Prostitution and HIV/AIDS
HIV/AIDS Policy & Law Newsletter 1995: 2(2)
Canadian HIV/AIDS Legal Network, 1996
Legal, moral and social censure of prostitutes has
increased dramatically since the advent of HIV/AIDS.
As has been the case throughout history, sex-trade
workers are seen as the "vectors of disease."
Female prostitutes in particular are perceived as
the bridge between an HIV-infected "underworld" and
the "general population" (to be read as heterosexual
white males). According to policy-makers and the
media, the protection of public health justifies
draconian legal measures and moral intolerance.
 Few if
any of these measures reduce a prostitute's own risk
of contracting HIV.
Research has indicated that punitive measures to
control the sex trade -- such as increased criminal
penalties, mandatory testing, and electronic
monitoring -- will further erode prostitutes'
ability to negotiate safe sex and further alienate
them from public health initiatives. As a result,
HIV risks will be increased rather than reduced.
Nevertheless, governments continue to pursue these
order to develop policies that enhance rather than
damage public health, policy-makers must understand
what factors put populations at risk and how legal
initiatives can affect the spread of HIV in
Seroprevalence Rates and Transmission Risks
Early studies suggest that Canadian female
prostitutes are no more likely to be infected with
HIV or other sexually transmitted diseases than
other women, unless they are also intravenous drug
(W Darrow. Prostitution, Intravenous Drug Use and
HIV-1 in the United States. In M Plant, supra, note
1.) Studies also show that in their sexual
relations, sex-trade workers use condoms more
consistently than other populations similar in age,
race, and sex.
Further, with respect to female hookers, the fact
that the transmission of HIV from female to male is
so difficult would suggest that the sex trade is
unlikely to be a source of the spread of HIV/AIDS.
Early studies of men who use female prostitutes
confirm this; they did not reveal a single case in
which a client was infected by a prostitute.
 It is
far more likely, particularly in the current legal
context, which excludes sex-trade workers from the
protection of the law, that prostitutes are at risk
from their clients.
Because only few studies have been done, it is
difficult to estimate the seroprevalence rate for
male hookers. Rates as high as 50 percent and as low
as 11 percent have been reported by US researchers.
 It has
been suggested that male hustlers in the US are at
high risk of becoming infected by their clients due
to several factors -- their willingness to have sex
without a condom for extra money (many hustlers are
also drug users who need the extra money to buy
drugs), the fact that receptive anal intercourse is
a common service, and the young age of many
hustlers. Fortunately, the extent to which the US
experience can be applied to Canada is questionable.
Toronto hustlers report that the most common sexual
activity they engage in is oral sex. The second most
common is anal intercourse, with the hustler giving
rather than getting.
Finally, of all the arrests for prostitution in
Canada in 1992, only three percent were of youths
Legal and Policy Initiatives
Imprisonment Imprisonment is one of the major
responses to prostitution. A high percentage of
women prisoners are incarcerated either for
prostitution offences or for drug-related offences.
Mandatory Testing and Detention
Since the advent of HIV/AIDS, many US states have
passed legislation requiring mandatory HIV testing
of hookers convicted of, or in some cases charged
a California law requiring mandatory testing, if a
prostitute tests positive, subsequent prostitution
convictions carry three-year sentences, whether the
prostitute practised safe sex or not.
law has spawned appalling forms of state oppression
of HIV-positive prostitutes: for example, two women
prostitutes who tested positive for HIV were
released from custody only on condition that they
agree to be "electronically monitored."
another US state, Florida, an HIV-positive
prostitute was charged with manslaughter despite the
fact that all her customers tested seronegative and
she had used condoms consistently.
draconian measures deter hustlers from seeking HIV
testing or drug treatment.
Although Canada does not have legislation requiring
mandatory testing, a BC prostitute was convicted of
solicitation and then sentenced to monthly mandatory
AIDS and STD testing. He appealed the sentence,
arguing that it violated his right to be free from
unreasonable search and seizure (s 8 of the Canadian
Charter of Rights and Freedoms). On appeal, the BC
Court of Appeal held that, although monthly
examinations were excessive, one examination was
reasonable and would promote "good conduct."
Further, quarantine powers under provincial public
health acts have been used to detain prostitutes. In
Victoria, BC, local public health authorities issued
an order to confine an HIV-positive woman prostitute
to Victoria Royal Jubilee Hospital, indefinitely,
because she was suspected of having unprotected sex
with male customers.
Prostitution Law Reform
Canadian policy-makers want to make prostitution
laws tougher. In 1992, a Working Group on
Prostitution was established by the
Federal/Provincial/Territorial Deputy Ministers
Responsible for Justice. The Working Group released
"Dealing with Prostitution in Canada -- A
Consultation Paper" in March 1995. The paper
discusses a number of options that have been
proposed by various parties to deal with
prostitution in Canada. It is mainly concerned with
two issues: "youths in prostitution and street
majority of the options discussed involve changes to
sections 212 and 213 of the Criminal Code (s 212
contains various offences known collectively as
"procuring" or "living on the avails," which are not
aimed at prostitutes but are designed to "prevent
persons from being forced into a life of
prostitution"; under s 213, it is an offence on the
part of the customer, as well as the prostitute, to
communicate in public for the purpose of engaging in
prostitution). These options include:
increased and/or mandatory jail sentences for
pimps and customers of youths;
making section 213 a dual procedure or hybrid
offence to allow for the fingerprinting and
photographing of prostitutes and customers
charged under s 213;
electronic surveillance and interception of
communications between prostitutes, pimps and
mandatory and/or increased sentences for
allowing provinces/territories and/or
municipalities to license and operate
prostitution establishments or formal zones of
tolerance for street prostitution.
The paper also contains a list of "social
intervention options." For youth, options are
divert young offenders to child welfare
develop informational and educational materials
to warn youth about the dangers of prostitution.
Another option discusses the development of outreach
services, with health, training, and rehabilitation
programs located in bus terminals, restaurants, and
storefronts, and the creation of safehouses with
6 November 1995, The Globe and Mail reported that
Justice Minister Rock was planning "tougher
penalties -- not legalization of the sex trade -- to
tackle problems associated with street
Impact of Prostitution Laws on the Spread of HIV
How do prostitution laws affect the spread of HIV
among prostitutes? The criminalization of sex for
money means that hookers who are subject to abuse
from their customers are less able to report their
abusers. It also makes it difficult for them to
insist on condom use with their customers, and thus
increases their chances of becoming infected. In
conversations I had with a number of women who were
raped by their customers, without condoms, they said
that because their work is illegal they are not
willing to prosecute these men. Instead, they
maintain a "bad date" list and disseminate it to
other hookers. In contrast, it has been found that
decriminalization of prostitution enables those in
the sex trade to practise safe sex, and will
ultimately result in lower infection rates.
The intention behind increasing penalties in
prostitution laws may be to discourage participation
in the sex trade and thereby reduce health risks. In
reality, however, few prostitutes are discouraged by
tougher laws. Instead, such laws make them even more
vulnerable. For example, increased penalties will
result in an increased seriousness of a prostitute's
criminal record, and this will reduce the employment
opportunities for those who choose to leave the
Evidentiary issues also affect prostitutes' ability
to protect themselves from contracting HIV from
their customers. For example, possession of condoms
is sometimes used as evidence of prostitution. As a
result, prostitutes are less likely to carry
Because many drug users engage in prostitution to
support their habits, drug laws can also affect HIV
risk for this community. Bill C-7, the proposed new
federal drug legislation, recently passed third
reading in the House of Commons, and is now before
the Senate for final consideration. If passed, it
would criminalize possession of "containers" for
drugs, and this would include hypodermic syringes.
The new law would discourage users from carrying
their own needles, with the result that they would
share needles, exposing themselves to HIV,
hepatitis, and other bloodborne diseases.
The Federal/Provincial/Territorial Working Group
also proposes giving more power to municipalities to
regulate prostitution through nuisance by-laws.
There can be little doubt that many municipalities
would consider enacting by-laws with the purpose of
entirely outlawing prostitution in their
Both Metro Toronto and the City of Mississauga have
recently passed by-laws purporting to address public
health issues - specifically citing HIV/AIDS - and
that restrict touching between exotic dancers and
dancers merely relocated to municipalities that did
not have similar restrictions.
The effect of nuisance by-laws directed toward
street soliciting would be to drive sex workers into
badly lit, deserted, non-residential areas. Sex
workers would face even greater risk from violent
customers. Further disempowering prostitutes would
not encourage healthy working conditions or prevent
the spread of HIV.
Alternatives What are the alternatives to our
current regime and the proposed changes of the
Federal/Provincial/Territorial Working Group? Calls
for legalization and monitoring of the sex trade are
being increasingly heard. However, for many reasons
legalization is vehemently opposed by most
The only rational solution is to decriminalize
prostitution and provide prostitutes with the same
rights and protections with respect to their working
conditions as people in other occupations have.
Policy-makers must consult with prostitutes to
develop a policy that will truly prevent and reduce
the spread of HIV.
Brock. Scapegoating Prostitutes in the AIDS
Epidemic. Broadside; 10(4): 6.
Plant. Conclusions and Strategies. In M Plant
(ed): AIDS, Drugs and Prostitution. London and
New York: Tavistock/Routledge 1990, at 198.
Policy Paper on the Forced Testing and
Quarantining of Prostitutes. Prostitutes Safe
Sex Project (Maggies). Toronto: The Project,
1993; English Collective of Prostitutes.
Prostitute Women and AIDS: Resisting the Virus
of Repression. San Francisco, CA: PROstitutes
Collective, 1988 (US edition). See also Sex
Industry and the AIDS Debate '88. Report and
Conference Papers from the First National Sex
Industry Conference, Melbourne, Australia, 25-27
October 1988. St Kilda, Victoria: Prostitutes
Collective of Victoria, 1988.
Brock. Prostitutes Are Scapegoats in the AIDS
Panic. Resources for Feminist Research 1989;
18(2): 13-16; N Padian. Prostitute Women and
AIDS: Epidemiology. AIDS 1988; 2: 413-419.
Alexander. Prostitutes and AIDS: Women as
Alleged Vectors. National Now Times,
February/March 1991, at 12.
Alexander. Response to AIDS: Scapegoating of
Prostitutes. San Francisco, CA: National Task
Force on Prostitution, 1988; Brock, supra, note
Waldorf & S Murphy. Call Men and Hustlers in
California. In: M Plant, supra, note 1; W
Author's conversations with street hustlers in
Toronto's boystown, 1995.
Dealing With Prostitution in Canada: A
Consultation Paper. The
Federal/Provincial/Territorial Working Group on
Prostitution. March 1995, at 1.
Alexander, supra, note 5 at 12.
Awful New Prostitution Laws. COYOTE (Call off
your old tired ethics) Howls, January 1989, at
Prostitution and HIV Infection. In: Women, AIDS
& Activism. New York: The Act Up/NY Women & AIDS
Book Group, 1990, at 180.
- R v
Cornier, unreported, 1991 CA 12803 BCCA. [back]
Miller. AIDS Project News. Kinesis, June 1990
(Vancouver) at 5.
following summary is a shortened version of R
Achilles. The Regulation of Prostitution.
Unpublished background paper written for the
Department of Public Health of the City of
Toronto (updated 14 April 1995), on file with
Tougher Sex Trade Penalties Planned - Rock to
Propose Changes in Code. The Globe and Mail, 6
November 1995, at A4.
Perkins. AIDS Preventative Practices among
Prostitutes in New South Wales. [Australian]
National AIDS Bulletin September 1991, at 28;
see also CA Campbell. Women and AIDS. Social
Sciences in Medicine 30(4) at 411.
Metro Toronto by-law No. 20-85 was passed on 16
August 1995, although it is currently
unenforceable pending a case before the Ontario
Court of Appeal (R v Patrick Mara and Allan
East, court file #C18057). City of Mississauga
by-law #572-9 was passed on 14 September 1995.