SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

coercion. 798 ) Trafficking as defined in the Protocol is a serious human rights violation, and it
has serious effects on health (see the Section on Violence for a discussion of the health and
rights responses to trafficking). When the circumstances of persons in sex work fit the crime
described in the Protocol, it is critical that authorities respond as they would to any other
trafficked person: with full regard for their rights and with concern for the abuses they have
suffered, including health consequences. Trafficked persons, including persons trafficked into
prostitution, may face extreme abuse in their working conditions, lack of pay, inability to
leave, and threats to selves and family members. Trafficked persons in sex work, therefore,
are rarely able to organize, employ health promotion and disease prevention measures, and
make decisions about clients, which lie at the core of successful sex worker-led health and
rights based efforts. For the purposes of this paper (and to the extent possible) laws related to
sex work and trafficking are dicussed in distinct portions of the report. Trafficking in so far as
it is related to sexual health is discussed under the sub-topic sexual exploitation under
Violence while provisions related to sex work are discussed in this chapter. Even where both
sex work and trafficking are addressed within the same laws, these provisions have been
separated and discussed.
From a health and rights perspective, both under-prosecution and over-prosecution in regard
to persons in sex work constitute failures to respect rights, especially in creating the
conditions for redress and restitution. On the one hand, many national laws and policies often
fail to respond to abuses against sex workers, applying gender-stereotyped presumptions
about sex workers’ credibility and dismissing their accounts of abuse. On the other hand,
campaigns against trafficking into forced prostitution often mistakenly assume all people in
sex work, particularly women, are victims of trafficking, and have no capacity to consent to
exchange sexual services for money. During criminal investigations, people in sex work may
be detained against their will or treated as accomplices in the trafficking of others. The
equation of all prostitution with trafficking elides two very different conditions and
circumstances. This confusion produces ineffective legal and health interventions such as
‘raid and rescue’ of un-trafficked sex workers, whose livelihoods, associations, and safety
nets are torn apart by the raids. 799
As noted, there is agreement that persons under 18 should not engage in sex work. 800 More
difficult to formulate, however, are the legal and policy responses that constructively engage
with teenagers engaged in survival sex or other forms of regular or irregular sex work, not
infrequently occasioned by ejection from their natal homes or attempts to escape abuse. At
minimum, they need access to services to help them protect their health, as well as education,
housing, and support that allows for rapid exit from sex work. Many health programs which
target young persons aged 14-24 fail to offer services to address the needs and contexts of the
diversity of young people in sex work. Transgender or homosexual youth, who are escaping
violence in their homes or communities, find both resources and abuse when they leave home
and move to larger urban areas, where many engage in survival sex. Services should be
designed for them that meet their particular needs and barriers to exiting sex work, and
integrating into safer community settings.
Moreover, young persons in sex work should not be prosecuted as criminal offenders. Few
legal regimes have incorporated this approach, especially in light of their reliance on punitive
798
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000)
article 3.
799 CITE: OSI brief?
800 See, CRC, and First OP, ILO worst forms of child labor etc.
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