Anti-trafficking, sex workers' rights and HIV prevention
HIV Australia | Vol. 9 No. 4 | February 2012
By Jules Kim
Sex workers in many states of Australia are under threat from proposed law reform that seeks to remove existing legal and policy frameworks that have been crucial to Australia’s successful HIV response.
Much of this legislation has been introduced under the guise of preventing people trafficking. Although trafficking is not the experience for most people working in the Australian sex industry, ill-informed and speculative perceptions about trafficking are frequently used as an excuse to increase regulation and criminalisation of the sex industry.
Australian responses to anti-trafficking
The anti-trafficking response, and associated media hysteria – not unlike the hysteria that surrounded AIDS in the early ‘80s – has given authorities permission to overstep the fair and reasonable application of Australian law, particularly in relation to culturally and linguistically diverse (CALD) sex workers.
For example, laws proposed in Western Australia seek to prevent all those who are not a permanent resident or an Australian citizen from working in the sex industry; this would preclude all people on temporary visas from legally undertaking any form of sex work, even if their visa conditions allowed them to work, and even though sex work is not illegal.1
In Victoria, following a spate of media reports about trafficking (including a joint “investigative” report by the ABC, The Age and the Sydney Morning Herald), the Sex Work and Other Acts Amendment Bill 20112 was introduced.
Despite consistent and systemic evidence of police corruption that clearly demonstrates that police are inappropriate regulators of the sex industry3, the Bill proposes to revert sex industry regulation from Consumer Affairs to the Victoria Police and to ‘improve the powers of Victoria Police to investigate and enforce’4.
Similarly, the NSW Liberal Government recently announced its intention to proceed with the removal of the best practice model of decriminalisation –which has been in place in NSW since 1995 –and to introduce a tougher licencing system for brothels which they state is in response to ‘sex trafficking and criminal involvement in the industry.’
This is contrary to findings of the Wood Royal Commission that decriminalisation in NSW would ‘close off’ potential opportunity for ‘corrupt conduct on part of the police’.5 Evidence shows that decriminalisation in NSW has delivered the most effective public health outcomes in the state since its implementation.6
The Sixth National HIV Strategy 2010–2013 supports decriminalisation as a priority action to identify and address the legal barriers to evidence-based prevention strategies across jurisdictions, as a way to achieve human rights and anti-discrimination outcomes.
The National Strategy recognises that decriminalisation and deregulated legislative frameworks give sex workers increased control over our work and helps to achieve better health and HIV outcomes: ‘The priority is to ensure that legislation, police practices and models of regulatory oversight support health promotion, so sex workers can implement safer-sex practices and the industry can provide a more supportive environment for HIV prevention and health promotion.’
Conversely, restrictive legal frameworks present barriers to health promotion service delivery, especially to those from intersecting priority populations such as CALD and migrant sex workers.
Sex workers who speak out against anti-trafficking responses have been accused of refusing to see the “dark side” of the sex industry. We know that like any other industry, sex workers can face good and bad work conditions.
When criminalised, sex workers who do experience exploitation or trafficking fear seeking justice for fear of being prosecuted. Current anti-trafficking responses are not addressing the causes of trafficking and have scapegoated sex workers.
The 2011 report of the UNAIDS Advisory Group on HIV and Sex Work states, ‘The frequent failure of policy-makers, religious leaders and society to distinguish sex work from human trafficking has sometimes led to involuntary displacement, harassment or detention of sex workers. Violence against sex workers is too often committed with impunity by state and civilian actors, exacerbating sex workers’ HIV vulnerability.’
The reality is that trafficking is not the experience for most people in the sex industry. Sex work is not inherently exploitative and, like other workers, sex workers travel and migrate for work; migration for sex work does not cause trafficking.
Evidence shows that criminalisation or over regulation of the industry will only serve to isolate sex workers creating further difficulties for sex workers to access justice in the event of a crime.
Genesis of the global anti-trafficking moment
In recent years, there has been a disturbing renewal of focus on trafficking internationally that ignores evidence and continues to equate sex work with sexual exploitation and trafficking with the movement of people for sex work. Organisations worldwide have sprung up as experts in trafficking and the sex industry.
Scarlet Alliance have received anecdotal reports from Empower Foundation, a sex worker organisation in Thailand, that many religious organisations have reinvented themselves as trafficking organisations.
A cursory search on the web will yield numerous websites from religious and feminist anti-trafficking organisations ready to rescue us from the sex industry.
At the XVth Bangkok World AIDS Conference in 2004, sex workers from 20 countries reported the negative impacts of the anti-trafficking lobby on sex worker rights globally.7
Where did this anti-trafficking movement come from? In October 2001, the US President George W Bush, created a bureau in the State Department – the Office to Monitor and Combat Trafficking in Persons – as a result of the passing of the Trafficking Victims Protection Act (TVPA) of 2000. The Office produces an annual report card for countries called the Trafficking in Persons Report or the TIP report.8
The TIP report divides nations into tiers based on their compliance with standards outlined in the TVPA. These tiers are described on the state department website as:
- Tier 1 Countries whose governments fully comply with the TVPA’s minimum standards.
- Tier 2 Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.
- Tier 2 Watchlist Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND:
- a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; or
- b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or
- c) The determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
- Tier 3 Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.
Governments of Tier 3 countries ‘… may be subject to certain sanctions, whereby the US government may withhold or withdraw non-humanitarian, non-trade-related foreign assistance. In addition, countries on Tier 3 may not receive funding for government employees’ participation in educational and cultural exchange programs.
Consistent with the TVPA, governments subject to sanctions would also face US opposition to assistance (except for humanitarian, trade-related, and certain development-related assistance) from international financial institutions such as the International Monetary Fund (IMF) and the World Bank.’
The TVPA recommends the criminalisation of the sex industry as an effective means to combat trafficking. Following on from US political pressure, some countries in the region have introduced the model of criminalisation, South Korea is one example.
Sex workers in South Korea report being arrested – their workplaces being forcibly closed down, with red light districts disappearing almost overnight. This has created the additional push for sex workers to migrate in order to work in their chosen profession. The US anti-trafficking solution in the form of criminalisation of sex work has been a major factor in creating an environment where trafficking can occur.
This conflation of migration for sex work and trafficking has been extended into policies requiring US government funds to be prohibited from going to organisations, such as non-government organisations (NGOs), who do not explicitly oppose sex work and demonstrate this by the signing of the ‘anti-prostitution pledge’.
Maria McMahon considers that ‘NGOs working with sex workers understand that access to sex workers is enhanced by taking on positions that call for the decriminalisation or legalisation of sex work. Many organizations have ceased applying for US funding, or have closed down US funded parts of their services aimed at sex workers, in order to keep meaningful relationships with the sex workers they hope to reach.
In an extraordinary reaction to the problematic US policy, Brazil turned down 18 million US dollars of HIV/AIDS funding, rather than accept sanctions on what they could offer to their own people and sex workers in particular.’
In addition to the push for migration via the US TIP report, conditions for trafficking are exacerbated by Australia’s discriminatory immigration policies that favour ‘skilled’ migration from industrialised countries and create a lack of opportunities for sex workers to migrate legally.
Providing safe, legal channels for sex workers to migrate to Australia and equitable access to visas would reduce the need for sex workers to incur substantial debts and engage third party agents in order to travel and work.
Currently there is a dearth of translated materials and information on visa access and conditions, industrial and human rights, relevant laws and justice mechanisms. Translating and increasing access to this material is a simple and effective means to prevent trafficking.
Adequate funding to support multilingual peer education through CALD projects within sex worker organisations, the provision of translated resources, and community engagement will strengthen the human, civil and political rights of migrant sex workers and increase our autonomy, agency and self-determination. This is a key step to addressing trafficking.
Ending exploitation: sex workers need rights-based approaches, not criminalisation
Attempts to use trafficking to abolish the sex industry undermine any real efforts to address trafficking and labour exploitation. Current anti-trafficking interventions have focused on surveillance of the sex industry and prosecution and deportation of migrant sex workers.
These have been unsuccessful in assisting workers who experience labour exploitation and trafficking-like work conditions and have impacted negatively on the rights of all sex workers. The negative policy outcomes, including increased criminalisation of sex workers, will have sustained, long term negative impacts.
Preventative, rights-based approaches that address the circumstances that create trafficking should be pursued over criminal justice approaches.
The most successful approaches prioritise the needs, agency and self-determination of trafficking victims over criminal prosecutions and increased surveillance, and ultimately result in the best outcomes.
Sex workers want decriminalisation. Decriminalisation is the internationally recognised best-practice approach to sex industry regulation and is supported by the United Secretary General Ban Ki Moon, UNAIDS, the UN Population Fund, and the Australian Government’s National HIV and STI Strategies.
Rather than trafficking, Korean sex workers at ICAAP 10 in South Korea report anti-trafficking responses as having the greatest negative impact to their lives and livelihood and called for the decriminalisation of sex work.
Further, they report that because peer sex worker organisations are illegal, and because being a known sex worker results in harassment and almost certain arrest, working effectively as a peer-based organisation is very difficult.
The UNAIDS Guidance Note on HIV and Sex Work 2009 observes: ‘In many countries, laws, policies, discriminatory practices, and stigmatising social attitudes drive sex work underground, impeding efforts to reach sex workers and their clients with HIV prevention, treatment, care and support programmes … Stigma and discrimination must be effectively addressed; violence and abuse of sex workers must be reduced; and legal barriers to participation should be revised. Achieving the changes in social and legal conditions that limit access to [HIV] services will take time, but it is critical to implement needed legal and policy reforms now.’9
When sex work is decriminalised sex workers can choose when, where and how we work. Decriminalisation results in the best outcomes for all sex workers –including those who are affected by trafficking and exploitation can seek support without fear of arrest.
Additionally, the rights of migrant workers must be recognised. Migrant sex workers need equitable access to support, Australian justice mechanisms, arbitration processes and industrial rights protections without fear of arrest or deportation.
Australia’s successful HIV response has been supported by the enabling legal environments in many states. However this trend to respond to trafficking through criminal and legal sanctions means we are entering a new phase with states criminalising sex work. This is in direct opposition to what we know about effective HIV prevention.
Meaningful consultation with sex workers has been crucial to successful health promotion approaches and applies equally to the issue of trafficking.
Sex workers must have meaningful involvement in developing, monitoring and implementing policy development and law reform. Supporting the rights, autonomy and self-determination of migrant sex workers through the decriminalisation of sex work is the most effective way to prevent trafficking and labour exploitation.
2 Sex Work and Other Acts Amendment Bill 2011. Retrieved from: http://www.lawalert.info/au/legislation/vic-bills-sex-work-andother-acts-amendment-bill-2011
3 Parliament of New South Wales. (1986). Report of the Select Committee of the Legislative Assembly upon Prostitution (Chairman: P. Rogan). Parliament of NSW, Sydney.
5 Royal Commission into the New South Wales Police Service. (1987). Final Report. Volume 1: Corruption. Commissioner: The Hon Justice JRT Wood, 13. Retrieved from: http://www.pic.nsw.gov.au/files/reports/volume1.pdf
6 Donovan, B., Harcourt, C. et al. (2010). Improving the health of sex workers in NSW: maintaining success. NSW Public Health Bulletin, 21(3–): 74–7. Retrieved from: http://www.publish.csiro.au/?act=view_file&file_id=NB10013.pdf
7 Fawkes, J. (2004) Sex Work and Empowerment, HIV Australia, 4(1), September–November
Jules Kim is Migration Project Manager at Scarlet Alliance, Australian Sex Workers Association.
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