To help or to hinder? Sex work legislation and HIV prevention

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Photo: flickr/PJ Starr

In December 2013, the Supreme Court of Canada ruled that the criminal code on sex work violates the constitution because it prohibits sex workers from taking measures to protect their personal security. The government has one year to draft new legislation, and recently held a public consultation on 'Prostitution-Related Offences.' Among the many personal security issues at stake for sex workers, which the government must consider in drafting new legislation, is the risk of HIV infection. As the Global Commission on HIV/AIDS and the Law points out, legal environments that deny human rights to security, also provide fertile ground for the HIV/AIDS epidemic.

While there isn't reliable data on HIV/AIDS prevalence among sex workers in Canada -- due to the difficulty of collecting information on a group that works underground and rarely declares their profession when accessing health services -- according to UNAIDS, female sex workers worldwide are 13.5 times more like to be infected with HIV than their peers. Risk of HIV is related to sex workers' ability to use condoms, negotiate safer sex, protect themselves from violence and access health care for testing and treatment. Julie Grant, from Sex Professionals of Canada, notes that sex workers usually practice safer sex than the general population because staying healthy is essential to their business. However, sex workers' ability to protect themselves, and clients, from HIV depends on their ability to have control over working conditions, and access health care and legal protection.  

Sandra Ka Hon Chu, at the Canadian HIV/AIDS Legal Network, explains, "We have seen so much evidence that the control sex workers have over their working conditions, including protecting themselves from HIV, has a huge impact in driving this wedge between sex workers and health care. Health care workers aren't able to reach sex workers and sex workers are deterred from health care because of fear of criminalization, stigma and incarceration."

There are three basic approaches to sex worker legislation: decriminalization, the 'Nordic' model and prohibition. The model the Canadian HIV/AIDS Legal Network and most sex worker rights organizations advocate for is decriminalization.

Decriminalization allows sex workers to organize collectively, which has been proven to reduce HIV prevalence in countries such as India. Decriminalization also enables sex workers to work inside (as opposed to on the street or other precarious locations), where it is easier to ensure condoms are available and to refuse high-risk clients. Recognizing such public health benefits, the World Health Organization and UNAIDS both recommend decriminalizing sex work.

New Zealand decriminalized sex work in 2003. Government evaluations since have found that because sex work was brought under health and safety legislation, workers were able to assert their rights to demand condom use and were more likely to access health care. Grant explains, "The more open you can be about your health the better it is. The more legal something is the morel likely you are to be honest about it. So in that way the health of the community can be impacted."

The 'Nordic' model of sex work legislation, implemented in Sweden, Norway and Iceland, does not criminalize selling sex, but does criminalize buying it and benefiting from the income of sex workers. Because third parties are prohibited from benefiting from sex work income, workers cannot employ bodyguards to protect themselves from unprotected and violent sex. According to Ka Hon Chu, the Nordic model does not decrease risk of HIV infection, "It might seem like you aren't criminalizing sex workers, but you are pushing them to the margins to work. And it has the same outcomes: inability to screen [high risk clients], displacement from health and social services."

Because of the continued risk factors associated with the 'Nordic' model, Ka Hon Chu says many of its aspects are similar to those that the Supreme Court deemed unconstitutional. In fact, it is more rigid because of the prohibition on buying sex, which didn't exist under the previous legislation. Grant says, "It [the Nordic Model] is a really huge step back for a country that has never has sexual transactions amongst adults be illegal … People keeping saying that they want to implement that model under the guise of helping sex workers, when all they are doing is hurting us." If the government pursues the Nordic model, it will likely face similar constitutional challenges as those that were struck down under the previous legislation.

The most extreme laws, common in most of the United States, criminalize sex work. According to both UNAIDS and the HIV/AIDS Legal Network, prohibition increases risk of HIV by driving sex work underground, and making both workers and clients reluctant to seek testing and treatment. Ka Hon Chu notes, "We know that in contexts of criminalization, people are driven away from health services. Health services find it hard to locate marginalized communities and so voluntary testing [for HIV] doesn't take place."

There have also been cases of police, in the United States and other countries, using the possession of condoms as evidence that someone is engaging in illegal prostitution, which discourages sex workers and clients from using protection, increasing risk of HIV.

Because of stigma and marginalization, sex workers face numerous risks to their well-being. HIV is just one of them, but HIV is often a symptom of human rights violations, such as lack of access to health care, legal protection and the right to make a living. Legislation that prioritizes the rights of sex workers -- decriminalization -- also has the greatest HIV prevention potential.


Julia Smith is an international development and research consultant. She has worked in Canada, Kenya, South Africa, Sierra Leone and the UK for organizations such as Positive Living BC, the SEND Foundation of West Africa, the Health Economics and HIV/AIDS Research Division, and Canadian Co-operative Association. Julia holds a Master's of Arts in Peace Studies, from the University of Bradford, and a Bachelor of Arts Honors, in History and Professional Writing, from the University of Victoria. She is currently completing her PhD in Peace Studies at the University of Bradford, researching the role of civil society organizations in promoting human rights responses to HIV/AIDS. When not studying, working or traveling, Julia can be found hiking, skiing, reading novels or baking cakes.

Photo: flickr/PJ Starr

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