The following information is submitted by the Best Practices Policy Project (BPPP) and the Desiree Alliance. Both organizations were founded in 2005 to be part of a re-emerging movement for sex worker rights in the United States. Both groups prioritize sex worker leadership in issues of concern to them and strive to ensure social justice through anti-oppression/anti-racism work. The Desiree Alliance has worked since its inception to speak to the concerns of the wide range of people— including lesbian, gay, bisexual and transgender communities—who engage in sexual commerce (such as street sex work, escort work, informal sexual negotiations for basic income). The Best Practices Policy Project is dedicated to building excellence amongst organizations working with sex workers and related communities of people also affected by anti-prostitution policies (such as transgender people, youth, low income people of color and immigrants) so that collectively we can build a society in which these communities can enjoy their health and rights.
Recently the Desiree Alliance and Best Practices Policy Project produced a national report on human rights abuses experienced by sex workers and people in the sex trade that was submitted to the Human Rights Council at the United Nations for consideration during the Universal Periodic Review (UPR) of the human rights record of United States.[i] This report and related advocacy led to UN Recommendation 86 that the U.S. “…ensure access to public services paying attention to the special vulnerability of sex workers to violence and human rights abuses” and subsequently the first ever acknowledgement of the rights of sex workers by the US government in March 2011. The information provided in this statement is drawn from materials developed during the UPR process, other reports on HIV/AIDS produced by BPPP,[ii] and our experiences as sex workers and allies working for social justice for communities of sex workers in the U.S.
Overview of the laws and policies affecting sex workers and related communities: Criminal prohibition of sex for money and surrounding activities exists in almost all states of the United States (with the exception of some counties in the state of Nevada). Some forms of sex work, such as exotic dancing, may not be prohibited by state legislation but they are always regulated by state and municipal policies. Sex work that occurs in public spaces is also often policed under legislation prohibiting loitering, public nuisance, trespassing or “failure to obey” a police officer’s directive to move along. Some states in the U.S. mandate minimum sentences so that judges are required to incarcerate people convicted for prostitution-related offenses. Some states have sentencing guidelines and judicial practices making a third charge for prostitution-related offenses a felony. People arrested for solicitation or other prostitution charges in many jurisdictions in the United States are mandated to test for HIV and people testing positive can face significant penalties and incarceration because of their HIV status.
Different forms of U.S. anti-trafficking legislation and policies affect sex workers in the United States and globally. Federal U.S. anti-trafficking policies undermine the health and rights of sex workers both domestically and internationally by requiring that organizations seeking funding adopt a policy against sex work (“Anti-Prostitution Loyalty Oath”). This requirement is applied to international and almost all U.S.-based organizations seeking funds from the President’s Emergency Plan for AIDS Relief (PEPFAR). Organizations within the U.S. have also been subject to the pledge under the Trafficking Victims Protection Reauthorization Act. These restrictions mean that many organizations are confused about what kinds of services they can provide to sex workers and have, in some situations, lead to excellent harm reduction services being shuttered. New forms of state level legislation to end “domestic trafficking” focusing on “ending demand” for prostitution have been proposed and/or adopted in many U.S. States intensifying policing of sex workers and their clients.[iii]
Specific issues of concern regarding HIV, laws, policy and sex work:
The following issues affect sex workers, people in the sex trade and people who are often profiled as prostitutes by the police even if they are not engaged in sex work (such as transgender people, immigrants, low-income people of color, youth of color).
• The policing of anti-prostitution laws, related policies and by-laws across the United States directly undermines the ability of sex workers to protect themselves from HIV infection and, in a broader sense, alienates these communities from the support needed to defend their health and rights. Sex workers, and people the police assume to be sex workers, are harassed, assaulted, sexually assaulted, extorted, and falsely arrested by police. The law enforcement practice of using condoms as evidence and/or destroying condoms and safe sex materials directly contravenes efforts to halt the spread of HIV in the United States. People of color, transgender people, immigrants, homeless people and youth of color are disproportionately affected by these law enforcement activities.
• Mandatory HIV testing of people arrested on prostitution and prostitution related offenses violates the human rights of many and the imposition of higher penalties (including felonies) on people who are said to be engaging sex work while living with HIV punishes already vulnerable communities. In some states, people testing positive face significant penalties and incarceration for their engagement in sex work while positive, even if they used condoms and engaged in less risky forms of sex with their partners. Information about their HIV status (sometimes accompanied by photographs of them) is often distributed widely in the media and local communities placing them at great risk of retaliation and other abuse. Sharmus Outlaw, co-coordinator of the Desiree Alliance and advocate for both sex workers and transgender people, commented during our development of this statement that these kinds of laws reinforce deeply held prejudices. “Many in society already incorrectly fear that sex workers spread disease,” she noted, “Using these laws to arrest people living with HIV whips up fear against sex workers, transgender people and men who have sex with men.”
• Anti-prostitution laws and policies are used as a tool to arrest migrants and deport them. Migrant sex workers are therefore more likely than other groups of sex workers to avoid public services and are therefore much less able to access safe sex supplies, health services, and medications. Immigration policies prohibiting people who have engaged in sex work and drug use from entering the U.S. also mean that the International AIDS Conference (IAC) to be held in Washington, D.C. in 2012 will not have a full complement of civil society participants. This greatly reduced participation of key HIV advocates will impact information sharing and planning of the global response to HIV/AIDS.
• Sex workers are not a priority in the National HIV/AIDS Strategy (released in July 2010). In fact the National HIV/AIDS Strategy makes no mention of sex workers at all. The document emphasizes targeting resources to “vulnerable populations,” but this emphasis refers to gay and bisexual men, African-Americans and Latinos. The plan acknowledges issues confronted by drug users and mentions (but does not explicitly prioritize) the importance of access to safe injecting equipment; prioritizes the prevention needs of gay and bisexual men and transgender people; and highlights the importance of racial and other disparities in the United States as important drivers of the epidemic. In terms of reducing stigma and discrimination, the plan recommends that policy makers “ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV.” However, the plan makes no mention of the barriers faced by sex workers and people in the sex trade, nor are these groups listed in prevention and treatment priorities.
• Globally US policies, such as the “Anti-Prostitution Loyalty Oath” and the failed “war on drugs,” undermine services and support for sex workers. Similar policies within the United States do the same.
[i] Report on The United States of America, 9th Round of the Universal Periodic Review – November 2010, http://www.bestpracticespolicy.org/UPRreport20101.html
[ii] Human rights challenges and responses in the context of HIV and AIDS, Submitted September 15, 2010 to Civil Society Section, Office of the United Nations High Commissioner for Human Rights, http://www.bestpracticespolicy.org/UNHIVreport2010.html
[iii] See for example, the Illinois Safe Children Act adopted August 20, 2010 and legislation passed this year in Colorado which increases penalties against clients of sex workers.
Report prepared by Kiesha McCurtis, Sharmus Outlaw, Cristine Sardina and Penelope Saunders, August 7, 2011
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