- The Law is an Ass
When I was a member of the Global Commission on HIV and the Law, the testimonies of almost 700 people and organizations in 140 countries were central to our deliberations. These individuals were on the sharp end of laws that, more often than not, were hampering rather than helping the global response to HIV. We heard from an array of people with myriad experiences in diverse legal settings, but it was one simple statement, from a female sex worker in India, that cut through the complexity and summed up the reason for our work. “There has to be some law,” she said. “Are we not humans? We also have desires and rights, and we deserve better treatment.”
Amen to that. When it comes to sex work, Charles Dickens was right: The law is an ass. And that is why the Global Commission was resolute in the need for change. Based on an exhaustive assessment of the latest evidence from around the world, the Commission concluded that sex work is best regulated by applying employment law to practitioners and consumer protection law to clients, and not by criminalizing either group. A safe workplace, adequate minimum levels of remuneration, access to health care, freedom to form collectives and other autonomous organizations, and freedom from fear of harassment (including misguided “rescue” or “rehabilitation” initiatives aimed at sex workers) create an environment in which incentives to practice unsafe sex are minimized. Criminal law should enforce measures against trafficking in persons [End Page 8] and the sexual exploitation of minors, but such conduct should be clearly differentiated from adult consensual sex work.
The Global Commission’s findings have helped to support groups fighting for sex worker rights, among them Amnesty International and the Global Network for Sex Work Projects. Along with these advocates, the Global Commission has taken flak from those who challenge its pragmatic approach to sex work. Reforming laws already on the books can be hard, especially where conservative religious interpretations hold sway, so the Commission’s follow-up work has focused on shifting law in practice, be it policing on the streets or judgments from the bench.
One woman from Mozambique laid out the problem in no uncertain terms:
Sometimes there is illegal detention and you are humiliated. I was detained when there was a summit in Mozambique. I spent seven days in prison. I went to court and I asked if I could speak to my mother. The judge said ‘Why are you here?’ and I told him I was [soliciting], I need money for my child. We are used by the police, they take us to cemeteries and the beach to have sex without a condom. Sometimes we are beaten up by the police.
Sadly, she is not alone, as sex workers in more than 100 countries and territories with punitive laws can attest. Sex work is still more red light than green light—and that needs to change. [End Page 9]
SHEREEN EL FEKI is the author of “Sex and the Citadel: Intimate Life in a Changing Arab World” (Pantheon, 2013) and the former vice-chair of the Global Commission on HIV and the Law.