Sex work: not prohibited, not permitted

Criminalization sets a context in which the range of human rights violations experienced by sex workers is validated. Cross-movement collaboration on decriminalizing sex work is needed, now, more than ever.

Susana T. Fried
15 December 2016

  AP Photo/Christophe Ena

In mid-November, I attended a RedTraSex meeting to review “Advances, challenges and strategies of the RedTraSex: strengthening sustainability and advancing the recognition of our rights.” RedTraSex is the Red de Mujeres Trabajadoras Sexuales de Latinamérica y el Caribe (Network of Sex Workers of Latin America and the Caribbean.)  RedTraSex, on the cusp of celebrating its 20th anniversary, is made up of organizations from fifteen countries - Argentina, Belize, Bolivia, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and Dominican Republic.

The UN Joint Programme on HIV/AIDS defines sex workers as “a group of individuals defined as female, male or transgender adults and young persons who receive money or goods in exchange for sexual services on either a regular or occasional basis.” Most countries in South and Central America do not explicitly criminalize sex work.  Yet, as many speakers during the meeting stressed, this doesn’t equate with freedom from stigma, discrimination or police harassment.  Indeed, context is everything.

In describing the situation of sex workers in Latin America, a number of speakers noted that in Latin America, sex work is not prohibited, but it isn’t permitted either. In saying this, they raised a critical issue for conversations about criminalization and decriminalization.  While sex work is not a criminal offense in most of South and Central America, it also is not considered to be a legitimate form of work. Removing sex work from criminal codes is a critical part of improving the lives of sex workers and to their access to justice and to services.  However, such a change in criminal laws is one step only in a process of ensuring that sex workers can exercise and enjoy their human rights. 

The process of ensuring access to services and access to justice for sex workers is similar to the situation faced by lesbian, gay, bisexual and transgender people in many countries. For sex workers of all genders, as well as people who engage in same sex conduct, discrimination has a strong impact on their everyday activities.  Moreover, the persecution they face and the institutional violence they experience does not depend on their criminal or decriminalized status.  Rather, the pervasiveness of stigma and social sanction results in harassment, extortion, and violence perpetrated by the police, the criminal justice system and by families and communities. 

Criminalization sets a context in which the range of human rights violations experienced by sex workers of all genders, people who engage in same sex conduct, and people whose gender identity transgresses social and cultural norms is validated.  As the UN Special Rapporteur on the Right to Health reported, criminalization authorizes and normalizes punitive laws and practices. And it makes it more difficult to demand rights and redress.  And it authorizes a range of abuses that operate outside of the criminal law, and instead through a series of regulations and ordinances that have a significant impact on sex workers’ lives, such as “vagrancy,” “loitering,” “obscenity,” and the like.  On these vague and mutable ground, sex workers face harassment, extortion and sexual assault, especially by the police.  Some countries do not directly criminalize the exchange of sex for remuneration, but they continue to criminalize all surrounding activities, including soliciting or “brothel-keeping” (at times defined as two or more sex workers operating together), thus making it impossible for sex workers to avoid breaking a law.

Sex workers note that anti-trafficking legislation and health regulations can significantly circumscribe their ability to exercise their rights.  In many countries, the police routinely conflate sex work and trafficking and, as a result, use anti-trafficking laws to harass and penalize sex workers. The Global Network of Sex Work Projects describes the hype about trafficking that is often stoked around global sports events.  They explain “At the World Cup event held in Germany in 2006, unsubstantiated reports claimed that tens of thousands of women would be trafficked for the event, despite prostitution being legal in Germany. When the Berlin police raided over seventy brothels, no evidence of trafficking was found.”  They comment that similar “sex panics” were whipped up at the 2010 World Cup in South Africa and the London Olympics in 2012.

In other countries, health regulations are the mode of transmitting stigma and discrimination.  For instance, in a report on 15 countries in South and Central America, RedTraSex recounts how in one clinic designed specifically for sex workers in Costa Rica, the staff person denigrates the women as they enter the clinic.   In this case, because sex work is not criminalized, sex workers organized to address the mistreatment.

The mixed status – not prohibited by not permitted – has led to innovative organizing strategies by sex workers.  For instance, Girasoles (“Sunflowers”) is an organization of women sex workers in Nicaragua.  In 2015, they launched a project in which Girasoles members are trained to be judicial facilitators.  This initiative is done in collaboration with the justice system, so that the Girasoles members are formally recognized as “auxiliaries” by the Supreme Court of Justice (CSJ).  In this capacity, Girasoles judicial facilitators provided services to several hundred individuals and presented a formal report to the CSJ.

In Colombia, sex workers are reclaiming their right to the city. PARCES is an organization of sex workers of all genders, based in Bogotá, Colombia.  Much of their work focuses on documentation in a context in which sex work is legal but sex workers, especially trans sex workers, face constant violence and harassment. In this project, “Reclaiming the Right to the City,” PARCES members document human rights violations against sex workers and other people on the streets, primarily by the police. It is important to note that not only is sex work legal in Colombia, but it is also recognized as decent work in Colombia’s Constitution.

The debate about sex work and decriminalization can be quite fractious.  In the context of HIV, evidence overwhelming points to the negative impact of criminalization on sex workers’ health. Indeed, as one of the most extensive epidemiological studies of sex work and HIV notes, “Decriminalization of sex work would have the greatest effect on the course of HIV epidemics across all settings, averting 33–46% of HIV infections in the next decade.”   Moreover, we also know the ways in which governments use criminal laws not just to contain and regulate the lives of individuals, but they also use it to circumscribe the work of civil society organizations working on these issue. 

Such efforts to control and minimize the impact of civil society links efforts on decriminalization across issues areas and movements, and especially those focusing on criminalization of sexuality, sexual conduct and sexual and reproductive rights. It is imperative, in this context, to build and strengthen cross-movement collaboration, now, more than ever.

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