How do prostitution laws affect the spread of HIV among prostitutes? The criminalization of sex for money means that hookers who are subject to abuse from their customers are less able to report their abusers. It also makes it difficult for them to insist on condom use with their customers, and thus increases their chances of becoming infected.251
Traditionally there have been two options to Canada's current policy of criminalizing sex work: decriminalization and regulation (legalization).
Decriminalization refers to the complete removal of a prostitution-related offence. ... Regulation (also called by some people legalization or partial decriminalization) refers to a framework in which some prostitution activity which is subject to criminal sanction under existing provisions of the Criminal Code would be rendered lawful.252
The most frequently recommended approach in Canada is regulation (legalization), wherein sex work would be allowed in certain forms through either zoning or licensing. Sometimes called the occupational perspective, this approach "suggests that legal tolerance is the key. Legalization, in principle, would lead to the regulation of the practice of prostitution as a trade and make it safer for all involved."253
This was one of the recommendations of the Fraser Committee (1985), though it was never adopted. Meanwhile, 14 years later, the debate surrounding the decriminalization or regulation of sex work in Canada continues.
The current policy of criminalizing sex work does not help sex workers insist on condom use with their customers, and may in fact increase the chances of HIV infection and transmission.254 "The only rational solution is to decriminalize prostitution and provide prostitutes with the same rights and protections with respect to their working conditions as people in other occupations have."255
Since the beginning of the AIDS epidemic in Canada, the idea of licensing prostitutes has gained popularity. A consultation in Edmonton "proposed a model of prostitution control which would license employers of escort agencies, massage parlours, and strip bars. In order to get a licence, prostitutes would have to be over the age of 18 and free of STDs, including HIV. Medical examinations would be required every six months."256 Ultimately, however, this proposal failed due to problems of liability the system would engender with the city.
In another consultation, this one sponsored by the Federation of Canadian Municipalities, Calgary Alderperson Bev Longstaff responded to the possibility of licensing all sex workers:
If all vendors were licensed, would STD testing be mandatory? In the case of the Calgary Escort Framework, City Council has resisted this requirement. Obviously, the practice of safe sex is in the interest of every sexually active person. However, should cities adopt mandatory testing of the sellers, this may result in unintended consequences. The clients may pressure sellers to engage in unprotected sex on the supposition that the prostitutes are somehow medically certified. This would be dangerous for everyone involved.257
As a representative of the Canadian Organization for the Rights of Prostitutes stated in 1988,
laws that prevent prostitutes from working legally also prevent education about safer prostitution.258
And, as the Federal-Provincial-Territorial Working Group on Prostitution (1998) concluded,
The current legal framework established to address street prostitution reflects the ambivalence of the Canadian public towards this activity. ... Despite a series of Criminal Code amendments made over the past 25 years, the Working Group received compelling evidence that the existing law is not working.259
Decriminalization of sex work and HIV prevention
The document HIV/AIDS and Discrimination: A Discussion Paper reported on a recent review of policies and programs aimed at sex workers:
There have been three strategies to control HIV infection among sex workers: regulating sex workers by mandatory HIV testing, treatment, and in some cases detention; providing accessible and appropriate services for sex workers through targeted programs and specialist clinics; and enhancing the ability of sex workers to safeguard their health and improve their position in the industry. The review observes that there is no evidence that the first strategy, regulation, has prevented HIV transmission:
Indeed it has been argued that repression exacerbates the problem since sex workers are further marginalized from health services in the attempt to evade state restrictions on their work.
Decriminalization and anti-discriminatory measures, on the other hand, have been effective in reducing the risk of sexually transmitted diseases and HIV infection:
Decriminalization and anti-discriminatory measures have been associated with low levels of infection and almost universal condom use. In New South Wales, Australia, and in the Netherlands, legal and social changes appear to have paved the way for more effective health interventions within the sex industry.
The review concludes that a combination of the second and third strategies is required:
Targeted programmes are important in the short term for those with higher prevalences of infection, including groups of prostitutes. Specialist health care is an important occupational service for sex workers, regardless of the relative prevalence of infection. However, targeted control programmes and specialist health services can only complement, not replace, more broadly based interventions to the sex industry as a whole and a general health infrastructure.260
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