03.04.17

ASSESSING LAWS AND POLICIES TO PROTECT SEX WORKERS AND PROMOTE HEALTH

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Sex workers across the world are a vulnerable population. Because of poverty, abuse and discrimination, sex work is often critical to survival for many cisgender and transgender women and LGBT young people, especially those who are homeless. In the United States, transgender women engage in sex work at ten times the rate of cisgender women.

Sex workers bear a disproportionate burden of HIV. The difficulty in reducing HIV disparities among sex workers further heightened by the interact of multiple afflictions including incarceration, mental health problems, substance use, trauma, poverty, and stigma and discrimination rooted in sexism, transphobia, and/or homophobia. These afflictions interact with each other and potentiate the HIV epidemic among sex workers. The complex nature of interacting afflictions requires going beyond behavioral and biomedical approaches that focus on individual-level risk factors and necessitates addressing the syndemic effects of social and structural factors among sex worker. A syndemic is “two or more afflictions, interacting synergistically, contributing to excess burden of disease in a population.”

Among the multiple afflictions that sex workers face, encounters with the criminal justice   system from arrest to incarceration present one of the greatest structural barriers that limit access health service access and undermine effective HIV responses for sex workers. Recent research suggest that decriminalization of sex work could have the largest impact on the HIV epidemic among sex workers. One study found that decriminalization of sex work could reduce HIV infections by 33 to 46 percent over the next decade.

While I have previously written about the reasons for decriminalization of all aspects of adult consensual sex work, it is also important to recognize important criminal reforms that have the potential to protect sex workers and promote their health and well-being short of full decriminalization. Assessing and understanding the impact incremental reforms will be important for educating practitioners, policymakers, and advocates.

An example of a recent criminal reform is an Alaska immunity statute for sex workers. On July 11, 2016, Alaska Governor Bill Walker signed into law Senate Bill 91, a major criminal law intended to reduce the state’s prison population and its associated costs. The reforms introduced by SB 91 addressed a number of important issues, including expansion of diversion programs, capping prison stays for parole and probation violations, and making drug possession a misdemeanor offense. SB 91 also altered Alaska’s prostitution statute to offer immunity from prosecution if a sex worker is a victim or witnesses of certain, mostly violent, crimes and reports the crime to law enforcement.

SB 91 bars prosecution if a person witnessed or was a victim of covered crime, reported the crime to law enforcement in good faith and cooperates with law enforcement, and the evidence for a prostitution charge was obtained as a result of reporting. This provides a mechanism for sex workers to report criminal activity to law enforcement without them having to risk being prosecuted for prostitution. The immunity that SB 91 provides to sex workers is aimed at creating pathways for sex workers to report crimes and encouraging cooperation between sex workers and law enforcement.

The Alaska immunity for sex workers is limited in a number of ways. First, the SB 91 only provides immunity from prosecution for the offense of prostitution. Sex workers can still be prosecuted for other offenses and parole or probation violations. It is important to note that sex workers are regularly charged with many other offenses other than prostitution, including resisting arrest, disorderly conduct, failure to obey a police officer, and loitering. A 2015 study by the Williams Institute suggest that law enforcement target sex workers with HIV criminal laws in California, where 95% of all HIV-specific criminal incidents impacted people engaged in sex work or individuals suspected of engaging in sex work.

Second, SB91 further leaves open the door for law enforcement to arrest and charge sex workers with the offense of prostitution as immunity only applies to prosecution. Immunity also does not prevent prosecution for future acts of prostitution. Finally, in order to bar prosecution, the person needs to cooperate with law enforcement, a term that is not defined. This requirement has the potential to put sex workers in a difficult position if they are reluctant to cooperate or law enforcement perceives them as being uncooperative.

O’Neill Institute is committed to advancing the policy dialogue around the health and rights of sex workers. With support from the Elton John AIDS Foundation, we recently have established a collaborative project with Whitman-Walker Health and HIPS to explore how sex workers in DC access health care, how they interact with law enforcement, and how laws, policies, and practices designed to disrupt commercial sexual activity impede access to HIV prevention and care services. Through this project, we will investigate the impact of laws and policies on sex workers’ access to clinical care and social services and recommend potential criminal law and policy reforms to better support sex workers in Washington DC. For more information about the O’Neill Institute project, check out our webpage.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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