Sex Work and the Law in Asia and the Pacific

This study was designed to: describe the diversity of laws that affect HIV responses in the context of sex work in the Asia Pacific region; assess the impact of laws, legal policies, and law enforcement practices on HIV responses in the context of sex work; and provide recommendations for actions required to create enabling legal and policy environments for HIV responses in the context of sex work.

The following laws, policies, and practices were found to be harmful to HIV responses:
(i) Criminalisation of sex work
(ii) Punitive law enforcement practice
(iii) Confiscation of condoms
(iv) Criminalisation of clients
(v) Licensing or registration
(vi) Mandatory, compulsory, or coerced testing
(vii) Lack of labour rights and social security rights
(viii) Denial of identity documents and citizenship rights
(ix) Compulsory detention centres
(x) Anti-trafficking laws, policies, and practice
(xi) 100% Condom Use Programmes (CUPs)

In short, as stated in the document, criminalisation and punitive enforcement practices increase vulnerability to HIV by: fuelling stigma and discrimination; limiting access to HIV and sexual health services, condoms, and harm reduction services; and adversely affecting the self- esteem of sex workers and their ability to make informed choices about their health. It negatively impacts their willingness to report abuses in order to protect themselves. Because most sex work occurs outside of licensing systems, even when those are in place, the practice of regulation has not proven effective against HIV. Coercive or compulsory testing practices violate human rights to autonomy and privacy and increase risk of discrimination, as do denial of labour and security rights and identity and birth documentation. Detention is also a rights violation and can increase HIV risk when there is no access to prevention and treatment at centres. "Laws that conflate human trafficking and sex work and define sex work as 'sexual exploitation' contribute to vulnerability, generate stigma, and create barriers to HIV service delivery. Trafficking laws have been used to justify crackdowns and raids that suppress adult voluntary sex work..." undermining HIV responses. "Condom programmes that rely on enforcement or mandatory measures by health authorities, police or managers of sex work businesses can be counterproductive to HIV responses. Health promotion programmes based on community empowerment approaches that are led by sex workers are more likely to avoid human rights violations and result in sustained HIV prevention outcomes than models that rely on mandatory provisions and coercion."

Among laws, policies, and practices that support HIV responses and include elements of communication and advocacy are the following:

• Supreme Court judgments that guarantee protection of sex workers' human rights.
• National policies that decriminalise sex work, prevent condom confiscation and harassment, and bar disruption of access to testing, treatment, and prevention services.
• National commitment to: a needs assessment to examine stigma, discrimination, and human rights violations among sex workers, giving special attention to attitudes among health care and law enforcement workers; and law reform to strengthen the human rights position of sex workers.
• Enabling legislation that provides sex workers with: access to a social security system; guarantees of access to condoms and other means of HIV protection; implementation of harm reduction interventions, HIV education, and advocacy; the right to voluntary counselling and testing and confidentiality, as well as prohibition of compulsory testing and confiscation of condoms; and decriminalisation of sex work.

Sex workers have organised to improve the legal environment of Asian and Pacific countries using some of the following strategies:

• Mobilising to address human rights violations, advocating for law reform, and engaging with the police to improve law enforcement practices, including community-based efforts to educate the police about HIV.
• Advocating for legal protections and health and safety.
• Implementing a project that funds paralegals to give legal advice and health information to sex workers and engages in advocacy on justice issues.
• Documenting the impact of a police crackdown on sex work and HIV responses to provide evidence for advocacy.
• Implementing a police cadet internship programme and cadet training curriculum to expose police cadets to peer-based HIV prevention activities.
• Advocating for labour protection measures to be extended to sex workers and decriminalisation of sex work, including opening a bar that provides sex workers with working conditions that comply with standards under the country's Labour Protection Act.

The conclusions call for: legal empowerment of sex worker communities; legal, legislative, and policy reform; and national planning of HIV responses, including research and monitoring and evaluation.