On May 25, 2016, Amnesty International released its long-awaited policy and supporting research in support of the decriminalization of sex work. The policy was based on evidence that the criminalization of sex work often makes sex workers less safe and provides impunity for abusers because sex workers are often too scared of being penalized to report crimes to law enforcement. Amnesty concluded that laws on sex work should focus on protecting people from exploitation and abuse, rather than trying to ban all sex work and penalize sex workers. The policy also identified barriers to the realization of sex workers’ human rights and underlined states’ obligations to address them.
The controversy over Amnesty’s position on sex work started last summer, when delegates voted in favor of an initial recommendation to decriminalize. This recommendation drew support from sex workers’ rights groups as well as public health advocates and activists. At the same time, the recommendation was denounced by a number of groups and individuals who favor a system of partial criminalization known as the Swedish model (variously referred to as the Nordic Model or simply “End Demand”), in which those who buy sex are prosecuted, but those who sell sex are not. Now Amnesty has made a final determination against the Swedish Model.
I am writing to offer my perspective as someone working on HIV law and policy issues. Criminalization of sex work, including laws that prohibit associated acts such as bans on buying, solicitation, and the general organization of sex work, is counterproductive to sexual and reproductive health and to an effective HIV response. From the perspective of combatting the global HIV/AIDS epidemic, there are good reasons to call for the decriminalization of all aspects of adult consensual sex work:
Many sex workers and their clients engage in sex with multiple partners, putting them at risk for HIV infection if they do not use condoms or engage in other forms of risk reduction such as pre-exposure prophylaxis (PrEP). Regardless of whether we are referring to buying or selling sex, criminalization facilitates stigma and discrimination, making it harder to access health care services, including HIV prevention, care, and treatment services.
Criminalizing clients may have the effect of pushing sex work underground, potentially making sex workers more vulnerable to violence and HIV/AIDS. In jurisdictions where police treat the fact that a person is carrying condoms as “evidence” of sex work, clients may pressure sex workers not to carry condoms, which would increase the risk for HIV infection.
Criminalizing clients may be used as a justification for more policing and result in a greater number of interactions between police officers and sex workers, leaving sex workers vulnerable to stigma, discrimination, and other forms of criminalization (e.g., HIV criminalization, drug criminalization), which help potentiate the HIV/AIDS epidemic. In fact, a July 2012 report by the Global Commission on HIV and the Law found that in Sweden, where sex workers are not criminalized but clients are, resources had been diverted from social services for sex workers and toward policing, yet few prosecutions and convictions of clients occurred.
Criminalizing clients may be used to target vulnerable populations, such as men who have sex with men (MSM) and people living with HIV.
Arrest, prosecution, and incarceration that may result from criminalizing clients with HIV would operate as a direct barrier to obtaining and adhering to treatment.
Notwithstanding calls for the decriminalization of sex work, anti-human trafficking laws are still needed to prohibit and punish those who use force, trick, or coerce people (primarily women and girls) into commercial sex, or abuse migrant sex workers through debt bondage, violence, or deprivation of liberty. But countries should not deploy anti-human-trafficking laws so broadly that they conflate voluntary and consensual exchanges of sex for money with the exploitative, coerced, often violent trafficking of people for the purposes of sex.
As the debate over the decriminalization of sex work continues, it is important to understand the diverse considerations around this issue. Sex workers are in a subordinate position relative to their clients, often due to disparities in gender, income, and social class. We cannot ignore these real vulnerabilities. And sex work often occurs through exploitation and coercion and, therefore, is not consensual. Although the distinction between sex work and human trafficking is important, in a practical context it is hard to ascertain how exploitative or coerced a situation is. Many feminist groups have concerns that if there are no consequences for clients, trafficking will not be addressed at all. Moreover, many of the most prominent sex workers’ rights advocates live in high resource countries and come from relatively privileged backgrounds. Approaching the distinction between sex work and human trafficking may be different depending on the marginalized population at issue and the legal and economic context. None of these important considerations, however, make a convincing case for the Swedish Model. Decriminalization is the best way to promote health and human rights, but laws must also ensure protection from exploitation and abuse.
The views reflected in this expert column 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.