Commentary Human Rights

Are Sex Workers’ Rights Becoming Thinkable?

Anna Forbes

Recent political developments suggest some growing political awareness of sex workers as human beings.

In most countries, the concept of sex workers’ human rights has been unthinkable for the last few millennia. As Bubbles, the co-founder of the blog Tits and Sass, has observed, “Sex workers are generally portrayed as victims or punchlines.”

Recent political developments, however, suggest some growing political awareness of sex workers as human beings. On December 20, Canada’s Supreme Court ruled in favor of the plaintiffs in Attorney General of Canada v. Terri Jean Bedford, Amy Lebovitch, and Valerie Scott. These three women, self-identified sex workers, filed suit in 2007 because they felt three provisions in the Canadian Criminal Code violated their constitutional rights.

After six years of weaving its way through the courts, their case resulted in a unanimous decision striking down laws against keeping or being found in a brothel (or “bawdy house,” to use the law’s term), living on the avails (profits) of selling sex, and “communicating in public for the purpose of prostitution” (street soliciting). These provisions, the Court ruled, violated the right to “security of the person” guaranteed by Canada’s Charter of Rights and Freedoms enacted in 1982. The Globe and Mail, Canada’s nationally distributed newspaper, described Chief Justice Beverley McLachlin’s decision (on behalf of the Court) as not being “about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.”

The decision states:

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Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. … The prohibitions all heighten the risks. … They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks.

The Court agreed on a one-year suspension of the ruling to give Parliament time to respond. If lawmakers choose to pursue passage of new prohibitions, they will be obliged, under the ruling, to ensure that they do not violate sex workers’ right to safety.

Prostitution, per se, is not illegal in Canada, but the decision and other laws circumscribe its practice. Laws against brothel keeping specifically put indoor sex workers at risk of arrest, and the ban on living on the avails criminalizes a sex worker’s children and other people who are supported by her earnings. The public communications laws severely affect the estimated 5 to 20 percent of Canadian sex workers who are street-based. By compelling them to complete negotiations quickly (in order to avoid arrest), it deprives them of the time needed to assess the potential risk of going with a prospective client.

The Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence, and the PACE (Providing Alternatives Counseling and Education) Society all worked in coalition with the Bedford petitioners and other sex worker groups to advance the case. When Pivot was allotted time to address the Supreme Court directly, a collective decision was made that Pivot’s legal director, Katrina Pacey, would use the time to “paint a picture” for the justices of the violence sex workers routinely experience under existing laws. They agreed that Pacey would emphasize the “Bad Date Sheet,” a tool used by sex workers to record and share descriptions of clients known to be dangerous and predatory. Pacey told the justices that “having time to adequately screen a client means having time to refer to the information on this sheet … and it can be a life-saving measure … time to communicate, time to screen, can mean the difference between life and death for a sex worker.”

This struck a deep chord because of the epidemic of missing and murdered women—most of them sex workers—that Canada has experienced in the last three decades. At the center of this was Robert Pickton, a serial killer in British Columbia who told an undercover police officer that he had killed 49 women and wished he could have made it an even 50 before his arrest. Pickton was charged in 2002 with the murders of 26 women, most of them sex workers and/or drug users from Vancouver’s Downtown Eastside neighborhood. He was convicted in 2007 of killing six of them, with the 20 other charges stayed, and sentenced to life imprisonment.

Pickton is far from an anomaly. Seattle’s Gary Ridgway (the “Green River Killer”) was convicted in 2003 of murdering 48 women, and later confessed to killing 71 in all. He said he picked sex workers specifically because “I knew they would not be reported missing right away and might never be reported missing. I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught.” Meanwhile, the search for the alleged Gilgo Beach serial killer in Long Island, New York, is ongoing. The first woman went missing in 2007, and to date ten to 14 of the bodies identified on that isolated section of beach are thought to have been his victims. As in the cases above, the New York police have been repeatedly accused of insufficient action because many of the murdered women were sex workers.

After hearing Pacey’s statement to the Court, Chief Justice McLaughlin wrote in her opinion, “If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects [of the law] is established.”

A breakthrough of a different type, but similar in proportion, occurred in South Africa on December 10, when the South African National AIDS Council (SANAC) launched its National Strategic Plan for HIV Prevention, Care and Treatment for Sex Workers. The Sex Worker Education and Advocacy Taskforce (SWEAT) and Sisonke (a South African movement advocating for the rights of adult, consenting sex workers) were pivotal in the plan’s development and describe it as a “comprehensive rights- and evidence-based approach to HIV interventions within the sex worker key population.” Maria Stacey, SWEAT’s deputy director, added, “Following World Health Organisation guidelines on HIV prevention amongst sex workers, the Plan does advocate for the decriminalisation of sex work.”

SANAC, an entity made up of government ministries, civil society organizations, and private sector corporations, is charged with building and coordinating the HIV and AIDS response for a country with the world’s largest population of people living with HIV. This new program launch is a historic development in what has been a prolonged political battle. When the SANAC board approved a final draft of its 2012-16 National Strategic Plan on HIV, Sexually Transmitted Infections, and Tuberculosis (commonly referred to as the 2012 NSP) in November 2011, the draft contained language directing the Department of Justice and Constitutional Development and the South African Law Reform Commission to “take urgent steps to finalise the legislative reform process. … This must result in the tabling of a bill to decriminalize adult sex work by no later than 30 June 2013. Thereafter, SANAC must closely monitor the law reform process in Parliament.’’

When formally issued on World AIDS Day a few weeks later, however, SANAC’s plan omitted that language, replacing it with the following: “Decriminalisation of sex work is a matter that has been a subject of debate and society should continue to deliberate on the matter until final resolution.” As one SANAC member commented, “Government ministers, officials, other sectors and NGOs at the meeting endorsed this [decriminalization] as a key, evidence-based. Now, in one week, all that has dissolved.”

The sex workers’ rights and HIV prevention advocates who had been working for over a decade to get the board-approved language into the 2012 NSP saw this deletion as, once again, fatally dismissive of sex workers’ lives. Data from 2005 (the most recent year for which data is available) showed an HIV prevalence of 43 percent among female sex workers surveyed in Johannesburg, evidence of the government’s disregard for their need for effective HIV prevention interventions.

The two-year turnaround from this political betrayal to the launching of a national program dedicated to their needs is attributed to (among other factors) the 2012 hiring of SANAC’s new CEO, Dr. Fareed Abdullah, and the government’s decision to make SANAC an independent entity, answerable to all its constituencies. Abdullah came to the job with a decade of experience “pioneering” innovative HIV programming in South Africa, as well as service at the Global Fund to Fight AIDS, Tuberculosis and Malaria (the Global Fund) and the International AIDS Vaccine Initiative (IAVI). The first grant he authorized from SANAC’s newly independent budget was to SWEAT.

The new National Plan for HIV Prevention, Care and Treatment for Sex Workers not only includes the provision of a full package of sexual and reproductive health services to an estimated 153,000 sex workers in the country (including sexually transmitted infection screening and treatment, post-exposure prophylaxis for rape and sexual assault, contraception, and peer support, as well as education, condoms, and lubricant) but also funds measures to reduce violence and human rights abuses against them. In an interview shortly before the ICASA launch, Abdullah said that “[t]his approach allows the social capital of the sex work community to be strengthened—which we know to be protective for HIV.” He added, “The time has come for us to suspend our moral judgments in respect of sex work in the interest of the public health of the nation and human rights.”

Interestingly, former U.S. ambassador Mark Dybul was among the panelists at the ICASA session where the new plan was launched. Currently the CEO of the Global Fund, Dybul was one of the founding architects of PEPFAR, serving as U.S. Global AIDS coordinator from 2006 to 2009. In his remarks at the ICASA launch, Dybul described the fact that HIV-positive sex workers are 12 times less likely to receive antiretroviral treatment than other people living with HIV as “appalling,” and said that SANAC’s plan demonstrated “what needs to be done, not only in South Africa but everywhere.” One wonders if this evolving awareness—manifested in two countries and by the head of the Global Fund so recently—will become evident in U.S. policy anytime soon.

Commentary Sexual Health

Building Solidarity to Overcome Invisibility: Sex Workers and HIV-Focused Activism

Anna Forbes

Even as federal agencies and public health organizations have taken steps to address HIV in vulnerable populations, sex workers have been left out of the conversation.

Researchers from the Centers for Disease Control and Prevention (CDC) in February published a study of HIV rates among female sex workers in the United States. The authors of the review—which was limited to female sex workers because research on genderqueer, transgender, and male sex workers in the United States is almost nonexistent—acknowledged that the prevalence of HIV in this group is high. They also noted, however, that they had little material to work with: The paper reviewed 14 studies, of which only two were done in the last decade. Thus, the authors note, “The burden of HIV among this population remains poorly understood.”

This shocking paucity of recent data is a result, in large part, of the withdrawal of federal funds for research on “prurient” topics imposed during the George W. Bush administration. That shift to the right had a chilling effect on the federal HIV response as a whole—an effect that has been most enduring with regard to sex workers. Overwhelmingly, even as federal agencies and public health organizations have taken steps to address HIV in other vulnerable populations, sex workers have been left out of the conversation. This omission is one that HIV-focused activists, at the urging of sex worker rights organizations, are starting to notice.

Most countries recognize men who have sex with men (MSM), people who inject drugs, and sex workers as their primary “key populations”—defined, in United Nations terms, as “groups of people who are more likely to be exposed to HIV… and whose engagement is critical to a successful HIV response.” The U.S. government, however, recognizes the first two, among others, as key populations, but not sex workers. Virtually no federally funded HIV prevention and care services are targeted specifically to sex workers in the United States, although, ironically, U.S. funding does support some good HIV prevention programming for sex workers overseas.

Here at home, they remain largely overlooked. The CDC’s HIV Behavioral Surveillance System (HBSS) only alludes to sex workers indirectly as a subgroup of “heterosexuals at risk of HIV infection” who “exchange sex for money or drugs”—a designation that, obviously, ignores their diversity on multiple levels.

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Meanwhile, the National HIV/AIDS Strategy Update, a federal blueprint for our national response written by the Department of Health and Human Services’ Office of National AIDS Policy, mentions gay and bisexual men 35 times, youth 23 times, transgender people 19 times, people who inject drugs 18 times, and incarcerated people twice. It does not mention sex workers—as such or by any euphemism—even once.

This virtual invisibility was reflected at this year’s National HIV Prevention Conference in Atlanta, billed as the “preeminent conference for scientists, public health officials, community workers, clinicians, and persons living with HIV.” Of the hundreds of abstracts presented via panels, posters, and roundtable discussions, only four mentioned sex workers as a distinct and relevant population to consider at this conference.

At a “listening session” on the NHPC’s third day, I asked Conference Co-Chair Jonathan Mermin—the director of the CDC’s National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention—about the lack of data on sex workers and HIV. He acknowledged that the CDC has not collected the kind of data on HIV vulnerability among sex workers that it collects on other key groups.

This lack of inclusion is nothing new. In 2012, when the massive bi-annual International AIDS Conference took place in Washington, D.C., many foreign attendees with sex work or drug-using histories couldn’t get U.S. visas to attend.

Four blocks away from the two adjacent luxury hotels where NHPC was held, the HIV Prevention Justice Alliance (HIV-PJA) convened a free “People’s Mobilization on the National HIV/AIDS Strategy Counter Conference.” Nearly 100 participants signed in at its meeting space—some of them unable to afford NHPC registration and some dividing their time between the two conferences.

In the middle of the NHPC’s opening plenary, AIDS Foundation of Chicago organizer Maxx Boykin walked unannounced onto the stage, along with seven other Counter Conference participants, to protest the omission of sex workers from the National HIV/AIDS Strategy Update. “At this conference we talk about getting to zero new infections and ending the epidemic,” he said, “but we will never get there without tackling sex workers’ rights.” The group left the stage to substantial applause.

In contrast to the NHPC, the Counter Conference offered a striking example of HIV-focused advocacy groups joining sex worker rights organizations to address this exclusion. In the process, the collective also examined how structural factors such as housing, gentrification, and displacement affect people’s HIV risk and their HIV prevention and treatment choices.

Rather than choosing among hundreds of presentations, Counter Conference attendees met in plenary with experts leading discussions on topics that included the intersections of HIV criminalization, mass incarceration, and the war on drugs; the barriers to reproductive and sexual health care facing youth and women living with HIV; the escalating difficulty of getting HIV prevention and care in southern states without Medicaid expansion; the links between unemployment, economic injustice, and disparities in HIV-related outcomes; the health care and quality-of-life challenges faced by transgender people; and the need to develop solidarity between HIV and sex worker rights advocates.

At the latter panel, four leaders in sex worker rights organizations recommended that HIV activists learn more about their local and state laws on sex work. Magalie Lerman, representing the Sex Workers Outreach Project, observed that “the political and social environment in the [United States] contributes to negative outcomes for people in the sex trade” in all kinds of ways.

It is not unusual, for example, for police and prosecutors to use the possession of multiple condoms as evidence of someone’s intention to sell sex. This practice has been exposed and subsequently prohibited in a few cities, but is still a common practice elsewhere. It both discourages condom use—thus heightening HIV risk—and provides another tool for unjustly arresting marginalized people, including sex workers and those profiled as sex workers, which frequently includes transgender women of color.

Lack of funding for sex worker-specific HIV prevention and outreach work is another issue where joint advocacy is needed. Lerman urged HIV-focused organizations to “deal us in on HIV prevention funding streams” and collectively demand resources to support local, peer-led empowerment programs that have proven effective in reducing HIV rates. Such projects received less than 1 percent of all HIV prevention funding worldwide in 2009, the most recent year for which data is available. Domestic data on funding for this is, of course, nonexistent.

Another high priority was staff training and program adaptations to make HIV service agencies more accessible to sex workers. Panelist Deon Haywood represented Women With a Vision, a New-Orleans based organization providing harm reduction and HIV prevention services to Black women since the 1980s. She mentioned the need to “make the people running the organization look more like the people coming through the door.” She said this could be done by hiring peer counselors with lived experience in the sex trade and ensuring that their jobs were designed with room for advancement.

Panelist Cassie Warren from Chicago’s Howard Brown Health Center, meanwhile, talked about how agencies could expand their hours, locations (using mobile van services), and strategies to reach street-based youth engaged in survival sex. While the process of investigating and resolving existing barriers to care is labor-intensive, she said, HIV-focused service providers can’t expect to engage with high-risk youth without doing such work.

Building cross-sectoral communication and trust is another major challenge. Panelist Stella Zine, founder of the peer-driven support group Scarlet Umbrella Southern Art Alliance, pointed out that sex work can be a “heavy term” for some people. She urged participants to learn how to talk about HIV and sex work carefully, using language acceptable to people who need services but do not self-identify as sex workers.  

When working with organizational partners rather than clients, on the other hand, Haywood cited a willingness to name the issues on the table explicitly—and to point out incidents where issues are misnamed or avoided—as essential to solidarity building. For example, Haywood commended the Counter Conference for bringing an explicit racial analysis to its discussions, an aspect she found missing at the NHPC.

The central theme of the session was “nothing about us without us.” Having been ignored and forcibly silenced in so many other settings, the panelists emphasized that sex worker rights advocates will partner with allies willing to ensure that sex workers are at the table whenever funding, policy, and strategy decisions affecting sex workers are under discussion.

After the sex workers panel, some of us walked back to the NHPC to attend the “listening session” mentioned above, where I raised the issue of sex worker invisibility. Dr. Mermin responded by acknowledging the gap and advised us of the CDC review published in February. He warned us, however, that this new paper would not contain the kind of key population data on sex workers that is being collected in other countries.

Indeed, the CDC’s website currently states that “there are few population-based studies of sex workers in the United States or globally” (emphasis added) due to their illegal status. In international terms, that assertion is badly outdated. A plethora of studies on sex workers and HIV have been published in the last five years, showing clearly that punitive approaches to sex work exacerbate HIV spread. Public health and rights-based approaches, on the other hand, not only reduce HIV rates substantially, but are cost-saving to boot.

Silencing groups by excluding them from pivotal conferences and omitting them in national strategic planning are forms of overt discrimination, as is simply refusing to include them accurately in population surveys. If uncounted, they do not officially exist and do not have to be served. This political decision results in an absence of much-needed evidence.

Dr. Mermin added, however, that we don’t have to wait for solid numbers or data to increase national efforts to deliver services successfully targeted to sex workers. Was he signalling a federal shift, at last, toward the public inclusion of sex workers in our national HIV response? Hard to tell—but the odds of that occurring are undoubtedly better if pressure for such inclusion escalates.  

Commentary Violence

With Sex Workers Too, Rape Is Still Rape

Kate DAdamo

As we talk about the importance of consent in the public discourse, upholding the right to say what is and isn’t violence must take precedence over our own discomfort about someone else's choices.

In the last several months, there have been a number of rape allegations involving sex workers in the news. Most recently, a number of sex workers accused porn star James Deen of rape. Several websites have since dropped Deen, including Kink.com. Also, Jonathan “War Machine” Koppenhaver is facing 34 counts of rape, kidnapping, and attempted murder (among others) against his ex-girlfriend and porn star Christy Mack, which reportedly left her with 18 broken bones and a ruptured liver, and her friend, Corey Thomas.

Every time these stories make headlines, though, they are accompanied by another conversation: Whether because someone engages in sex work, they lose their right to consent and cannot be raped.

The conflation of sex work and rape, and the assumption that all sex work can be framed in a single, narrow description contribute to the denial of consent for those who trade sex, even if the phrasing sounds different.

These arguments are being put forward not just by Twitter trolls or men’s rights activists; they are also being brought in the courts and in the media. Part of the legal defense for War Machine has been that Mack’s porn career displayed her “desire” for “activities that were outside of the norm”—presumably including rape. And just a few months ago Mary Mitchell, who sits on the editorial board of the Chicago-Sun Times, claimed that when a sex worker was raped it should have been prosecuted as “theft of services” (the same charge as jumping a subway turnstile).

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Further, many conversations about sex work held by feminist and anti-trafficking organizations are about denying consent to those in the sex industry. Groups like the Coalition Against Trafficking in Women or the New York City chapter of the National Organization for Women, base their work in this area on deeply flawed claims that all sex work is violence or criminalization is about protecting women from exchanging sex for money.

To be sure, when it comes to sex trafficking, there is no debate it is inherently violent. But to conflate sex trafficking with sex work creates very real harms for those who do report rape.

For sex workers, trading sex is a constellation of experiences that move through the range of choice, circumstance, and coercion. The complexity and nuance of sex work can span a variety of experiences that can change from year to year, month to month, and session to session. Some people trading sex do experience violence, and that experience often informs how a person feels about sex work. To have a single blanket assumption that says that every act of trading sex for resources is an act of violence is not just ideology parading as information; it undermines the dignity of anyone trading sex by not allowing them to define their own experience.

Ultimately, views like this are a step backward for everyone who demands the ability to declare their own boundaries and physical autonomy. And statements pushing this notion need to stop.

Engaging in the sex trade does not remove the ability for a person to determine what is and is not rape. They do not lose the ability to declare boundaries while engaging in sexual activities or to define their own experience when victimized. Further, this logic undermines the very core of consent, because it is grounded in the understanding that a person’s right to self-determination about their body and experience is less important than an outside person’s view of their circumstances.

For example, if a person is involved in kink or BDSM, consent still has a role to play in that experience, even if the sexual activities may look to someone else like violence. Just the same, when a person is in the sex trade they are allowed to determine their own physical boundaries—and decide what is and is not an experience of violence. Anything that undermines self-determination ultimately harms the hard-fought battle won by feminism, reproductive rights, and gender equality advocates over consent and control over one’s own body.

“Having sex for money doesn’t make me less aware of my boundaries—it makes me hyper-aware of them,” New York-based sex worker Vivienne told Rewire in an interview. “I know better than anyone else what it feels like when my consent is violated. Even when I didn’t want to see a client but I had to because of bills, that doesn’t change. Eviction is not consensual. What [work] I do to prevent that was.”

And yet, some feminists argue that the lack of other employment options invalidates the ability of a person to make the decision to trade sex. While for many, trading sex can be an act of survival, nowhere else in society do we take “lack of other options” as a reason to no longer allow a person’s decision, nor would we make it harder for them to access that option. For those seeking an abortion, for example, advocates would never use that person’s financial circumstance as a reason to decrease their ability to terminate the pregnancy. Rather, advocates fight for reproductive health care to be easy to access, under the safest conditions possible, and without stigma.

This assumption that consent rules don’t apply to sex workers can have far-reaching consequences. In 2007 Pennsylvania Judge Teresa Carr Deni ruled that a woman who was gang-raped at gunpoint by a client was not raped but instead declared it, “theft of services.” In a later interview, Judge Carr claimed that calling the incident rape “minimizes true rape cases and demeans women who are really raped.”

Regularly sex workers are also dehumanized by law enforcement who do not take seriously their reports of sexual assault when they do overcome the stigma and fear of arrest and report crimes. As one worker who made the decision to report her sexual assault described to Rewire in an email interview, “I reported an assault, rape, and theft by a client in Dallas, Texas in 2008, and was more or less ridiculed by the detective, and forced to pay for my own rape kit and hospital fees. On top of that, I was forced to do PTSD treatment to stay in school, which was unhelpful and expensive. The repetitive nature of the sad confessionals were so intense, I dropped out of college and became more deeply engaged in sex work than ever to pay off the debts incurred. Dallas police definitely didn’t take my assault seriously, and the institutional shaming following the incident was much more painful than the incident itself and lasted many months longer.”

This conflation of sex work and violence is being used to criminalize the sex trade, which often follows increased violence, stigma, and fewer options for those who wish to leave. Often, the assumption that all prostitution is violence or rape also is used as the reasoning for increasing laws, penalties, and policing of the sex trade.

Loitering and prostitution laws (which generally outlaw even the discussion of exchanging sex for money, while loitering laws often criminalize the appearance of someone who might exchange in prostitution) often leave people with long arrest records that make it difficult for them to get different jobs, access housing, or attend school. Laws that criminalize the “promotion of prostitution” (simply by supporting others, be it through helping someone post an ad or offering them safety tips) often criminalize peers and community members, which sex workers rely upon for safety and harm reduction strategies. The criminalization and policing of clients under anti-trafficking legislation often pushes people in the sex trade into more isolation, meaning they are cut off from their peers and outreach workers and driven to more clandestine locations. Street-based policing, be it to arrest sex workers or potential clients, means that people are more likely to need a third party to negotiate with potential clients, making them more dependent on those third parties and therefore more vulnerable to exploitation. And none of these things address the underlying issues, like poverty, which make the sex trade one of very few, and sometimes, the only option to meet basic needs. Using “all sex work is violence” as the reason for passing laws that increase violence is not just bad logic, it’s inhumane.

Sometimes others make decisions that leave us feeling uncomfortable, but they are not our decisions to make. The judgments we pass on the complex experiences of individuals only stigmatize and shame those in the sex trade.

Denying sex workers the right to determine the boundaries of their own body is an affront to the same arguments that we as feminists and activists are putting forward every day. The ability for someone to declare what is sexual assault only exists if we allow people to also determine what is not sexual assault. As we talk more about the importance of consent in the public discourse, upholding the right to say what is and isn’t violence must take precedence over our own discomfort about someone else’s choices.