Forced Prostitution and HIV/AIDS
For the majority of Burmese women and girls trafficked into forced prostitution in Thailand, the human rights abuses they experience will ultimately prove fatal. Of the nineteen Burmese woman and girls we interviewed who had been tested for HIV, fourteen were found to be infected with the virus that causes AIDS.53 In our view, the high rate is directly attributable to the Thai government's abdication of its obligation to protect the Burmese women and girls against forced prostitution and related abuses, and the government's failure to investigate and prosecute the abusers, including Thai officials.
Awareness of AIDS among potential customers has driven the Thai sex industry to recruit more and more young girls from remote villages perceived to be untouched by the AIDS pandemic. Young girls, sometimes only thirteen or fourteen years old, may be particularly at risk for HIV infection. Not only are they often too intimidated even to attempt to negotiate the terms of sex, but preliminary medical research suggests that the younger the girl, the more susceptible she may be to HIV infection, for physiological reasons.54 After the initial period when the women and girls are sold as virgins to just a few men, the number of customers multiplies, sometimes to as many as ten to fifteen a day, any of whom could be a source of infection. What emerges from our interviews is a pattern of transmission from male customers to young girls.
The Thai government has long been aware of the existence of illegal brothels, but has been slow to address the health risks to the women and girls within them. This delay is probably due to denial, since AIDS at first was perceived as a "foreigners' disease," and to a desire to protect the tourism industry, of which sex tourism is a major component. In fact, this denial continues as the Thai government's two-fold strategy for combatting AIDS—law enforcement and health intervention—for the most part targetsBurmese women and girls as illegal immigrants and sources of transmission, while largely exempting procurers, brothel owners, pimps and clients from punishment under the law.
It was not until February 1991, under then Prime Minister Anand, that the government began a serious and aggressive AIDS prevention and education campaign. Anand took several steps to control HIV/AIDS, including setting up a national AIDS Committee. Since the change in government in September 1992, however, the HIV/AIDS program appears to have stalled, and budget allocations for combatting AIDS have decreased.
The official Thai AIDS control and prevention program heavily emphasized condom promotion and distribution. But condom availability is irrelevant when the Burmese women and girls have no capacity to negotiate condom use or the number of customers.55 Whereas their clients can choose to use condoms or to abstain from sex, the women and girls have no such choice: they are captive partners. Those who attempted to refuse customers often faced retaliation. Sometimes, the owners and pimps threatened them with physical harm or allowed the customers to do so.
"Kyi Kyi" worked every day and had at least four to five clients a day. If she did not agree to a client or his demands, she was beaten by the owner. She tried to escape in 1991, but the owner beat her with a very thick wooden stick. The owner told her if she tried to escape again, he would shoot her. He then took a pistol out and put it to her head and said, "Like this."
The refusal of the central government to enforce laws against trafficking and forced prostitution put local health officials in a difficult position. If they refused to enter the brothels, they may have knowingly contributed to the spread of a grave public hazard and failed to provide medical care to those in need. If they entered in their official capacities and declared the women and girls either "clean" or "infected," they would have appeared to legitimate an illegal industry. That provincial health authorities had to make the onerous choice between providing health care and exposing human rights abuses is intolerable. Absent genuine law enforcement, there is little incentive for health officials to report suspected abuse.
Our 1993 investigation indicated that not only has the Thai government failed to protect Burmese women and girls from human rightsviolations that render them vulnerable to HIV infection, it has inflicted additional abuses on them on account of their actual or perceived HIV status. Frequently, HIV testing was imposed on a mandatory basis, sometimes by public health officials, and without informed consent, on women and girls working in Thai brothels and, for a period in 1992, in detention at Pakkret. Mandatory testing without informed consent is condemned by the U.N. Human Rights Center and the World Health Organization56 as an unjustifiable interference with the individual's basic right to privacy.57 Governments may derogate from that right to protect public health, but only if three stringent conditions are met: mandatory testing must be required legally; serve a legitimate, urgent public purpose; and be strictly proportional to the benefit to society.58 Mandatory testing of the Burmese women and girls failed to meet any of these conditions.
To begin with, Thai law does not authorize mandatory testing of prostitutes. In fact, Thailand's 1992-1996 National AIDS Plan includes human rights protection guidelines that explicitly rule out testing under any circumstances unless informed consent is given by the individual concerned or by her legal representative.59 In addition, mandatory testing is neither strictly required nor effective; public health experts worldwide appear to have reached a consensus that mandatory HIV screening is not an effective method of slowing the spread of this infection and may even be counterproductive.60 Finally, by opting to test on a compulsory basis all the Burmese who were "rescued" from brothels and placed in Pakkret and some women and girls in brothels, the Thai government has selected one of the most intrusive and least effective measures for AIDS control.
Because implementation of the National AIDS Plan is not monitored carefully, forced HIV testing of women and girls in brothels without their informed consent depended on the inclination of the local authorities. For instance, "Chit Chit" was tested four times in her first brothel in Chiangmai. Then she was tested twice while in another brothel in Bangkok. After her arrest by a plainclothes policeman, she was tested again in Pakkret. She was not given the results of any of these tests. At the IDC, there was no systematic testing or treatment for sexually transmitted diseases nor for the HIV virus. However, when the women were sent for emergency health services it became routine practice to test for the HIV virus without informing the patients, requesting their consent, or informing them of the results. During government campaigns against child and forced prostitution in June and July 1992, approximately 150 Burmese women and girls were "rescued" and sent to Pakkret, where they were mandatorily tested for the HIV virus. Although they did receive AIDS information, the testing was done without pre- and post-test counseling.
After forcible testing, authorities subjected the Burmese women and girls to the further indignity of withholding their test results, even from those who, aware that they had been tested for HIV, requested to know their status. Even more troubling is that although the results were withheld from the women and girls, public health staff and, at times, government officials, had access to the medical records. Internationally accepted guidelines, as well as the Thai National AIDS Plan, emphasize confidentiality as an imperative ethical norm in dealing with HIV/AIDS. In addition, the Thai Penal Code holds health professionals criminally liable for breaching patient confidentiality.61
In flagrant violation of these legal and ethical standards, Thai health officials consistently failed to hold the HIV test results in strictest confidence. It is particularly reprehensible that brothel owners who had repeatedly demonstrated their callous disregard for the women's health were sometimes given the test results. Brothel owners could exploit their knowledge of the women's HIV status in two ways: by maximizing profit from "clean girls" by charging higher prices for them, or by expelling those found to be infected.
Mandatory testing also resulted in de facto discrimination against prostitutes. The official policy for mandatory testing was determined by the goal to make female prostitutes safe for their clients. Yet, the customers, pimps, and brothel owners associated with the brothel from which the womenwere "rescued" were not subjected to mandatory screening, even though male-to-female transmission is at least three times as efficient as female-to-male transmission.62 The different medical confidentiality standards that applied to prostitutes, versus men selected for national sentinel surveillance of HIV/AIDS, who were tested at clinics for sexually transmitted diseases, also had a disparate impact on women, who are the overwhelming majority of prostitutes. Under the National AIDS Plan, men are tested on an unlinked confidential basis, providing the highest assurance of confidentiality, whereas the women's results frequently are revealed.63
In addition, Burmese women and girls received very limited information about the AIDS virus. AIDS education for the Burmese would help them assert some control over their lives by informing their later decisions about marriage and children. The Thai government thus far has failed to summon the necessary political will and financial resources to reach Burmese women and girls in closed brothels. Our findings indicate that only a small percentage of the Burmese women and girls had any knowledge about HIV/AIDS. Given the high rates of HIV infection among Burmese women and girls forced into prostitution, and Thai police complicity in protecting the trafficking rings, the Burmese deserved far more public health attention from the Thai government than they received.
The ordeal of the Burmese women and girls continued on the Burmese side of the border. In addition to fears of punishment by SLORC for unauthorized emigration and involvement in prostitution, the returnees had reason to be concerned about persecution against persons with HIV or AIDS. According to a report by the Burmese Department of Health, some population groups in Burma are tested on a mandatory basis, including "Myanmar [Burmese] citizens returning from abroad."64
Burmese women and girls lured into Thailand for the purposes of prostitution face a wide range of violations of international human rights norms. These abuses are perpetuated by the failure of the Thai government to meet its protection obligations under international law and to enforce its ownlaws in an impartial and non-discriminatory manner. The Thai government punishes female trafficking victims while allowing the brothel owners, agents, pimps, clients and local officials involved in recruitment and brothel operations to go free. While the stiffer penalties against traffickers and the criminalization of clients in the pending anti-prostitution bill are steps in the right direction, they will be only as effective as their enforcement. As this section highlights, the root of the problem lies not in the absence of legislation but in the lack of political will to enforce the law.
53 In 1991 HIV infection trends among female prostitutes generally in Thailand was said to be 21.6 percent, according to World Health Organization, "AIDS/HIV Infection in Southeast Asia," November 7, 1992, p. 4.
54 Because the mucous membrane of the genital tract in girls is not as thick as that of a grown women, medical researchers have hypothesized that it is a less efficient barrier to viruses. Moreover, young women may be less efficient than older women in producing mucous, which has an immune function. United Nations Development Program, "Young Women: Silence, Susceptibility and the HIV Epidemic" (undated) [hereinafter "Young Women"], pp. 3-4.
55 Moreover, condom use is a questionable strategy for women and girls in forced prostitution who are forced to have sex with many customers each day, because condom use often leads to friction sores which may facilitate viral transmission. See, generally, UNDP, "Young Women."
56 United Nations Human Rights Center (UNHRC) and World Health Organization, Report of an International Consultation on AIDS and Human Rights, Geneva, July 26-28, 1989 (New York: United Nations, 1991)[hereinafter AIDS and Human Rights], p. 55.
57 Universal Declaration of Human Rights, Article 12.
58 UNHRC and WHO, AIDS and Human Rights, p. 15.
59 The only exceptions are military and police officials who have to enter combat situations or confront dangerous persons. In addition to the ban on compulsory testing, the human rights guidelines also require pre- and post-test confidentiality and strict confidentiality of medical records. National Economic and Social Development Board, AIDS Policy and Planning Coordination Bureau, Office of Prime Minister, "Thailand's 1992-1996 National AIDS Prevention Plan," 1992, p. 23.
60 UNHRC and WHO, AIDS and Human Rights, p. 42.
61 Thai Penal Code, Section 323.
62 Jonathan Mann, Daniel J.M. Tarantola, and Thomas W. Netter, eds., AIDS in the World (Cambridge, MA: Harvard University Press, 1992), Appendix 6.1A.
63 In unlinked anonymous testing, the blood or saliva sample is identified by a number or other code rather than the name of the patient.
64 Myanmar's Department of Health in collaboration with WHO, UNDP and UNICEF, "A Joint Review of Myanmar's Medium Term Plan for the Prevention and Control of AIDS," October 12-16, 1992, p. 4.
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