July 19, 2012

Human Rights Obligations

Right to HIV Prevention and Access to Condoms

HIV is a potentially fatal disease, and other sexually transmitted diseases increase the likelihood of HIV infection. Police interference with the ability to access means of HIV prevention, whether in the form of information from peers or condoms, impedes the rights to life and to health and is incompatible with human rights standards.

The Universal Declaration of Human Rights guarantees to every person the right to health and well-being as well as life, dignity, and the right to be free from discrimination.[284]The International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by the United States, guarantees to every person the right to life, a fundamental right that is implicated in any policy that interferes with the prevention of HIV.[285] Indeed, the treaty has been interpreted to require states to take positive steps to curb epidemics and other threats to the public health.[286] Police action that undermines HIV prevention efforts by impeding condom use is incompatible with essential protections guaranteed by the ICCPR.

The right to access condoms and related HIV prevention services is also an essential part of the human right to the highest attainable standard of health. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) obliges state parties to take steps “necessary for... the prevention, treatment and control of epidemic... diseases,” including HIV. [287] United Nations bodies responsible for monitoring implementation of the ICESCR have interpreted this provision to include access to condoms and complete HIV information. [288] The Committee on Economic, Social and Cultural Rights, the UN body responsible for monitoring implementation of the ICESCR, has interpreted article 12 as requiring “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV.” [289] The committee notes,

States should refrain from limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, as well as from preventing people’s participation in health-related matters.... [290]

According to the committee, the ICESCR not only obliges governments to establish these programs “expeditiously and effectively,” it also prohibits them from “interfering directly or indirectly with the enjoyment of the right to health.”[291] Policies that frustrate HIV prevention by limiting access to condoms fit this description. Further, ICESCR protects against discrimination in health prevention on the basis of gender, social status, or other factors and obligates governments to protect the health rights of marginalized members of society. Indeed, the committee deems the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups, to be a “core” obligation essential to the right to health.[292] In the United States ICESCR has been signed but not ratified. However, the government is not without obligation under the ICESCR, as a signatory must refrain from taking steps that undermine the intent and purpose of the treaty.[293]

International law also protects the right of all women to control their reproductive and sexual health. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), a treaty the US has signed but not ratified, clearly establishes the right to make informed decisions about safe and reliable contraceptive measures, to access family planning information, education, and “the means to enable them to exercise these rights.”[294]

The International Guidelines on HIV/AIDS and Human Rights, non-binding but authoritative interpretations of human rights law applicable to HIV, address the fact that marginalized populations, including sex workers, have experienced discrimination and been denied equal access to HIV prevention services:

HIV prevalence has grown among groups most marginalized, such as sex workers, drug users, and men having sex with men. Coverage of interventions to educate people about HIV; to provide them with HIV prevention commodities, services, and treatment; to protect them from discrimination and sexual violence; and to empower them to participate in the response and live successfully in a world with HIV is unacceptably low in many parts of the world. [295]

Law enforcement agencies are charged with enforcing anti-prostitution laws. But enforcement must be consistent with international human rights obligations, including the right to health, which is also an element of public safety that is the province of the police. [296] Noting that sex workers frequently suffer human rights abuses due to the legal status of their work, the United Nations Joint Programme on AIDS (UNAIDS) recommends,

With regard to adult sex work that involves no victimization, criminal law should be reviewed with the aim of decriminalizing, then legally regulating occupational health and safety conditions to protect sex workers and their clients, including support for safe sex during sex work. Criminal law should not impede provision of HIV prevention and care services to sex workers and their clients. [297]

The UN Guidance Note on HIV and Sex Work references the vulnerability to HIV infection among sex workers, a fact that “reflects the failure to adequately respond to their human rights and public health needs.”[298]The UN Guidance Note states,

Condoms, both male and female, are the single most effective available technology to reduce the sexual transmission of HIV and other sexually transmitted diseases. Condoms must be readily available for sex workers and their clients, either free or at low cost, and conform to global quality standards…harassment by law enforcement officers reduces the ability of sex workers to negotiate condom use; governments and service providers should address such factors to maximize the impact of condom programming focused on sex work.[299]

Access to information and services for HIV prevention is protected by article 19 of the ICCPR which is binding on the United States and which guarantees the “freedom to seek, receive and impart information of all kinds…”[300]The Committee on Economic, Social, and Cultural Rights has similarly stated that “information accessibility” is an essential element of the right to health. Some of the most effective—and indeed sometimes the only—outreach workers for HIV prevention to marginalized people are their peers. When laws and policies equating condoms with criminal activity interfere with the efforts of sex workers to distribute condoms to their peers, access to health is significantly undermined.

Police and prosecutors claimed that condoms are necessary tools to enforce anti-prostitution laws. In legal systems everywhere, however, rules of evidence reflect considerations of public policy. The “rape shield laws” provide an example. These statutes, codified as Federal Rule of Evidence 412 and in the laws of every US state, exclude evidence in a rape trial that relates to the sexual history of the victim.[301] This exclusion represents the determination of Congress and state legislatures that encouraging rape victims to report sexual assault and other policy goals outweigh any probative value of this type of testimony.[302] Similarly, evidence is regularly excluded on grounds of the physician-patient, attorney-client, and other privileges, exclusions that have been explained by legal authorities as reflecting “a principle or relationship that society deems worthy of preserving and fostering,” despite the potential probative value of such evidence.[303] Here public policy considerations include not only advancing public health and HIV prevention efforts but also protecting the right to use and possess contraceptive devices, a right guaranteed to every person by the US Supreme Court as part of the fundamental right to privacy.[304]

Right to Liberty and Security of the Person and Freedom from Arbitrary Detention

The right to health is closely related to and dependent upon the realization of other human rights. In addition to protection of all persons from discrimination on the grounds of sex, race, “or other status,” the ICCPR guarantees the rights to “liberty and security of the person” and to be free from “arbitrary arrest or detention.”[305]The 4th Amendment to the US Constitution protects the right to be free from “unreasonable search and seizure” by police. Broadly drawn loitering statutes such as those in New York, California, and in the “prostitution-free zones” in Washington, DC are problematic under these human rights standards.[306] The circumstantial evidence that permits police to stop, search, and arrest under these statutes (such as clothing, location, and being “known” as a prostitute), also enables unjustified interference with lawful activity and arbitrary and preemptive arrests on the basis of profile, or status, rather than criminal conduct.[307]

Persons interviewed for this report testified to being stopped and searched while doing nothing illegal, including walking home, returning from school, and waiting for the bus. Profiling of transgender persons as sex workers is specifically prohibited by police guidelines in both Washington, DC and Los Angeles, but the vague and sweeping language in the loitering and anti-prostitution statutes appear to promote this discriminatory practice. The Yogyakarta Principles, standards endorsed by independent legal experts from 25 countries that apply existing international human rights law to sexual orientation and gender identity, call for an end to laws that promote profiling and other inequality before the law:

States shall take all necessary legislative, administrative, and other measures to ensure that sexual orientation or gender identity may under no circumstances be the basis for arrest and detention, including the elimination of vaguely worded criminal law provisions that invite discriminatory application or otherwise provide scope for arrests based on prejudice.[308]

In 2011 the United States government investigated complaints of police profiling transgender persons as sex workers in New Orleans. The Department of Justice reported,

We also found reasonable cause to believe that New Orleans Police Department (NOPD) practices lead to discriminatory treatment of LGBT individuals. In particular, transgender women complain that NOPD officers improperly target and arrest them for prostitution, sometimes improperly fabricating evidence of solicitation for compensation.[309]

The Department of Justice concluded that the New Orleans Police Department “failed to implement adequate policies and provide adequate training on how to identify and articulate suspicion based on behavior and other permissible factors.”[310]Similar federal oversight is required for police interactions with transgender persons in New York, Washington, DC, and Los Angeles.

Another problematic law affects sex workers in San Francisco and Los Angeles. California law mandates HIV testing for anyone convicted of prostitution.[311] Mandatory HIV testing is incompatible with international human rights standards and undermines, rather than promotes, the public health. Compulsory testing is counterproductive as it frequently drives sex workers away from essential public health services.[312] International guidance, including by the World Health Organization and UNAIDS, has explicitly rejected mandatory HIV testing in all forms.[313] As stated in the UNAIDS Guidelines on HIV/AIDS and Human Rights, these laws are often imposed upon the most vulnerable people in society:

Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of the person. This coercive measure is often utilized with regard to groups least able to protect themselves because they are within the ambit of government institutions or the criminal law, e.g. soldiers, sex workers, prisoners, and men who have sex with men. There is no public health justification for such compulsory HIV testing.[314]

A related California statute provides that when a person is found to be HIV-positive after a prostitution conviction, their charge on a second arrest for prostitution can be enhanced from a misdemeanor to a felony.[315]This law discriminates against people with HIV and is particularly unjust in light of police interference with sex workers’ rights to protect themselves from HIV infection.

Right to be Free from Cruel, Inhuman, and Degrading Treatment or Punishment

International and domestic law prohibits abusive and corrupt police practices including verbal harassment, humiliation, and demand of sex in exchange for leniency. Article 16 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment (CAT), and article 7 of the ICCPR, both treaties signed and ratified by the United States, protect against cruel, inhuman, or degrading treatment in police custody.[316] Non-binding declarations adopted by the UN General Assembly, such as the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for the Protection of Persons under Detention, and the UN Standard Minimum Rules for the Treatment of Prisoners have also become universal norms by which police behavior is evaluated.

Under the terms of these UN declarations on policing, law enforcement officials should treat all persons with compassion and respect for their dignity, and should not inflict, instigate, or tolerate any act of cruel, inhuman, or degrading treatment or punishment.[317]Effective mechanisms must be established to ensure the internal discipline and supervision of law enforcement officials.[318]Rape and sexual assault perpetrated or permitted by state officials in detention is considered torture.[319]

Sex workers, particularly transgender women in New York and Los Angeles, testified to multiple instances of police conduct that constitutes cruel, inhuman, and degrading treatment and violates the right to liberty and security of the person.[320] Police stops involving condoms as evidence frequently took place in a context of verbal harassment, physical abuse, humiliation, and extortion for sex both in and out of detention settings. Human Rights Watch found that for some we interviewed, fear of further ill treatment or removal from the United States if arrested for prostitution prevented the reporting of police abuse and misconduct. The UN special rapporteur on issues of torture has condemned discrimination against sexual minorities in detention, including sexual abuse and rape, and the lack of police accountability that surrounds these offenses.[321]

In March 2011, as part of its Universal Periodic Review before the UN Human Rights Council, the US accepted recommendation 86 of the Council report, stating, “We agree that no one should face discrimination in access to public services or violence based on sexual orientation or their status as a person in prostitution.”[322]This is the first public recognition by the US of its obligation to respect the human rights of sex workers. Unfortunately, the testimony of sex workers and transgender people in this report confirm that there is much work to be done before these human rights are realized.

[284] Universal Declaration on Human Rights, (UDHR) adopted December 10, 1948, G.A.Res. 217A(III), UN Doc A/810 at 71 (1948), preamble, arts. 1, 2, 3, 25.

[285] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.

[286] UN Human Rights Committee, CCPR General Comment No. 6, art. 6, The Right to Life, April 30, 1982, para. 5.

[287] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), UN GAOR (no. 16) at 49, UN Doc. A/6316 (1966), 99 UNTS 3, entered into force January 3, 1976, signed by the US on October 5, 1977.

[288] Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, paras. 15, 16.

[289]ICESCR, General Comment 14, para. 16.

[290]ICESCR, General Comment 14, para 34.

[291]ICESCR, General Comment 14, para 33.

[292] ICESCR General Comment 14, paras. 18, 21, 43.

[293] Vienna Convention on the Law of Treaties (VCLT), adopted May 23, 1969, entered into force January 27, 1980, art. 18.

[294] Convention on the Elimination of All Forms of Discrimination Against Women, adopted December 18, 1979,G.A. res. 34/18034 UN GAOR Supp. No. 46 at 193,UN Doc. A/34/46,entered into force September 3, 1981, art. 16 (1) e.

[295] Joint United Nations Programme on HIV/AIDS (UNAIDS), “International Guidelines on HIV and Human Rights,” 2006, p. 5.

[296] United Nations Code of Conduct for Law Enforcement Officials, adopted December 17, 1979, G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), art. 1, para. (c).

[297]UNAIDS, “International Guidelines on HIV and Human Rights,” para. 21(c).

[298] Joint United Nations Programme on HIV/AIDS (UNAIDS), “Guidance Note on HIV and Sex Work,” 2009, p. 2.

[299] UNAIDS, “Guidance Note on HIV and Sex Work,” p. 12.

[300] ICCPR, art. 19.

[301] See, e.g. Federal Rule of Evidence 412, New York State Criminal Procedure Code 60.42, and California Evidence Code 782.

[302] See statement of NY State Representative Elizabeth Holtzman, sponsor of the Privacy Protection for Rape Victims Act of 1978, 124 Congressional Record 34, 913 (1978); Harriet Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade,” Minnesota Law Review, vol. 70, (1986), p. 763. For further discussion of the policy principles underlying the rape shield laws, see, C. Wright and K. Graham, Federal Practice and Procedure, Vol. 23, 5-381-393 and Joseph Biden, “Violence Against Women: the Congressional Response,” American Psychologist, vol. 48, no. 10 (1993), pp. 1059-61.

[303] Graham C. Lilley, An Introduction to the Law of Evidence, 3d Ed., (St Paul: West Publishing 1996), p. 438.

[304]Eisenstadt v. Baird, United States Supreme Court, 405 US 438 (1972).

[305]ICCPR, arts. 9, 26. “Sex” is increasingly understood to encompass gender and gender identity, see, e.g. Macy v. Holder, appeal number 0120120821, Agency Number ATF 2011-00751, April 20, 2012, a case in which the US Equal Employment Opportunity Commission held that failure to hire a transgender woman despite her qualifications violated Title VII of the Civil Rights Act of 1964.

[306] In New York City, loitering laws similar to the loitering for prostitution statute have been struck down by state and federal courts on due process grounds. In the case of People v. Uplinger, 460 NYS2d 514 (1983) the New York Court of Appeals struck down a statute prohibiting loitering for the purposes of engaging in lewd sexual conduct. In People v. Bright, 526 NYS2d 66 (1988) the New York Court of Appeals struck down a statute prohibiting loitering in a transit facility without sufficient explanation. In Loper v. New York City Police Department,999 F2d 699 (2d Cir. 1993), the federal court struck down a statute prohibiting loitering for the purpose of begging.

[307] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. See arts. 2, 9, 21.

[308] Yogyakarta Principles on the application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, Principle 7 (a).

[309] US Department of Justice, Civil Rights Division, “Investigation of New Orleans Police Department,” March 16, 2011, p. 10.

[310] US Department of Justice, “Investigation of New Orleans Police Department,” p. 9.

[311] California Penal Code, sec. 1202.6

[312] UNAIDS, “Guidance Note on HIV and Sex Work,” p. 8; Center for Advocacy on Stigma and Marginalization, “Rights-Based Sex Worker Empowerment Guidelines,” July 2008, p, 12.

[313] UNAIDS Global Reference Group on HIV/AIDS and Human Rights, “WHO/UNAIDS Policy Statement on HIV Testing,” June 2004.

[314] UNAIDS, “International Guidelines on HIV/AIDS and Human Rights,” 2006, p. 95.

[315] California Penal Code, sec. 647f.

[316] Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (CAT), adopted December 10, 1984, GA Res. 39/46, annex, 39 UN GAOR Supp. (no. 51) at 197, UN Doc. A/39/51 (1984) entered into force June 26, 1987, ratified by the US on October 15, 1994.

[317]Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, annex, 34 U.N. GAOR Supp. (no. 46) at 186, U.N. Doc. A/34/46 (1979), art. 2; Body of Principles for the Protection of All Persons Under any Form of Detention and Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (no. 49) at 298, U.N. Doc. A/43/49 (1988), prin. 1; United Nations Standard Minimum Rules for Treatment of Prisoners (Standard Minimum Rules) adopted by the First United nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, para. 26.

[318] Ibid.

[319] The UN special rapporteur on torture has stated that “rape and other forms of sexual assault in detention are a particularly despicable violation of the inherent dignity and right to physical integrity of every human being; and accordingly constitute an act of torture.” United Nations Special Rapporteur on Torture, Summary Record of the 21st Meeting, UN ESCOR, Commission on Human Rights, 48th Session, paragraph 35, UN Doc. E/CN.4/1992/SR.21 (1992).

[320]Report of the special rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, U.N. General Assembly, U.N. Doc. A/56/156, July 3, 2001, Section IIA (finding that fear of physical torture may constitute mental torture, and that serious and credible threats to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment, or even to torture, especially when the victim is in the hands of law enforcement officials). In its 2006 recommendations for the United States, the Committee Against Torture expressed concern about reliable reports of sexual assault in detention “and that persons of differing sexual orientation are particularly vulnerable.” Conclusions and Recommendations: United States, CAT/C/USA/CO/2, para. 32, May 18 2006.

[321] Report of the Special Rapporteur on the Question of Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, UN General Assembly E/CN.4/2002/76, December 27, 2001.

[322] US Department of State, “US Response to UN Human Rights Council Working Group Report,” March 10, 2011.