Anti-prostitution pledge

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The Federal government of the United States requires certain non-governmental organizations (NGOs) that receive federal anti-HIV/AIDS or anti-trafficking funds to adopt an organization-wide policy opposing prostitution and sex-trafficking. This requirement, known as the anti-prostitution pledge, has been in place since 2003.

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The policy has been criticized as counterproductive, as it hampers enlisting those involved in the sex industry in the fight against AIDS. [1]

Initially the requirement was only applied to foreign-based NGOs, but in 2005 the Bush administration began applying it to U.S.-based organizations as well, resulting in legal challenges on First Amendment grounds. These challenges were ultimately successful before the Supreme Court, with the 2013 decision in the case Agency for International Development v. Alliance for Open Society International. The requirement remains in effect for foreign-based NGOs that receive U.S. funds.

Legislation and implementation

U.S. President George W. Bush announced the five-year $15 billion President's Emergency Plan for AIDS Relief in January 2003; Congress passed it in May 2003 under the name "United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act (Global AIDS Act)". The act identifies prostitution and sex trafficking as contributing to the spread of HIV and explicitly advances a new U.S. policy goal: the eradication of prostitution. [2] The act states:

In December 2003 Congress passed the Trafficking Victims Protection Reauthorization Act which provided for funding of anti-trafficking activities, subject to the following restrictions.

The anti-prostitution pledge language in both acts was authored by Representative Chris Smith, Republican from New Jersey. [4]

The Consolidated Appropriations Act of 2004 amended the AIDS Authorization to exempt the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative and any United Nations agency from having to sign the anti-prostitution pledge. [5]

While the language of the legislation does not distinguish between foreign and U.S.-based organizations, the pledge was initially only enforced for the former, as the Justice Department had expressed First Amendment concerns. [6] [7] In September 2004, a letter from Assistant Attorney General Daniel Levin reversed this opinion, [6] and the U.S. Agency for International Development issued a directive in June 2005 that expanded the pledge requirement to all NGOs. [5]

A document issued by the CDC in May 2005 sought to extend the pledge requirement to the large group of organizations that receive funding through the multilateral Global Fund to Fight AIDS, Tuberculosis and Malaria (to which the U.S. contributes). This was quickly overturned by US Director of Foreign Assistance Randall L. Tobias. [6]

Rationale and reactions

In a February 2002 National Security Presidential Directive, President George W. Bush wrote: "The United States opposes prostitution and any related activities, including pimping, pandering, and/or maintaining brothels as contributing to the phenomenon of trafficking in persons. These activities are inherently harmful and dehumanizing. The United States Government's position is that these activities should not be regulated as a legitimate form of work for any human being." [8]

In February 2005, a group of non-profit organizations including CARE, the International Rescue Committee, Save the Children and the International Center for Research on Women protested the anti-prostitution pledge policy in a letter to US Director of Foreign Assistance Randall L. Tobias. [6] This was followed by a May 2005 protest letter to President Bush, signed by hundreds of organizations worldwide, stating that the pledge "makes it extremely difficult, if not impossible, to establish the trust necessary to provide services to these hard-to-reach groups" and it will "exacerbate stigma and discrimination against already marginalized groups." [9]

This was countered in August 2005 by a letter to the President supporting the policy, signed by over 100 groups, including the Christian Medical Association, Concerned Women for America, Family Research Council, Focus on the Family, National Association of Evangelicals, Southern Baptist Ethics & Religious Liberty Commission, Sex Industry Survivors, The Medical Institute, The Salvation Army, World Hope International and World Relief. [10] Supporters of the pledge requirement argued that prostitution is inherently harmful and needs to be abolished, rejected harm reduction approaches, [11] and held that legalized prostitution increases demand for sex trafficking. [6]

In May 2005, the Brazilian government turned down $40 million in anti-HIV/AIDS funding from the U.S. government because of the anti-prostitution pledge. Brazil's AIDS commissioner Pedro Chequer was quoted as saying "Sex workers are part of implementing our AIDS policy and deciding how to promote it. They are our partners. How could we ask prostitutes to take a position against themselves?" [4]

The anti-prostitution pledge has been criticized as counterproductive, because projects that work with and support prostitutes are often seen as instrumental in fighting the spread of HIV/AIDS. The Brazilian anti-AIDS program, which employs prostitutes to hand out information and free condoms, is considered by the United Nations to be the most successful in the developing world. [12] The Sonagachi Project is a prostitutes' cooperative in Calcutta, India, that supports sex workers' rights and works to stop the spread of HIV; it has received strong positive evaluations from both UNAIDS and the World Bank, and has been cited by UNAIDS as a "best-practice" model of working with prostitutes. [13]

Ronald Weitzer has described the anti-prostitution pledge as a symptom of what he calls the "moral crusade" against sex trafficking, resulting in a broad attack against all forms of commercial sex acts. [14] The language of the policy juxtaposes the words "prostitution" and "sex trafficking"; it has been pointed out that it is important to clearly distinguish between these two concepts, [15] and that all relevant organizations already strongly oppose sex trafficking. [16]

Randall L. Tobias, the U.S. administration's foreign aid chief who was responsible for implementation of the anti-prostitution pledge, resigned in April 2007 over allegations that he had used an escort service. Some sex worker organizations and commentators called the situation "ironic" and Tobias "hypocritical". [17] [18]

The 2012 final report of UNDP's Global Commission on HIV and the Law denounced the anti-prostitution pledge and included the recommendation

3.2.8 Repeal punitive conditions in official development assistance—such as the United States government's PEPFAR anti-prostitution pledge and its current anti-trafficking regulations—that inhibit sex workers' access to HIV services or their ability to form organisations in their own interests. [19]

Lawsuits

In response to the 2005 decision to apply the policy also to U.S.-based organizations, two lawsuits were filed, alleging that the policy compels or prohibits speech in violation of the First Amendment, and also prohibits actions that are exclusively privately funded.

In the first case (DKT v. USAID), the non-profit DKT International prevailed in District Court but lost on appeal, at the U.S. Court of Appeals for the D. C. Circuit. The February 2007 appeals court ruling was based on the assumption that the government would allow speech regarding prostitution as long as it is done through an affiliate that doesn't receive federal funding. [20]

The second case (AOSI v. USAID) involved the plaintiffs Alliance for Open Society International, its affiliate the Open Society Institute, and Pathfinder International. In May 2006, a District Court in New York issued a preliminary injunction, preventing the government from requiring these organizations to sign the anti-prostitution pledge. The government appealed this injunction to the Second Circuit Court. During the oral arguments in the case, the government stated that it would allow legally and physically separate affiliates to engage in the prohibited speech. [16] The government issued guidelines to this effect in July 2007. In November 2007, the Appeals Court rebuffed the government and let the preliminary injunction stand, returning the case to the District Court. Global Health Council and InterAction joined the case, and the District Court extended the injunction to all U.S.-based members of these organizations in August 2008. The Appeals Court, in a 2-1 decision in July 2011, affirmed the injunction and held that the anti-prostitution policy requirement "likely violates the First Amendment." [21] [22]

In September 2012, the Brennan Center for Justice obtained a ruling forcing the Department of Justice's Office of Legal Counsel to hand over the original February 2004 memorandum which had argued that the pledge, as applied to U.S.-based organizations, was unconstitutional. [23]

In a 6-2 decision, the Supreme Court ruled in 2013 that the anti-prostitution pledge violated the First Amendment: the government may not leverage funding to regulate an American-based recipient's speech outside of the funded program. [24] [25] Later, a case regarding the pledge in the context of foreign-based recipients was heard by the Supreme Court; it ruled in 2020 that foreign-based recipients can be subject to the pledge, given the inapplicability of Amendment I to foreign nationals. [26]

See also

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<span class="mw-page-title-main">Prostitution in Thailand</span>

Prostitution in Thailand is not illegal. Section 5 of the relevant Act makes that very clear. What is forbidden is openly and shamelessly offering sexual services or causing a public nuisance. However, due to police corruption and an economic reliance on prostitution dating back to the Vietnam War, it remains a significant presence in the country. It results from poverty, low levels of education and a lack of employment in rural areas. Prostitutes mostly come from the northeastern (Isan) region of Thailand, from ethnic minorities or from neighbouring countries, especially Cambodia, Myanmar, and Laos. In 2019, UNAIDS estimated the total population of sex workers in Thailand to be 43,000.

<span class="mw-page-title-main">Randall L. Tobias</span> American diplomat

Randall L. Tobias is an American governmental figure and former chief executive officer of Eli Lilly and Company. A Republican, he was appointed the first United States Director of Foreign Assistance, and served concurrently as the administrator of the U.S. Agency for International Development (USAID), with the rank of ambassador.

<span class="mw-page-title-main">Phil Harvey</span> American businessman and philanthropist (1938–2021)

Phil Harvey was an American entrepreneur, philanthropist and libertarian who set up large-scale programs that delivered subsidized contraceptives in poor countries. Harvey was the founder and former president of DKT International, the Washington, D.C.-based charity that implements family planning and HIV/AIDS prevention programs in 57 countries across Africa, Asia and Latin America. He was the chief sponsor of the DKT Liberty Project which raised awareness about freedom of speech issues in the U.S. Harvey was also the president of Adam & Eve, the North Carolina–based company that sells sex toys, adult films and condoms. Consequently, he has been called "one of the most influential figures in the American sex industry today".

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Prostitution in the Czech Republic is legal, but organized prostitution is prohibited. Ever since the Czechoslovak Velvet Revolution (1989) led to the creation of the two independent states Czech Republic and Slovakia, prostitution has been flourishing and has contributed its share to the region's booming tourist economy. Prostitution is widespread in Prague and areas near the Republic's western borders with Germany and Austria. In 2002, the Czech Statistical Bureau estimated the trade to be worth six billion crowns a year. UNAIDS estimate there are 13,000 prostitutes in the country.

Prostitution in Turkey is legal and regulated. The secularization of Turkish society allowed prostitution to achieve legal status during the early 20th century. Known as "general houses" (genelevler) in the country, brothels must receive permits from the government to operate. In turn, the regulatory agencies issue identity cards to sex workers that give them rights to some free medical care and other social services. However, many local governments now have a policy of not issuing new registrations, and in some cities, such as Ankara and Bursa, brothels have been demolished by court order.

Prostitution in South Africa is illegal for both buying and selling sex, as well as related activities such as brothel keeping and pimping. However, it remains widespread. Law enforcement is poor.

Prostitution in Costa Rica is legal. Costa Rica's legal system is based on Roman law rather than common law, and so for prostitution to be illegal it would have to be explicitly stated as such in a penal code, and it is not. Nevertheless, many of the activities surrounding it are illegal, as the law forbids promoting or facilitating the prostitution of another, and therefore pimping, brothels, or prostitution rings are illegal. Prostitution is common and is practiced openly throughout the country, particularly in popular tourism destinations.

<span class="mw-page-title-main">Prostitution in Ukraine</span> Overview of prostitution in Ukraine

Prostitution in Ukraine is illegal but widespread and largely ignored by the government. In recent times, Ukraine has become a popular prostitution and sex trafficking destination. Ukraine is a source, transit, and destination country for women and children trafficked transnationally for the purposes of commercial sexual exploitation. Ukraine's dissolution from the Soviet Union, saw the nation attempt to transition from a planned economy to a market economy. The transition process inflicted economic hardship in the nation, with nearly 80% of the population forced into poverty in the decade that followed its independence. Unemployment in Ukraine was growing at an increasing rate, with female unemployment rising to 64% by 1997. The economic decline in Ukraine made the nation vulnerable and forced many to depend on prostitution and trafficking as a source of income. Sex tourism rose as the country attracted greater numbers of foreign tourists.

Prostitution in Haiti, although illegal, continues to be a widespread problem for the country, particularly in the form of street prostitution, as well as in bars, hotels and brothels. UNAIDS estimate there to be 70,000 prostitutes in the country. Law enforcement is generally lax.

Alliance for Open Society International, Inc. (AOSI) is a U.S. public charity organized in 2003 under the laws of the State of Delaware.

Cases of HIV/AIDS in Peru are considered to have reached the level of a concentrated epidemic.

The Dominican Republic has a 0.7 percent prevalence rate of HIV/AIDS, among the lowest percentage-wise in the Caribbean region. However, it has the second most cases in the Caribbean region in total web|url=http://www.avert.org/caribbean-hiv-aids-statistics.htm |title=Caribbean HIV & AIDS Statistics|date=21 July 2015}}</ref> with an estimated 46,000 HIV/AIDS-positive Dominicans as of 2013.

Prostitution in Kosovo is illegal, and can incur a prison sentence of up to sixty days. The Global Fund to Fight AIDS, Tuberculosis and Malaria's HIV Program in Kosovo estimated there to be 5,037 prostitutes in the country. Many women turn to prostitution through poverty.

Prostitution in Botswana is not illegal, but laws such as public disorder, vagrancy, loitering and state recognised religious provisions are used to prosecute prostitutes. Related activities such as soliciting and brothel keeping are illegal. Botswana has made proposals to make prostitution legal to prevent the spread of AIDS. However, there has been mass opposition to it by the Catholic Church. Prostitution is widespread and takes place on the street, bars, hotels, brothels and the cabs of long-distance trucks.

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Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205 (2013), also known as Alliance for Open Society I, was a United States Supreme Court decision in which the court ruled that conditions imposed on recipients of certain federal grants amounted to a restriction of freedom of speech and violated the First Amendment.

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References

  1. ↑ "Supreme Court says law can't dictate anti-AIDS groups' speech". The Washington Post . 20 June 2013.
  2. ↑ US Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 HR 1298. 22 U.S.C. §§ 7601-7682. 108th Congress. Retrieved 5 September 2008
  3. ↑ Trafficking Victims Protection Reauthorization Act of 2003, 22 U.S.C. §§ 7101-7110 (2003). Retrieved 5 September 2008
  4. 1 2 "Just Say Não". The Nation. 12 May 2005. Archived from the original on 16 April 2010. Retrieved 6 September 2008.
  5. 1 2 Implementation of the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 – Eligibility Limitation on the Use of Funds and Opposition to Prostitution and Sex Trafficking. Archived 10 September 2008 at the Wayback Machine , (9 June 2005). Retrieved 5 September 2008
  6. 1 2 3 4 5 U.S. Backs Off Stipulation on AIDS Funds, The Washington Post , 18 May 2005
  7. ↑ Letter from Justice Department to Judiciary Committee Archived 8 August 2009 at the Wayback Machine , 24 September 2003
  8. ↑ NSPD-22, 25 February 2002. Quoted in An Administration Priority Archived 21 October 2008 at the Wayback Machine , U.S. Dept. of Justice
  9. ↑ Letter to President Bush, 18 May 2005
  10. ↑ "Over 100 Groups Urge Bush to Enforce Anti-Prostitution Policy to Aid Sexually Exploited Women and Children". Medical News TODAY. 8 August 2005.
  11. ↑ "Christian Medical Association Lauds Anti-Prostitution Pledge Ruling". Christian News Wire (Press release). 28 February 2007.
  12. ↑ "Where Prostitutes Also Fight AIDS". The Washington Post. 2 March 2006.
  13. ↑ Implications of U.S. Policy Restrictions for Programs Aimed at Commercial Sex Workers and Victims of Trafficking Worldwide, Center for Health and Gender Equity, November 2005
  14. ↑ Weitzer, Ronald (2007). "The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade" (PDF). Politics & Society. 35 (3): 447–475. doi:10.1177/0032329207304319. S2CID   146993779. Archived from the original (PDF) on 28 June 2011.
  15. ↑ Butcher K. (2003). "Confusion between prostitution and sex trafficking". The Lancet . 361 (9373): 329–332. doi:10.1016/S0140-6736(03)13596-9. PMID   12801757. S2CID   30106001.
  16. 1 2 Masenior, Nicole Franck; Chris Beyrer (1 July 2007). "The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities". PLOS Medicine. 4 (7): e207 EP –. doi: 10.1371/journal.pmed.0040207 . PMC   1925124 . PMID   17676943.
  17. ↑ The Anti-Prostitution Pledge Archived 19 December 2008 at the Wayback Machine , Salon.com , 2 May 2007
  18. ↑ Ex-AIDS chief in escort flap called hypocritical, The Boston Globe , 29 April 2007
  19. ↑ "Final Report" (PDF). Global Commission on HIV and the Law. July 2012. Archived from the original (PDF) on 24 September 2015. Retrieved 23 May 2019.
  20. ↑ U.S. Court of Appeals (2007 February 27) District of Columbia Circuit Decision in DKT v. USAID No. 05-CV-01604 Archived 17 May 2008 at the Wayback Machine . Retrieved 5 September 2008
  21. ↑ AOSI v. USAID resources, Brennan Center for Justice
  22. ↑ Alliance for Open Society International v. U.S. Agency for International Development, Appeals Court decision, 6 July 2011
  23. ↑ "U.S. must show anti-prostitution pledge memo for HIV groups: court". Thomson Reuters News and Insight. 19 September 2012.
  24. ↑ "Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l Inc., No. 12-10, 2013 BL 163176 (U.S. June 20, 2013)".
  25. ↑ Roberts, John (20 June 2013). "Agency for International Development, et al., v. Alliance for Open Society International, Inc., et al". Legal Information Institute . Cornell Law School . Retrieved 17 July 2013.
  26. ↑ "Supreme Court upholds prostitution pledge for AIDS funding". WSLS 10 News. Associated Press. 29 June 2020. Retrieved 15 January 2021.
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