Prostitution, public health, and human-rights law

[Guest guest]

Prostitution, public health, and human-rights law

The Optional Protocol to the Convention on the Elimination of All

Forms of Discrimination Against Women (CEDAW), created in September,

1981, is now open for signing and ratification by nations.

Should the protocol come into force, women will be given the right to

complain to the United Nations (UN) about breaches of the Convention

and, in particular, discrimination in the provision of health

services. For women who are prostitutes, however, and whose legal

status is uncertain, it is unlikely that the Convention will be of

substantial benefit.

Prostitutes are entitled to enjoy universal human

rights. Because their legal status is complex, and compounded by

international human-rights law, prostitutes are rarely in a situation

where health protection or promotional activity could be expected to

succeed. The view that linking health policy with respect for human

rights will result in a better health outcome is gaining acceptance.

But when human-rights instruments are applied uncritically, in

ignorance of the larger social picture, measurements of improved

health outcomes may be less certain. Rights-based questions about

public health should be asked and failings in rights instruments must

be confronted.

Prostitutes overwhelmingly work outside the law. This has

implications for their health that are hard to quantify. In one

Australian study carried out in 1998, the prevalence of sexually

transmitted bacterial infections was 80 times greater in 63 illegal

street prostitutes than in 753 of their legal brothel counterparts.

All the illegal street prostitutes with infections were in the group

who had not been screened for infections in the past 3 months,

whereas none of those screened in the last 3 months were infected. In

legal brothels women are given a strong legal incentive to be

screened monthly, and the use of condoms is compulsory. Legally

sanctioned encouragement of prostitutes to use condoms or access

screening services, both major determinants of the prevalence of

sexually transmitted diseases, is impossible because of their illegal

status.

Occupational health and safety law is applied to prostitutes in lawful

brothels but not to their counterparts on the street.

Vulnerability to contracting HIV has been characterised as " exercising

little or no control over one's risk of acquiring HIV

infection...vulnerability is magnified by societal factors such as

marginalisation or discrimination " . This account encapsulates the

situation of most prostitutes. In this context rights-based objections

to individual programmes such as compulsory testing,

for example, have some, but limited, worth. A failure to acknowledge a

background of general deprivation of rights undermines the impact of

these objections.

International law that deals with prostitution targets trafficking in

women for the purpose of prostitution, and counterpoises prostitution

with human dignity. The 1949 Convention for the Suppression of Traffic

in Persons prohibits the exploitation of prostitution of a person even

with the consent of that person. CEDAW asks States to suppress

trafficking in women and exploitation of prostitution.Nowhere is

trafficking defined.

In May this year the Council of Europe adopted a recommendation which

stated that trafficking in human beings for the purpose of sexual

exploitation includes the procurement of individuals,even with their

consent. Prominence is given to the rehabilitation of the prostitute

and punishment of those responsible. This is despite the

comment in February this year from Radhika Coomaraswamy, the UN

Special Rapporteur on violence against women, that lack of consent

should be an element of trafficking.

In a 1998 International Labour Office (ILO) study on

prostitution in southeast Asia investigators noted that for adults it

was possible to distinguish between forced and voluntary prostitution.

But, they asserted, " It is outside the purview of the ILO to

take a position on whether prostitution should be legalized. The

question of legalization is thorny because the human rights concerns

are difficult to disentangle from concerns over morality,

criminality and public health threats " .

Many prostitutes would not find it difficult to disentangle the

human-rights issues. Social history explains the legal emphasis on

trafficking and rehabilitation, and constructed similarities to

slavery. But this is no longer a sufficient explanation. Perhaps the

prohibition of exploitation of prostitution is a protective measure

necessary when prostitution is illegal, but substitutes poorly for

labour rights. This is not a basis upon which to carry out a health

programme for prostitutes. No international treaties promote the

rights of willing workers. The failure to recognise the distinction

between forced and unforced prostitution allows the claims of

prostitutes' rights groups to be ignored. This expression of

international law undermines efforts to reduce the incidence of HIV

and AIDS and discriminates against prostitution on the basis of

occupation. Anti-Slavery International and the Network of Sex Work

Projects argue that the redefinition of prostitution as work is vital

if prostitutes are to enjoy equal human rights, in particular, their

rights as workers.

If it is possible to conceive that a person can enter prostitution

voluntarily as the best of available options, then it is evident that

there is a problem in international law. This problem contributes to

the vulnerability of prostitutes to disease. It is therefore within

the remit of health practitioners to advocate for a critical review of

human-rights law. Rights instruments should not contribute to the

vulnerability of populations to disease, they should aim to diminish

this vulnerability.

Bebe Loff, Beth Gaze, Fairley

Department of Epidemiology and Preventive Medicine;

and Faculty of Law,Monash University, Melbourne, Australia

The Lancet 18 November 2000