Criminalisation of sex workers with HIV

By Kali Kanivale, Policy Officer, Scarlet Alliance, Australian Sex Workers Association

Information in this blog was originally presented at the Australia Federation of AIDS Organisations (AFAO) Members Meeting, 25-26 May 2018.

Punitive laws against people with HIV to prevent HIV transmission are ineffective and unsupported by evidence. It undermines human rights, increases fear, stigma and discrimination, places people with HIV at risk of criminal prosecutions, and drives people with HIV further away from prevention, treatment, care and support services.

Despite this, sex workers with HIV are explicitly criminalised in Qld, Victoria and the ACT. This violates sex workers’ right to privacy and confidentiality, right to free choice of employment, just and favourable conditions of work, and equal protection and treatment before the law. In response to growing evidence and awareness that criminalisation of sex workers with HIV is not an effective HIV prevention strategy, there are moves to repeal the criminalisation of sex workers with HIV in the ACT and align the sex industry legislation with the Public Health Act.

The criminalisation of sex workers with HIV forces sex workers to operate covertly, as sex workers fear detection will result in stigma and discrimination, prosecution or fines. It also creates disincentives for all sex workers to test and know their HIV status as a positive HIV test result can lead to instant unemployment, stigma and discrimination, criminal prosecutions, incarceration and fines.

In the 2008 National Needs Assessment of Sex Workers Living with HIV, a number of participants stated that disclosing sex work and HIV status led to very poor treatment and harassment by health and support care workers.

Where mandatory testing is also implemented, it is the sex worker who must turn up to work with their medical certificate to prove they do not have HIV and have undergone testing. The results of mandatory screening may also be used to support prosecution under laws criminalising sex workers with HIV. Mandatory testing regimes:

  • are not supported by evidence. Epidemiological evidence shows that mandatory testing is unnecessary;
  • are based on a narrow view of what constitutes sex work, which assumes that all forms of sex work involve penetrative intercourse; and
  • endorse a false sense of security in the form of a “certificate”, which, due to window periods, does not actually confirm sexual health status.

The intersection of race, sexuality, socio-economic status, HIV status and other identities mean some sex workers are more vulnerable to police surveillance, investigations and prosecutions than others.

For example, sex workers who use drugs, migrant sex workers, transgender sex workers and Aboriginal and Torres Strait Islander sex workers with HIV may already be living with multiple layers of stigma, discrimination, marginalisation and criminalisation. As a result, some sex workers are more likely to be targeted by the police for investigation, have their medical privacy exposed for the purposes of an HIV related prosecution.  The criminalisation of sex workers with HIV only acts to further marginalise these sex worker communities.

Laws that prohibit or limit sex workers with HIV must be removed. Australia’s human rights and evidence-based HIV response needs to be reflected in policy or legislation impacting sex workers and the public. Mandatory testing systems must be removed. Testing and treatment should be voluntary and based on informed consent. Sex workers need their right to confidentiality and privacy explicitly safeguarded.

Sex workers with HIV need targeted, accurate and non-judgemental information. Sex workers need support without revealing their sex work and HIV status to protect and respect their confidentiality and privacy. Training and education must be provided for health professionals who interact with people with HIV and sex workers to reduce stigma, provide more support for behaviour and choices, and understanding that sex work does not increase the risk of HIV transmission.