Decriminalizing Sex Work is the Best HIV Response
By David Scamell
As I have previously blogged, a new global UN report on the impact of bad laws on the worldwide response to HIV found that in order to "ensure an effective, sustainable response to HIV that is consistent with human rights obligations," countries must repeal all punitive laws on sex work given that "criminalization, in collusion with social stigma makes sex workers' lives more unstable, less safe and far riskier in terms of HIV." The Global Commission on HIV and the Law report calls instead for sex work to be treated as work, and sex workers and their clients to be given proper and effective access to HIV and broader health services.
Sex work continues to be criminalized and highly stigmatized across most of the world, resulting in many of those who sell sex experiencing serious human rights abuses, often at the hands of police. A sex worker from Guyana after describing to the Commission how they were beaten and robbed by a client asked the striking question, "How could I go the police and make a report when sex work is not really legal?"
When the United Nations Development Programme (UNDP) established the Commission two years ago, it was tasked with providing evidence-based recommendations on the relationship between HIV and the law, with a focus on what impact punitive laws in relation to certain populations have on their vulnerability to the virus. In reaching its landmark conclusion on the need to rethink and reframe the way in which countries treat those who sell and buy sex, the Commission looked at an extensive range of public health and legal evidence. Though, most importantly, through the Regional Dialogue process the Commission heard directly from sex workers from across the world about the way in which laws on the books and laws on the street enable systemic abuse from police, clients, and others, inhibit their ability to negotiate safe sex, and restrict their ability to access the health and social services that they need.
The lived experience of sex workers is reflected in the bold and comprehensive recommendations that the Commission makes to governments in their final report. These include:
- Repealing all laws that prohibit adult, consensual sex work, ensuring that general civil and administrative offences are not used to punish sex workers and enacting laws that ensure safe working conditions for sex workers;
- Taking all measures to stop police harassment and violence against sex workers;
- Prohibiting mandatory testing of sex workers;
- Clearly distinguishing, in law and in practice, between instances of trafficking and child sexual exploitation, and consensual adult sex work;
- Closing all compulsory detention or rehabilitation centers for sex workers (as Vietnam committed to doing recently);
- Repealing punitive conditions for development assistance, such as those contained within the U.S. government's PEPFAR anti-prostitution pledge and its current anti-trafficking regulations; and
- In line with these recommendations, review and reform relevant international laws such as the UN Protocol on Trafficking.
As one participant at the launch of the Commission report in New York commented, having strong recommendations is the first and easiest part. The challenge lies in how sex workers and their allies can use this report as a tool to convince legislators and policymakers that decriminalizing sex work is the best action they can take in responding to HIV while at the same time recognizing and protecting human rights.