Prostitution and HIV/AIDS

Prostitution and HIV/AIDS

Karen Bastow
HIV/AIDS Policy & Law Newsletter 1995: 2(2)
(c) Canadian HIV/AIDS Legal Network, 1996

http://www.walnet.org/csis/papers/bastow-aidslaw.html

Introduction

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. [1] Few if any of these measures reduce a prostitute's own risk of contracting HIV. [2] 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. [3] Nevertheless, governments continue to pursue these policies.

In 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 stigmatized communities.

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 users.[4] (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. [5] 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. [6] 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. [7] 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. [8] Finally, of all the arrests for prostitution in Canada in 1992, only three percent were of youths under 18. [9]

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 with, prostitution. [10] Under 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. [11] The 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." [12] In 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. [13] Such 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." [14] 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. [15]

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 prostitution." [16] The 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 customers;
mandatory and/or increased sentences for customers;
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 explored to:

divert young offenders to child welfare services; and
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 counselling programs.

On 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 prostitution." [17]

The 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. [18]

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 sex-trade industry.

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 condoms.

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.

Municipal By-Laws

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 jurisdiction.

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 customers. [19] Lap 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 prostitute groups.

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.

References

D Brock. Scapegoating Prostitutes in the AIDS Epidemic. Broadside; 10(4): 6.

M 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.

D 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.

P Alexander. Prostitutes and AIDS: Women as Alleged Vectors. National Now Times, February/March 1991, at 12.

P Alexander. Response to AIDS: Scapegoating of Prostitutes. San Francisco, CA: National Task Force on Prostitution, 1988; Brock, supra, note 4.

D Waldorf & S Murphy. Call Men and Hustlers in California. In: M Plant, supra, note 1; W Darrow, ibid.

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.

P Alexander, supra, note 5 at 12.

Awful New Prostitution Laws. COYOTE (Call off your old tired ethics) Howls, January 1989, at 1-2.

Stiletto 1991; 1(3): 6.

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]

J Miller. AIDS Project News. Kinesis, June 1990 (Vancouver) at 5.

The 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 editor.

Tougher Sex Trade Penalties Planned - Rock to Propose Changes in Code. The Globe and Mail, 6 November 1995, at A4.

R 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.