Sex work needs to be decriminalized in the United States. My desire to see this come to pass is not (completely) self-interested. It is a matter of human rights and personal autonomy, and a natural extension of Lawrence v. Texas, the landmark 2003 Supreme Court case that established the constitutional right to engage in same-sex sexual activity. Just as importantly, however, decriminalization of sex work is an HIV prevention and public health strategy.
First, criminalization drives sex work underground and impedes public health efforts to reach sex workers and their clients with HIV prevention, treatment, care, and support programs. The Joint United Nations Programme on HIV/AIDS (UNAIDS) has documented that, in large part due to the criminalization of sex work, sex workers frequently have insufficient access to adequate health services, male and female condoms, water-based lubricants, post-exposure prophylaxis (PEP) following condomless sex or rape, management of STIs, drug treatment and other harm reduction services, protection from violence and abusive work conditions, and social and legal support.
Due in part to the illegal nature of the work, sex workers often face discrimination and rejection in accessing healthcare, with damaging health results. Occupational stigma of criminalized work increases vulnerability to stress and diseases, compounding health care needs while simultaneously acting as a barrier to healthcare services essential to prevention. When sex workers do seek out healthcare services, they often are regarded in ways that reinforce criminal stigma, which can deter sex workers from seeking care at all and from disclosing their occupation for fear of discrimination by their healthcare provider and disclosure of their identity and activities to law enforcement. For sex workers living with HIV, these concerns are compounded.
‘...the criminalization of sex work means the violence that occurs in the context of sex work has been largely unmonitored, resulting in few to no legal protections afforded to sex workers by police and judicial systems.’
Second, the use of condoms as evidence undermines prevention of HIV and other sexually transmitted infections, as well as other public health goals. Though a few jurisdictions have reformed their practices in recent years, many jurisdictions still view the mere possession of condoms as evidence of the intent to engage in prostitution or other prostitution-related crimes. Arresting and prosecuting people who carry condoms reduces use of an extremely effective and affordable prevention tool, particularly for people engaged in (or profiled as likely to engage in) “street level” sex work. And using condoms as evidence makes managing sexual health more difficult because it forces individuals to weigh the risk of prosecution for a prostitution-related crime against the risk of transmitting or acquiring HIV and other STIs.
Third, criminalization increases violence against sex workers. Where sex work is criminalized, there are alarmingly high rates of physical and sexual violence against sex workers by clients, individuals posing as clients, police, exploitative “pimps,” and others. Abuse is fueled when perpetrators recognize the barriers criminalized sex workers face in seeking justice, perpetuating physical and sexual violence with impunity. Furthermore, abusive intimate partners can exploit the illegality of sex work and may threaten to expose their partners to police as tactics of control.
To avoid police detection, criminalized sex workers often displace themselves to isolated (and more dangerous) settings, effectively forcing them to trade away their safety and well-being. When criminalization prompts sex workers and their customers to move their encounters off main streets and into less trafficked areas, they are exposed to greater risk of violence, more pressure to engage in unprotected sex, and other hazards.
Violence against sex workers is often not registered as an offense by the police and in some cases is perpetrated by police. Sex workers report severe sexual violence, including forced unprotected sex by police officers, both at the time of arrest for prostitution-related crimes and while in custody on those criminal charges. And the criminalization of sex work means the violence that occurs in the context of sex work has been largely unmonitored, resulting in few to no legal protections afforded to sex workers by police and judicial systems.
In countries where sex work has been decriminalized, access to care improves, STI rates decrease, and safer sex practices increase. Though the UN has identified sex workers as a “key population” in the global fight against HIV for many years, the current National HIV/AIDS Strategy fails to include them among the “priority populations” in the United States. Here’s hoping sex workers are identified as a priority population in the next iteration of the NHAS and that the barriers to prevention, care, and treatment identified above are addressed while progress is made toward full decriminalization.
This column has been adapted from a legal brief co-authored by Schoettes, Kara N. Ingelhart, and Richard Saenz in Erotic Service Provider Legal, Education & Research Project v. Gascon, available at lambdalegal.org/sites/default/files/10.7.16_esplerp_v._gascon_amicus_brief_filed_by_lambda_legal_et_al..pdf.
Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work, and education to protect, enhance, and advance the rights of everyone living with HIV.