DOJ Drops Appeal of “Prostitution Pledge” Injunction

Jodi Jacobson

The Justice Department has dropped its appeal of an injunction prohibiting enforcement of the controversial "prostitution pledge" in US Global AIDS Policy.  Advocates hope this signals an intention to fundamentally change the restriction.

During a press briefing at the International AIDS Conference in Toronto in 2006, a young Bangladeshi woman invited by the organization for which I was then working told the story of losing access to the health clinic/drop-in centers she and other street-based sex workers frequently visited to get information and health services, learn new skills, escape violence and bring their children to use a toilet or to get a short respite from the streets. 

The reason?  Funding was cut by the umbrella organization supporting these drop-in centers for fear they might be seen as violating U.S. law against "promoting prostitution" because they served the basic needs of sex workers, among society’s most vulnerable groups.  As a result, more than 20 centers in some of the poorest urban areas of Bangladesh disappeared due to ideological restrictions against HIV prevention efforts supported by US politicians for political gain.

Today, the public health community may be one step closer to undoing this onerous policy.

This week, the U.S. Department of Justice (DOJ) dropped its appeal of a court injunction prohibiting enforcement of the "anti prostitution pledge" under U.S. Global AIDS Policy.  The injunction was sought in a 2005 lawsuit filed by the Alliance for Open Society
International (AOSI)
, the Open Society Institute, and Pathfinder
against the U.S. Agency for International Development, the Department of Health and Human Services (HHS), and the Centers for Disease Control
and Prevention’s
Global AIDS Program. The court awarded the injunction in 2006. 

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The Bush Administration filed an appeal two weeks
before the original deadline and just a week before Bush left office.  At the same time, according to one source close to the case who spoke on background, "the Bush Administration issued a final HHS regulation implementing the pledge that was so draconian that it was no better than
where we started before the injunction."

The AOSI-Pathfinder lawsuit contested the constitutionality of the policy based on violations of freedom of speech, and the right to be free of compelled speech or of forced agreement with a government position.  The policy has been particularly troubling because the Bush Administration interpretation covered the use not only of U.S. government funds, but of private funds as well.  The injunction covered a large group of organizations, including the 300 members of the Global Health Council and all the members of InterAction, but did not release foreign non-governmental organizations working in countries affected by HIV from the pledge.  An injunction in a separate lawsuit filed by DKT International was not granted.

The pledge is one of three restrictions in global AIDS policy, along with requirements for funding abstinence-only-until-marriage programs and banning funding for syringe exchange, seen by many as the reason why US global AIDS programs have largely failed to stem the spread of HIV infections. 

In withdrawing the appeal "without prejudice," the Obama DOJ retains the right to resubmit an appeal by January 8th, 2010.  Many advocates are hopeful that the Administration will use the intervening time to closely review the negative implications of this policy for HIV prevention work in the field.

The pledge, originally passed as part of the US Global AIDS, Tuberculosis and Malaria Act of 2003 (otherwise known as the President’s Emergency Plan for AIDS Relief or PEPFAR), placed into law a requirement that public health groups receiving U.S. funds pledge
their “opposition to prostitution"
in order to continue their
life-saving HIV prevention work.  The policy was supported by the Bush Administration and many conservative Republicans in Congress.  It was re-inserted into the law during PEPFAR reauthorization of 2008 as part of a "deal" brokered with the U.S. Council of Catholic Bishops, evangelical fundamentalist groups and some anti-trafficking groups to ensure support among conservatives for higher levels of funding for global AIDS programs.

Under this policy, according to AOSI:

recipients of U.S. aid are restricted in how they use even their
private funds, impeding their ability to deliver effective prevention
services to those most vulnerable to HIV/AIDS.

In reviewing the global public health data on HIV prevention and marginalized communities, such as sex workers, Johns Hopkins University School of Public Health Researchers Nicole Franck Masenior and Chris Beyrer wrote that "the breadth of the requirement and its application to
privately funded activities…led to legal challenge of its

They continued:

Requirements for grantees were based on [an] explicit link between HIV
prevention and the eradication of prostitution. In order to receive
AIDS funds from the US, all grantees must have (1) a policy explicitly
opposing prostitution and sex trafficking and (2) certification of
compliance with the “Prohibition on the Promotion and Advocacy of the
Legalization or Practice of Prostitution or Sex Trafficking,” which
applies to all organization activities, including those with funding
from private grants. 

The policy has been widely criticized by the public health and human rights communities in the United States and abroad.  Non-governmental organizations in Brazil, renowned for their success in reducing HIV among sex workers, rejected US funding in protest against these restrictions.

The policy has been problematic from the start.  Guidance written by the Bush Administration intended to make the policy operational left vague the definition of what constitutes "promoting prostitution" and what specific activities would violate the law.  No direction was ever given on specifically how to monitor and enforce the law, except for the signing of a "pledge," and the use of health workers as informants on their most vulnerable clients. The vagueness of the law and the fear that violating it unknowingly would lead to loss of funding caused many groups to self-censor information and put a halt to otherwise successful HIV prevention activities.  "Groups have been concerned and confused," said one advocate, "and this contributes to self-censorship."

The policy also conflated all sex work with sex trafficking, which simultanesouly undermined public health efforts while allowing groups like Concerned Women for America to apply for and obtain federal funding to promote programs based on ideology rather than evidence. Moreover, it led to the creation of linkages in law that were not recognized by either public health or human rights practitioners.

In their review paper, Masenior and Beyrer wrote that:

One of our key findings was that
the merging of the terms “prostitution” and “sex trafficking” in the
Global AIDS Act is not accepted as standard language or practice by the
scientific literature on HIV/AIDS or by international agencies with HIV
prevention programs.
Trafficking in persons for any purpose is consistently seen as a
criminal and human rights offense, and the subset of human trafficking
related specifically to the sex industry is universally seen as among
the most grievous of trafficking-related crimes.
While the law calls for opposing sex trafficking, we could find no
entity that did not already oppose it. The same holds true for any form
of prostitution involving children or minors—this was universally
acknowledged as a crime and a human rights violation before the policy.
In addition, they continued:
Many organizations disagree with the Act’s equation of all forms of
prostitution with sex trafficking. The term prostitution itself is
controversial—most groups working with persons who sell or trade sex
for money use the terms “sex work” and “sex worker,” rather than
“prostitute,” which is widely held to be stigmatizing and pejorative.

The core debate is that for many stakeholders, the category “sex
workers” includes consenting adults who sell sex of their own volition,
who are not trafficking victims, and who have called for recognition of
their rights as workers, in settings that include Bangladesh, India,
Thailand, Brazil, and the Dominican Republic.
A substantial body of peer-reviewed published studies suggests that the
empowerment, organization, and unionization of sex workers can be an
effective HIV prevention strategy and can reduce the other harms
associated with sex work, including violence, police harassment,
unwanted pregnancy, and the number of underage sex workers.
While sex work may be exploitative, and is illegal in many
jurisdictions, sex worker advocates and HIV prevention program leaders
generally concur that sex workers themselves need services, protection,
peer outreach, and support from health professionals to reduce their
risk of HIV infection.
While the language of the pledge does not mandate any specific changes
in programs or services for sex workers, it does place funding
restrictions on those programs with explicit policies calling for
decriminalization or legalization of sex work.

Advocates interviewed for this article (several on background) consistently expressed the hope that the Obama Administration would take the time before January 8th, 2010 to finish a review and revision of the policy now underway.

"We certainly hope that the Obama Administration will work to repeal the policy altogether," said one advocate.  "But we know they are reviewing it.  Right now, all options are on the table.  What we do not want is for the Administration to ‘split the baby’ and continue to enforce the policy in some way against one set of groups and more harshly against another."

Another advocate intimately involved in the process, also speaking on background, stated:

We’ve been assured there are  very senior
people reviewing this policy, but it is a complex process because there are so many agencies involved…USAID, CDC, HHS, and the Office of the Global AIDS Coordinator, as well as the DOJ. 

And "we know their intention is to deal with the
policy questions beyond the litigation," said another expert on the issue.  "But trying to decide what to do
with foreign NGOs as opposed to US NGOS presents a trickier question because of court rulings that constitutional protections do not extend to foreign NGOs." 

Lawyers and advocates fighting to change the policy note that while the Administration has said it would release new guidance before the court deadline, it may not engage in formal negotiations with the public health community on what the new guidance should look like. 

"It’s already such a complicated process," said the advocate, "outside involvement might complicate internal decision-making, and slow things down.  But [the community] has put the Administration on notice that if they craft
their own solution and it is not acceptable, the litigation will continue.  They
can’t take our support for granted."

But "on the positive side, we are finally on the agenda.  Given the mess inherited by this Administration on so many issues, we can’t blame them for not getting to this more quickly."

Melissa Ditmore, a longtime researcher on sex work, advocate for the rights of sex workers, and co-producer of Taking the Pledge stated that:

Lack of clarity in the guidance has enabled organizations to discriminate
against sex workers or people they just did not want to work with. 
While the policy included a non-discrimination  clause, in fact lack of enforcement of this clause has meant that sex workers have indeed lost access to essential services.  Enforcement of good guidance will be just as important as thaving good guidance to being with.  On the other hand, certain organizations were targeted for harrassment if they were on the radar screen of conservative Congressman.  It has been destructive all around.

On the differential treatment of U.S. and foreign NGOs, she continued:

In a way, the solution is simple.  If the Administration issues guidance that uses evidence-based approaches
to addressing public health and human rights problems, it then makes sense to use the same standards for all organizations, regardless
of whether they are based in the US or abroad and regardless of whether
they participated in the Pathfinder-AOSI lawsuit. 

"At the end of the day," she continued, "we need to get it out of PEPFAR either before or by
2011.  Otherwise there will simply continue to be new lawsuits and what
is worse, a poor response to stopping the spread of HIV no matter the
billions being spent."

"This is not," she concludes, "the legacy Obama wants."


Commentary Politics

No, Republicans, Porn Is Still Not a Public Health Crisis

Martha Kempner

The news of the last few weeks has been full of public health crises—gun violence, Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography.

The news of the last few weeks has been full of public health crises—gun violence, the Zika virus, and the rise of syphilis, to name a few—and yet, on Monday, Republicans focused on the perceived dangers of pornography. Without much debate, a subcommittee of Republican delegates agreed to add to a draft of the party’s 2016 platform an amendment declaring pornography is endangering our children and destroying lives. As Rewire argued when Utah passed a resolution with similar language, pornography is neither dangerous nor a public health crisis.

According to CNN, the amendment to the platform reads:

The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the life [sic] of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography which [is] closely linked to human trafficking.

Mary Frances Forrester, a delegate from North Carolina, told Yahoo News in an interview that she had worked with conservative Christian group Concerned Women for America (CWA) on the amendment’s language. On its website, CWA explains that its mission is “to protect and promote Biblical values among all citizens—first through prayer, then education, and finally by influencing our society—thereby reversing the decline in moral values in our nation.”

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The amendment does not elaborate on the ways in which this internet monster is supposedly harmful to children. Forrester, however, told Yahoo News that she worries that pornography is addictive: “It’s such an insidious epidemic and there are no rules for our children. It seems … [young people] do not have the discernment and so they become addicted before they have the maturity to understand the consequences.”

“Biological” porn addiction was one of the 18 “points of fact” that were included in a Utah Senate resolution that was ultimately signed by Gov. Gary Herbert (R) in April. As Rewire explained when the resolution first passed out of committee in February, none of these “facts” are supported by scientific research.

The myth of porn addiction typically suggests that young people who view pornography and enjoy it will be hard-wired to need more and more pornography, in much the same way that a drug addict needs their next fix. The myth goes on to allege that porn addicts will not just need more porn but will need more explicit or violent porn in order to get off. This will prevent them from having healthy sexual relationships in real life, and might even lead them to become sexually violent as well.

This is a scary story, for sure, but it is not supported by research. Yes, porn does activate the same pleasure centers in the brain that are activated by, for example, cocaine or heroin. But as Nicole Prause, a researcher at the University of California, Los Angeles, told Rewire back in February, so does looking at pictures of “chocolate, cheese, or puppies playing.” Prause went on to explain: “Sex film viewing does not lead to loss of control, erectile dysfunction, enhanced cue (sex image) reactivity, or withdrawal.” Without these symptoms, she said, we can assume “sex films are not addicting.”

Though the GOP’s draft platform amendment is far less explicit about why porn is harmful than Utah’s resolution, the Republicans on the subcommittee clearly want to evoke fears of child pornography, sexual predators, and trafficking. It is as though they want us to believe that pornography on the internet is the exclusive domain of those wishing to molest or exploit our children.

Child pornography is certainly an issue, as are sexual predators and human trafficking. But conflating all those problems and treating all porn as if it worsens them across the board does nothing to solve them, and diverts attention from actual potential solutions.

David Ley, a clinical psychologist, told Rewire in a recent email that the majority of porn on the internet depicts adults. Equating all internet porn with child pornography and molestation is dangerous, Ley wrote, not just because it vilifies a perfectly healthy sexual behavior but because it takes focus away from the real dangers to children: “The modern dialogue about child porn is just a version of the stranger danger stories of men in trenchcoats in alleys—it tells kids to fear the unknown, the stranger, when in fact, 90 percent of sexual abuse of children occurs at hands of people known to the victim—relatives, wrestling coaches, teachers, pastors, and priests.” He added: “By blaming porn, they put the problem external, when in fact, it is something internal which we need to address.”

The Republican platform amendment, by using words like “public health crisis,” “public menace” “predators” and “destroying the life,” seems designed to make us afraid, but it does nothing to actually make us safer.

If Republicans were truly interested in making us safer and healthier, they could focus on real public health crises like the rise of STIs; the imminent threat of antibiotic-resistant gonorrhea; the looming risk of the Zika virus; and, of course, the ever-present hazards of gun violence. But the GOP does not seem interested in solving real problems—it spearheaded the prohibition against research into gun violence that continues today, it has cut funding for the public health infrastructure to prevent and treat STIs, and it is working to cut Title X contraception funding despite the emergence of Zika, which can be sexually transmitted and causes birth defects that can only be prevented by preventing pregnancy.

This amendment is not about public health; it is about imposing conservative values on our sexual behavior, relationships, and gender expression. This is evident in other elements of the draft platform, which uphold that marriage is between a man and a women; ask the U.S. Supreme Court to overturn its ruling affirming the right to same-sex marriage; declare dangerous the Obama administration’s rule that schools allow transgender students to use the bathroom and locker room of their gender identity; and support conversion therapy, a highly criticized practice that attempts to change a person’s sexual orientation and has been deemed ineffective and harmful by the American Psychological Association.

Americans like porn. Happy, well-adjusted adults like porn. Republicans like porn. In 2015, there were 21.2 billion visits to the popular website PornHub. The site’s analytics suggest that visitors around the world spent a total of 4,392,486,580 hours watching the site’s adult entertainment. Remember, this is only one way that web users access internet porn—so it doesn’t capture all of the visits or hours spent on what may have trumped baseball as America’s favorite pastime.

As Rewire covered in February, porn is not a perfect art form for many reasons; it is not, however, an epidemic. And Concerned Women for America, Mary Frances Forrester, and the Republican subcommittee may not like how often Americans turn on their laptops and stick their hands down their pants, but that doesn’t make it a public health crisis.

Party platforms are often eclipsed by the rest of what happens at the convention, which will take place next week. Given the spectacle that a convention headlined by presumptive nominee (and seasoned reality television star) Donald Trump is bound to be, this amendment may not be discussed after next week. But that doesn’t mean that it is unimportant or will not have an effect on Republican lawmakers. Attempts to codify strict sexual mores are a dangerous part of our history—Anthony Comstock’s crusade against pornography ultimately extended to laws that made contraception illegal—that we cannot afford to repeat.

Commentary Sexual Health

‘Not the Enemy, But the Answer’: Elevating the Voices of Black Women Living With HIV

Dazon Dixon Diallo

National HIV Testing Day is June 27. But for longtime advocates, ensuring that the women most affected by the epidemic can get and influence care and policy is the work of many years.

I met Juanita Williams in the mid-1980s. She was the first client at SisterLove, the then-new Atlanta nonprofit I founded for women living with AIDS.

June 27 is National HIV Testing Day, and many women will be tested during the observance. But when I met Williams, HIV was a growing reality in our communities, and women were not even recognized as a population at risk for HIV at that time.

This lack of understanding was reflected in women’s experiences when seeking care. Williams’ attempt to get a tubal ligation had been met with fear, ignorance, and hostility from a medical team who informed her she had AIDS. Not only did they refuse to provide her the medical procedure, the hospital staff promptly ushered her down the back staircase and out the door. Williams was left without information or counseling for what was devastating news.

A Black woman who grew up in Syracuse, New York, she had moved to her family’s home state of South Carolina. Her first major decision after her diagnosis was to leave South Carolina and move to Atlanta, where she believed she would get better treatment and support. She was right, and still, it wasn’t easy—not then and not now. Even today, Williams says, “Positive people are not taken seriously, and positive women are taken even less seriously. People think positive people are way down on the totem pole.”

As communities across the United States observe National HIV Testing Day and emphasize taking control of our health and lives, women’s voices are an essential but still neglected part of the conversation. The experiences of Black women living with HIV, within the broader context of their sexual and reproductive health, highlight the need to address systemic health disparities and the promise of a powerful movement at the intersection of sexual and reproductive justice.

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The urgency of adopting an intersectional approach to sexual and reproductive health comes to light when considering the disproportionate impact of HIV on women of color. Black women account for 69 percent of all HIV diagnoses among women in the South. Advocates also acknowledge the history of biomedical and reproductive oppression that Black women have suffered throughout American history, including forced pregnancy and childrearing during slavery to forced sterilization afterward. Keeping these matters in mind helps us understand how the HIV epidemic is a matter of sexual and reproductive justice.

Taking seriously the perspectives of women such as Williams would amplify our collective efforts to eradicate HIV’s impacts while elevating women’s health, dignity, and agency. This is especially pressing for women living with HIV who experience the greatest disparities and access barriers to the broad spectrum of reproductive health, including contraception and abortion.

The policy context has created additional barriers to advancing the reproductive health of women living with HIV. For example, the 2015 National HIV AIDS Strategy Update neglected to mention family planning or reproductive health services as arenas for providing HIV prevention care. Yet, in many instances, a reproductive health clinic is a woman’s primary or only point of access to health care in a given year. Providing HIV prevention and care in family planning clinics is a way to provide a space where women can expect to receive guidance about their risk of exposure to HIV.

As advocates for women living with HIV, we at SisterLove are committed to ensuring that human rights values are at the center of social change efforts to protect and advance the sexual and reproductive health and rights of women and their families. We work to transform the policy frame to one that asserts women’s agency to make decisions that are best for themselves and their loved ones. We draw strength from the resilience and determination of the women we serve.

Several years after becoming deeply involved with SisterLove, Williams became an advocate for her own reproductive health and began speaking out on behalf of other Black women living with HIV. She eventually became a trainer, counselor, and health outreach worker.

Later, in 2004, Williams was the only woman living with HIV invited to be a main speaker at the historic March for Women’s Lives in Washington, D.C. She is a mother, grandmother, and great-grandmother who has returned to South Carolina, where she teaches other women living with HIV about sexual and reproductive justice and human rights. Williams uses her own story and strength to help other women find theirs.

“Give [women living with HIV] a voice and a platform for that voice,” she has said. “Give a safe place to let their voices be heard and validate them …. We need positive women’s voices to continue to fight the stigma. How do we do that? We tell our stories and reflect each other. I am not the enemy, I am the answer.”

Advocates need strength as we work at many critical intersections where the lives of women and girls are shaped. We cannot address HIV and AIDS without access to contraception and abortion care; health and pay equity; recognition of domestic and gender-based violence; and the end of HIV criminalization. And as advocates for sexual and reproductive health in our communities, SisterLove is working alongside our sisters to support National HIV Testing Day and ensure all people have the information, tools, and agency to take control of their health.

Elevating the health and dignity of people living with HIV calls for special attention to the epidemic’s implications for women of color and Black women, particularly those within marginalized communities and in the Deep South. The voices and leadership of the most affected women and people living with HIV are essential to making our efforts more relevant and powerful. Together, we can advance the long-term vision for sexual and reproductive justice while working to eradicate HIV for all people.