July 19, 2012


HIV continues to pose a major public health threat in the United States, where 1.2 million people are living with HIV, with one in five unaware of his or her infection. Approximately 50,000 people are newly infected with HIV each year, with racial and ethnic minorities bearing a disproportionate burden of the disease.[1] Thirty years into the epidemic, it is well established that interventions targeted at individual behavior are insufficient without attention to social, economic, legal, and other structural factors that influence vulnerability to HIV.[2] Addressing the epidemic among vulnerable populations requires understanding the risk environment in which they exist, and designing structural interventions in response. As Kevin Fenton, director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention of the US Centers for Disease Control and Prevention (CDC), wrote,

Though individually based interventions have had some success, it is clear that their success is substantially improved when HIV prevention addresses broader structural factors such as poverty and wealth, gender, age, policy, and power.[3]

Sex workers and transgender persons share many elements of an environment that shapes their risk of acquiring HIV. These include physical, social and cultural isolation, stigma, and a legal and policy environment that criminalizes their behavior and often their status.[4]Transgender persons, for example, face widespread discrimination, family rejection, stigma, and poverty, factors that illuminate the limited data that exist regarding HIV prevalence among this group. Transgender advocates recently released “Injustice at Every Turn,” a survey of nearly 6,500 transgender persons in the United States.[5] The report indicated pervasive discrimination, a poverty level four times higher than the general population, and twice the unemployment rate of non-transgender people, often leaving sex work as the only option for survival. Each of these factors was even more marked in transgender persons of color, as was vulnerability to HIV and AIDS. Among those surveyed, the self-reported HIV prevalence rate was four times higher than that in the US general population, with rates for those who had engaged in sex work higher than 15 percent.[6]

The consequences of arrest are harsh for sex workers, transgender women, and other LGBT people, who face high levels of abuse, harassment, and violence in police custody and in prison.[7] Sex workers who are immigrants have additional reason to fear arrest as the US government targets “criminal aliens” for removal.[8] For both documented and undocumented immigrants, prostitution and solicitation are potential grounds for removal and inadmissibility under federal immigration law.[9] As a “crime of moral turpitude,” a conviction for prostitution, loitering with intent to commit prostitution, or solicitation can be grounds for removal from the US, but there is also a separate provision that establishes prostitution as a removable offense.[10] Under this provision a criminal conviction for prostitution is not required for a finding of inadmissibility, if immigration authorities determine on other grounds that one has “engaged in prostitution.”[11] A conviction of prostitution or a determination that one has engaged in prostitution can render one inadmissible, meaning that those in the US cannot return if they leave the country and may have difficulty adjusting their legal status. These are also grounds that can trigger the mandatory detention requirements of the immigration laws for both documented and undocumented immigrants.[12]

Condoms are a proven method of preventing transmission of HIV and other sexually transmitted diseases, demonstrated to substantially reduce the risk of HIV transmission and endorsed by international and US health authorities as an essential component of HIV prevention programs.[13] In many jurisdictions, including the United States, condoms are provided as an essential HIV prevention method among populations whose actions are criminalized or for whom sex is prohibited such as prisoners.[14] Indeed, in each of the four cities addressed in this report, millions of condoms are distributed by the public health department each year as part of highly visible HIV prevention campaigns, and in each city, condoms are made available to inmates of the city’s jails.[15]

Prostitution—defined as the exchange of sex for money or other consideration—is illegal in 49 states in the US and is prohibited in every city addressed in this report.[16] The police are charged with enforcing laws, including laws against prostitution. But enforcement must be consistent with human rights obligations, including the rights to health, to liberty and security of the person, and to freedom from cruel, inhuman, and degrading treatment. Governments can and do take measures to ensure that the criminal laws do not impede human rights protection and public health, most notably by promoting harm reduction programs for drug users including syringe exchange and safe injection sites.[17] Each of the cities addressed in this report has syringe exchange programs that operate under exceptions to state drug paraphernalia laws. These programs are aimed at promoting treatment of drug addiction and preventing the sharing of needles, a mode of HIV transmission, by protecting drug users from police action in specific situations. They reflect collaboration between affected communities, law enforcement, and public health officials, an approach that should be applied to the issue of condoms as evidence of prostitution.

[1] Though African-Americans constitute just 14 percent of the US population, 46 percent of people living with HIV are African-American, and 64 percent of new infections are among blacks or Latinos. US Centers for Disease Control and Prevention (CDC), “HIV/AIDS in the United States Fact Sheet,” http://www.cdc.gov/hiv/resources/factsheets/us.htm (accessed April 26, 2012).

[2] CDC, “Establishing a Holistic Framework to Reduce Inequities in HIV, Viral Hepatitis, STDs, and Tuberculosis in the United States,” 2010, http://www.cdc.gov/socialdeterminants/docs/SDH-White-Paper-2010.pdf (accessed July 7, 2012); CDC, “CDC Health Disparities and Inequalities Report-United States 2011,” Morbidity and Mortality Weekly Report, vol. 60, Supplement, January 14, 2011; Human Rights Watch, Rights At Risk: State Response to HIV in Mississippi, March 2011, http://www.hrw.org/reports/2011/03/09/rights-risk, p. 51 (outlining “environment of risk” for low-income persons in Mississippi).

[3] Hazel D. Dean and Kevin Fenton, “Addressing Social Determinants of Health in the Prevention and Control of HIV/AIDS, Viral Hepatitis, Sexually Transmitted Infections and Tuberculosis,” Public Health Reports, vol. 125, Supp.4 (2010), p.1.

[4] See, e.g. Human Rights Watch, Off the Streets: Arbitrary Detention and Other Abuses against Sex Workers in Cambodia, July 2010, http://www.hrw.org/sites/default/files/reports/cambodia0710webwcover_2.pdf; Human Rights Watch, Not Worth a Penny: Human Rights Abuses Against Transgender People in Honduras, May 2009, http://www.hrw.org/node/83449.

[5] National Center for Transgender Equality and the National Gay and Lesbian Task Force, “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey,” February 3, 2011, http://www.thetaskforce.org/reports_and_research/ntds (accessed May 21, 2012).

[6] Ibid.

[7] Urban Justice Center, “Revolving Door: An Analysis of Street-Based Prostitution in New York City,” 2003; Human Rights Watch, Off the Streets: Arbitrary Detention and Other Abuses against Sex Workers in Cambodia, July 2010, http://www.hrw.org/sites/default/files/reports/cambodia0710webwcover_2.pdf; National Center for Transgender Equality and the National Gay and Lesbian Task Force, “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey;” Amnesty International, “Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender people in the United States,” AI Index No.: AMR 51/122/2005, September 21, 2005.

[8] US Department of Homeland Security, Written Testimony of US Immigration and Customs Enforcement (ICE) Director John Morton for a House Committee on Appropriations, Subcommittee on Homeland Security Hearing on the President’s Fiscal Year 2013 Budget Request for ICE, March 8, 2012, http://www.dhs.gov/ynews/testimony/20120308-ice-fy13-budget-request-hac.shtm (accessed May 11, 2012).

[9] Immigration and Nationality Act of 1952, as amended,(INA), secs. 212 and 237.

[10] INA, sec. 212.

[11] INA, sec. 212 (a) (2) (D) (i).

[12] INA, sec. 236 (c).

[13] See, e.g. United Nations Population Fund (UNFPA), World Health Organization (WHO), and Joint United Nations Programme on HIV/AIDS (UNAIDS), “Position Statement on Condoms and HIV Prevention,” March 18, 2009, http://www.who.int/hiv/pub/condoms/20090318_position_condoms.pdf (accessed July 7, 2012); CDC, “Male Latex Condoms and Sexually Transmitted Diseases,” http://www.cdc.gov/condomeffectiveness/latex.htm (accessed April 26, 2012); US National Institute of Allergy and Infectious Diseases, “Workshop Summary,” July 2001, p. 14.

[14] International Harm Reduction Association, “Global State of Harm Reduction 2010,” April 2010; United Nations Office on Drugs and Crime (UNODC), “HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for an Effective National Response,” October 2006.

[15]John P. May and Ernest Williams, “Acceptability of Condom Availability in a US Jail,” AIDS Education and Prevention, vol. 14, supp. B; Mary Sylla et al., “The First Condom Machine in a US Jail: the Challenge of Harm Reduction in a Law and Order Environment,” 100 American Journal of Public Health, vol. 100, no. 6, June 2010, pp. 982-985; Arleen A. Liebowitz et al., “Condom Distribution in Jail to Prevent HIV Infection,” AIDS Behavior, May 4, 2012; AIDS Foundation of Chicago, “Condom Distribution in US Correctional Facilities and Canada,” Fact Sheet 2011.

[16] Nevada permits counties to regulate sex work in licensed brothels. See Nevada Revised Statutes, sec. 244.345. Nevada law mandates that sex workers require patrons to wear condoms in all licensed sites of prostitution. See Nevada Revised Statutes, sec. 441A.805. Prostitution is also a federal crime, including when committed outside of US borders. See Transportationfor Illegal Sexual Activity Act, 18 USC. secs. 2421-2428. For a summary of state and federal anti-prostitution laws, their enforcement, and implications for human rights, see Alice M. Miller, Mindy J. Roseman, and Corey Friedman, Sexual Health and Human Rights: United States and Canada, Working Paper for the World Health Organization, 2010.

[17] International Harm Reduction Association, "Global State of Harm Reduction,” 2010; British Columbia Ministry of Health Services, “Insite Supervised Injection Site,” http://supervisedinjection.vch.ca/ (accessed May 11, 2012); North American Syringe Exchange Network, Syringe Exchange Program Database, http://www.nasen.org/programs/ (accessed May 22, 2012).