SEX WORK AND THE LAW - HIV/AIDS Data Hub

The HIV/AIDS Decree 2011 provides that it is unlawful to deny a person access, without
reasonable excuse, to a means of protection from HIV. ‘Means of protection’ includes
awareness materials, condoms and lubricant. This provision may discourage police from
confiscating condoms as evidence of sex work. The HIV/AIDS Decree 2011 also includes
provisions prohibiting discrimination against a people living with or affected by HIV/AIDS,
and providing rights to voluntary HIV testing and confidentiality.
7.4.2 Law enforcement practices
There have been very few prosecutions of sex workers under the Crimes Decree 2009. As of
September 2011, there was only one recorded prosecution for sex work under the Crimes
Decree 2009, and the accused in that case was under the age of 18. 630
McMillan and Worth conducted interviews with sex workers in 2011, as part of a study
exploring the impacts of the Crimes Decree 2009 on sex work and HIV prevention. 631
Although there have been few prosecutions, police harassment of sex workers occurs,
and abuses by the military have been documented. Sex workers in Lautoka reported that
the military have been involved in numerous abuses of sex workers since the Decree was
introduced. Military officers were reported to have rounded-up sex workers and inflicted
summary punishments, including sleep deprivation, humiliation, sexual assaults and
forced labour. The study identified a range of harms to HIV responses associated with
developments reported since the commencement of the Crimes Decree 2009:
A heightened fear of brutality and harassment from law enforcement agents has
reduced sex worker opportunity for negotiation with clients, including condom
negotiation. Concern about the risk of HIV infection is displaced by other more
immediate concerns.
Some of the tactics used by soldiers who are ‘policing’ sex work, such as the public
exposure of sex workers’ identities, has served to reduce the negotiating power of
a sector of sex workers. It has also effected changes to the ways that sex work is
conducted. Sex workers have begun to operate more covertly and secretively. New
sex workers work from new sites, are more isolated and less accessible to peer, NGO
and government HIV prevention service providers.
…The criminalisation of clients has reduced the ability of sex workers to negotiate
over the terms of the transaction and has created more pressure to accept clients’
terms. Criminalisation of clients has also put more experienced and identifiable sex
workers at a competitive disadvantage. Fear of losing a client is an incentive to comply
with a client’s wishes for sex without a condom.
A culture of cooperation and sharing is one of the greatest HIV prevention resources
within the Fijian sex work community. The targeting of ‘hotspots’, the detentions
and the mistreatment of those who have been identified in the past as sex workers
divides the sex worker community, reducing the opportunity and the motivation for
cooperation. New and young sex workers operate from new sites and are not reached
by the informal condom distribution networks that remain.
…NGO nervousness as a result of the policing of sex workers and uncertainty about
the implications of the Decree have resulted in the closure of programs, withdrawal of
630 Submission of Nazhat Shameem (lawyer) to UNDP, 24 September 2011.
631 McMillan K., Worth H., (2011) Sex Workers and HIV Prevention in Fiji – after the Fiji Crimes Decree 2009,
Sydney: International HIV Research Group, UNSW.
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