are in place or pending in parts of Asia, Latin America and the Caribbean, according to the ATHENA Network, an organization dedicated to combating HIV through advancing human rights and gender equity.

In the U.S., 36 states have explicitly criminalized HIV exposure or transmission, despite the fact that pre-existing laws against assault, rape and endangerment are sufficient for prosecution in the rare instances in which people deliberately attempt to transmit HIV. Carefully applied, the non-HIV-specific laws already on the books can address these situations without violating public health principles.

Criminalizing HIV transmission specifically opens the door to all kinds of human rights violations -- and creates a huge disincentive for HIV testing, since ignorance of one's HIV status may be the safest way to avoid being accused of deliberately trying to transmit the virus.

The U.S. leads the world in the number of people convicted of willfully exposing others to HIV: 205 convictions as of 2009, according to the Global Network of People Living with HIV. Many more have been accused and, as the Center for HIV Law and Policy puts it, "singled out for irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status."

As the convener of the Positive Justice Project, the Center has proposed innovative strategies for pushing states to eliminate these laws, including the possibility of tying Ryan White CARE Act funding and other federal HIV-related state funding to state-wide elimination of laws and policies that criminalize HIV transmission or otherwise discriminate against people with HIV.

The Obama administration's new National HIV/AIDS Strategy discourages states from adopting laws that criminalize HIV transmission. Although it does not call directly for their repeal, the strategy directs the U.S. Department of Justice to examine and report on how such laws are being implemented.

Resistance to the global trend toward criminalization was widely evident at the Vienna AIDS Conference, with the theme "Rights Here, Right Now." UNAIDS leaders spoke out forcefully against it, and data on criminalization trends presented at conference sessions underscored a consensus that criminalization is both ethically wrong and disastrous to public health efforts to stop the spread of HIV. More than 15,000 conference participants and local residents marched through the streets of Vienna on July 20 as part of the "HIV and Human Rights March," demanding that action to uphold human rights be recognized and supported as a fundamental part of the global response to HIV/AIDS.


Sex Workers: The "Other" Most at-Risk Population

Although sex workers are generally the at-risk group mentioned last after MSM and IDUs, the three are obviously not exclusive categories. People at high risk for HIV may belong to one, two, or all three of these of these populations at various points in their lives. People in these groups are at high risk in part because they are stigmatized, vilified, or ignored whenever possible in most countries.

However, not everyone is clear on exactly who sex workers are. Cheryl Overs, co-founder of the global Network of Sex Work Projects (NSWP), started off a presentation at the Vienna conference by saying that sex workers are younger, older, indigenous people and migrants, female, male and transgender, etc. What sex workers are not, Overs continued, are children or people in slavery.

Confusion on this point is a major hurdle in sex workers' rights advocacy today. Anti-trafficking advocacy has blurred public understanding of the vital distinction between voluntary, consensual adult sex work and the labor of women and children who have been trafficked into sexual slavery.

Sex workers' rights advocates are just as opposed to human trafficking and the sexual exploitation of children as anyone else. Except for their criminalized status, in fact, sex workers are ideally positioned to work with law enforcement in fighting trafficking and getting help to trafficked individuals. As Meena Seshu of SANGRAM/VAMP, an Indian sex workers' rights organization, pointed out, "it is the sex workers who are in contact with new 'girls' in the community and who can speak to them about their rights."

The NSWP and its member organizations worldwide hold the position that voluntary, adult sex work is simply work and that sex workers deserve the same rights as other workers. Some sex workers choose their profession over other available jobs, while many do it because the pay and the hours are better than those offered by any other work available to them.

Andrew Hunter, current president of NSWP, observed, "saying that sex work is 'work' doesn't mean you think it's a great job. We all agree that clothing manufacturing is work, but no one says that working in a sweatshop is fabulous. And no one argues that sweatshop workers don't deserve labor rights."

Currently, the legal status of sex work varies widely from country to country and even among states in the U.S. In 2003, New Zealand became the first country to completely decriminalize sex work. Their Ministry of Justice reports that this has caused no increase in the number of people engaged in sex work, and it has improved sex workers' health and safety, particularly by enabling them to report violent crimes.

In some places (Nevada and Amsterdam, for example), sex work is legalized, meaning that sex workers can operate within specific areas, with police registration and monitoring. Legalization and decriminalization are quite different in that legalization generally favors big business (e.g., brothel owners). Individuals in these regions who prefer to work in small collectives or on their own still risk arrest if they go to the police to report being robbed or assaulted. They also remain highly vulnerable to police extortion (for money or sex) when they are caught.

Despite the patchwork of laws, sex work is generally regarded as "illegal" everywhere, and those who suffer most as a result are street-based sex workers. Whether female, male, or transgender, street-based sex workers are at greatest risk of violence from clients and the police. They are most likely to be impoverished, homeless and/or addicted and they have the highest risk for HIV. Because they can be arrested at any time, negotiations regarding price and condom use are often hasty and agreements unenforceable.

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This article was provided by San Francisco AIDS Foundation. It is a part of the publication Bulletin of Experimental Treatments for AIDS. Visit San Francisco AIDS Foundation's Web site to find out more about their activities, publications and services.
 

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