PROSTITUTION
Individuals and groups consulted during phase I of the Joint Canadian AIDS Society / Canadian HIV/AIDS Legal Network Project on Legal and Ethical Issues Raised by HIV/AIDS suggested that the Project should examine whether prostitution should be decriminalized or legalized to empower those in the sex trade.[1] The following is a shorter version of a literature review undertaken as part of the Project.[2] The next issue of the Newsletter will feature an in-depth article on current issues raised by prostitution and HIV/AIDS.
Prostitution and HIV/AIDS: A Literature Review
Generally, women and men working in the sex trade have been considered as vectors of transmission rather than persons who for many reasons, including legal reasons, are vulnerable to contracting HIV: "All over the world, prostitutes are being made the scapegoats for heterosexual AIDS."[3]
This scapegoating is taking place "in the context of a general viewing of women as vectors for transmission of the disease to their male sex partners ... and their babies."[4] Laws were "introduced to protect the interests of prostitutes' clients, considered to be potentially innocent victims of AIDS, at the expense of prostitutes, on whose side guilt is deemed to lie."[5] The media has also responded with hysteria, blaming prostitutes for the transmission of AIDS among the heterosexual population. As stated by Brock, by blaming prostitutes, "we forget that they are working women and men who attempt to maintain as much control over their working conditions, including hygiene, as possible."[6]
Government Responses to Prostitution and AIDS
It has been stated that there are two main governmental responses to the issue of prostitutes and AIDS: mandatory testing backed up with quarantine, or nothing at all.[7] This is reflected in the literature, where much attention is devoted to the issue of whether prostitutes should be mandatorily tested for antibodies to HIV.[8] Most articles reject mandatory testing and other compulsory measures directed at "controlling" prostitutes, and suggest alternative ways of reducing the spread of HIV among prostitutes and to their clients. The policy of the AIDS and Civil Liberties Project of the American Civil Liberties Union (ACLU) points out that, as a purely practical matter, "targetting prostitutes for forced testing simply won't work as a prevention strategy," saying that "[i]f there is any group which will be driven underground by such a policy, it is prostitutes."[9] Generally, the rationale behind compulsory measures, which focus exclusively on prostitutes, but not on clients, is criticized. Alexander suggests that "governments are more interested in blaming prostitutes, and thereby appearing to do something to control the spread of AIDS, than they are in actually developing workable programs to help people protect themselves."[10] Laws under which prostitutes may be required to refrain from specific conduct, undergo specified treatment or counselling, submit to supervision, undergo treatment while detained, or, if infected with HIV, be detained during the operation of the order, may be counterproductive: "Prostitutes will not come forward for public testing for HIV infection. Clients are absolved of any responsibility for using safe sex methods because the effect of the legislation leads them to assume that working prostitutes will be 'clean'."[11] Bowleg suggests that any HIV prevention programs for women must also involve men.[12]
Alternative Strategies
Rather than coercive measures, interventions are proposed that would give prostitutes the means to protect themselves against HIV transmission and would empower them to use them. For example, Cohen et al advocate the development of educational strategies for reaching prostitutes, giving them accurate information about the ways of preventing transmission, and supporting them in their efforts to utilize these measures consistently.[13] Leigh recommends disability payments to prostitutes who may be infected, and provision of income and job-training alternatives for those who wish stop working in the sex business.[14] Similarly, the English Collective of Prostitutes has issued a list of "demands," including provision of "money and other resources, including raising Child Benefit, Supplementary Benefit and other welfare payments, so that women aren't forced into prostitution by economic need, and for women who want to get off the game."[15]
Current Laws Regulating Prostitution
According to Neave, laws that affect the sale and purchase of sex fall into three main classes: laws that punish those who work as prostitutes; laws that punish those involved in the management of prostitution; and, much more rarely, laws that punish those who buy sex.[16] Many articles criticize current laws,[17] pointing out that discrimination against and vilification of prostitutes enhances the vulnerability to infection of prostitutes themselves, their clients and others in the wider community. Among other things, it is argued that:
• that prostitution laws should be changed on the basis of questions of civil liberty and prevention of exploitation, and that this would protect public health.
According to Kirby, "there is a legitimate community interest in regulating, and in some places controlling and prohibiting, public solicitation to the offence of the neighbourhood. But these concerns apart, there is a real question as to what business it is for the law to be attempting to stamp out consensual adult sexual activity. Such laws will never succeed. In the attempt, they will arm police and a whole host of officials and others with powers of oppression, intimidation, blackmail, humiliation and harassment. They will tend to drive the sex industry underground. They will promote oppression of sex workers. And they will impede the struggle against HIV."[18] As Loff points out,"[g]ood health cannot be achieved in an environment where people feel stigmatized and fearful."[19] AIDS compels us to re-examine traditional methods of responding to commercial sex: it is a much bigger threat to society than prostitution.[20]
Decriminalization
Decriminalization has been defined as "the removal of all prostitution specific laws and no government regulation of the trade;" in contrast, decriminalization "with controls" means legal recognition with government regulation of some aspects of prostitution.[21] Many authors support decriminalization of prostitution and some kind of regulation of the sex trade: "If this happened, working conditions could be controlled and condoms could be provided at all times. A prostitute could then get health insurance, workers' compensation, social security, and disability insurance like other workers, making it possible to stop working when sick or injured."[22] ACLU suggests that decriminalization of prostitution would decrease the problems of furtiveness and auxiliary criminal activity associated with it,[23] and a representative of the Canadian Organization for Prostitutes' Rights points out that the "laws that prevent prostitutes from working legally also prevent education about safer prostitution." In her view, prostitution in Canada "must be decriminalised" in order to effectively promote safer prostitution, and "[p]eople involved in outreach to prostitutes must make decriminalisation a priority."[24]
The importance of examining existing laws on prostitution was also recognized by the World Health Organization, which recommended that a meeting be organized to address issues such as "laws which impinge on social, economic, and legal rights of prostitutes and therefore impede HIV prevention efforts."[25]
The most comprehensive analysis of legal issues pertaining to sex workers and HIV/AIDS, in particular the impact of laws regulating and/or penalizing prostitution on efforts to prevent HIV infection, can be found in the report of the Australian Intergovernmental Committee on AIDS' Legal Working Party.[26] The report proposes the following public health objectives that should guide a reform of prostitution laws:
• encouraging responsible behaviour by workers and clients;
• alleviating the stigma associated with the industry;
• promoting conditions within the culture of the sex industry to permit and encourage safer sex activities; and
• improving working conditions within the industry.
The report contains a list of "preferred options" for law reform, which includes decriminalization of prostitution and state regulation of working conditions.
Opposition to Legalization
While many support decriminalization, they emphasize that soliciting for the purpose of prostitution should not be legalized (legalization is defined as the legal recognition of prostitution with full government control). One Canadian lawyer stated: "I'd like to see women being able to work out of their own homes. That would be the ideal situation, both for safety and for dignity. But I don't want to see prostitution legalized." In her view, in every jurisdiction where prostitution has been legalized, "control has been taken away from the women and they experience oppressive working conditions."[27] The English Collective of Prostitutes also opposes legalization "on the grounds that prostitute women should be allowed to advertise and get into touch with clients legally, without interference and pimping by the State."[28] According to Overs, "[u]nconditional removal of all relevant criminal law and the introduction of regulations based on an accurate understanding and analysis is required," not partial legalization whose "intended consequence is to provide a pool of infection free women."[29]
Conclusion
The approach taken by those who seek law reforms should combine removal of criminal penalties against those who work as prostitutes with efforts to empower those who work in the business, minimize prostitution, and prevent young people from exploitation.[30] All women need to be convinced that prostitution law reform is their concern: "The real purpose of laws which punish prostitutes is to reinforce male values about sex, uphold the double standard, and discipline and divide women by treating some as respectable wives and others as whores. Women need to stand up against this process, and recognise that they, as well as their stigmatized sisters are affected by laws which criminalize those who sell sexual services."[31]
- Ralf Jürgens
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ENDNOTES
[1]For more details, see R Jürgens. Joint Project Identifies Priority Legal and Ethical Issues Raised by HIV/AIDS. Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 4 (July 1995) at 7-9.
[2]The full version can be found in R Jürgens. Legal and Ethical Issues Raised by HIV/AIDS: Literature Review and Annotated Bibliography. Montréal: Canadian AIDS Society and Canadian HIV/AIDS Legal Network, 1995.
[3]P Alexander. Response to AIDS: Scapegoating of Prostitutes. San Francisco, CA: National Task Force on Prostitution, 1988.
[4]Ibid.
[5]AE Wills. Public Health, AIDS and Sex Workers in New South Wales. [Australian] National AIDS Bulletin November 1991:39-43.
[6]D Brock. Prostitutes are Scapegoats in the AIDS Panic. RFR/DFR 1989; 18(2):13-16.
[7]Alexander 1988, supra note 3.
[8]See, eg, P Alexander. Mandatory Testing of Prostitutes Will Not Prevent AIDS. In: CC Abt, KM Hardy (eds). AIDS and the Courts. Cambridge, MA: Abt Books Inc, 1990, at 132-139; L Bowleg. Unjust Punishments: Mandatory HIV Testing of Women Sex Workers and Pregnant Women. Washington, DC: Center for Women Policy Studies, National Resource Center on Women and AIDS, 1992; J Cohen, P Alexander, C Wofsky. Prostitutes and AIDS: Public Policy Issues. AIDS & Public Policy Journal 1988; 3(2):16-22; C Leigh. No Mandatory Testing! A Feminist Prostitute Speaks Out. On the Issues 1988; 10:10,24.
[9]AIDS and Civil Liberties Project, American Civil Liberties Union Foundation. Mandatory HIV Testing of Female Prostitutes: Policy Statement of the American Civil Liberties Union. In: M Blumberg (ed). AIDS. The Impact on the Criminal Justice System. Columbus, OH: Merrill Publishing Company, 1990.
[10]Alexander 1988, supra note 3.
[11]Wills, supra note 5.
[12]Bowleg, supra note 8.
[13]Cohen et al, supra note 8.
[14]Leigh, supra note 8.
[15]English Collective of Prostitutes. Prostitute Women and AIDS: Resisting the Virus of Repression. San Francisco, CA: US PROStitutes Collective, 1988 (US edition).
[16]M Neave. In: Sex Industry and the AIDS Debate '88. Report and Conference Papers from the First National Sex Industry Conference, Melbourne, Australia, 25-27 October 1988. St Kilda, Victoria: Prostitutes Collective of Victoria, 1988.
[17]See, eg, B Loff. AIDS Legal Workshop. Criminal Laws Impeding HIV/AIDS Prevention. [Australian] National AIDS Bulletin, July 1990, at 18-20; M Plant. Sex Work, Alcohol, Drugs, and AIDS. In: M Plant (ed). AIDS, Drugs, and Prostitution. London and New York: Tavistock/Routledge, 1990, at 1-17.
[18]M Kirby. Sex, Drugs and the Family. [Australian] National AIDS Bulletin 1994; 7(12):20-22.
[19]Loff, supra note 17.
[20]M Plant. Conclusions and Strategies. In: Plant M (ed). AIDS, Drugs, and Prostitution. London and New York: Tavistock/Routledge, 1990, at 198-204.
[21]P Rogan. In: Sex Industry and the AIDS Debate, supra note 16.
[22]Alexander, 1990, supra note 8.
[23]ACLU, supra note 9.
[24]V Scott. In: Sex Industry and the AIDS Debate, supra note 16.
[25]Global Programme on AIDS and Programme of STD. Consensus Statement from the Consultation on HIV Epidemiology and Prostitution (Geneva, 3-6 July 1989). Geneva: World Health Organization, 1989.
[26]Intergovernmental Committee on AIDS, Legal Working Party. Legal Issues Relating to HIV/AIDS, Sex Workers and Their Clients. Canberra: Department of Health, Housing and Community Services, 1991.
[27]A Derrick, cited in S Fraser. Defending the Right to Do the Work They Do. Atlantic Insight June 1988:14-19.
[28]Supra note 15.
[29]Overs. In: Sex Industry and the AIDS Debate, supra note 16.
[30]Neave, supra note 16.
[31]Ibid.