18 October, Bangkok — Nearly all countries of Asia and the Pacific criminalize some aspects of sex work. Criminalization increases vulnerability to HIV by fuelling stigma and discrimination, limits access to sexual health services and condoms. Removing legal penalties for sex work allows HIV prevention and treatment programmes to reach sex workers and their clients more effectively. These are some of the findings in an unprecedented study issued today by the UN Development Programme (UNDP), the UN Population Fund (UNFPA) and the Joint United Nations Programme on HIV/AIDS (UNAIDS). The report clearly distinguishes between adult consensual sex work and human trafficking for sexual exploitation.
Sex Work and the Law examines 48 countries in Asia and the Pacific to assess laws, legal policies and law enforcement practices that affect the human rights of sex workers and impact on the effectiveness of HIV responses.
Where sex work has been decriminalized, there is a greater chance for safer sex practices through occupational health and safety standards across the industry. Furthermore, there is no evidence that decriminalization has increased sex work.
The report describes countries that use punitive law enforcement practices, confiscate condoms as evidence of illegal conduct, require compulsory or coerced HIV testing, deny government services and certain rights to sex workers, and have compulsory detention centres. The report notes:
• Eleven countries where sex workers report condom confiscation or police harassment for
possessing condoms (China, Fiji, India, Indonesia, Malaysia, Myanmar, Nepal, Papua New Guinea, the Philippines, Sri Lanka and Vietnam).
• Six countries that require mandatory testing of sex workers for HIV or sexually transmitted infections (STIs) as a condition of employment (Guam (unincorporated territory of the United States), Indonesia, Philippines, Singapore, Thailand, and several states of Australia); and three countries where compulsory or coerced HIV testing for sex workers has been reported (China, India and Vietnam).
• At least four countries in which compulsory detention of sex workers for rehabilitation or re-education is reported (China, India, Myanmar, Sri Lanka).
“There is no evidence from countries of Asia and the Pacific that criminalization of sex work has prevented HIV epidemics among sex workers and their clients,” In fact, the report states that “evidence from the jurisdictions in the region that have decriminalized sex work – New Zealand and New South Wales (Australia) – indicates that the approach of defining sex work as legitimate labour empowers sex workers, increases their access to HIV and sexual health services and is associated with very high condom use rates.”
“Following on the report on the Global Commission on HIV & the Law, this report illustrates the importance of having the right policies and laws in place so that sex workers’ rights are protected, and they are not discriminated against in HIV and health services,” says Rathin Roy, UNDP Asia-Pacific Regional Centre Manager.
The report highlights current laws, policies and practices that are helpful to HIV responses. A snapshot:
• Decisions of the Supreme Courts of Bangladesh, India and Nepal recognize the human rights of sex workers.
• The Ministry of Interior of Cambodia issued a Directive that condoms will not be used as evidence for arrest.
• Legislation in Fiji and Papua New Guinea make it unlawful to deny a person access to condoms or other means of protection from HIV.
• National HIV laws in Cambodia, Fiji, Lao PDR, Papua New Guinea and the Philippines offer some protections in areas such as prohibition of compulsory testing, and rights to confidentiality and to protection from discrimination for those who are HIV-positive.
• Legislation in Vietnam requires the government to implement harm reduction interventions including condom programmes with sex workers, and protects peer educators from prosecution.
• Rules of the Social Security Fund of Thailand enable sex workers to access state social security benefits.
“While much more needs to be done, there are examples of supportive laws and policies that protect the rights of those most vulnerable to HIV and maximize their access to HIV and sexual and reproductive services. These are vital lessons that need to be applied more widely,” said Nobuko Horibe, Regional Director UNFPA.
Commenting on the report findings and recommendations, Ms. Chantawipa Apisuk, the Director of Empower, a Thai Foundation led by sex workers, said: “When Sex Work is recognized as legitimate work rather than criminalized, then sex workers will be protected under labor law”.
The report also highlights how significant advances in recognition of the rights of sex workers can occur even in contexts where the sex industry is illegal. For example, education of police and empowerment of sex workers has helped to reduce human rights violations in India and Thailand, and health authorities in many countries now actively support sex worker organizations to deliver HIV prevention programmes to their peers.
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