Beyond Decriminalization: Sex-work, Human Rights and a New ...

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformbreaking – I don’t know, they are putting themselves at risk. But you can’t regulate it,it’s not like you can take a picture.- female off-street out-call sex workerAnother project participant described the desperation that some sex workers experience:A. I don’t think a lot of it’s gonna work. I mean, if the girl’s drug addicted or verydesperate . . . and you’re in the trick’s car and haven’t eaten for two days, and the guysays, “here, I’ll give you an extra $50 if you give me a blow-job without a condom,”a lot of those girls are that desperate they’ll do it.- female street-level sex workerWhile it would be impossible to enforce mandatory condom use, setting out a similar requirementto New Zealand’s “all reasonable steps” provision in future Canadian legislation could help resolvethe contentious issue of how to regulate HIV-positive sex workers, or workers infected with othersexually transmitted diseases. Further, for those sex workers living below the poverty line, increasedprovision of condoms by non-profit organizations and government-funded organizations is imperative.Increased rights protections and increased education for sex workers are also important steps inpromoting condom use.HIV-positive workers and “wilful misconduct”: the Nevada approachNevada provides a different approach to disease control than the one developed in New Zealand.Under the Nevada Administrative Code, condom use is required for any sexual touching. 59 Sex workersin Nevada are subject to mandatory disease testing for HIV, syphilis, gonorrhoea and Chlamydia. 60Pap smears are administered weekly, and blood tests are conducted monthly. If found infected withanything other than HIV, a sex worker cannot return to work until they test negative. If a workeris infected with HIV, it is illegal for them to be employed as a sex worker. 61 Because HIV-positiveworkers are terminated immediately – and with no assistance, such as workers’ compensation– they may continue to work illegally to support themselves. 62 Not only does this raise the issue ofdiscrimination against infected workers, but also it tends to encourage the development of an undergroundmarket where grave health and safety concerns arise. Legislation like Nevada’s, which preventsHIV-positive workers from working, may create a false sense of security among clients who are led tobelieve that there is less of a risk because “no one is infected.” In turn, this false sense of security maylead to increased risky behaviours, such as failure to wear a condom. Preventing a person from earninga living because they are HIV positive is discriminatory, and would contravene Canadian humanrights codes. The Nevada approach has the effect of taking power and control away from the worker.Systems that reduce the autonomy of the worker may encourage exploitative practises in the workplace,and deter workers from demanding protection of their basic rights.In contrast to Nevada, the New Zealand legislation has no specific provision for treatment ofHIV-positive sex workers. In fact, the New Zealand PRA states that a person who is either providingor receiving sexual services must not state or imply that a medical examination means that he or sheis not infected or likely to be infected with a sexually transmitted disease. 63 This provision preventsthe false sense of security that may be created by the Nevada model. All sex workers and clients arerequired and expected to use protective equipment in order to minimize disease transmission. In59 Nevada Administrative Code 441A.805 (2003), online: Nevada Legislature .60 Ibid.61 Nevada Revised Statutes 201.358 (1995) , online: Nevada Legislature .States that engaging in sex work while knowingly infected with HIV is a felony with a minimum two year sentence.62 Carole A. Campbell, “Prostitution, AIDS, and Preventive Health Behaviour” (1991) 32 Social Science and Medicine at 1372.63 PRA, supra note 18, s. 9(2).117