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Realigning government action with public health evidence: the legal and policy environment affecting sex work and HIV in Asia a

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Sofia Gruskin , Gretchen Williams Pierce & Laura Ferguson

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a

Program on Global Health and Human Rights, Institute for Global Health, University of Southern California, Los Angeles, CA, USA

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Department of Global Health and Social Medicine, Harvard Medical School, Boston, MA, USA Published online: 16 Aug 2013.

To cite this article: Sofia Gruskin, Gretchen Williams Pierce & Laura Ferguson (2014) Realigning government action with public health evidence: the legal and policy environment affecting sex work and HIV in Asia, Culture, Health & Sexuality: An International Journal for Research, Intervention and Care, 16:1, 14-29, DOI: 10.1080/13691058.2013.819124 To link to this article: http://dx.doi.org/10.1080/13691058.2013.819124

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Culture, Health & Sexuality, 2014 Vol. 16, No. 1, 14–29, http://dx.doi.org/10.1080/13691058.2013.819124

Realigning government action with public health evidence: the legal and policy environment affecting sex work and HIV in Asia Sofia Gruskina*, Gretchen Williams Pierceb and Laura Fergusona a

Program on Global Health and Human Rights, Institute for Global Health, University of Southern California, Los Angeles, CA, USA; bDepartment of Global Health and Social Medicine, Harvard Medical School, Boston, MA, USA

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(Received 13 December 2012; final version received 20 June 2013) The HIV epidemic has shed light on how government regulation of sex work directly affects the health and well-being of sex workers, their families and communities. A review of the public health evidence highlights the need for supportive legal and policy environments, yet criminalisation of sex work remains standard around the world. Emerging evidence, coupled with evolving political ideologies, is increasingly shaping legal environments that promote the rights and health of sex workers but even as new legislation is created, contradictions often exist with standing problematic legislation. As a region, Asia provides a compelling example in that progressive HIV policies often sit side by side with laws that criminalise sex work. Data from the 21 Asian countries reporting under the UN General Assembly Special Session on HIV in 2010 were analysed to provide evidence of how countries’ approach to sex-work regulation might affect HIV-related outcomes. Attention to the links between law and HIV-related outcomes can aid governments to meet their international obligations and ensure appropriate legal environments that cultivate the safe and healthy development and expression of sexuality, ensure access to HIV and other related services and promote and protect human rights. Keywords: sex work; HIV/AIDS; Asia; human rights; law

Introduction Across the globe, sex work remains contested both socially and politically as a legitimate and legal form of work. Given its often criminalised status, it is difficult to quantify the scope and breadth of sex work markets, the workers that populate them or the clients who use them. However, there is growing attention to the implications for health and rights of the ways sex work is regulated. Publicly available information on what countries are saying about their national legal environments offers a window for them to look at their own strengths and limitations, and can be used by civil society as the basis for legal reform advocacy. Bringing this information together with relevant HIV-outcome data, shortcomings in governmental legal and policy frameworks can be highlighted and adjustments made to improve the effectiveness of national HIV responses and the lives of sex workers more generally. Identifying dissonance between international standards, national policies and known public health best-practice, this paper takes the existence of sex work as a reality. It seeks to provide an overview of the regulatory frameworks relevant to sex work and HIV and, using Asia as a regional focus due to the diversity of its legal environments and epidemics, begins to *Corresponding author. Email: [email protected] This work was commenced when all three authors were with the Program on International Health and Human Rights, Harvard School of Public Health, USA. q 2013 Taylor & Francis

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map differences in reported laws and policies as these may impact sex workers’ HIV knowledge, access to HIV services and HIV prevalence. Analysis of these data draws on public health evidence, which suggests that a supportive environment, including legal protections for the rights and health of sex workers, will result in better rights and health outcomes.

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HIV and sex work in Asia The Joint United Nations Programme on HIV/AIDS (UNAIDS 2012) estimates that about five million people were living with HIV in Asia in 2011. Young people are at higher risk of contracting HIV and in some countries more than half of female sex workers are below age 25. It has been estimated that there are approximately 10 million sex workers in Asia and 75 million male clients (Commission on AIDS in Asia 2008). A meta-analysis of the burden of HIV among sex workers in low- and middle-income countries found that the sample of sex workers in Asia had the highest burden – among all regions – relative to all other women of reproductive age (Baral et al. 2012). The 2010 UNAIDS Report on the Global AIDS Epidemic described sex work as ‘central to the region’s epidemics’ due to ‘infrequent’ condom use and the increasing overlap between the sex work and injecting drug use communities (UNAIDS 2010, 34). Further, ‘Clients of sex workers make up the largest key population at higher risk in Asia: depending on the country, between 0.5% and 15% of adult men in the region are believed to buy sex’ (WHO, UNAIDS, and UNICEF 2011, 30). Public-health interventions aimed at halting the spread of HIV and providing treatment and care to those already infected nonetheless frequently fail to effectively reach informal sex workers and their clients (UNAIDS 2011). Most countries in the Asia-Pacific region criminalise some aspects of sex work, which leads to ‘police crackdowns, institutionalized harassment, detention and extortion of sex workers’ (UNAIDS 2011, 48). Legal and regulatory approaches to sex work: the evidence The approaches to regulation of sex work across countries can be characterised as: (1) criminalisation, (2) decriminalisation, (3) regulation and/or legalisation and (4) the absence of meaningful regulation or legislation. It is rare that only one of these approaches is implemented within a country. Additionally, regulations may exist on paper but not be implemented or enforced. Complicating the ways in which sex workers are reached by public health interventions, and with dire implications for their rights and health, are regulatory landscapes with contradictory approaches, for example criminal code provisions coexisting alongside a supportive HIV/AIDS law. The ideal regulatory approach to sex work remains debated, but decriminalisation has been endorsed as a necessary step towards fulfilment of the health and rights of sex workers, and society at large, by the World Health Organisation, UNAIDS, the UN Special Rapporteur on the Right to Health, the Commission on AIDS in Asia, the UN Secretary General Ban Ki-moon and the Global Commission on HIV and the Law, among others (Global Commission on HIV and the Law 2012). Key international agencies have noted that sex workers face ‘harmful legislation and human rights violations’ and that decriminalising sex work is ‘necessary to reduce social vulnerability and improve the access to and uptake of essential HIV interventions’ (WHO, UNAIDS, and UNICEF 2011, 133). Presented by legal context, the evidence below highlights what is known about the positive and negative aspects of different forms of regulation for health. Data from Asia

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are highlighted and, since it is the most common form of regulation within the region, an emphasis is placed on criminalisation.

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Criminalisation Where criminalisation exists, sex work is made illegal by specific sections of the prevailing criminal code. Criminalisation can be legally manifested by making all forms of sex work illegal or simply by prohibiting ‘related activities’ such as soliciting, brothel keeping and procurement, which ‘effectively criminalises prostitution (Mossman 2007, 11). In some settings, sex work is criminalised due to a conflation between voluntary sex work and trafficking. For example, the UN Special Rapporteur on the Right to Health notes that in Cambodia, even as there is no distinct law prohibiting sex work, the Law on the Suppression of Human Trafficking and Sexual Exploitation ‘includes provisions that prohibit activities around sex work and effectively criminalize the sex sector in its entirety’ (OHCHR 2010, 11). As detailed below, the evidence shows that none of these approaches to criminalisation contributes to shaping the ‘supportive environments’ that UNAIDS and others have determined necessary for an effective HIV response (UNAIDS 2009). Stigma and discrimination against sex workers are frequently reported as amplified in places where sex work is criminalised, which carries implications for the health of sex workers generally as well as for their ability to access and use healthcare and other social services (Ahmed et al. 2011; Lazarus et al. 2012; Okanlawon, Adebowale, and Titillayo 2012; Scorgie et al. 2013). A study in Hong Kong found that, reinforced by criminalisation, occupational stigma negatively impacts the sex workers’ health – through abuse, harassment, violence and deterrence from seeking health services (Wong, Holroyd, and Bingham 2011). Stigma and discrimination were primary barriers to accessing sexually transmitted infection (STI) treatment and care among female sex workers in Nepal’s Kathmandu Valley (Ghimire and van Teijlingen 2009). A study of migrant female sex workers in Beijing found that, due at least in part to structural barriers arising from criminalisation, less than half of the women were able to access healthcare to prevent and address STIs and/or health issues related to exposure to violence (Yi et al. 2010). China’s system of ‘re-education through labour’ centres, in which female sex workers are administratively detained, has been shown to cause further social stigma and decrease the probability that detainees will be able to access needed services upon release (Tucker, Ren, and Sapio 2010). Multiple studies have found that when sex workers must operate illegally, their mental health routinely suffers (Seib, Fischer, and Najman 2009). Sex workers operating within a criminalised context are also more vulnerable to STIs due to working conditions that prevent them from taking appropriate safety measures with clients, in particular the negotiation of condom use. Evidence has shown that in criminalised settings, sex workers often move to more secluded areas and agree to go with clients more quickly in order to avoid police detection (Okal et al. 2011). In many countries, it has been common practice for police to confiscate condoms as evidence of sex work, even when there is an HIV law in place supporting condom distribution to these same populations. Sex workers’ ability to negotiate condom use may also be undermined by the illegality of their activities and associated economic vulnerabilities (Global Commission on HIV and the Law 2012; Handlovsky, Bungay, and Kolar 2012). A study in Pakistan found that violence and abuse perpetrated by police ‘ . . . is not only a violation of their physical and mental integrity, but may also lead to increased risk of HIV . . . [S]ex workers experienced physical and sexual abuse that increased the risk of tears and wounds

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to the vaginal or anal tracts’ (Mayhew et al. 2009, ii34). Another study of sex workers in India showed that ‘police-related experiences’ (e.g. coerced sex with police, condoms confiscated by police, workplace raids, arrest etc.) are associated with indicators of increased HIV risk: STI symptoms, inconsistent condom use and client violence (Erausquin, Reed, and Blankenship 2011). In contrast, a systematic review of the effectiveness of 28 HIV interventions among sex workers found that access to STI services and condom promotion decreases the burden of STIs among sex workers and that policy support for such interventions improves intervention efficacy (Shahmanesh et al. 2008) Violence, perpetrated both by clients and authorities, is an unfortunate mainstay of criminalised sex work. Street-based sex work, which is especially common where sex work is criminalised, has been associated with higher levels of client violence than working indoors (Maher et al. 2011). Due to threats of arrest in criminalised settings, sex workers frequently migrate from known, well-populated areas to isolated locales where client violence is more likely to occur and negotiation of condom use less likely (Kru¨si et al. 2012). In a study of female sex workers in Vietnam, the criminalised context of sex work diminished sex worker agency and contributed to almost all of the reported physical and sexual abuse by clients (Ngo et al. 2007). A Canadian study concluded that there exists ‘an independent association between criminalization and enforcement based approaches to sex work and raised odds of both physical and sexual violence against female sex workers’ (Shannon et al. 2009, 7). In China – where sex work in criminalised – effective HIV prevention efforts among sex workers have been thwarted by limited operating capacity for sex worker non-governmental organisations (NGOs) (Kaufman 2011). Evidence shows that informal peer networks, which support sex workers ‘in managing their risk environment’ (i.e., increasing safer sex practices and deterring client violence) may be routinely disrupted by policing, while the data indicate that ‘the importance of public health policy that advocates and supports peer networks in regulating sex worker protocol and safe sex practices cannot be overstated’ (Shannon et al. 2008, 919). There is overwhelming evidence illustrating the frequency with which sex workers face violence at the hands of clients and police within criminalised settings – with documented evidence of the resulting vulnerability to STIs (Shannon and Montaner 2012). Regulation, decriminalisation and legalisation Licensing regimes, a form of regulation, provide governments with the opportunity to tax the sex work industry and for measures such as mandatory health screenings to be imposed. Even when well intentioned, such measures may result in human rights violations and, in general, licensing has been associated with the creation of a clandestine tier of sex workers seeking to avoid regulation (Harcourt, Egger, and Donovan 2005). New Zealand and New South Wales, Australia, have both decriminalised sex work, integrating instead some elements of regulation. Benefits reported by sex workers include an ‘improved sense of well-being’, a greater sense of security in the workplace and increased ability to safely report violence to police, access health information and services and refuse a potential client (Prostitution Law Review Committee 2008, 49). In New Zealand, workplace health and safety standards have been established for sex workers and sex workers can bring employment complaints to governing bodies. However, some parts of Australia have instituted ‘mandatory and forced medical testing’, which may infringe sex workers’ rights (Global Commission on HIV and the Law 2012, 41). In Nevada, USA, sex workers have overwhelmingly reported that they feel safe at work. However, they are still not eligible to receive health benefits from their place of

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work as they are considered to be independent contractors (Brents Barbara and Hausbeck 2001). In the Netherlands, although legalisation of brothels allowed for occupational safety regulations, the risk of sex workers moving underground to avoid the required employment registration has been reported (Kilvington, Day, and Ward 2001). Sweden’s 1999 law, which criminalises the purchase of sexual services but not the sale, has been criticised for its harmful impacts (Global Commission on HIV and the Law 2012). Analyses of the Swedish law have found that sex work has largely moved underground, with few successful prosecutions of clients. Sex workers report that they now face greater violence from clients and are more likely to be pressured by clients to engage in unprotected sex (Global Commission on HIV and the Law 2012). Decriminalisation of sex work, with or without legislation, has been implemented in few places thus far. Decriminalisation avoids the harms of criminalisation but also the political risks of working towards legalisation (Kilvington, Day, and Ward 2001). A recent Australian study compared three cities with varying legal regimes and found that only in the decriminalised setting were health programmes community-based, fully financially supported and able to easily access brothels (Harcourt et al. 2010). Compelling evidence exists for the removal of criminal sanctions relating to sex work. Further evidence is required of the effects on the health and well-being of sex workers and their clients within alternative approaches. Framework and methods Conceptual framework It is well established that the use of HIV-related prevention and care services is shaped by a range of individual, contextual and societal factors, including the legal and policy environment (Duff et al. 2010). Thus, for sex workers, even where such services are available, they may not use them because of perceived negative repercussions. Social ecological frameworks have often been used to explain variations in HIV prevalence (Barnett and Whiteside 1999; Decosas and Padian 2002). They have also been applied to care-seeking behaviour in the context of HIV. Many variations on social ecological frameworks have been proposed (Mugavero et al. 2011), each with slightly different approaches and priorities. The conceptual framework used here does not purport to disentangle the complex range of factors affecting HIV prevalence or care-seeking behaviour it seeks to highlight the relevance of the legal environment to the multiple influences affecting HIV-related outcomes (Figure 1). As noted above, laws and policies often serve as official sanction of discrimination, thus supporting and reinforcing negative attitudes of communities, health workers and families. Implementation of enabling laws and policies, therefore, alongside adequate consideration of all other sections of Figure 1, would seem a prerequisite for positive trends in HIV-related outcomes. For sex workers, who may encounter disproportionate disadvantage in all of these spheres, the legal environment is of critical importance. Methods The analyses presented here are based on publicly available data from the 2010 UN General Assembly Special Session (UNGASS) dataset concerning government regulation of sex work and its relation to the HIV epidemics in Asia. Countries are responsible for submitting reports to UNAIDS every 2 years on their progress toward fulfilling the

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Structural factors E.g. - HIV-relevant laws and policies - Laws and policies governing health service delivery - Gender norms - Economics

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Health facility factors E.g. - Location - Staff/supplies - Opening times - Quality of care

Experiences of health services

Individual-level factors E.g. - Socio-demographic characteristics - Attitudes and beliefs - Financial and other barriers - Perception of need/illness severity

Social factors Interpersonal processes

E.g. - Partners/ spouses - Family members - Community members

Internal processes

HIV-related knowledge

Uptake of HIV testing and prevention services

HIV-related behaviors

HIV infection

Figure 1. Conceptual framework. Adapted from Roura et al. 2009 and Gruskin et al. 2007.

commitments made at the 2001 UNGASS on AIDS. These include the National Composite Policy Index (NCPI), which incorporates government and civil society responses to the same policy questions, and quantitative indicators reported by government alone (UNAIDS UNGASS 2009; UNAIDS NCPI 2010). Despite its name, the NCPI is not an index, it is a series of questions regarding the legal and policy context within which national HIV responses are situated and includes questions directly relevant to sex work. Comment boxes are used to further clarify responses. The reporting process is usually coordinated by a government-appointed individual, responsible for soliciting responses to the policy questions from both government and civil society. The term civil society as used in this process encompasses a wide variety of stakeholders which, depending on the country and the strength and independence of these actors, may include NGOs, organisations of people living with HIV, UN agencies, donors and private sector representatives. There are five quantitative indicators relevant to sex work in the 2010 UNGASS dataset. These are: . Core Indicator 8: percentage of most-at-risk populations who received an HIV test in the last 12 months and who know their results,

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. Core Indicator 9: percentage of most-at-risk populations reached with HIV prevention programmes, . Core Indicator 14: percentage of most-at-risk populations who both correctly identify ways of preventing the sexual transmission of HIV and who reject major misconceptions about HIV transmission, . Core Indicator 18: percentage of female and male sex workers reporting the use of a condom with their most recent client and . Core Indicator 23: percentage of most-at-risk populations who are HIV-infected. We assessed the quantitative data in relation to sex work across different countries, with different reported approaches to sex work regulation. Median scores for the five quantitative UNGASS indicators were compared between countries that reported the existence of protective or obstructive laws/policies and those that did not. As different subsets of countries reported the existence of each of the different laws, no attempts were made to compare these groups and results are reported separately. We hypothesised that where protective laws existed, coverage of HIV testing and prevention programmes would be higher, HIV-related knowledge and condom use would be higher and HIV prevalence among sex workers would be lower. Where obstructive laws were in place, the opposite was hypothesised. Our aim was not to directly attribute better outcomes to more favourable legal environments, but to begin to point to if and how national-level laws and policies might affect HIV-related outcomes. Thus, rather than using biostatistical methods to attempt to establish statistically significant differences between these two median values, we sought only to highlight possible trends. What do countries say about their laws regulating sex work? Laws, regulations or policies affecting effective HIV prevention, treatment, care and support for sex workers Governments and civil society were asked to respond to the question: ‘Does the country have laws, regulations or policies that present obstacles to effective HIV prevention, treatment, care and support for most-at-risk populations or other vulnerable subpopulations?’, with sex workers specifically named in the sub-question. Countries were also asked to report on the existence of non-discrimination laws or regulations which specify protections for sex workers. Responses from the Asian region are in Table 1. Countries reporting laws/policies as obstacles to effective HIV services for sex workers Civil society in 18 countries reported the existence of harmful laws and policies as compared to only 13 governments. The countries with conflicting reports are: Cambodia, China, Myanmar, Singapore and Vietnam. There is no country where the government reported the existence of such laws and civil society did not. Consistent with the global evidence provided above, a few themes emerged from this review. Most importantly, simply the existence of criminal law to regulate sex work draws attention to the detrimental impacts of such laws. Sri Lankan civil society noted that ‘Although, the relevant penal provisions are rarely used, their existence contributes to the ongoing stigma and discrimination . . . in the community and harassment in the hands of law enforcement agents’ (Democratic Socialist Republic of Sri Lanka 2010, xxv). Even if not actively enforced, their existence may be detrimental to the health and rights of sex workers. In some places, the severity of criminal sanctions was thought to be a strong deterrent to the use of condoms or the engagement in any health promotion activity that might

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Table 1. Reports of 21 countries on the existence of laws, regulations or policies that have an impact on effective HIV prevention, treatment, care and support for sex workers.

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Country Afghanistan Bangladesh Brunei Darussalam Cambodia China India Indonesia Japan Lao, PDR Malaysia Maldives Mongolia Myanmar Nepal Pakistan Philippines Singapore Sri Lanka Thailand Timor-Leste Viet Nam TOTAL

Existence of non-discrimination laws or regulations to protect sex workers

Existence of laws, regulations or policies that present obstacles to HIV services for sex workers

Government

Civil society

Government

Civil society

* * * Y Y N N – Y * N Y Y * * Y * N Y – Y 8

Y * * N N N N * Y N * * N * * N * N Y N Y 4

Y Y Y * * Y Y – * Y Y Y * Y Y Y * Y Y * * 13

Y Y Y Y Y Y Y N * Y Y Y Y Y Y Y Y Y Y * Y 18

A hyphen is used to denote data that are missing where the country did not respond to the overarching question about the existence of relevant laws/policies affecting any key populations nor the sub-question specific to sex workers. *denotes data that are missing due to the country’s ‘no’ response to the overarching question about the existence of relevant laws/policies affecting any key populations; Y ¼ yes, N ¼ no.

suggest a connection to sex work. The government of Brunei Darussalam reported that ‘Sex work is rarely heard of in the country, but prosecution against sex work is highly likely if found’ (Ministry of Health, Brunei Darussalam 2010, 5). Accessing condoms or any sexual health services on offer in such an environment is not likely to happen. The Indonesian government acknowledged as much when it reported that: ‘The local government bylaws closing prostitution complexes resulted in the spread of street prostitution and make it difficult for local health departments to provide services for sexually transmitted disease control/condom promotion’ (UNAIDS NCPI 2010, Indonesia Part A, 99). The impact of policies that equate carrying a condom with soliciting sex was noted across a variety of settings, including with respect to harassment by law enforcement officers and restricting condom access or purchase only to married couples (UNAIDS NCPI 2010, Bangladesh Part A; Malaysia Part B; Maldives Part B). Countries reporting laws/policies protecting sex workers from discrimination Twice as many governments reported the existence of laws protecting sex workers from discrimination than their civil society counterparts. Interestingly, governments in Cambodia, China, Mongolia, Myanmar and the Philippines reported the existence of laws and/or policies that protect sex workers from discrimination, while civil society reported

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that such laws/policies do not exist. Many of the comments submitted in response to this question highlight insufficiencies with regard to implementation. The Philippines’s government noted that they are ‘poorly implemented’ (Philippine National AIDS Secretariat 2010, 10), while civil society in the People’s Democratic Republic of Lao explained that ‘The government should disseminate the law and make it known in every setting including in community level so that general public would know, if people don’t know the law they don’t know what to do or where to go to claim for their rights’ (National Committee for the Control of AIDS, Lao People’s Democratic Republic 2010, 85). In Thailand, both government and civil society noted conflicts in law, where laws that pose problems for the rights and health of sex workers are reported to co-exist with non­ discrimination provisions intended to offer legal support. The governments of Mongolia and the Philippines report the co-existence of ‘protective’ and ‘obstructive’ laws affecting the health and rights of sex workers, even as civil society does not. Conversely, civil society reports the co-existence of such laws in Afghanistan and Vietnam, but government is silent on the matter. These conflicts – whether reported by government, civil society or both – suggest an area prime for further investigation and legal reform. What impacts do laws and policies have on knowledge, behaviour, service coverage and HIV prevalence? Table 2 shows the median indicator responses for the five indicators that provide quantitative information related to sex workers, disaggregated by whether countries report laws/policies that protect sex workers from discrimination. Using the responses first from governments and then civil society, illustrative examples are presented that draw attention to the realities of living within different regulatory frameworks. Using the governments’ responses, in most instances our hypotheses appear to hold true – there is a general trend of higher knowledge and use of services and the suggestion of lower HIV prevalence among sex workers in places where laws/policies intended to prevent discrimination are in place. This is particularly marked with regard to the percentage of sex workers reached with HIV prevention programmes. However, as

Table 2. Median indicator response by the reported existence of laws and/or policies that protect sex workers from discrimination for countries with available data.a Protective laws and policies Government

Civil society

Indicator

Yes

No

Yes

No

Percentage of sex workers with HIV test and result in last 12 months Percentage of sex workers reached with HIV prevention programmes Percentage of sex workers who know about preventing transmission and reject misconceptions Percentage of sex workers reporting condom use with most recent client Percentage of sex workers who are HIV-infected

36.4

20.0

24.6

32.6

71.8

11.2

47.3

31.1

41.4

27.4

41.4

30.5

81.4

83.0

84.9

83.0

0.6

2.3

1.8

1.5

a

Brunei Darussalam, Japan and Timor Leste did not report on any of these indicators. Other countries reported on only some of these indicators. The overall number of countries who did not report on each indicator were 4, 4, 9, 6 and 5, respectively.

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discussed below, the median percentage of sex workers reporting condom use with their most recent client, although generally quite high, was lower in countries that reported such laws than in countries where no protections were reported to exist. In the Lao People’s Democratic Republic and Thailand, where both government and civil society reported protective laws, HIV prevalence among sex workers was reported as 0.43% and 3.17%, respectively. This stands in contrast to the HIV prevalence rates of India (4.9%) and Indonesia (6 –16% for direct sex workers and 2 –9% for indirect sex workers), where neither government nor civil society reported protective laws to prevent discrimination against sex workers. Civil society responses paint a more complicated picture. The hypotheses concerning associations between laws protecting against discrimination and coverage of HIV prevention programmes, HIV-related knowledge and reported condom use with most recent clients appear to hold true, but data from the other two indicators (HIV testing uptake and HIV prevalence) do not. Table 3 shows the median responses to these indicators, disaggregated by government and civil society responses, alongside the reported existence of laws or policies that might obstruct effective HIV services for sex workers. As hypothesised, the trends of most government responses suggest that where obstructive laws/policies exist, sex workers have lower HIV-related knowledge and access to services and higher HIV prevalence. The findings relating to the indicators on condom use and HIV testing were not at first reading in line with our hypothesis. Even as civil society reports suggest that where obstructive laws existed, condom use with most recent client was lower, government responses suggest the opposite. Further, civil society reports suggested that the median percentage of sex workers who reported having an HIV test in the previous 12 months was higher where obstructive regulations were reported compared to where no regulatory obstructions were reported.

Table 3. Median indicator response by the reported existence of laws and/or policies that create obstacles to effective HIV services for sex workers (government and civil society reports).a Obstructive laws and policies Government

Civil society

Indicator

Yes

No

Yes

Nob

Percentage of sex workers with HIV test and result in last 12 months Percentage of sex workers reached with HIV prevention programmes Percentage of sex workers who know about preventing transmission and reject misconceptions Percentage of sex workers reporting condom use with most recent client Percentage of sex workers who are HIV-infected

20.0

52.5

33.7

14.5

20.7

71.9

31.1

69.5

31.0

44.6

31.0

44.6

86.1

77.7

80.3

94.2

1.7

1.5

2.3

0.5

a

Brunei Darussalam, Japan and Timor Leste did not report on any of these indicators. Other countries reported on only some of these indicators. The overall number of countries who did not report on each indicator were 4, 4, 9, 6 and 5, respectively.b n ¼ 1.

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Discussion The data presented here suggest not only that legally punitive working environments threaten the rights and health of sex workers, but that they may further exacerbate the HIV epidemics in Asia and in the rest of the world. As seen in Table 1, a high proportion of the reviewed countries acknowledge the lack of protection from discrimination and/or the existence of laws that create obstacles to effective delivery of services. In most cases, HIV-related knowledge and behaviours among sex workers were poorer in countries that reported an unsupportive regulatory environment. Findings with respect to the two indicators where results ran contrary to what was expected require discussion. Firstly, the fact that the percentage of sex workers who reported having had an HIV test in the preceding 12 months was higher where obstructive regulations were reported is likely attributable to the fact that the indicator does not distinguish between voluntary and mandatory HIV testing. This highlights the need to clarify the type of testing in place as part of standard reporting requirements. Second, that there was no clear trend of higher reported use of condoms by sex workers with their most recent client in more ‘favourable’ legal environments raises important questions. Worth recalling are the conclusions noted earlier in relation to the impacts of the law in Sweden and elsewhere: where the purchase of sexual services is criminalised sex workers are more likely to be pressured by clients to engage in unprotected sex. In support of the rights and health considerations noted by others in the literature, these findings appear to confirm that HIV-related outcomes are poorer where the legal and policy environment is not supportive. Methodological challenges Certain caveats are required in interpretation of the data presented. The sample used in this analysis was small, especially for some of the analyses of laws constituting barriers to accessing services, and the 95% confidence intervals around the point estimates were large (data not shown). The NCPI questions are broad and open to interpretation of what actually constitutes a protective law or legal barrier. These data also fail to capture information relating to co-existing laws/policies creating obstacles that might affect the outcomes studied. Further, this analysis does not control for coverage of HIV-related services or levels of HIV-related knowledge when looking at HIV prevalence, both of which are higher in countries reporting a more favourable regulatory environment. Monitoring the mere existence of laws and policies fails to capture the degree to which, and the manner in which, they are implemented. For example, in countries where a 100% condom use policy has been shown to reduce HIV prevalence among brothel-based sex workers and their clients, it has also been shown to increase stigma, rights violations and violence against sex workers likely driving more marginalised sex workers away from needed HIV-related services (Csete and Dube 2010). Implementation of policies can also be shaped by the capacity of the national legal system. Resource allocation, dissemination of information about the existence and content of a policy, among other criteria, ultimately determine their effectiveness, and better ways of assessing implementation are required. The clandestine and mobile nature of sex workers within most countries of the world make these data hard to collect (UNAIDS and UNGASS 2009). For example, at least partly attributable to the fact that where sex work is criminalised, sex workers receive little attention, 30% of the Asian governments reporting under UNGASS either omitted prevalence information or did not submit a country report providing relevant information (UNAIDS 2010).

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The variability and complexity in reporting underscores the difficulty in making crosscountry comparisons. For example, in the countries reviewed here some governments reported data only on female sex workers (e.g., Vietnam), but others included data also on male sex workers (e.g., Indonesia) and Hijra sex workers (e.g., Pakistan) (National AIDS Commission, Republic of Indonesia 2009; National AIDS Control Program, Ministry of Health of the Government of Pakistan 2010; Socialist Republic of Viet Nam 2010). Further, Mongolia’s report noted their findings on female sex workers constituting 10% of all reported HIV cases, conflicting with three serological and behavioural secondgeneration surveillance surveys reporting 0% prevalence among female sex workers (National Committee on HIV and AIDS, Government of Mongolia 2010). The report attributed this incongruous result to the fact that sex work is criminalised ‘ . . . and thus identifying and reaching women who sell sex for money poses a challenge’ (National Committee on HIV and AIDS, Government of Mongolia 2010). These indicators are therefore not directly comparable given differences in methodologies, sample sizes and even how policy questions are answered across countries. These findings highlight the importance of accurate and detailed reporting on these questions, even as the law is simply one element in the causal pathway determining HIV-related outcomes. The challenges noted above may help to explain the paucity of data linking regulatory frameworks to health outcomes more generally. Often the evidence used in such exercises has been entirely qualitative, as quantitative and epidemiological methods are assumed to be complicated by the need for rigorous control along long and complex causal pathways. Without attempting such quantitative rigour, this study sought to identify trends in HIVrelated outcomes under different regulatory conditions as a way of augmenting existing evidence and opening debate on how methodologies might be developed to generate stronger evidence to support key populations and ensure effective HIV responses. Conclusion Data from around the world demonstrate that the legal context of sex work, in tandem with health services and social support networks (including the presence of civil society and peer support networks), directly impacts sex workers’ vulnerability to HIV through their ability to negotiate condom use, exposure to violence and access to HIV services. Laws and policies are therefore an important entry point into this causal pathway. The purpose of this exercise was not to attribute outcomes solely to the presence or absence of a specific law or policy. Nonetheless, despite the limitations of these data, they contribute to the growing body of evidence highlighting the importance of supportive regulatory environments. As highlighted by our conceptual framework, laws and policies are only one piece of the puzzle. Supportive regulation alone is insufficient to ensure access to and uptake of services by sex workers and other key populations, but, alongside health services delivery, education and other well-established interventions, it is a key element of a comprehensive national HIV response. References Ahmed, A., M. Kaplan, A. Symington, and E. Kismodi. 2011. “Criminalising Consensual Sexual Behaviour in the Context of HIV: Consequences, Evidence, and Leadership.” Global Public Health 6 (Suppl. 3): S357– S369. Baral, S., C. Beyrer, K. Muessig, T. Poteat, A. L. Wirtz, M. R. Decker, S. G. Sherman, and D. Kerrigan. 2012. “Burden of HIV among Female Sex Workers in Low-income and Middleincome Countries: A Systematic Review and Meta-analysis.” The Lancet 12 (7): 538– 549.

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Re´sume´ L’e´pide´mie du VIH a apporte´ un e´clairage sur la manie`re selon laquelle les re´glementations gouvernementales sur le travail du sexe affectent directement la sante´ et le bien-eˆtre des travailleur(se)s du sexe, de leurs familles et de leurs communaute´s. Bien que des donne´es probantes en sante´ publique mettent l’accent sur la ne´cessite´ d’environnements juridiques et politiques favorables, la pe´nalisation du travail du sexe reste une norme a` travers le monde. Couple´es aux ide´ologies politiques changeantes, les donne´es e´mergentes de´terminent de plus en plus les environnements juridiques favorables aux droits et a` la sante´ des travailleur(se)s du sexe. Cependant, bien que de nouvelles re´glementations soient cre´e´es, elles sont souvent en contradiction avec celles qui sont de´ja` en vigueur et proble´matiques. En tant que re´gion, l’Asie est un exemple e´loquent de l’application a` la fois de politiques progressistes sur le VIH et de lois qui pe´nalisent le travail du sexe. Provenant des 21 pays d’Asie ayant rapporte´ a` la Session Extraordinaire de l’Assemble´e Ge´ne´rale des Nations Unies sur le VIH/Sida en 2010, des donne´es ont e´te´ analyse´es afin d’apporter la preuve de l’impact ne´gatif de l’approche employe´e par les pays pour re´glementer le travail du sexe sur les efforts accomplis dans la lutte contre le VIH. Rester attentif aux liens entre la re´glementation et les re´sultats obtenus dans la lutte contre le VIH peut aider les gouvernements a` respecter leurs engagements internationaux et a` garantir des environnements juridiques approprie´s et favorables au de´veloppement et a` l’expression, dans un contexte suˆr et sain, de la sexualite´; a` garantir l’acce`s aux services de´die´s aux VIH et aux autres proble`mes lie´s au VIH; et a` promouvoir et prote´ger les droits humains.

Resumen La epidemia del virus del sida ha puesto de relieve co´mo afectan las normativas legales del trabajo sexual directamente a la salud y el bienestar de los trabajadores sexuales, sus familias y comunidades. Un ana´lisis de los datos en materia de salud pu´blica destaca que aunque es necesario un entorno de apoyo, tanto jurı´dico como polı´tico, la criminalizacio´n del trabajo sexual sigue siendo la norma en todo el mundo. Los nuevos datos, junto con ideologı´as polı´ticas cambiantes, esta´n creando cada vez ma´s entornos legales que fomentan los derechos y la salud de los trabajadores sexuales pero incluso cuando se introduce una nueva legislacio´n, muchas veces existen contradicciones con las leyes problema´ticas vigentes. Como regio´n, Asia es un ejemplo fehaciente de que las polı´ticas progresivas contra el VIH con frecuencia coexisten con leyes que criminalizan el trabajo sexual. Se analizaron los datos de 21 paı´ses asia´ticos en virtud de la sesio´n especial de la Asamblea General de las NU sobre el VIH en 2010 para demostrar de que´ manera la actitud de los paı´ses hacia la regulacio´n del trabajo sexual puede afectar a los resultados relacionados con el VIH. Al prestar ma´s atencio´n a la relacio´n entre la legislacio´n y los resultados relacionados con el VIH, los Gobiernos podrı´an responder mejor a sus obligaciones internacionales y garantizar un entorno legal apropiado que fomente el desarrollo y la expresio´n de la sexualidad de forma segura y sana, asegurar el acceso a los servicios sanitarios para el VIH y otros relacionados y fomentar y proteger los derechos humanos.