Sex Work, Criminalization and HIV: Lessons From Advocacy History

Summer/Fall 2010

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The Problem With PEPFAR

Public promotion in the U.S. of the view that all sex workers are either criminals or trafficked victims in need of rescue paved the way for the introduction of the PEPFAR anti-prostitution pledge. The 2004 PEPFAR language stipulated that no funds "may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking," or be used to "promote, support, or advocate the legalization or practice of prostitution."

This language evolved somewhat during PEPFAR reauthorization; the 2010 guidance requires grantees to agree that they are "opposed to the practices of prostitution and sex work because of the psychological and physical risks they pose for women and children." Tying funding to this inaccurate conflation of practices promotes the invisibility of voluntary consensual adult sex workers.

To comply with this requirement, overseas groups wishing to receive U.S. government funding are required to refrain from doing anything that could be construed as condoning sex work in any way, even if the grantee pays for those activities with other funds. The Obama administration had the opportunity to declare this requirement unconstitutional, but instead directed groups that want to work with sex workers to create entirely new organizations -- with separate facilities, management, staff and signage -- to ensure that they keep their PEPFAR funding isolated from those activities.

The anti-prostitution pledge has been challenged in court and a preliminary injunction is currently in place that keeps it from being enforced against U.S. organizations that belong to either the Global Health Council or InterAction, two of the entities that brought the lawsuit (along with Pathfinder and Alliance for Open Society International). The U.S. government has appealed this ruling, and if the injunction is lifted while the suit is pending, all U.S. non-governmental organizations will be required to comply with the regulations, just as foreign PEPFAR recipients already are.


It is hardly surprising, then, that a central demand of the sex workers' rights advocates at the Vienna conference was that the U.S. government issue guidance to nullify the anti-prostitution pledge in the same way it had just reversed the ban on needle exchange in PEPFAR.

PEPFAR now funds comprehensive harm reduction programs while effectively deterring organizations that serve sex workers from seeking or receiving U.S. financial support. An analysis presented at the Vienna conference by Melissa Ditmore and Dan Allman captured the essence of how this works.

Because grantees were fearful of being defunded if they complained about PEPFAR, Ditmore and Allman collected confidential data from 25 PEPFAR-funded organizations and projects in Africa, the Americas, Asia-Pacific and Europe, and used them as the basis for a composite "case story."

Their narrative is placed in a fictional country, and the made-up organization they describe neither condones sex work nor condemns sex workers. On consulting with their U.S. Agency for International Development (USAID) country office, the organization's director is advised that, if the group wants to continue to receive U.S. funding, it definitely cannot let sex workers use its drop-in centers.

Rather than police the drop-in centers and deny access to any known or suspected sex workers, the agency closes them altogether. This deprives all clients of access to condoms, lubricant and peer-based safer sex education. It also deprives homeless clients of their access to bathing and toilet facilities. In the wake of negative community pressure generated by this decision, the agency decides to get out of HIV services altogether and use their resources instead for school-based sex education.

This narrative, while fictional, highlights the real-life experiences of many similarly situated organizations. Agencies report having to stop offering English classes to sex workers (in many countries, a vital step toward getting other employment), curtail their HIV prevention outreach work to women in brothels, and discontinue empowerment programs that train sex workers to serve as peer educators on safer sex, sex workers' rights, and condom negotiation techniques.

According to current PEPFAR guidance, organizations can continue to offer these services only if they set up entirely separate facilities, staff, management, and equipment to do so. This delineation is simply not feasible for desperately under-resourced organizations and serves as a de facto prohibition.

The guidance also states that PEPFAR recipients can continue to provide HIV testing and treatment to sex workers. Because it does not explain what constitutes "promoting prostitution," however, many organizations choose to abandon their provision of testing, treatment and services to sex workers rather than risk doing something that might be perceived as violating the anti-prostitution pledge.

In a survey of staff at PEPFAR-recipient agencies, the Center for Health and Gender Equity (CHANGE) found that "19 of the 31 people interviewed in the field reported that they censored themselves or their organizations as a result of the pledge. Almost all contracting agencies reported that they have cleared their websites of references to sex workers or [sex workers'] rights."

Drop-in centers may be among the biggest casualties. As with any heavily stigmatized and marginalized population, successful engagement with sex workers depends on direct contact, respect, building trust and becoming a reliable resource. Effective drop-in centers offer sex workers bathroom facilities, snacks, contact with peers and a safe place to rest. They provide harm reduction in the form of condom counseling and promotion, and skills-building opportunities that can lead to transitioning out of sex work.

Yet funding for such drop-in centers is slashed when they are perceived as possibly encouraging sex work. In Bangladesh, for example, a drop-in center program that had been recognized as a UNAIDS "best practices" model was defunded and lost 16 out of their 20 centers after the international non-governmental organization that had funded the program signed the anti-prostitution pledge.

Overcoming the Anti-Prostitution Pledge

Herein lies the heart of the problem: It is not possible to simultaneously stigmatize people and help them to reduce their HIV risk. A 2007 press release from the Urban Justice Center's Sex Worker Project summed up the conflict: "The real impact of the anti-prostitution pledge is that people around the world are being denied the healthcare, rights and services they deserve. ... The real hypocrisy here is that people who need healthcare and services, and who need their rights protected, are being denounced by those whose mission it is to help them."

Let us consider the lessons learned from struggles to overturn policies that blocked the rights of MSM and IDUs to effective HIV prevention and tools specific to their needs. We see an unwavering determination not to back down and be quiet, no matter how long it takes to be heard. We see the crucial importance of developing an evidence base that objectively shows the effectiveness of targeted prevention tools. And we see the importance of not just persuading those in power to meet sex workers' needs but to get seats at decision-making tables and get these demands entrenched in the language of the larger HIV prevention dialog.

These lessons suggest that advocates now need to highlight the discrepancy between U.S. policy and that of global funders -- a publicity challenge directly paralleling that undertaken to legalize syringe exchange. And this struggle cannot be taken on solely by those most directly affected. To be truly effective, it must be on the agenda of mainstream AIDS and human rights activists who see it as a substantial and intolerable injustice. The demand to remove the anti-prostitution pledge needs to be a core part of the message as the HIV/AIDS community presses for adequate PEPFAR, Global Health Initiative, and Global Fund appropriations.

Advocates will have to point out -- over and over -- that the current PEPFAR guidance defeats efforts to use funding efficiently and effectively to reduce HIV risk among sex workers. And even though U.S.-based organizations are not directly affected by the pledge at this time, American advocates still bear primary responsibility for eradicating this injustice. It is, after all, U.S. money. Americans are ultimately accountable for where and how it is (and is not) disbursed. Just look at anything underwritten by USAID: The tagline "From the American people" always appears right beneath the USAID logo.

Another essential component will be the development of an evidence base showing the impact of using a human rights approach to HIV prevention programming with sex workers. As was the case with syringe exchange ten years ago, almost no research in this area has been funded. In the case of sex work, the issue is further complicated by the fact that sex work is widely seen as synonymous with human trafficking.

The political pressure on the Obama administration to maintain anything associated with anti-trafficking efforts (such as the anti-prostitution pledge) is substantial. The underlying implication is that people who support sex workers' rights are, in effect, condoning human trafficking.

The idea that investing enough money in anti-trafficking efforts will eradicate sex work, and hence sex workers' HIV risk, is illogical and incorrect. But funding, conducting and publishing the research that will prove the error of this assumption will be exceedingly challenging. That's all the more reason for advocates from all sectors to push for it to be done.

Don Des Jarlais and others whose work was pivotal to building the evidence base for needle exchange wrote that, "as a profession, epidemiologists need to advocate for openness, even when unpopular, for scientific investigation and evaluation when the root of the issue is protection of the public's health." Epidemiologists and social scientists need to step up now with regard to sex workers.

Other Sex Worker Advocacy Challenges

Eliminating the PEPFAR anti-prostitution pledge is not the only objective of American advocates for the human rights of sex workers. While U.S.-based organizations are not subjected to PEPFAR regulations, they are struggling with myriad challenges and unmet HIV prevention needs of their own.

Minimizing criminalization's impact on HIV prevention outreach. Law enforcement "crack-downs" on sex workers drive people underground, into more dangerous neighborhoods and settings where they are better hidden from the police -- and from health outreach workers. Sometimes police actions directly work against safer sex promotion and HIV prevention. Although there is no legal limit to the number of condoms an individual may carry, law enforcement officers in major cities routinely confiscate condoms from suspected sex workers and may even file them as evidence of prostitution.

In Washington, D.C., the city with the highest HIV prevalence in the U.S., police are empowered to set up temporary "Prostitution-Free Zones." People suspected of being sex workers -- including those loitering at night and carrying multiple condoms -- can be arrested if they refuse to leave the designated area. This use of condom possession as grounds for arrest offers sex workers an untenable choice: protect themselves (or their clients) from HIV, or protect themselves against arrest.

In New York state, where condom possession is currently admissible evidence in prostitution cases, legislation has been introduced that "provides that possession of a condom may not be received in evidence in any trial, hearing or proceeding as evidence of prostitution." This bill (S1289A) is stuck in a Senate committee and, despite its public health importance, is unlikely to pass without the endorsement of the New York Police Department. Advocates in New York are currently working to get that support.

Sex workers' groups in other cities are similarly working with police to build bridges and find ways to collaborate on common concerns. In Canada, a Montreal-based university professor working in collaboration with a sex workers' organization called Stella was funded by the provincial Ministry of Education to develop capacity-building trainings around sex work for police, social workers and other human services staff. The training was designed to reduce obstacles -- identified by Stella members -- to accessing non-judgmental health and social services. The curriculum they developed, delivered through team-teaching by the professor and one Stella-trained sex worker, was so well received that it generated demand for additional trainings across the province before funding ran out.

Unfortunately, an anti-prostitution group stepped in and revised the Stella curriculum to relay their own, very different, political agenda. According to Maria Nengeh Mensan, a professor of social work at the University of Quebec and one of the curriculum creators, "the anti-prostitution feminist movement in Canada is one of the biggest barriers to our work in Canada -- and they are really well funded."

Tensions between the two camps have given rise to an organization called FIRST: Feminists Advocating for Rights and Equality for Sex Workers. FIRST advocates for the decriminalization of sex work in Canada and is dedicated to educating the public about the sharp distinction between voluntary, adult sex work and the situation and needs of people trafficked into sexual slavery.

Preventing the legal status of sex workers from worsening. As discussed previously, MSM, IDUs and sex workers share the experience of being stigmatized and vilified. In the U.S., the state of Louisiana has taken the vilification of sex workers to a new level by using an 1805 law written to criminalize homosexuality (by banning oral and anal sex as "crimes against nature") to label sex workers as sex offenders. The Louisiana Weekly reported in January 2010 that "sex workers convicted of breaking this law are charged with felonies, issued longer jail sentences and forced to register as sex offenders. They must also carry a driver's license with the label 'sex offender' printed on it."

This practice is primarily affecting poor women of color who are already at high risk for HIV, many of whom are drug addicted and cycling in and out of the criminal justice system. Registered sex offenders are often unable to get jobs (because they are barred from certain kinds of employment, and other employers may be unwilling to hire them) and their names are kept on the registry for at least ten years -- longer if they violate reporting requirements.

Sex offenders with felony convictions do not qualify for public housing assistance or educational loans in Louisiana and may be ineligible for food stamps under some circumstances. Thus, the law ironically makes it almost impossible for convicted women to find legal ways to support their families, and increases the likelihood that they will have to continue in the illegal economy, despite fear of re-arrest.

Deon Haywood, Director of New Orleans-based Women with a Vision, has mobilized a coalition of civil rights and health activists dedicated to addressing the excessive and inequitable punitive consequences of conviction under the law. The coalition, called NO Justice, conducts speak-outs and educates the public, while also formulating a legal strategy for challenging the law.

In response to the pressure they have generated so far, the Louisiana legislature passed a new law in July 2010 that reduced a first conviction under the "crimes against nature" law from a felony to a misdemeanor, with a penalty of up to six months in jail, a maximum $500 fine, or both. A second such conviction, however, is still a felony for which sex offender registration is mandatory (along with five years of prison time and/or a $2,000 fine).

According to Haywood, this new law is virtually meaningless. Hundreds of women are now registered as sex offenders and stigmatized in a way that only reduces their chances of being able to support themselves in any other way.

Fighting for a seat at the table. The third area of activism centers around demanding representation in the process of making the public policy and funding decisions that directly affect one's constituency. MSM, as a most at-risk population, took a major (if largely symbolic) step forward in 2002, when President Bush appointed Scott Evertz as the first openly gay man to head the White House Office of National AIDS Policy. Jeff Crowley, appointed by President Obama in 2009, is now carrying this opportunity forward in a more substantive way. Sex workers have achieved nowhere near this level of representation (or even recognition) in the U.S., although they are gaining some ground in other countries.

Elena Reynaga, a renowned sex workers' rights leader in Latin America, described in her fiery plenary speech at the 2008 International AIDS Conference how the Brazilian Network of Prostitutes worked in collaboration with the Brazilian government on a public health and human rights campaign called "No shame, girl, you're a professional!"

The network won the inclusion of "prostitute" on the list of professions recognized by the Brazilian Ministry of Labor, said Reynaga, and "they even took their fight all the way to parliament, where they pushed for a law that would abolish discrimination against sex workers." Her story sheds light on why Brazil was the only country to refuse PEPFAR funding altogether rather than sign the anti-prostitution pledge.

Advocacy efforts elsewhere have also produced results. In 2009, the South African National AIDS Council (SANAC) opted to admit sex workers as a formal sector of SANAC and created an Intersectoral Working Group on Sex Work. The South African National Plan on HIV and AIDS recommends "an audit of criminal laws [against sex work], and their amendment with a view toward ensuring non-discrimination and harm reduction." The SANAC Working Group issued a report in 2009 strongly recommending decriminalization of sex work in South Africa in advance of the 2010 World Cup games. Although this recommendation was not adopted, the South African Law Commission is expected to produce its report on the matter in February 2011.

UNAIDS has made some progress in recognizing the importance of sex worker representation, acknowledging in its most recent Guidance Note on HIV and Sex Workers that the UN should "support monitoring and review mechanisms that document and hold officials accountable for implementation of rights-based policies" on sex work. The guidelines also note that "representatives of government, sex workers, civil society, private sector and the United Nations should be mobilized to ensure incorporation of strategies and actions on HIV and sex work into National AIDS Plans."

Yet the new U.S. National HIV/AIDS Strategy contains no mention of sex workers. Neither does the CDC's HIV Prevention Community Planning Guidance, the blueprint for organizations receiving CDC funding for HIV prevention programs. The Guidance does say that the prevention planning process "should include strategies for obtaining input from key populations (e.g., IDUs, MSM, youth, undocumented immigrants, etc.)" but makes no mention of sex workers in any context. Invisibility strikes again.

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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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