In addition to the release of our newly created position statement discussing our stance on the criminalization of HIV non-disclosure as posted last week, we would also like to formally announce our support of the decriminalization of prostitution. This position statement carefully examines both sides of the decriminalization of prostitution argument including issues such as stigma, public health concerns, deterrence and moral arguments. Here is our statement in full:
Introduction
All Canadians are afforded the right to work in a safe environment with our general health and well-being protected by various governmental and social organizations. Our human rights as Canadians allow us to be treated equally and provide us with the opportunity to be protected equally. Unfortunately, due to the criminalization of prostitution under sections 210-213 of The Criminal Code of Canada, sex workers are not afforded these same rights. Their basic human rights are violated by the institution of these laws and therefore sex workers’ health and safety suffer.
Criminalization of Prostitution: Current Canadian Law
Section 210 – Prohibits anyone from working in and/or owning a “Bawdy House”, otherwise known as a Brothel. Under Criminal Code, a Bawdy House can constitute any place a person occupies for the purpose of prostitution. This includes sex worker and client houses, hotels, a car, and/or massage and body rub parlors.
Section 211 – It is illegal for a person to direct or take some one to a Bawdy House. This includes taxi drivers, hotel concierge and a chauffer.
Section 212 – Outlaws living on the avails of prostitution this includes family members or any person’s who would be supported by a sex worker. This law also prohibits procuring prostitution. More specifically, procuring prostitution means it is illegal to persuade some one into engaging in prostitution or making referrals to a sex worker.
Section 213 – Prohibits communication for the purpose of prostitution in public. This means it is illegal to negotiate services with a sex worker or for a sex worker to discuss services in a public place, which includes public phones and cell phones. It is also illegal to stop vehicles or people on the street for prostitution.
Breaking these laws can vary in terms of punishment; some include fines or jail time.
Arguments in favor of Criminalization
Deterrence
Many criminalization advocates believe it will deter those considering sex work as a possible career, and hinder potential clients. Those who agree with this argument assume that criminalization will deter veteran sex workers from continuing to engage in sex work.
Exploitation and Human Trafficking
Many criminalization advocates feel that sex work is not a chosen profession and that sex workers are persuaded or forced into it. Those who agree with this argument believe that criminalization will eliminate human trafficking and sexual exploitation.
Public Health Concern
Many criminalization advocates believe that sex worker’s do not practice safer sex and are responsible for high rates of sexually transmitted infections (STI’s). Those who agree with this argument believe that if prostitution is criminalized there will be a decrease in STI rates.
Moral Argument
Many criminalization advocates believe that sex work is morally wrong and therefore should be against the law. Those who agree with this argument believe that if we continue to criminalize prostitution that people will stop engaging in sex work and we will abolish sex work from our society.
Arguments in favor of Decriminalization
Deterrence
It is clear that although our Criminal Code prohibits sex work, still people engage in sex acts for money both as clients and as sex workers. The criminalization of prostitution often leads sex workers to be continuously processed through the legal system, sometimes resulting in their own incarceration and contributing to mounting legal fees. In actuality criminalization keeps people involved in the sex trade creating a cycle where often the only option to repay fines is to return to sex work.
Exploitation and Human Trafficking
Sex work and human trafficking are often assumed to be the same thing; assuming that becoming a sex worker is not a choice. Sex workers enter into this line of work for a variety of social and economic reasons. Decriminalizing prostitution would help create transparencies between who is a willful sex worker and who is not, and resources spent on prosecuting consenting adults involved in sex work could be better used to prosecute abuses and trafficking. There are already laws in place used to prosecute trafficking and other offences related to coercion and confinement, prostitution laws are not needed in these cases.
Public Health Concerns
There are many jobs that put their employees’ and patrons’ health at risk. Most of these careers offer protection and education against the risks of their profession. Sex workers are disallowed these same rights and decriminalization could instigate the creation of a standardized health care plan, as well as standardized harm reduction education. Also, there is always a risk of STI or HIV transmission when having unprotected sex, however, unprotected sex and infection transmission isn’t a direct result of paying for sex with money. By decriminalizing prostitution we may open the door to testing and health care that can be accessed by sex workers without fear of discrimination, judgment and criminalization. Sex workers will feel more empowered to protect themselves; they will have a voice and will be able to negotiate safer sex with their dates.
Stigma and Discrimination
Most sex workers want to have the ability to function in society without judgment or social barriers. The criminalization of prostitution generalizes that all sex workers are criminals and should be pushed to edges of our society. This legal barrier prevents sex workers the opportunity to speak openly about their profession only to perpetuate stereotypes and stigma. The law suggests that sex workers are second-class citizens, which is a violation of their human rights. We must remember that sex workers are our daughters, sons, mothers, fathers and brothers and they are entitled to be treated with dignity and respect.
Increased Harm
The criminal code contributes to the segregation of sex workers and society. As it is illegal for them to work in groups or public areas, sex workers find themselves in increasingly vulnerable situations and at risk to experience violence. When sex workers are forced to work in isolated areas for fear of criminalization they are more likely to experience violence because they do not have the time to screen dates or negotiate safer sex. Criminalization also creates a divide between sex workers and the police, and promotes the attitude that sex workers deserve whatever abuse they incur as they too are criminals. This means that many of the bad dates that sex workers experience go unreported for fear that they themselves will be criminalized during the reporting.
Legal Contradictions
Although prostitution is legal in Canada the ambiguity of the laws create confusion and violates sex worker’s human rights. For example, it is legal to have sex on camera and get paid for the purpose of adult films, be an exotic dancer and work in an erotic massage parlor. The definition of sex worker then becomes blurred as in most of these professions the exchange of a sexual encounter for money is taking place. These laws are hierocracy and as Canadians we have a vested interest in ensuring our laws are not hypocritical.
Moral Argument
Regardless of whether or not sex work is immoral, sex workers are human beings who deserve the right to health and safety. We have a right to protect people and all individuals regardless of their job deserve the right to safety and to work free of violence. There are many things that people in our society believe are immoral and that we do not criminalize i.e. suicide attempts, infidelity, adult pornography, and homosexuality.
Conclusion
Criminalization of prostitution limits sex workers’ ability to take necessary security precautions by forcing them to work alone and in isolated areas. The fear of criminal charges prevents sex workers from properly screening dates, communicating to fellow sex workers information about dangerous clients or negotiating safer sex. These factors contribute to the cycle of sex workers’ increased vulnerability to health risks and experiencing violence.
Stigma and prejudice around sex work are also magnified by its criminalization. If these Canadian citizens are entitled to the same health, safety and tax benefits as other professions it would alleviate the idea that sex workers are lesser citizens. Their rights would become par to the rights of other Canadians.
AIDS Calgary endorses efforts to decriminalize prostitution in Canada for those adult individuals who engage in sex work.
These considerations are compiled from the following sources:
1. FIRST (www.firstadvocates.org). Out of the Shadows: Why Canada Must Decriminalize Consensual, Adult Sex Work. September 2010.
2. John Lowman’s Prostitution Research Page (http://mypage.uniserve.ca/~lowman/). Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution. October 2009.
3. Pivot Legal Society (www.pivotlegal.org. Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform. June 2006.
4. Canadian HIV/AIDS Legal Network (http://aidslaw.ca). Decriminalization of Prostitution to Reduce Sex Workers’ Vulnerability to HIV. September 2006.
For a print ready version of our statement click here.
Showing posts with label position statements. Show all posts
Showing posts with label position statements. Show all posts
Thursday, June 2, 2011
Thursday, May 26, 2011
ACAA's position statement on the criminalization of HIV non-disclosure
We have recently created a position statement formally announcing our stance on the criminalization of HIV non-disclosure. In our statement we carefully examine both sides of the argument, here is our full position statement on this issue:
Background:
Between 1989-2009 Canada has had a total of 104 cases and 98 criminal charges laid in
relation to HIV non disclosure(1). As an AIDS service organization, we are concerned with the number of cases that have been brought forward regarding HIV non disclosure and havedeveloped the below policy outlining our position on the issue by examining the arguments for and against the criminalization of HIV non-disclosure.
AIDS Calgary Policy:
AIDS Calgary Awareness Association is the largest AIDS Service organization in Alberta. We believe in harm reduction, human rights and the promotion of education, advocacy and prevention efforts pertaining to the transmission of HIV. Therefore AIDS Calgary opposes the criminalization of HIV transmission and/or exposure. The exception to this includes proven purposeful or malicious transmission of HIV with intent to harm and in these rare cases we encourage that existing criminal laws can and should be applied. A more appropriate and effective response to those who knowingly or unknowingly transmit HIV would be to utilize current public health procedures and programs.
Arguments for the Criminalization of HIV Non-disclosure Include:
Deterrence:
Those in favor of criminalization believe that the application of the law will effectively deter individuals from committing further acts of transmission.
Rehabilitation:
Those in favor of rehabilitation believe that incarceration will enhance prevention efforts, and assist in the rehabilitation of those who have knowingly spread HIV.
Complications surrounding HIV disclosure:
Those in favor of criminalization believe that they have the right to protection from those who may be unwilling or unable to disclose their HIV status through the utilization of the criminal justice system.
Stigma & Discrimination:
Those in favor of criminalization believe that the use of the law will assist in the protection of the general public, including those who may be marginalized.
Arguments against the criminalization of HIV non-disclosure:
Deterrence:
There is no evidence to support the claim that criminalization is an effective deterrent for individuals. This is especially true in the first few months of infection, as the individual most likely does not know they are carrying the virus(2). To prosecute people living with HIV would directly contradict efforts to prevent HIV transmission by encouraging safer sexual practices, voluntary HIV testing, and voluntary disclosure(3).
Rehabilitation:
Placing people living with HIV in prison is only going to enhance the risk of HIV transmission to others. Prisons often do not provide access to harm reduction supplies such as condoms, regular testing and syringes. Appropriate rehabilitation would include access to current information, counseling services and safer sex and drug use equipment. Available data shows no difference in behaviour between places where laws criminalizing HIV transmission exist and where they do not(3). (UNAIDS)
Complications surrounding HIV disclosure:
The courts “have not clearly defined in law what counts as a significant risk of HIV transmission(1). There are no specific laws regarding HIV exposure or transmission. Therefore it is up to interpretation on what significant risk is. This is decided upon by individual courts and judges. There have been charges laid in cases where evidence would state that there was no “significant risk” (i.e. vaginal intercourse with a condom.
There are complications surrounding disclosing your HIV status, some which may include: An individual may not know their HIV status, the person living with HIV may have taken appropriate precautions (i.e. condom use), they may not have the mental or emotional capacity to disclose (i.e. disability, under the influence of drugs or alcohol, etc), or they may not disclose due to fear of violence, discrimination or other serious negative consequences. The available evidence shows that most people living with HIV who know their status take steps to prevent transmitting HIV to others(3).
Stigma and Discrimination:
The handling of charges laid and the inconsistency in the sentencing handed down has led to sensationalism, promoted fear and ignorance in the community about how HIV transmission happens. Additionally, poor media coverage has also created further stigma as it often paints those undergoing prosecution as immoral and highly dangerous individuals. It has also shown a complete disregard to the confidentiality rights that someone living with HIV should be entitled to. Prosecutions and convictions are likely to be disproportionately applied to members of marginalized groups, such as sex workers, men who have sex with men, culturally diverse individuals and people who use drugs. We are also concerned that with the issues of stigma and discrimination and fear of prosecution that this will create yet another reason people do not get tested for HIV.
Conclusion:
We recommend an approach whereby there is universal access to prevention and public health measures. We believe in a approach where individuals are counselled and educated on how best to engage in safer sex and are given the tools to do so. There is a need to educate the broader community beyond those living with HIV about the risks of engaging in unprotected sex and to ensure a sense of personal responsibility. We cannot assume anything about our sexual partners’ history and as individuals have to take the steps needed to protect ourselves. If there continues to be cases where we are criminalizing HIV non-disclosure we recommend the development and use of universal guidelines to criminalize that is based on scientific and evidence based information about transmission.
Sources:
1.HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario. Ontario HIV Treatment Network, 2010. http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf
2.10 Reasons to oppose the Criminalization of HIV exposure of transmission: Open Societies Foundation. Retrieved 2011 from: http://www.soros.org/initiatives/health/focus/law/articles_publications/publications/10reasons_20080918
3.UNAIDS Policy Brief Criminalization of HIV Transmission. Retrieved 2011 from: http://data.unaids.org/pub/basedocument/2008/20080731_jc1513_policy_criminalization_en.pdf
To see the other considerations and compiled sources please click here.
Background:
Between 1989-2009 Canada has had a total of 104 cases and 98 criminal charges laid in
relation to HIV non disclosure(1). As an AIDS service organization, we are concerned with the number of cases that have been brought forward regarding HIV non disclosure and havedeveloped the below policy outlining our position on the issue by examining the arguments for and against the criminalization of HIV non-disclosure.
AIDS Calgary Policy:
AIDS Calgary Awareness Association is the largest AIDS Service organization in Alberta. We believe in harm reduction, human rights and the promotion of education, advocacy and prevention efforts pertaining to the transmission of HIV. Therefore AIDS Calgary opposes the criminalization of HIV transmission and/or exposure. The exception to this includes proven purposeful or malicious transmission of HIV with intent to harm and in these rare cases we encourage that existing criminal laws can and should be applied. A more appropriate and effective response to those who knowingly or unknowingly transmit HIV would be to utilize current public health procedures and programs.
Arguments for the Criminalization of HIV Non-disclosure Include:
Deterrence:
Those in favor of criminalization believe that the application of the law will effectively deter individuals from committing further acts of transmission.
Rehabilitation:
Those in favor of rehabilitation believe that incarceration will enhance prevention efforts, and assist in the rehabilitation of those who have knowingly spread HIV.
Complications surrounding HIV disclosure:
Those in favor of criminalization believe that they have the right to protection from those who may be unwilling or unable to disclose their HIV status through the utilization of the criminal justice system.
Stigma & Discrimination:
Those in favor of criminalization believe that the use of the law will assist in the protection of the general public, including those who may be marginalized.
Arguments against the criminalization of HIV non-disclosure:
Deterrence:
There is no evidence to support the claim that criminalization is an effective deterrent for individuals. This is especially true in the first few months of infection, as the individual most likely does not know they are carrying the virus(2). To prosecute people living with HIV would directly contradict efforts to prevent HIV transmission by encouraging safer sexual practices, voluntary HIV testing, and voluntary disclosure(3).
Rehabilitation:
Placing people living with HIV in prison is only going to enhance the risk of HIV transmission to others. Prisons often do not provide access to harm reduction supplies such as condoms, regular testing and syringes. Appropriate rehabilitation would include access to current information, counseling services and safer sex and drug use equipment. Available data shows no difference in behaviour between places where laws criminalizing HIV transmission exist and where they do not(3). (UNAIDS)
Complications surrounding HIV disclosure:
The courts “have not clearly defined in law what counts as a significant risk of HIV transmission(1). There are no specific laws regarding HIV exposure or transmission. Therefore it is up to interpretation on what significant risk is. This is decided upon by individual courts and judges. There have been charges laid in cases where evidence would state that there was no “significant risk” (i.e. vaginal intercourse with a condom.
There are complications surrounding disclosing your HIV status, some which may include: An individual may not know their HIV status, the person living with HIV may have taken appropriate precautions (i.e. condom use), they may not have the mental or emotional capacity to disclose (i.e. disability, under the influence of drugs or alcohol, etc), or they may not disclose due to fear of violence, discrimination or other serious negative consequences. The available evidence shows that most people living with HIV who know their status take steps to prevent transmitting HIV to others(3).
Stigma and Discrimination:
The handling of charges laid and the inconsistency in the sentencing handed down has led to sensationalism, promoted fear and ignorance in the community about how HIV transmission happens. Additionally, poor media coverage has also created further stigma as it often paints those undergoing prosecution as immoral and highly dangerous individuals. It has also shown a complete disregard to the confidentiality rights that someone living with HIV should be entitled to. Prosecutions and convictions are likely to be disproportionately applied to members of marginalized groups, such as sex workers, men who have sex with men, culturally diverse individuals and people who use drugs. We are also concerned that with the issues of stigma and discrimination and fear of prosecution that this will create yet another reason people do not get tested for HIV.
Conclusion:
We recommend an approach whereby there is universal access to prevention and public health measures. We believe in a approach where individuals are counselled and educated on how best to engage in safer sex and are given the tools to do so. There is a need to educate the broader community beyond those living with HIV about the risks of engaging in unprotected sex and to ensure a sense of personal responsibility. We cannot assume anything about our sexual partners’ history and as individuals have to take the steps needed to protect ourselves. If there continues to be cases where we are criminalizing HIV non-disclosure we recommend the development and use of universal guidelines to criminalize that is based on scientific and evidence based information about transmission.
Sources:
1.HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario. Ontario HIV Treatment Network, 2010. http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf
2.10 Reasons to oppose the Criminalization of HIV exposure of transmission: Open Societies Foundation. Retrieved 2011 from: http://www.soros.org/initiatives/health/focus/law/articles_publications/publications/10reasons_20080918
3.UNAIDS Policy Brief Criminalization of HIV Transmission. Retrieved 2011 from: http://data.unaids.org/pub/basedocument/2008/20080731_jc1513_policy_criminalization_en.pdf
To see the other considerations and compiled sources please click here.