The perils of criminalising sex work

When Amnesty International announced it was considering a policy on the protection of sex worker’s human rights that includes a call for decriminalisation of sex work, a media storm ensued. This was despite compelling evidence that punitive legal environments exacerbates stigma, discrimination and violence and, in turn, increases HIV vulnerability among sex workers.

Last month, an open letter from the NGO, Coalition Against Trafficking in Women, signed by former sex workers, doctors, faith based leaders and Hollywood actors called on Amnesty to “vote no to decriminalising pimps, brothel owners and buyers of sex.” Many, including veteran women’s rights activist Gloria Steinem, called for Amnesty to adopt the ‘Nordic model’ (see below) which is commonly understood to decriminalise the direct sale of sex but continues to make the buying of sex and all other operational aspects of sex work illegal.

Despite this high profile pressure, at Amnesty’s yearly council meeting on 11 August, they came out in favour of the decriminalisation of sex work.

Amnesty’s decision is in line with the World Health Organisation, the Joint United Nations Programme on HIV/AIDS, the United Nations Population Fund, United Nations Development Programme, the UN Special Rapporteur for Health and the Global Commission on HIV and the Law, all of which have called for decriminalisation in order to protect the health and human rights of sex workers. A series of research pieces published by the Lancet last year also demonstrate how sex workers face substantial barriers in accessing prevention, treatment, and care services, largely because of stigma, discrimination, and criminalisation in the societies in which they live. The research indicated how sex workers are likely to experience stigma, based on their livelihood.

Criminalising aspects of sex work fuels stigma, by adding the potential element of “criminal” and exacerbates the barriers that stigma creates for sex workers in accessing health and other services. Sex workers bear a disproportionally large burden of HIV worldwide. In fact, UNAIDS’ 2014 Gap Report finds global HIV prevalence among sex workers to be 12 times more than the general population. Punitive legal environments only make this worse.

Research in Cambodia and Ethiopia that the Alliance has recently been involved in provides some insight into the context of sex work in two different legal environments.

Criminalisation in Cambodia

In 2008, Cambodia brought in a new law – Suppression of Human Trafficking and Sexual Exploitation – which “confirms pre-existing provisions against human trafficking and procuring with the use of force or coercion and extends them to all third party involvement in sex work which is defined in the Act as sexual exploitation. This includes criminalisation of almost all social and financial transactions connected to sex work such as supplying accommodation, transport, employment, advertising or any other services to sex workers.” (Global Map of Sex Work Law, IDS).

As a result of the law, many brothels that had previously traded openly were shut down, forcing sex workers onto the street to work. Sex workers reported being forced into more precarious settings for their work, placing them at even greater danger of rape and sexual assault, sometimes at the hands of the police. Others reported being less likely to go for an HIV test as their lives had become more erratic. Some indicated that they felt less likely to practice safe sex that could protect them from contracting HIV or other STIs for fear of being caught with condoms, which could be used as evidence against them.

In 2009, a year after the law came in, KHANA, the largest HIV organisation in Cambodia and an Alliance Linking Organisation, began the Sustainable Action against HIV and AIDS in Communities (SAHACOM) project to enable sex workers to access sexual and reproductive health services within their own communities. This alternative model for providing health services enabled sex workers to have less interaction with increasingly hostile authorities.

A study undertaken by KHANA, and published in July in the British Medical Journal, looks at the experiences of female entertainment workers in Cambodia, a setting many sex workers moved into following the 2008 law.  It found these women to have very limited access to sexual and reproductive healthcare services. Laws criminalising the selling of sex, like the one in Cambodia, can fuel discrimination and further marginalise sex workers. Yet the specialised sexual and reproductive health services provided under SAHCOM, which include a ‘safe space’ drop-in centre, community-based HIV and syphilis testing and a system in which peers accompany HIV positive sex workers to antiretroviral services, are circumventing some of these barriers.

The ‘Nordic model’ in Ethiopia

Ethiopia has implemented a version of the Nordic model. There it is illegal to solicit to sell sex in a public place and to organise commercial sex in any place. Laws such as public disorder, vagrancy, loitering and state recognised religious provisions are used to prosecute women who sell sex. Such third party offences become an indirect form of criminalisation; effectively criminalising the operational aspects of sex work and preventing sex workers from working together for safety. (Global Map of Sex Work Law, IDS).

Research carried out by the Population Council under Link Up, a multi-country project that is scaling up access to services for vulnerable young people, listened to the experience of female sex workers in accessing sexual health services, their fertility intentions and desires, as well as experiences of pregnancy, child bearing and motherhood in Ethiopia.

The study found that violence is a pervasive problem among sex workers.  This is often a manifestation of the stigma and gender inequity that these women face. All of the sex workers interviewed said they used condoms, but indicated that this varied in different circumstances. In terms of other sexual and reproductive health services, most of the sex workers had received at least some antenatal care during their pregnancy, including HIV testing and were familiar with where they could access maternal health services, including the prevention of vertical transmission of HIV services.

However, several women in this Ethiopian study reported harassment, violence and rape at the hands of the police. Many expressed a sense of helplessness towards law enforcement officials, suggesting sex workers’ vulnerability to HIV in Ethiopia is still being exacerbated even though they are not explicitly criminalised by the law.

Crime and punishment?

Amnesty is calling for complete decriminalisation rather than legalisation – essentially that means the removal of laws against sex work, rather than a system of governmental regulation wherein sex workers are licensed and required to work in specific ways.  Amnesty argues this is the best way to remove the stigma that surrounds the selling of sex and makes it easier for sex workers to go to the police if they need protection from violence. They admit the issue of decriminalisation of sex work is “a divisive, sensitive and complex issue” but says that the issue of universal human rights must not be. We agree.

Concerned by the growing trend of criminalisation of key populations across the world, the Alliance adopted a common position on decriminalisation in 2013.  This states that the criminalisation of sex work^✝ violates the human rights of sex workers and severely undermines the effectiveness of the HIV response. The Global Network of Sex Work Projects (NSWP), who actively opposes the criminalisation and other legal oppression of sex work, outline their position in this briefing paper on Sex Work and the Law: Understanding Legal Frameworks and the Struggle for Sex Work Law Reforms.

The criminalisation of sex work, anti-trafficking laws and laws that seek to establish safe working conditions for sex work have all been shown to increase the stigma and discrimination faced by sex workers. When the evidence shows that punitive legal environments create even more challenges for sex workers in trying to access health services, surely it is time to side with the evidence, build further momentum, and side with Amnesty to decriminalise sex work?

^✝ As well as same sex activity between consenting adults, drug use and HIV transmission.

For more information, this new mapping of national ‘legal frameworks’ around sex work has just been launched by the Institute of Development Studies. It aims to provide an accurate overview, in plain English of the laws, regulations, directives and enforcement practices that govern the sale of sexual services by adult women.