Sex Workers and HIV Prevention in Fiji - after the Fiji Crimes Decree ...

Sex Workers and HIVPrevention in Fiji - after theFiji Crimes Decree 2009Karen McMillan and Heather WorthInternational HIV Research GroupSchool of Public Health and Community MedicineThe University of New South Wales

AcknowledgementsWe would like to thank UNAIDS Pacific for funding this research.The authors would like to acknowledge and express respect for all the sex workers acrossFiji who were brave enough to share their stories. We would like also to recognise andshow appreciation of the contributions of time and effort made by the many individuals andorganisations who have supported this research in different ways. Sadly, we no longer feel thatnaming them is in their best interests. Thanks also to Vere for her transcribing and translationskills.For Naomi - kia kahaThe views expressed in this report are solely those of the authors and not those of UNAIDS.No part of this publication may be reproduced, stored, transmitted or photocopied without theprior permission of the authors.Please contact Karen McMillan at k.mcmillan@unsw.edu.au for any further information on thestudy and the report.ISBN: 978-0-7334-3077-0McMillan K., and H. Worth (2011) Sex Workers and HIV Prevention in Fiji – after the Fiji CrimesDecree 2009. International HIV Research Group, UNSW, Sydney.

Table of CONTENTSINTRODUCTION.........................................................................................................................................................5The criminalisation of sex work ..................................................................................................................................5Sex work in Fiji ............................................................................................................................................................6Sex work and Part 13, Sections 230–233, of the Crimes Decree................................................................................7Media representation of sex work under the Decree .................................................................................................8THE STUDY ................................................................................................................................................................10Arrest and prosecution data........................................................................................................................................11Interviews....................................................................................................................................................................11Interview data analysis................................................................................................................................................12Other key informants...................................................................................................................................................12RESULTS.....................................................................................................................................................................13The police response....................................................................................................................................................13The military response..................................................................................................................................................14Changes in sex worker practice..................................................................................................................................18Disincentives to carrying condoms.......................................................................................................................19Changes in client practice..........................................................................................................................................19Less money – Less negotiation – Less condom use.............................................................................................20Impact on NGO response...........................................................................................................................................20Cessation of condom distribution..........................................................................................................................21Changes in NGO orientation.................................................................................................................................21Access to sexual health services................................................................................................................................22Sex worker community ...............................................................................................................................................23Sex workers fighting for their rights.......................................................................................................................23DISCUSSION...............................................................................................................................................................24References..................................................................................................................................................................27Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 20093

Most prohibitionist regimes only achieve their aim throughthe suppression of democratic and human rights. Moreoften, they do little to reduce prostitution or its associatedsocial ills, but breed corruption and seriously damagepublic health. (Harcourt et al 2005, 126) †Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 20094

iNTRODUCTIONOn 1 February 2010, the Crimes Decree 2009 (DecreeNo. 44) of the Republic of Fiji Islands took effect. A reporton sex work and HIV prevention in Fiji had very recentlybeen released. UNAIDS Pacific funded the authors ofthat report to conduct follow-up research investigatingany impacts of the new Decree on sex work and relatedHIV prevention activities. Thus, the original study wasextended to encompass and take account of a changedlegal environment. This report is the result.Sex workers are among those who are most affectedby HIV. The availability of appropriate and accessibleservices, information and resources are necessaryconditions for HIV prevention. Nonetheless, preventionefforts will not be effective unless legal, political andsocial environments enable sex workers to protectthemselves and their clients.Effective HIV prevention among sex workers requiressafe, non-stigmatising and appropriate service provision.Ultimately, however, prevention is reliant on the voluntarycooperation and support of sex workers to increaserates of condom use during paid sex and to access theprevention, testing, treatment and information servicesthat are available. Furthermore, vulnerable groups arenot necessarily helpless in the face of HIV risk, and theexperience of gay communities in many countries hasdemonstrated that the community ‘at risk’ can spearheadthe response if they have the right resources. The trulycrucial community resource is the community’s capacityto organise themselves.be more appropriate to and capable of addressingcontemporary national and international issues and ableto encompass criminal opportunities provided by moderntechnology. The Decree included a section headed‘Prostitution offences’ which revised the laws aroundsex work. In 1999, the Fiji Law Reform Commissionhad recommended that sex work be decriminalisedand, instead, be subject to a system of regulation andlicensing. 4 But despite this earlier recommendation,the new Crimes Decree provided for a wider range ofoffences related to sex work, including the criminalisationof the client.However, the effects of any law are determined by farmore than simply the letter of the law. Extra-judicialinterpretations and representations shape the outcomesof changes in the law and their effects in a society. Whathappens in people’s everyday lives and practices is themost relevant measure of the impact of law when we areinvestigating HIV prevention.Data collected in 2009 on the lives and concerns of sexworkers, on conditions and practices of sex work andon HIV prevention opportunities and barriers, provideda backdrop against which the new data collected againin 2011 could be viewed. The analysis of the 2011 data,including sex worker reports of changes since February2010 in their own experience, form the mainstay ofthis report’s description of the effects of Fiji’s newlydrafted ‘Prostitution offences’ on sex workers and on HIVprevention opportunities.The creation of empowering and enabling environmentsis key in the Pacific response to HIV and AIDS. 1Appropriate law is a prerequisite for an enablingenvironment: ‘Legal environments set the overall contextfor HIV responses of government and civil societyand influence the social climate in which prevention,treatment, care and support programmes operate’. 2Across the Asia–Pacific region, sex worker experiencesevidence the ways that criminalisation of sex workdrives sex workers into darker, harder-to-reach andmore dangerous places, reducing access to and byprevention services, rendering sex workers vulnerable tosexual and physical abuses, and negating opportunitiesfor protection or redress through the justice system – atthe same time obscuring and effectively silencing theexperiences of sex workers. 3In February 2010 a new Fiji Crimes Decree replaced theprevious Penal Code of Fiji. The Decree was enactedto update Fijian law, redrafting its provisions so as toNewspaper coverage of the status of sex work relatedoffences under the new Decree that appeared over themonths around February 2010, as well as the outcomesof prosecutions and court cases during the periodbetween February 2010 and February 2011 were alsoconsidered. This provided context information againstwhich to view the data from individuals.In the process of describing the changes in conditionsand practices of sex work and HIV prevention work sinceFebruary 2010, this report also aims to give voice to Fijian sexworkers who have been largely silenced, and to documentevents and experiences that have not been and will not becaptured in court cases or in other official records.The criminalisation of sex workLaws criminalising people who sell or buy sex areintended to eradicate or deter sex work, and presumablyalso to reduce any social problems deemed to beSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 20095

Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009associated with it. Yet there is considerable evidenceworldwide that criminalisation of sex workers and theirclients is ineffective in eliminating sex work. 6-8 Notonly has criminalisation been an unsuccessful tool inpreventing the buying and selling of sex, it also fails toprevent the negative aspects of sex work. 9 Far fromreducing negative elements, criminalisation of sex workhas been found to be detrimental to HIV preventionamong sex workers as it lessens access to health andother services. 10-13 When sex work is criminalised,sex workers cannot fully protect themselves against6, 14-17abuse, violence and health threats such as HIV.Criminalisation increases the risk of HIV and STI, reducesaccess to services, increases drug use, means a loss offamily and friends, raises levels of work-related mortality,and leads to restrictions on travel, employment, housingand parenting. 6,18,19 In addition, much sex work is drivenby financial need and poverty, yet police and legal actionresulting in fines, imprisonment or deportation contributesto the further impoverishment and indebtedness of sexworkers and their families. Sex workers in SouthernAfrica 20 and in the Asia–Pacific region 2 have argued thatcriminalisation exacerbates the numerous forms of rightsviolations that sex workers in these countries experience,including increased vulnerability to physical andsexual abuse by police through harassment, arrest anddetention. Under conditions where sex workers are castas criminals, most do not report violence from clients orothers to the authorities, and they have reduced accessto the protection normally afforded by the justice system.Nor can sex workers claim labour rights where their workis not legally recognised. 21 Furthermore, criminalisationforces sex work underground, hampering sex workers’ability to organise themselves in any significant way tofight for their rights. 22-24Sex work in FijiCommercial sex is a long-established industry in Fiji. 25Past estimates have suggested that the number of sexworkers per capita is similar to that in Thailand. 26 Studiesof sex work in Fiji 25, 27 cite economic factors as the keydeterminant of sex work. Plange 25 describes economicneed occasioned by unemployment, divorce, desertion,inadequate government help, failure of husbands to paymaintenance, and the breakdown of the extended familyas factors contributing to sex work. Research conductedin 2009 by McMillan and Worth 27 also documents lack ofeducation, childhood and maternal poverty, low women’swages, family violence, and the marginalisation oftransgender as drivers of sex work in Fiji.Fiji has high unemployment, with new jobs providingemployment for only a fraction of Fiji’s school-leaverseach year. Disempowerment in the job market iscompounded for women as there is no legislationproviding for equal pay for work of equal value. The poorwages of garment workers have long been understoodto necessitate some workers engaging in sex workon a part-time basis to supplement their low incomes.Harrington 28 claims that the inability of other informalsectorjobs to meet women’s needs is reflected in thegrowing sex industry (see also Rokoduru 29 ).In her 1994 paper 30 on sex work in Fiji, Sainath statesthat at that time sex workers were being fined by theauthorities and chastised in the press. No organisedsolidarity group or union existed, and social barriersprohibited effective outreach programs, although somesupport groups were beginning to develop. Most sexworkers worked individually, often with regular clients.She also contended that sex workers had a difficult timenegotiating condom use, and very few used the freegovernment STI clinics, or had regular medical checkups.According to recent data, while advocacy groupsand organisations have been struggling into existence,the overall situation has not changed significantly, andthe many small gains made now appear to be at risk ofslipping away again.McMillan and Worth’s data collected in 2009, beforethe Fiji Crimes Decree came into effect, found that sexworkers’ sharing of information and of condoms, alongwith the newly emerging sex workers’ support groupsand advocacy organisations, were highly effective HIVprevention resources in Fiji. 27 That same report showedthat many clients were resistant to condom use, and thatfear of brutality and harassment from police reducedthe opportunity for sex worker negotiation with clients,including condom negotiation. Furthermore, concernabout the risk of HIV infection was displaced by othermore immediate concerns when sex workers facedbrutality or harassment.The 2009 data showed that reports of police corruptionand harassment, along with violence and brutality fromclients, were greater in Nadi where there were largernumbers of transient sex workers and no specificservices targeted at sex workers, than there were inother centres where sex worker organisations had beenestablished and sex worker populations were morestable. Most notably in Lautoka and Labasa, sex workerorganisations had been engaging in building communityand liaison with the police to improve understandingabout HIV prevention. Unlike the other study sites,sex workers in Nadi were reluctant to carry more thanone condom with them at any time. This was becausecarrying condoms would give police reason to harassthem. Consequently, sex workers’ ability to providecondoms to others was reduced.6

The Risky Business: Sex Work and HIV Prevention inFiji report concluded that as sex work was driven byeconomic need and marginalisation, police crackdownswould be ineffective in eradicating it, but would bedetrimental to efforts to reduce HIV transmission riskbehaviours. 27 That study was based on interviews with40 female and transgender sex workers in Suva, Nadi,Lautoka and Labasa in 2009. The findings providean assessment of the context of sex work prior tothe commencement of the Crimes Decree. Findingshighlighted:• the need for more sexual health, HIV information andprevention, and social services targeted specifically tosex workers,• the value of fostering cooperation among sex workers,• the importance of sex worker involvement in condomdistribution and HIV education,• the important role played by sex worker advocacyorganisations and support groups in the creation of anenabling environment for HIV prevention.The report also documented a variety of ways in whichpolicing attitudes and law enforcement styles affectedHIV prevention efforts. Participants’ stories indicatedthat over recent years advances had been made withrespect to the attitude and behaviour of police as wellas some health service providers. This had facilitatedcondom use and the access sex workers had to sexualhealth services. In contrast to this, in areas where policeharassment of sex workers was greatest, sex workerswere reluctant to carry enough condoms to share.Activities aimed at reducing stigma and discriminationamong police and health service providers and thesurrounding community had been undertaken by sexworker groups and organisations. Where sex workergroups were fostered and supported, they workedwith the police to improve understanding about HIVprevention and actively engaged in other activities inthe wider community to reduce stigmatising attitudesand to counter negative beliefs about sex workersand transgender. Engagement in these projects wasassociated with less police and community brutality.Participants reported an improved understanding by thepolice of the need to carry condoms and better accessto counselling and testing services as a result of theactivities of their sex worker groups. Thus sex workerprojects reduced negativity from the wider community,contributing to the generation of a more enabling socialenvironment. In addition, sex workers also reported thatbelonging to an organisation bolstered their own beliefsin and experiences of self-efficacy and ability to gainsome control over one’s life, as well as reducing theirsense of isolation.Sex work and Part 13, Sections 230–233, ofthe Crimes DecreeSince the collection of data for the original Risky Businessreport, Fiji has repealed the Penal Code (1978 edition)and introduced the Crimes Decree 2009 (Decree No.44). The Crimes Decree was passed in 2009, and tookeffect on 1 February 2010. Part 13 of that Decree isheaded ‘Prostitution offences’. Offences relating to sexwork are contained in sections 230–233. ‡ These sectionsare presented below. The sections most relevant to thisresearch are Sections 230–231 of Part 13 of the Decree.Person living on earnings of prostitution orpersistently soliciting230.— (1) A person commits a summary offence if he orshe—(a) knowingly lives wholly or in part on theearnings of prostitution; or(b) in any public place persistently solicits oroffers a person for immoral purposes.Penalty — Imprisonment for 6 months.230.— (2) Where a person is proved to live with or tobe habitually in the company of a prostitute oris proved to have exercised control, direction orinfluence over the movements of a prostitute insuch a manner as to show that he or she is aiding,abetting or compelling his or her prostitution withany other person (or generally), he or she shallunless the court is satisfied to the contrary, bedeemed to be knowingly living on the earnings ofprostitution.Loitering or soliciting for the purposes ofprostitution231.— (1) A person commits a summary offence if he orshe—(a) loiters in a public place for the purpose ofoffering himself or herself for sex in return for apayment of any nature;‡ The first sections of Part 13 are concerned with the detention ofindividuals and minors in a brothel or other place (section 225 ), sellingand buying minors for immoral purposes (sections 226 and 227), andthe powers of search (section 228) and authority of court for custodyof young persons (section 229) with respect to the previous sections.These sections deal with illegal detention and with sexual abuse andexploitation of minors rather than with sex work. The age of a minor hasbeen raised from under 16 to under 18 by the Decree.While many of the participants in the 2010 Risky Business researchhad taken up sex work before the age of 18, none had been sold,coerced or forced to sell sex by their parents or by any other person,and none had been detained against their will to serve in a brothel.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 20097

Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009(b) solicits for immoral purposes in any publicplace;(c) seeks the services of a prostitute in a publicplace; or(d) uses the services of a prostitute in a publicplace or(e) makes arrangements with a prostitute ora person offering the services of a prostitutein order to use his or her services by anycommunication whatsoever or(f) Solicits for an immoral purpose by anycommunication whatsoever.Penalty—(i) in respect of a first offence – a fineof 5 penalty units;(ii) in respect of a subsequentoffence – imprisonment for 3 monthsor a fine of 10 penalty units, or both.231. — (2) Any police officer may arrest without warrantany person he or she finds in any public placewhom he reasonably suspects to be committing anoffence under the provisions of this section.231. — (3) for the purposes of this section, “public place”includes the doorways and entrances of premisesabutting on any public way and any groundadjoining and open to any public place.Suspicious premises232. If it is made to appear to a magistrate by informationon oath that there is reason to suspect that anyhouse or any part of a house is used for purposesof prostitution, and that any person residing in orfrequenting the house—(a) is living wholly or in part on the earnings ofthe prostitute; or(b) is exercising control, direction or influenceover the movements of the prostitute—the magistrate may issue a warrant authorisingany police officer to enter and search thehouse and to arrest such person.Brothels233. A person commits a summary offence if he or she—(a) keeps or manages, or acts or assists in themanagement, of a brothel; or(b) being the tenant, lessee or occupier ofany premises knowingly permits the premisesor any part of the premises to be used asa brothel, or for the purposes of habitualprostitution; or(c) being the lessor or landlord of anypremises (or the agent of such lessor orlandlord) lets the premises or any part of themwith the knowledge that the premises are oris to be used as a brothel, or is wilfully a partyto the continued use of such premises as abrothelPenalty — Imprisonment for 5 years or a fine of100 penalty units, or both.Many of the ‘Prostitution offences’ above are arepackaging of what were previously also offencesunder the Penal Code. For instance, the provisions ofSection 230: Person living on earnings of prostitutionor persistently soliciting, had previously fallen into acategory of ‘Offences against Morality’ under the PenalCode .Some things have changed however. Under the PenalCode a ‘prostitute’ was definitively female and this is nolonger the case. The relevant provisions are now genderneutral and can encompass male and transgender.The penalty for all first offences under Section 231has increased tenfold from $50 to $500. 5 The range ofpossible communication mediums used to arrange theservices of a prostitute have been extended, and contactvia mobile phone and the internet now also constitutesoliciting. Most notably perhaps, clients have beencriminalised, and can now be prosecuted if they seekand/or use the services of a sex worker or make anyarrangements to do so.The provisions, falling under the heading ‘loitering orsoliciting for the purposes of prostitution’, that allow forpolice to arrest without warrant any person in a publicplace who is ‘reasonably’ suspected to be committingan offence already existed in Section 168(4) of the PenalCode. However, these provisions were widely reported inthe press at the time the Crimes Decree was introduced.That new attention created the impression that thesepowers were new.On the other hand, while it has yet to be proved in court,expert legal counsel advises that the offence of ‘loitering’under section 231 (1)(a) now has a higher evidentialthreshold. 5 This assurance is made on the basis that, forthe charge to be made out, there must now be evidencethat a person was in a public place for the purpose ofoffering himself or herself for sex in return for payment. 58

Media representation of sex workunder the DecreeThe changes to the law brought about by the newCrimes Decree were widely broadcast and discussedin the print news media. The ‘Prostitution offences’ wereonly a very small section of the Decree, but that sectiongained a substantial amount of coverage during February2010, when the Decree came into force. News reportshighlighted the provisions for arrest on suspicion and theincreased penalties in particular, creating the belief thatpolice powers had been augmented and that a hard linewould be taken on sex work and sex workers.the potential license this decriminalisation mightallow male sex workers, by citing a former high courtjudge’s view of the provisions of the law on sex work:‘the public order act is the same for homosexuals andheterosexuals and the law clearly defines that anyonecaught in indecent behaviour is liable for prosecution.Decriminalising of homosexuality also should not be seenas a leeway for male prostitutes, the Crimes Decree isharsher on prostitution than its predecessor’. 38By the end of the month, a police spokesperson was alsoreported as saying: ’Under the new Crimes Decree, weare going down hard on prostitutes’. 39On 3 November 2009, The Fiji Times reported that:‘The new decree proposes to penalise prostitutes andtheir clients’. The report then goes on to elaborate: ‘Thedecree is harsher on prostitution, penalising not onlythose who make a living through prostitution but alsothose involved in prostitution-related activities. Under thedecree, those who solicit money through prostitution areliable for a jail term of six months while people caughthiring prostitutes can get jail terms of up to 12 years. Inaddition, anybody found operating a brothel, or serviceswhich procure prostitution is liable for prosecution withthe penalties being harsher when the crime involvespeople under the age of 18. Also, anyone residing with aprostitute is also liable’. 32On the eve the Decree was to come into force, The FijiTimes reported ‘TOUGH new laws against prostitution arewelcome in a country in which the sex trade has becomemore sophisticated over the years’. 33 In the followingdays there were reports of the ‘new’ police powers:‘Under the new Crimes Decree passed last week, policenow have the powers to raid and arrest those theysuspect of engaging in prostitution related activities’ 34and heavy penalties for clients were again highlighted:‘Under the new decree, people caught making a livingoff prostitution could face up to six months imprisonmentand those caught hiring prostitutes face jail terms upto 12 years’. 35 The provisions of Section 231 for arreston suspicion are reported in full again a few dayslater. 36 Again on 15 February, it was reiterated that: ‘TheCrimes Decree states that people who make a living offprostitution are liable for a jail term of six months, whilepeople caught hiring prostitutes can get jail terms of upto 12 years…The decree also states that any personresiding with a prostitute is also liable. Punishment inregards to prostitution ranges from 12 years to threemonths in jail and also includes fines’. 37At the same time, the removal of a crime of sodomy anddecriminalisation of homosexuality were other importantchanges brought about by the Crimes Decree andreceiving attention. One February news report addressedSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 20099

The studyThis research is an extension of the original RiskyBusiness Fiji study. Changes to the laws around sexwork were announced around the time that the initialstudy results were released. Consequently, a repeat ofthat original research on HIV prevention and sex work inFiji was planned for some eighteen months after the lawchange to allow time for any initial knee-jerk reactions tohave settled down and the nature of any impact on sexwork and HIV prevention – or the lack of impact – tobecome apparent. The timing of the two sets of datacollection, straddling the implementation of the Decree,provided a unique opportunity to go back to the samegroups of sex workers with the same topics of discussionand with the same methodology, the only difference beingthe legal framework.regard to sex work and HIV. We do not have definitivedata on prosecutions and did not have permission tospeak with the military – whose actions we had no idea,prior to the data gathered, would be so central to thefindings of this report. The data primarily are the voicesof sex workers and document their experiences sinceFebruary 2010, as well as the views of NGOs workingwith sex workers. We believe that voices of marginalisedgroups such as sex workers are often unheard in policyand program reports and that our work is an attempt torectify this.Approval for the 2011 data collection was granted byboth the Human Research Ethics Committee of TheUniversity of New South Wales and by the National HealthResearch Ethics Committee of the Ministry of Health Fiji.The second round of data collection, funded by UNAIDSPacific, facilitates investigation into the effect of Part13 of the Decree through the collection of data on: theexperiences of sex workers and any changes in theconditions and practices of sex work in the period sinceFebruary 2010; the impact on condom distribution,peer-based HIV education, support services and healthservices with regard to the Decree; any changes in majorsites and venues 1 where sex workers congregate.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009Additional information was gathered from dailynewspaper reports in the months around February2010, as well as from outcomes of court cases andprosecutions in the period between February 2010 andFebruary 2011. While these data do not shed light onthe practice of sex work nor on HIV prevention efforts,they do provide relevant background and contextualinformation against which to view interview data.Coverage of the Decree as it appeared in newspaperreports over the initial period of promulgation has beendiscussed in the Introduction above.The report has some caveats. We do not claim that thisis an analysis of ‘prostitution law’; rather it is an analysisof the social effects of the actions around the law with1 Given the manner in which known sex work sites and venues havebeen targeted, the researchers consider that the presentation of thisdata would compromise the safety of participants and of sex workersin general10

Arrest and prosecution dataInterviewsProsecutions of sex workers, under the Crimes DecreePart 13, between February 2010 and 2011, were alsomonitored. We could only ascertain three cases that havereached court. The small numbers involved do suggestthat police activity against sex workers has not increasedin the ways anticipated before the research began.Instead, the interview data presented below will evidencean unforeseen outcome: that the main changes to sexworker experiences of law enforcement since February2010 are the result of military activity. This military activitydoes not leave any official and publicly available record.Thus the use of prosecution data to monitor changessince February 2010 to the enforcement of laws againstsex work is extremely limited.The first arrests of sex workers for violations of the newlaws occurred in the town of Ba in the Western Provinceof Viti Levu, in mid-2010. Two transgender persons werearrested for loitering with intent to commit a crime (solicitfor sex). The arrestees were known in the community assex workers; however, they maintain that they were notsoliciting but walking to a grog session (kava drinking)at a friend’s house when they were apprehended. Oneyear later, despite been summonsed to court a number oftimes, their cases had not yet been heard.In July 2010 another sex worker was arrested in suburbanSuva. The 29-year-old’s case was heard in court a fewweeks later and he pleaded guilty to loitering for thepurposes of prostitution.In sum, there have been few prosecutions of sex workerson charges laid in accordance with the provisions of thenew Decree. The charges that are being contested havenot been tried. However, while few charges have beenlaid by police, the data from our interviews indicatesthat when sex workers are being taken into custody for‘Prostitution offences’ (the provisions of which allow forarrest without warrant of any person in a public place whois reasonably suspected to be committing an offence), itis often by the military. There is no paper trail. Punishmentis meted out in a summary fashion, without due legalprocess, highlighting the limitations of evaluating a law bylooking solely at the outcome of court cases.As a result, monitoring the outcomes of court hearingswill not capture the dominant response by agents of lawenforcement since February 2010. For that reason, thebulk of this report focuses on the data from interviewswith sex workers, including some of those who have beenarrested, apprehended, or otherwise detained during theperiod since the Decree came into effect, and also datafrom consultations with sex worker organisations and theirrepresentatives.Between late March and early April 2011 researchersfrom the International HIV Research Group of theUniversity of New South Wales and from the Pacific HIVand STI Research Centre of the Fiji School of Medicine(i.e. the same researchers who conducted the originalRisky Business Fiji study) conducted a further 25 faceto-facein-depth interviews with sex workers in Suva,Labasa, Lautoka and Nadi.Participant recruitment sites and strategies, and sexworker networks utilised were the same for both datacollections; in many cases the same participants wereinterviewed. This ensured that the research did notsample a completely different group of sex workersor represent different types and places of sex work.However, in the course of the data collection and inresponse to the information being gathered, an effortwas also made to recruit sex workers from within thosesame networks, who had been arrested by either thepolice or the military since February 2010. (Two of theparticipants who had been detained by the military hadalso been interviewed in 2009.) For this reason, we donot draw any conclusions from the increased numbers ofparticipants who had experienced ‘arrest’ in this secondsample. Once the reports of detentions began to emerge,the researchers judged that it was important to documentthese experiences. It was equally clear that these arrestsand punishments would not appear in any court or justicesystem records.The same semi-structured sex worker interviewschedule was used as in the Risky Business Fiji 2009data collection. This schedule covered an interviewee’shistory of sex work, the role of sex work in their life andthe conditions under which trade occurs, including thepersonal risks and consequences of conducting sexwork. Condom access and use, including negotiationof condoms with clients were discussed, as was theinterviewee’s access and use of sexual health andtreatment services.As in 2009, the format was topic-focused, with theschedule providing a general guide to issues underdiscussion rather than a list of questions. Participantswere encouraged to recount actual events and memories.In this second data collection the discussion of changefocused on the time period since the Crimes Decreecame into effect in February 2010.At the start of each interview participants were informedthat the interview was a follow-up to the Risky Business2009 report, that it was funded by UNAIDS, conductedby UNSW, and that it aimed to document any changessince that last data collection. As backgroundSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200911

information,interviewees were informed specifically that:‘At the beginning of last year a new Crimes Decree cameinto effect. It has a section that deals with prostitutionlaw’. They were then asked ‘Have you heard about that?’.If they answered that they were aware of the Decree, theywere asked what it meant to them. No other informationabout the Crimes Decree was provided to any sexworker interviewees before or during the interview. Someparticipants requested more information on any changesto the law and after the interview they were directed tolook at Part 13 of the Decree.of their members, and to forward their experiences asorganisations since February 2010.Along with representatives of sex worker organisations,NGO staff and a program manager, other key informantsincluded sexual health clinicians and members of thepolice force. These consultations provided informationabout interactions with, and services or programsprovided to or for sex workers.Interview data analysisIndividual interview transcripts were read andsummarised as cases. Dominant themes and issueswere identified, and transcript data was then coded,compiled, aggregated and summarised. Individualtranscripts were read closely and considered as wholestories. These readings afforded an overview of theinterviews, both as individual narratives and collectively.The first coding of transcript data was topic driven,and further thematic code lists were generated, basedon repeated and close readings. Coded data wasaggregated into code files that were again generalisedand summarised. The analysis aimed to identify range,pattern and consistencies and points of difference withinthese topical and thematic data groups.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009This report is based on data coded under the topicsof: conditions under which sex work occurs; risks andconsequences of conducting sex work; condom accessand use; condom negotiation with clients; and access toHIV prevention and sexual health services. Knowledgeof the law appeared as a subsequent topic code. Themajor thematic code of interest to this report was thatof change. Sub topics within that thematic strand werethose of police response, military response, NGOresponse, client practice, and sex worker practice. Asecond and major theme emerging from the data wasthat of the human and legal rights of sex workers.Other key informantsThe service provider organisations identified by sexworkers and canvassed in 2009 were again consultedin order to ascertain their organisational response tothe Decree, along with any resultant changes to theway they deliver services or accommodate sex workerorganisations.Three sex worker organisations: a national sex workernetwork; a Suva-based female sex worker supportgroup; and a Lautoka-based network of sex workers,were contacted and invited to represent the experiences12

ResultsThe resultant sex worker interview sample was madeup of: 13 female and 12 transgender sex workers agedbetween 18 and 47 years. This included 5 sex workerswho had been apprehended or detained by military in theperiod since February 2010.Most of the sex workers we interviewed had experiencedchanges to their work and lives since the introduction ofthe Crimes Decree in February 2010. These changesranged from reduced access to condoms and loss ofNGO services and support, through to fear of torture.In the course of the interviews most interviewees referredto the fact that buying sex had been newly criminalised,although they did not always know this was related tothe Crimes Decree. Indeed, very few sex workers weinterviewed had any detailed or accurate knowledgeabout the Crimes Decree or its implications for sexwork. The views of those who expressed opinions aboutwhat the Decree meant for them largely concurred withnewspaper representations. In other cases the sexworkers’ opinions were forged by harrowing personalexperience of changed enforcement practices, or byknowledge of what had happened to others. For example,when she was asked what her understanding of theCrimes Decree was, Lynette replied:It is when the military takes over and there is nogovernment and there’s no human rights.In saying this, Lynette links the Decree with a state inwhich normal rules and rights are absent; a summationof her recent personal experience of treatment foroffences of soliciting. While her statement does not showany understanding of what the Crimes Decree states, itdescribes the reality for Lynette and others like her whohave experienced the military detentions of sex workers.These experiences will be described in the followingsections.It was evident that, like Lynette, most sex workers hadvery little knowledge of what the document called theCrimes Decree contained in relation to sex work. It is alsothe case that sex workers do not need to be aware of theworkings of the justice system for it to affect them, theirworking conditions and their access to HIV preventionservices and resources.The police responseThe original Risky Business Fiji report indicated thatpolice crackdowns and street ‘clean-ups’ took placeat intervals, and that these efforts tended to chase sexworkers off the streets for a few nights before workresumed as usual. Sometimes sex workers who hadbeen picked up off the streets were held in police cellsovernight to be released in the morning without charge.In between times, police responses to sex workers weremixed, with some evidence of the actions of corrupt andabusive individuals, but with most police simply movingsex workers on and attempting to send them home.Police were clearly aware of the main areas where sexwork occurred.This most recent data show that at times there is clearlysome good feeling between police and sex workers:evidence of value of past liaison work. Numerous sexworkers said they understood that police were just ‘doingtheir job too’, and at least some members of the policeforce seemed to have adopted an approach of harmminimisation. However, one of the community-based sexworker organisations reported that:There have been changes in the interactionsbetween the women SWs and the police sinceFebruary 2010. There is increased presence ofpolice around the well-known areas that sex workersfrequent especially at night and police are beingmore upfront and more aggressive when theyapproach sex workers in nightclubs, the street, andmotels. This is more evident in Nadi than in Suva.There have been few court cases arising from chargeslaid against sex workers since the Decree came intoforce. However, there has been some policing activity.Two transgender persons were arrested while walkingdown the road in Ba. These were the first charges laidunder Section 231. One of the sex workers was wantedby police for another offence. The defendants deny thatthey were soliciting and claim that they were simplywalking down the road, making their way to a kavasession at a friend’s house. While the defendants havebeen summonsed to court a number of times over thepast year, their cases had still not been tried at the time ofwriting. As well, a Suva sex worker has pleaded guilty tocharges of soliciting.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200913

By February 2011, managers of seven massage parlourshad been charged under the Crimes Decree 2009with conducting illegal activities from their premises.According to police sources, this was a plannedoperation aimed at closing down the parlours in Suva. Nosex workers were charged during these shutdowns. Aswell, in February 2011, after police conducted raids onSuva nightclubs and apartments, nine Chinese nationalswere arrested and deported for visa violations. No sexwork charges were laid, although the police maintain thewomen involved were sex workers.Members of the police spoken to in the course of thisresearch have said that their policing of sex work hasnot been affected by the new Decree and that they arecontinuing to police sex work in the same way as theydid previously. The only changes noted were the actionstaken against the massage parlours. Consistent withthese police claims, few of the sex workers we spokewith had been apprehended by the police since theintroduction of the Crimes Decree. However, the sexworkers did speak of a number of arrests occurringin Suva during an apparent crackdown soon after theCrimes Decree came into force:transgender ones. I think the police now have cooleddown a bit, like I haven’t heard of any new cases [ofmistreatment] but before there were a lot. (Samantha)Overall, reports of the police approach were largelyconsistent with earlier reports in the 2009 Risky Businessresearch. Our data indicate that over the last 18 monthssex workers continued to be moved on or chased awayby the police in the same manner as before. It remainedcommon for the police to warn known sex workers thatwhat they were doing was against the law, and oftenalso that it was immoral. Furthermore, carrying condomscontinued to be grounds for police attention – withcondoms treated as if they are evidence of an offence, orare themselves in some way offensive:the cops always ask ‘What is that? Are you doingprostitute? Why you carrying (condoms)?’…. Theydon’t look at the bright side, eh. They always thinknegatively. (Miranda)The military responseSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009The police arrested plenty girls in town, they takeus to Central [Police Station], they write the name,address – everything – details, you’re married orsingle. And when we say about the children about,when we say they’re boys, police say the boy’sgonna be a poofta in town. And the police say thatif you have a girl your girl’s gonna come and do thiskind of thing. (Carrie)During this time, the police kept the arrested workersin the cells for a period (often until the morning) in whatappears to be both a pragmatic strategy to prevent themfrom conducting sex work – at least for that night – and adeterrent.[The police] just come to give us a warning; theyjust come and say ‘okay keep on moving – If we seeyou at 8 o’clock, we’ll arrest you and you’ll sleepat the cell’. Then we’ll be released in the morning.(Charlotte)While some police insulted and taunted those whothey had arrested, there was no evidence of seriousabuse. And the sex workers acknowledged that, after aninitial flurry of activity in 2010, even this level of policeharassment had recently begun to ease:To me now I think the police are more… lenientwith the sex-workers. But some do not understandsome situations of the sex-workers, especially theIt was always the police before, but ever since theDecree the military have gotten to do the job as well.It’s the military that have really, you know, like really,really made us feel that they were meaning businesswhen they were saying that we are not allowed to beon the streets again. (Maria)The government of Fiji is a military one, and the police arenot the only agents of law enforcement. While the policeresponse may not have changed markedly, sex workersreported a new military involvement and visibility on thestreets since February 2010. The current government ofFiji, although interim, is stable and not in crisis, but sexworkers report that they have not been subject to this sortof targeting by soldiers since the times of various coups.These claims are consistent with the data from 2009 inwhich sex workers referred to abuses at the hands ofsoldiers in 2000 and 2005.The recent military involvement in policing of sex workappears to be mostly confined to Labasa and Lautoka.In Lautoka there has been a distinctive approach tothe policing of sex work taken by the military, a styleconsistently characterised by round-up, parading andsummary punishment of sex workers. Around Suva therehave also been isolated incidents of sex workers beingpicked up by military personnel.In Labasa the military have engaged in regular policingof the evening streets. This also started in 2010. Whilethe military there ask sex workers to explain themselves14

and tell them to go home, the sex workers we interviewedhad no complaints about mistreatment. In Lautoka themilitary response has been far more punitive. In thattown members of the armed forces use military vehiclesto round up sex workers, taking them to the militarybarracks, detaining and abusing them overnight andmaking them submit to forced labour the next day. Manyof the sex workers describe the army patrolling andpicking up workers:I was arrested by the army [some] days after theDecree and then we were taken to the army camp.We were caught on the street and we were taken inby the army on that evening. They had a four wheeldrive. (Magda)charged, we were just kept under detention for manyhours. (Bree)The outdoor pen-like conditions sex workers wereconfined in after being taken to the barracks were alsodescribed:When we reach the barracks then we sit out at theground – I mean on the ground –surrounded bythose, those steel crosses that they use for roadblocks… We’re trying to sleep, but we can’t sleepbecause we’re sitting on the ground. There weremosquitoes everywhere and dogs, those barrackdogs are just running everywhere, we’re sitting, andat 4 in the morning we got called in – six hours later.(Maria)I wasn’t talking to a client, I was just standing andyarning and catching up with a friend. They roll upand tell us to get in. They were so aggressive that wehad no other choice but to get in. They kept saying‘you know this is not allowed, to do this and all this’– do what we were doing, just standing and yarning.(Maria)I was picked up from there, from where the sexworkers always stand. I was sitting down thatafternoon when the soldiers stopped in front of me,and they pointed at me to get in the car. I said ‘no’that I was waiting for my husband, my husband willknock off from work at 10.00 p.m. They said for meto get in, if not they will force me to get in, and I waspicked up in that car with two other girls. We weretaken in the car to the army barrack. (Susan)Sex workers described being picked up from recognisedsex work ‘hotspots’, and detained for up to 24 hours,although they were never formally charged with anyoffence. Once they were picked up, they were driventhrough the town on the backs of open vehicles,suggesting that a strategy of public outing and shamingsex workers is being employed. All the sex workersinterviewed for this research and who had been pickedup by the military, had been detained overnight at thebarracks grounds. Many were not released until thefollowing evening.We were kept there that night till the morning andright into the afternoon, about 4 o’clock, One and ahalf days. From midnight. (Magda)The military took us to the army camp. We were keptthere for until the morning, until the next morningand we’re sent home at about 10 o’clock. We weren’tWe were all just taken up in a rush to this place withgrass and soil where we have to go and be lockedand we get locked out there till morning and it wasreally cold. (Carrie)When you’re at the camp, that’s just you in the pigpen. You are treated inhuman. (Lynette)Sex workers are detained overnight on the army basewhere they are all subjected to sleep deprivation, as wellas to humiliation and other degradations. The sex workerswe interviewed had experienced severe psychologicalabuses. One female worker describes what happenedto her and a friend once they reached the barracksgrounds:Those steel crosses made a circle on the ground andwe are made to sit in the circle and then they wentoff. After some time they came back. And when theycame back they didn’t stop the vehicle. Nobody gotout, but they had their headlights on us. And thenthey tell us to stand up and to remove our clothes. Sowe are removing them, one by one. The headlightsare on so we don’t know who, or how many, is sittingin that car. But it was the same vehicle that picked usup. So we started stripping – right to the part wherewe are going to remove the last bit of clothing that wehad. Then they told my other friend ‘You have to stop!You’re so ugly!’. It was so humiliating because she’sa mum and she’s quite bulky. And then they say ‘Bothstop! Put on your clothes again and sit there’ andthey drive off and laugh… (Maria)Sex workers were sometimes sexually assaulted while onthe base. Lynette described being ‘stripped in public andfondled’. Maria and her friend had to fend off a soldierwho tried to sexually molest them when they were leftSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200915

alone with him. Other physical and mental abuses wererecounted by a transgender sex worker:We were told to say things, like they said we have toscream up and tell them that we are sex workers or theprice of how we sell ourselves. During that night thatreminds me that there was no more human rights, andthe only things that I can remember thinking are thatif this continues Fiji would be somewhere like HotelRwanda where most sex workers are first victims ofthis kind of military abuse. (Carrie)This treatment amounts to torture. A number ofexperiences revolved around being made to bathe orbeing made to roll on muddy ground:We were told to put all our things that was in ourpocket and our bag outside, and we were put in thebath for ten minutes and our clothes were all wet. Wewere wearing our clothes, and we got cold but wewere told to stand there in the bathroom and bathe…One of our friends was cold and wanted to stophaving her bath, but then she was punched to bath.After ten minutes, we were taken to roll on the groundin our wet clothes. We lay on the ground and we haveto count the stars in our wet clothes. (Susan)They told us to take everything off, even ourunderwear and our bra. They burnt our wigs, bra andthey told us to roll on the wet ground covered withdamp soil. They punched us. They kicked us. Theydidn’t charge us, they just tortured us. (Magda)The soldiers tortured me. They said that I used todeal the girls [act as a pimp] that stand on the road,that I’m the dealer. I said ‘no’ that I’m not a dealerand that the girls can do whatever they want to dobecause they are the boss of themselves. Theytortured me and they punched me at the camp, theypunch me and slap me. They asked me if I’m thedealer and I kept on saying ‘no’ because I didn’tknow anything and they tortured me. (Lynette)We were told to roll on the ground and then crawl,how the army always do while they train. We werescolded and kicked and they told us not to come tothat place again, if we come back there, they will getthe termite and put it in our pants. (Gabrielle)After being detained for the night and enduring hoursof physical and mental abuse, the sex workers werethen subjected to forced labour. This included cleaningthe soldiers’ dormitories and barracks grounds. It alsoinvolved being taken into town and forced to cleandrains and roads as stipulated by someone from the CityCouncil in Lautoka.We woke up early in the morning and we were toldto go and clean up their room. After cleaning theirroom we were told to go and iron our clothes and towear it again. After we changed our clothes we werethen told to go and scrub their kitchen, which wasreally dirty. We went and cleaned their kitchen; wescrubbed the black stains that were there until it wasclean. (Susan)Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009The bathing process seems to be designed to show thesex workers that they are dirty and need to be cleansed.Similarly, there were reports from Suva interviewees thattwo sex workers who had recently been apprehended bysome military personnel had been forced to crawl in themud and then to jump into the sea. They were reportedlytold to ‘Go in the sea, wash their pussy’, whereuponempty bottles were thrown at them. Those events in Suva,however, did not take place on the army grounds.Apart from sex workers reporting being punched andkicked by members of the military during detention at thebase, other types of physical abuse included:We have to wake up between every three to fourhours and do squats like duck walk along the groundlike say about ten metres to 15 metres… We weremade to place a cone that’s used for traffic on ourhead and then they put the wigs right on top andthey tell us to leap one leg up to our knees and pullour ears and keep on saying ‘I will never sell myselfagain’. (Carrie)We were told to pick up the rubbish at theircompound. We picked up the rubbish from there andwe went to pick up the rubbish at the other barracks,which is on the opposite side of the road. After that,we were brought back to the barrack on top and wewere taken in the car and we were told to go andpick up rubbish at Natokawaqa. We picked a lotof rubbish from the housing barrack and then wepicked up the rubbish from another drain. (Gabrielle)Driving women and transgenders through town on theopen back of a military vehicle parades them to thepublic. As one interviewee pointed out, when peoplesee women on the back of a military truck at night theyknow it can only mean one thing: the women are sexworkers. The outing and shaming of sex workers is furtherachieved when the detained sex workers are put towork the next day, in full public view, still in their eveningclothes, on various council street and drain cleaningprojects.16

Monday morning we were taken for this communitywork. We had to clean this drain for hours. We startedat 8.30, and we were told just to behave like it wasa community work – not to act suspiciously in frontof the public and we were cleaning this long drain.(Carrie)The detained workers were supervised by members ofthe military, but the work to be done was arranged withand designated by a person at the Council, who also tookresponsibility for providing lunch – if any was given:After a while the big boss comes in and tells us ‘waitwe’ll give you work to do today’ so he calls up theCouncil and he asks the council which places dothey want to clean up. So the council tells them theplace, next thing we know we were being told to getin the vehicle. We were taken to the roundabout andwe were told to pick rubbish from there right up to thehospital roundabout. So we started, started, started.There were two soldiers supervising us. We started,started. They were holding the sack and we weredoing the cleaning. We had about 50 sacks that dayand so they said ‘look if you can fill up the 50 sacksthen fill it up and we’ll call it a day’. So we made itour business to fill up the 50 sacks around the road.[When] we had completed it, they told us that wecould go home. (Maria)The new dangers attached to being identified as a sexworker are reflected in the closure of one – highlysuccessful and popular – program for sex workers runby an NGO. After the Crimes Decree came into force thatparticular service provider almost immediately ceased alltargeted programs with sex workers, in part because theyfeared that the weekly meetings could provide:an opportunity for police to come around and go ‘weknow that you guys are all sex workers, when we seeyou on the street we’ll know that you’re a sex workerso we’ll pick you up’ … The police know they are sexworkers and therefore see them in a corner dressedin drag and that’s all they need to haul them off.To sum up, although the female and transgender sexworkers who had been detained by the military are olderand street-hardened, a number of them were utterlytraumatised by their experience of detention. Carriestated, ‘For the last 15 years I haven’t come through anexperience like what I’ve experienced on September[date deleted], 2010’. Lynette said that she had lost allbelief that she had any rights or access to justice as sheproclaimed:From that night I know the law: They said that therewere no more human rights, there were no law.(Lynette)All the sex worker experiences of process and conditionsof detainment by military in Lautoka are similar andconsistent, although these events occurred over a periodof more than a year. This indicates that this is not theresult of random actions on the part of individuals, but inkeeping with a planned approach to the military policingof sex work in the Lautoka area. Furthermore, there isobvious complicity by at least some individuals at theLautoka City Council in the forced labour of the detainedsex workers, and the concomitant human rights abuses.Well-known, high-profile and regular sex workersare those who are getting picked up by the military.According to Bree, the military ‘assume’ they are sexworkers because they are hanging around ‘hotspots’ inLautoka. Others point out that sex workers are known inthe communities and villages that they live in, and thatmilitary personnel are part of those communities too:We know each other because it’s such a small place.In Lautoka three or four soldiers could be livingaround the neighbourhood – we know each other,they would grow up with you or you attend the samechurch. Them coming down to us to the street andtrying to chase us off the street is quite new. (Maria)In Suva, there was less evidence of military activityfocused on sex work, and the few isolated actionsreported do not appear to be part of an organisedprogram, nor do they implicate the army base itself inthe same manner as do events in Lautoka. While a localcommunity-based sex worker organisation said that itsmembers ‘have witnessed and have been told by othersex workers that the military take them to remote areasand leave them there, or take them to the sea and getthem to swim out’, none of their members have hadinteractions with military personnel themselves .It is clear that the army is acting outside the law indetaining and abusing sex workers, and that thedetention and punishment of the sex workers occurswithout due process or regard for human rights.However, this military activity appears to be inspired bySection 231 of the Crimes Decree – and in particularthe provision for arrest on suspicion. In each of theincidents the sex workers described, the detained sexworkers were led to believe – on the basis of the soldiers’words and actions – that the law now allows for arreston suspicion of intention to sell sex. This is a valid andunderstandable conclusion in the light of the recent tacticof picking up known sex workers who are present inSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200917

identified ‘hotspots’ regardless of their actual behaviourat the time.Moreover, some soldiers did invoke the Crimes Decreeand its terms in justification of their actions when theypicked up sex workers. In Lautoka, where militarypersonnel regularly engage in the enforcement of the‘Prostitution offences’:generating anxieties about income, the fear of arrestforces sex work to become more clandestine:You have to be very cautious eh so that you are notseen and caught. So whatever you do, you do it ina way that no one sees it, that no one knows whatyou’re doing. (Bree)One of the soldiers, they said that the Crime Decreecame into effect so, so you can’t do this [stand on thestreet at night], it’s not allowed. (Magda)While the military invoke the law when they take sexworkers into custody, they also threaten the sex workerswith punishment way outside the terms of the law:We were told that if we are going to be caughtagain, we will be taken to go and bath where thepigs always bath, at the pigsty. There are twopunishments, if we are caught again we will be takento the pigsty, after that if we’re caught again wewill be locked up in a container which contains thesoldiers’ shit, we will be locked inside, that is the thirdpunishment. The fourth punishment, we will spendsix years in jail and there won’t be any court hearing.(Susan)They didn’t charge us, but they say if we will comethere twice or three times they’ll put us in prison. Ifnot, they’ll take us to this one church denominationeh. They’ll take us to be part of that denomination.(Betty)The detention and abuse of sex workers has certainlyengendered fear in the community. Bree told us:Doing sex work is now hidden and they don’t takechances when they pick up clients… they are afraidof the place to meet their client and have contact bymobile phone. (Catherine)Sex work becomes a more covert and isolated activityas opposed to the more public and collective endeavourthat was characteristic of Fijian sex work in 2009. Nowsex workers have less contact with one another. Breesaid, ‘It’s mostly done now by phone contact … it’s nowprivate, like it’s hidden now’. As working from streets andbars becomes more perilous, sex workers move to newplaces. Even the motels are more difficult to work out of,and a number of sex workers have begun to work fromhome or in dark places:The Crimes Decree is hard for us sex workersbecause sometimes we can’t display ourselvesnicely on the street. Like we are just frightened andwe always hide, sometimes even when there’s a lotof clients, when they go past we’re hiding inside thebushes. (Miranda)Samantha also talked about what she called the increasein ‘undercover’, by which she meant new, more secretivesex workers, who unlike the better networked and moreexperienced sex workers, ‘are ashamed of using thecondom … Those are the type that don’t use condom’.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009For me when this law came I didn’t go to town for twomonths. I didn’t go because I heard that some of myfriends have been taken to the army camp and theyput the cone on them. (Bree)Changes in sex worker practiceSex work is still driven by financial need in Fiji. A recentheightened fear of arrest, detention and physical abusechanges the way sex work is carried out. Sex workersworry about the army patrolling the streets and the effectit will have on their ability to feed their families. As Angiesays: ‘My perspective about this Crimes Decree is thatfor us when we stand there [on the street], we stand tolook for our money for our bread and butter’. Along withA trend to more hidden and hard-to-reach sex workersis extremely problematic for HIV prevention as well asundermining other aspects of sex worker safety. Theincreasingly isolated nature of sex work makes sexworkers less accessible to outreach, peer educationand condom distribution services. There is also adiminishment of opportunity and motivation in the sexworker community for the sharing of resources andknowledge that was such a strong feature in the 2009Risky Business research.For the sex workers, financial pressures remain but therisks attached to sex work increase. Mary-Alice talks ofsome sex workers moving from sex work into burglary:18

Before, when there was no Crime Decree the girlsjust move like this and like that and it’s easy for themto hook a client. But now when this Crime Decreecame, everything is difficult. That’s why some of thegirls nowadays do bling [burglary], they break in tohouses and some do robbery. They do other things,which bring more problems than doing sex-work.(Mary-Alice)Disincentives to carrying condomsWhile Part 13, Sections 230–231 of the Crimes Decree on‘Prostitution offences’ does not mention carrying condomsas proof of soliciting, sex workers have reported that boththe police and the army search the workers for condoms.As a consequence, many sex workers believe thatcondoms can be used as evidence of sex work. Certainlysex workers know from experience that carrying condomsprovides a reason for agents of the law to harass them.Carrie says, ‘Sometimes the police search our bag, ifthe condom is there the problem is there. The police say‘’What’re you doing with the condoms?’’’. A number of thesex workers raised the issue of a new reluctance to carrycondoms to share around, because of the consequencesof getting caught with them:Before we used to carry heaps of condoms eh, youcan carry four or five condoms with you. But nowI’ve heard that a person is only allowed to take onecondom. This has to, you know, broaden the risk. Fora person to be caught with an extra condom [means]you are caught in the act. (Bree)girls and new sex workers who are not so readilyidentifiable, in the belief that it will reduce their own riskof being apprehended as a client. Carrie claimed thatclients ‘are looking for Indian teenage girls especially’.Both clients and sex workers are seeking out new pick-upvenues and arrangements.Renee states that when sex workers are forced toabandon their usual working places because the policeare chasing them away, ‘we go home without money’.Desperation for cash reduces sex workers’ negotiatingpower and empowers the client. As some explain:Most of us are finding it really hard, so it’s not likehow it used to be with the agreement of price. It wasalways the girl giving her price. Now it’s them, theclient. (Angie)I just go out in the day time and at night I relax, notlike before. It’s difficult, there’s plenty of new girlsand the clients are giving less money. (Renee)Sex workers like Magda (an 18-year-old transgender)claim that the criminalisation of clients has caused,‘fluctuating clients, client problems, and decrease inthe payment’. This includes a loss of regular clientsdue to fear of arrest. As Samantha says, ‘the clients arescared too. And this has affected, I know, most of thesex-workers’. This is particularly true of those clients forwhom being arrested would mean shame to themselvesand their families:If we are seen carrying condoms we could bemarked as prostitute. We have to be very smart withthe law on why, on the grounds why are we carryingcondoms. It’s really hard for some of us who take outcondoms, go and distribute condoms on the streets–and then being taken by the law and punished andbe penalised for that. (Magda)Changes in client practiceOne of the major changes to the laws on sex workcontained the ‘Prostitution offences’ section of theCrimes Decree, is the criminalisation of the client. In Fiji,this increased risk to clients has reduced sex workers’negotiating power – it has meant fewer regular clients,more competition amongst the sex workers for clients,and therefore also a lower fee and less income. Sexworkers say that the approach taken by the militaryin Lautoka deters clients from using the services ofany publicly identifiable and identified sex workers inparticular. Some claim that clients now prefer youngerThey’re a bit reluctant now because they arethreatened by the thought of being caught by themilitary. Mostly the clients are either office holdersor they know people, they are known, and they havefamilies of their own and their families do not knowthat they come out to seek sex services. (Mary-Alice)Sex workers contend that law enforcement personnelcannot identify the younger workers and those who arenew to the trade, especially those who work from newsites, or are not yet widely recognised by the communityas a sex worker, and therefore these sex workers aremore attractive to clients. This situation increasescompetition between the older, more experienced sexworkers and the younger or new ones. New and youngersex workers are also reluctant to be associated with moreexperienced and recognisable sex workers. This deterssome sex workers from engaging in advocacy work. Theevidence that military are targeting publicly identifiablesex workers in Lautoka deters young or new sex workersfrom associating with sex worker advocates, andSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200919

compels them to be more secretive about their identity asa sex worker.The result is that the new sex workers do not get thebenefit of the more experienced workers’ knowledgeabout HIV prevention, access to resources, and othersafety information. As Lynette states: ‘There are plentynew girls coming on the street and we should teach themto use the condom because of the diseases that arecoming nowadays’. Consequently:some of the sex workers that are coming out now arenot using the condoms. (Mary-Alice)Less money – Less negotiation – Less condom useThere was a universal feeling that the price of sex workhad dropped since February 2010, and that this wasrelated specifically to the criminalisation of the client.Sex work in Fiji is driven by economic need, and thereductions in price and income have had an impacton the ability of workers to feed themselves and theirchildren. Miranda stated, ‘Before the Crimes Decree theyused to pay good money but now they are paying less’.This is echoed by Maria:When we go out we really need money, I mean as forme I’m a mum so my expenses are not, I mean whenI go out to look for money it’s not for me, I’ve got mykids to look after and stuff like that so my expensesare quite, you know it increases as well. Before [theCrimes Decree] we used to have really nice clientsbut what I’m saying is that the clients are gettinglesser in numbers.The criminalisation of the client has weakened the sexworkers’ ability to negotiate both price and safety beforegetting into a car with a potential client.[She] picked up this guy and they planned to go to amotel. He drove them past the motel and said that hewas the police and that sex work was illegal and thathe was going to do what he liked with the sex worker.The sex worker had to jump out of the car when itwas slowing down.The sex workers’ reduced capacity to engage innegotiations with clients has implications not just forprice and payment but also for condom use. Sex workershave less opportunity to convince or educate their clientsabout the value of condoms and are under more financialpressure to accede to demand for sex without condoms.There has also been an increase in troublesome or violentclients:[The criminalisaton of the client] has changed theway we negotiate prices because now we get fewerclients. If we’re lucky to have a client tonight then webecome so desperate to the point where whateverthe price is offered we take it, as long as we getsome money by the end of the night…Because thereis not many clients coming in, we take what we canget. Now that they are decreasing in numbers wecannot really be bargaining with them too much.(Maria)There’s been a lot of changes. We have been alsoill-treated by most of the clients cause if we wouldn’tagree on the price that they are giving then theywould just tell us ‘get off’ or you know, I can findanother person. Now they will just say that they cantake us over to the court and to the police and tell thepolice that we were trying to solicit sex to them on theexchange of cash. Some clients nowadays are veryconniving and cunning because of the new Decree.(Angie)Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009Before when we used to tell the clients our pricethey always say ‘hey that’s too much’ but nowadaysthey say ‘okay just get in’. They don’t want to make itdifficult for us because they know if they’ll get caughtthey will also be arrested, so they don’t wait for toolong. They just come and we get in, then we have totalk again. (Angie)Sex workers are also reluctant to enter into negotiations‘because the client could be under cover police’.According to sex workers in one of the community-basedorganisations, clients also have a new awareness of sexworker vulnerability to prosecution and are using it totheir advantage if they don’t want to pay, or to force sex.The organisation described an incident with one of theirmembers:Impact on NGO responseThe list of ‘Prostitution offences’ contained in the CrimesDecree had an immediate effect on those NGOs involvedin community-based HIV prevention among sex workers.Eighteen months on, this effect is shaping up to be apermanent one.While there was little in the letter of the law that woulddefinitely make those providing condoms and otherresources to sex workers liable to charges of aiding orpromoting prostitution, NGOs have adopted a positionof complete risk aversion. The targeted services andprograms previously provided look to have been lostpermanently.20

From the sex workers’ point of view there have been twomajor changes: cessation of outreach services includingcondom distribution; and the closure of in-house services,drop-in centres and regular meetings. This was summedup by one program manager as the ‘reorientationof services’ away from sex worker specific and HIVprevention, to alternate income generation and workskills training. Consequently, there are now no regularoutreach condom suppliers in the main towns in Fiji. Thesingle NGO that had field workers regularly conductingoutreach said that they ceased these activities becauseof the Decree and the policing of it. Specifically, the NGOpointed to police and military raids on the streets thatthey claimed were putting their condom distributors atrisk of arrest or detainment.Cessation of condom distributionThe end of the only regular targeted sex worker outreachand condom distribution program was the direct resultof an NGO response to the enactment of the Decree,and their reading of the section on ‘Prostitution offences’.Across Fiji a number of the workers in this study claimedthat the supplies of condoms had dried up. Magdadescribed a change from when ‘condoms were inabundance’ to now when she had to come into townduring the day to pick them up because ‘condoms wereno longer distributed’. Others concurred:Before [February 2010] it was easy for them tosupply the condoms to those doing the distribution inthe nightclubs and on the streets, but nowadays it’sdifficult and we have to go somewhere else to buythe condoms. (Mary-Alice)Through this Decree it has made it hard to get yourration of condoms. It has changed the distribution ofcondoms. Like it affects the flow of condoms to us.(Bree)[The NGO] used to give out condoms to us butright now there’s no one coming out, no one comingout with the peer education information to give outcondoms. (Maria)Bree also felt that the NGOs had withdrawn from sexworkers since the Decree, ‘I think certain organisationsignored us when this decree happened. [They would be]Taking too big a risk, being with us’.The lack of access to HIV prevention programs andactivities targeted specifically at sex workers increasesthe vulnerability of new sex workers in particular. Theeffect of the loss of street distribution of condoms,in-house HIV and safety education services, andoutreach educators previously provided by the NGOcan be expected to be compounded by the dearth ofinteraction with advocates and reduced opportunitiesfor engagement with more experienced and condompositivesex workers, described earlier.While the sex worker organisations themselves havenot ceased supplying condoms to their members, theirresources for conducting regular outreach activities arelimited. Even though they make condoms available forpick up in bulk, they express concern that possession ofcondoms in bulk may make their members vulnerable tothe attention of agents of the law. Now they undertake thissupply with caution:When we have a supply we give the supply to oursex worker members and we tell them to be careful…We trust our sex workers to know what to do. Wehave had a lot of discussions on this.Changes in NGO orientationThe Crimes Decree does not ban the distribution ofcondoms, nor are there any provisions which wouldspecifically prohibit peer outreach or HIV programs.However, the major NGO provider of sex worker serviceshas ceased its targeted sex worker programs andactivities, and stopped holding meetings for a sex workersupport group:You know we have really had to change the wholeprogram, which has gone from outreach and condomdistribution and information giving on welfare andhuman rights and all that type of thing. Fundinghas been put over to income generation education.There’s no outreach. (NGO program manager)This was explained on the basis that the sex workerproject was only one of a number of projects undertakenby that NGO. It was further elaborated that as the legalstatus of working with sex workers was uncertain, theNGO did not want to risk jeopardising other programs:We’ve actually targeted sex workers, we’ve reallyfocused on that but with the law getting in the wayour staff have been put at risk, the organisation hasbeen put at risk in terms of supporting illegal acts bygiving them condoms – encouraging them to havesex in the eyes of some. A lot of our programs aredone in conjunction with Government Departments.[This] one group was putting all the other services atrisk. And our field officers were jumping into drainswith the sex workers when the police vehicles drivepast, because they don’t want to be seen.Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200921

As a result, that NGO no longer provides HIV preventioneducation to a sex worker group nor does it conductoutreach services. Other sex worker specific socialservices have also been lost. In the past this programprovided not only counselling, advice services andworkshops for sex workers in a safe environment, butalso supported trips to the STI testing services, socialactivities, wider community engagement with sex workersand police liaison work.Sex workers also noted that the NGO had mainstreamedthe services they offered since the Decree, that they hadbeen reoriented towards job training and counselling,and that there was nothing now tailored for, or availableexclusively to, sex workers. Maria describes this change:There’s this organisation that sort of looks after us,and before we used to have a weekly day where weget to meet up at the centre and on those weeklydays we’re given our condoms. But ever since theDecree, the organisation has also sort of changedthe way they are, what shall I say – approaching us.Now it’s more like when you come in then you getyour names written down and you become a clientfor [general services] instead of just registering in asa sex worker.Bree believed that the NGO felt constrained by theprovisions of the Decree, saying: ‘it stood still for onceand couldn’t move eh.’ In the face of uncertainty, itsresponse was to be risk averse. Sex workers havenoticed the difference that the NGO reorientation ofservices away from education and HIV prevention hasmade to condom access on the streets at night:Access to sexual health servicesAs a vulnerable population, it is critical that sex workersare engaged by and encouraged to use sexual healthservices. However, clinical services for sex workers areonly offered by mainstream clinics. There are no targetedservices for sex workers at Hub Centres and STI andsexual health clinics, nor are there currently any specialefforts to encourage this important population to test.Service providers say that they are sure that sex workersdo use their services, but they do not document any use,nor do they monitor levels of use (nor would sex workersfeel safe if they did) so cannot be sure of any changes.HIV and STI testing, like many other HIV preventionefforts, rely absolutely on voluntary accessing ofprevention and testing services. Gaining the confidenceand trust of sex workers is a crucial task if these servicesare to be effective – and this task is made more difficultby provisions of the Decree which are perceived to be,and experienced as, more punitive.Some workers stated that their ability to access serviceshad been eroded since February 2010. Samantha said,‘Before the Crimes Decree I used to visit the clinicsregularly. When it came effective, I’ve stopped’. Herstatement is reinforced by the claims of a sex workergroup who reported that their members:do not use the government health centre because ofthe snide remarks and bad treatment from the staff.Most of the sex workers use private doctors for safetyand confidentiality of identity.Some sex workers have noticed more stigma when theyaccess services:Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009For one month now no one has come to us. No one isgiving out condoms, and the young ones don’t evenknow about it. (Mona)Mona goes on to identify who is the most affected:We know how to look after ourselves because of thetraining that we already had. But the new ones, theydon’t know and they have nowhere to go, there isnowhere for them to go to find out or no one’s gonnatell them.When this Crime Decree came into effect, it’s like sexworkers did not want to go and have their check-up.It’s like they made us known to those working in theclinic. When we come outside we hear them saying‘that one is a sex-worker’ like that. (Maria)Interviewees also described how the loss of supportiveand trusted staff, as a result of the project closures,affected sex worker use of STI clinics:There is no blood testing anymore. When [the NGOproject officer] was there, nearly everyone wasgetting testing. But now it’s embarrassing [to go tothe clinic]. (Mona)22

Sex worker communityThe targeting and mistreatment of sex workers by armypersonnel in particular has created a dispersing effectwithin the sex worker community because of the fears ofbeing identified. This dispersal not only makes serviceproviders’ access to sex workers more difficult, but it alsodecreases access of sex worker peers and advocates totheir constituents.HIV prevention activities are being adversely affectedby the reduced cooperation between sex workers. Sexworker groups do still exist, but with little support anddwindling resources they struggle to organise. Formalregistration is a hurdle for sex worker organisations.Consequently, the one organisation that seeks to bea nationally representative body operates under theumbrella of a larger, separate, organisation whichseverely limits its autonomy and self-determination.Furthermore, at least one other emerging sex workerorganisation has decided not to engage in advocacyactivities at this time, citing a new and heightened senseof vulnerability because of changes to the law, and theevidence of an altered legal environment that they seearound them.The sex worker community organisations have beenmore hampered in their advocacy work since the Decree.One group commented, ‘When we go to meetings or doadvocacy work, we are very careful on the words we use.Depending on who is the audience, we make sure thatwe use the words ‘’sex work/sex worker’’ with caution’.Sex workers themselves noted new limits on their abilityto associate and speak freely:When these grassroots community organisations areembattled and undermined, valuable and hard-earnedcommunity capital is lost. In the past, cooperationbetween sex workers has been a major resource forHIV prevention among sex workers in Fiji, facilitatingthe transfer of knowledge, fostering a culture of safesex attitudes, providing information about access toresources, and enabling effective condom distribution.With no new input from outside the local sex workcommunity to provide resources and information on theirprograms, the effort is totally reliant on the resources thatlocal sex workers themselves are able to provide oneanother. This crucial resource is rapidly being eroded.Sex workers fighting for their rightsIt must be stated that sex workers are not simply victimsof punitive law, bad enforcement practices, or militarycrackdowns. In the interviews they asserted their agencyin a number of ways, such as finding new ways to carryout sex work, or by moving to less-known spots. Mostof the sex workers interviewed had no intention of givingup sex work as it remained the most viable way ofsupporting themselves and their families. They were alsostaunch in their belief that the treatment of sex workersis unjust and that both the law and discriminatory orstigmatising practices are worth contesting:Before our discussion ends I just want to say this tomy friends, we fight on our rights. I want to tell myfriends that if you have been arrested by the policefight for your rights don’t give up, fight for it becauseif you’ll give up they’ll put you down. (Charlotte)I believe the Crimes Decree that came into effect hasalso affected the running of the network. When wewant to have a meeting the police would come andthey would want to know about the things we talkedabout during the meeting. They would want to knowthe reason for the workshop or the training we aredoing. (Mary-Alice)One group contended that while it was imperativeunder the new conditions that there are organisationsto look after and support sex workers, the organisationsthemselves must always ensure that sex workers’identities are safeguarded: ‘We put the safety of our SWmembers first above everything else’. This means thatthey are very careful when they conduct workshops thatthere are no words like ‘sex work’ on PowerPoint slides,notes or posters because they are ‘worried that ourworkshops could be raided by the Police and the identityof our members known’.This Decree has made the [sex worker] networkstronger in the way it’s moving now. Now it’s trying tolook for options to better the life of sex workers in Fiji.(Bree)I hope the next election will change everything inthis country because I know most of us SW havecontributed to the economy and I wish in future thatsome NGOs and other sex workers would fight fortheir rights and seek help from people out there in thecommunity and that’s all, thank you. (Carrie)Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200923

DiscussionSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009In summary, despite very few actual prosecutions of sexworkers, there have been a number of detrimental effectson HIV prevention in Fiji since the enactment of theCrimes Decree. These include:A heightened fear of brutality and harassment from lawenforcement agents has reduced sex worker opportunityfor negotiation with clients, including condom negotiation.Concern about the risk of HIV infection is displaced byother 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 ofa sector of sex workers. It has also effected changes tothe ways that sex work is conducted. Sex workers havebegun to operate more covertly and secretively. New sexworkers work from new sites, are more isolated and lessaccessible to peer, NGO and government HIV preventionservice providers.Data collected in 2009 showed that client resistancepresented a consistent barrier to condom use for sexworkers who were otherwise strongly motivated to usecondoms. The criminalisation of clients has reduced theability of sex workers to negotiate over the terms of thetransaction and has created more pressure to acceptclients’ terms. Criminalisation of clients has also put moreexperienced and identifiable sex workers at a competitivedisadvantage. Fear of losing a client is an incentive tocomply with a client’s wishes for sex without a condom.A culture of cooperation and sharing is one of thegreatest HIV prevention resources within the Fijiansex work community. 27 The targeting of ‘hotspots’, thedetentions and the mistreatment of those who havebeen identified in the past as sex workers divides thesex worker community, reducing the opportunity and themotivation for cooperation. New and young sex workersoperate from new sites and are not reached by theinformal condom distribution networks that remain.Sex worker support organisations and networks fostercooperation and often engage directly in HIV preventionactivities, including raising community and policeawareness. In the past, sex worker organisations haveimproved sex worker access to sexual health and testingservices. NGO nervousness as a result of the policingof sex workers and uncertainty about the implicationsof the Decree have resulted in the closure of programs,withdrawal of support and services, and the cessationof information and HIV prevention workshops for sexworkers.Sex worker sense of vulnerability has resulted in areluctance to engage in advocacy. Most sex workerorganisations are feeling more embattled, strugglingwith the demands of organisation and registration ontheir limited resources, and are reducing their activities.Targeting of recognisable sex workers has made new sexworkers reluctant to associate with more experienced sexworkers and advocates.Most commonly sex workers in Fiji learn about condomsand HIV prevention from other sex workers. In 2009, othersex workers were also an important source of condoms.Sex worker community has been undermined. Carryinga large amount of condoms and providing outreachservices in general are considered to be more risky andare no longer undertaken on any regular basis.Access to sexual health services such as HIV and STItesting and treatment has been compromised. The fewprograms actively encouraging and facilitating accesshave ceased, and now only mainstream services areavailable. Publicity around more punitive laws, alongwith experiences of sex workers themselves, haveelevated sex worker fear of authorities and any potentialdocumentation of their identity as sex workers.Furthermore, the human rights of sex workers arerepeatedly being denied when they are detained andheld overnight in military compounds, humiliated,physically and often sexually abused and put to workthe next day – all without legal process. This importantimpact cannot be documented by any means other thanthe testimony of sex workers who have been subject to it.Many are understandably reluctant to speak out. Theseexperiences convince sex workers that they do not haveaccess to protections that should usually be affordedthem by the justice system. The risk of such detentionsare experienced as a more immediate and pressing riskthan other safety concerns.Thus both the criminalisation of clients and the practicesof law enforcement can be seen to have been detrimentalto HIV prevention among sex workers in Fiji. The newprovisions for the inclusion of soliciting via mobilephone or internet as an offence have not deterred sexworkers from adopting these methods. Indeed, reportsindicate that some sex workers are relying more on thesetechnologies as they perceive that physical visibility is24

iskier for them. This may make the internet and textingmore viable media for the dissemination of HIV preventionand safety information as well as for developing a sexworker community. However, mobile phones and internetcan never distribute condoms. Furthermore, it would bedangerous to promote sex worker HIV prevention relatedactivities through these media in any way that mightleave the workers vulnerable to criminal investigation andcharges.It is evident from this data that information circulatingabout the laws that affect sex work, contained in theCrimes Decree, is sometimes inaccurate or misleading.Interview data do show that sex workers are aware thatthe client has now been criminalised. This fact aside, thedata indicate that sex workers themselves do not havea clear picture of the ‘Prostitution offences’ containedin Part 13. It is not unusual for those outside the legalprofession to have a very imprecise understanding ofthe nuances of any law – the ramifications of whichare contested and determined through the court. Inthe case of the provisions of Part 13, such cases andarguments have not taken place. Sex workers, like thelay populace, might be expected to have garnered mostof their information about the Crimes Decree from thenews media and wider public discussions. Newspaperreports about the new laws on sex work identified newpowers and harsher laws against sex work. In addition,both key informant advice and interview data show thatsome NGOs and one, previously very important, serviceprovider are also wary of the implications of ‘Prostitutionoffences’ contained in the Decree. An approach of riskaversion has resulted in the closure of targeted HIVprevention, condom and support programs for sexworkers.Sex workers report that military policing of sex workersand known sex work ‘hotspots’ began after February2010. Data from sex workers indicate that, over the pastyear, some sectors of the military either misunderstandor knowingly misrepresent their powers in relation to thepolicing and enforcing of new laws relating to sex work.Interviews with military personnel might help to confirm oroffer alternate explanations of these actions; however, theresearchers had no prior permission to interview soldiers.Beliefs about the newly punitive nature of the law havenot only discouraged sex workers from carrying enoughcondoms to share, but have resulted in the closure of HIVprevention and condom distribution programs by someNGO groups, as well as impeding the ability of othergroups to engage in activities that would be consistentwith the creation of an enabling environment necessaryfor HIV prevention to be effective. Therefore there isa need for the dissemination of accurate informationthrough the sex work community and also among NGOsand service providers. It is imperative that any suchdissemination also acknowledge and take account of therealities of sex worker treatment by some authorities. Itwould be both unwarranted and dangerous to assumethat sex workers’ understanding of the letter of the law isall that is required for sex workers to gain access to theprotection of the law in practice.Inappropriate use of arrest and detention by militaryauthorities, and to a lesser extent police harassment,does occur. This fuels the fears and anxieties of sexworkers and their organisations about their relationshipto the law, and drives some of the changes to theirpractice. Therefore it is also necessary to ensure thatboth the police and the military are fully conversant withthe provisions of the Crimes Decree, and in particular thelimitations of their powers as agents of law enforcement.The police do not appear to have changed theirapproach in the manner which was initially feared. Thatthere are so few charges going to court suggests that thethreshold of evidence may well be higher. Despite this,the Decree still provides for arrests on the grounds ofreasonable suspicion. This may account for sex workers’experiences of being held in the police cells overnightand released in the morning.The involvement of sectors of the military in policingsex work is more worrying, and has resulted in gravebreaches of human rights as well as having a negativeimpact on important HIV prevention activities. However,it is also clear that these abuses are not perpetratedby military personnel across the country but are largelyrestricted to the Lautoka area. Reports of abuses havealso emerged from the Suva area, but they are moreisolated, do not take place on an army base or barracksgrounds, and thus appear likely to be attributable toindividual actions. In Labasa, there were no reports ofsuch abuses by the military, although military personneldo police the streets.In addition, the vagaries of the ways that the provisionsof the Decree are invoked and acted on, indicate thatthe military in different areas have developed their ownapproaches to enforcement. This leaves the situationopen to corruption and to abusive behaviour by rogueindividuals and/or sectors of the military. In the Lautokaarea the complicity of the local council in the illegaldetentions and forced labour of sex workers is alsoconcerning.Detentions, torture and other abuses of sex workers,including forced labour, constitute clear abuses of theirhuman rights. Human rights also encompass access tonecessary health services and rights to representation.These too have been increasingly eroded in the periodsince the 2009 data collection. It could be argued inSex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 200925

espect to sex worker rights to HIV prevention servicesand resources, that the new HIV Decree will, in theory,override all other law. However, it is practice ratherthan theory which has the impact on peoples’ lives – asevidenced by the data gathered for this report.Indeed, under close scrutiny, many of the ‘Prostitutionoffences’ detailed in the Crimes Decree may notconstitute massive changes to the law in Fiji as itconcerns sex work. However, the new criminalisation ofclients, the reception and interpretation of the provisionsof the Decree by NGO service providers and by sexworker organisations, and the response by some lawenforcers in the military who have taken the laws aslicense to detain, torture, abuse and force the labourof people who they know to be sex workers, have mostcertainly had a dramatic impact, and a totally deleteriouseffect on HIV prevention.A law that is variously or controversially interpreted maybe proven through one or two good test cases, but thisdoesn’t happen when cases never come to court. In sucha situation, the powers endowed by the law are, in effect,as wide as agents of law enforcement choose to interpretthem to be. As few charges have been laid against sexworkers since February 2010 and even fewer have beenthrough the court system, there has been little opportunityto test or prove the new laws regarding sex work. Sexworker fears about the ramifications of the Decree arebased on wider community, media, NGO and militaryunderstandings and interpretations of the new laws, aswell as the sex workers’ own experiences.‘The criminal law is not a neutral or just form of HIVprevention. We believe that criminal law is sociallyorganized and that it operates as a mandated courseof action for politicians, the police, the judiciary,the courts, as well as associated media and publicopinion.’ (Worth, Patton, McGehee, 2005 p.15 ) 40Sex WoRKeRS and HIV PreveNTIon in Fiji - After The Fiji Crimes Decree 2009Sex workers’ loss of human rights and subjection tosexual and physical abuse is not a phenomenon limitedto Fiji; indeed it has been documented across Asia andthe Pacific in association with criminalisation. 2 However,as the data from this research shows, it is not simplythe impact of the written law which is of concern, butthat of the wider legal environment: the law enforcementpractices of some military personnel; the lack ofdocumentation and address of human rights violations;problems with access to legal aid, and problematic(extra-judicial and community) interpretations andunderstandings of the law.Effective HIV prevention efforts and the human rights ofsex workers are inextricably intertwined. While revisionof the law is a necessary start, the law in isolation willnot be sufficient to protect this or any other vulnerablepopulation. Real protection requires a change in thehearts and minds of those who have power; bothpolitical power and power in the day-to-day operationof society – not just law-makers and the courts, but alsolaw enforcers, collectively and individually, as well as allothers whose decisions affect so profoundly the rights ofsex workers.26

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International HIV Research GroupSamuels BuildingSchool of Public Health and Community MedicineFaculty of MedicineThe University of New South WalesSydney NSW 2052 AustraliaTel: + 61 (2) 9385 1396 Fax: + 61 (2) 9385 3558Website: http://www.sphcm.med.unsw.edu.au/SPHCMWeb.nsf/page/IHRG