Written Testimony for Hearing on Prostitution-Free Zone Amendment Act of 2011

To The Honorable Members of the Council of the District of Columbia,

Human Rights Watch respectfully submits this written testimony in opposition to Bill 19-567 that would extend and permit permanent Prostitution-Free Zones (PFZ) in the District of Columbia. Human Rights Watch opposes this bill on the grounds that the legal framework which allows the establishment of so called PFZs is not compatible with human rights norms, that it leads to discriminatory policing, and that it is also contrary to sound public health policy. Human Rights Watch does not take a position in this intervention on the government’s obligations in respect to the legal status or the regulation of sex work, but notes that any regulation of sex work must be compatible with fundamental human rights.

Human Rights Watch is the largest non-governmental human rights organization based in the United States.We publish more than 100 reports, on more than 80 countries around the world, each year.For more than 30 years, we have defended human rights by documenting violations in accurate and reliable reports and held abusers accountable by engaging in strategic and targeted advocacy with those who have suffered the abuses and their allies. More information about the work of Human Rights Watch is available at our website, www.hrw.org.

Human Rights Watch has been monitoring human rights abuses linked to HIV and AIDS since 2001, and we have issued more than 40 reports, and hundreds of recommendations, in the US and internationally, on this issue. These reports are based on the first-hand testimonies of those whose marginalized status puts them at risk of the disease, including sex workers, drug users, prisoners, migrants, and lesbian, gay, bi-sexual and transgendered (LGBT) people, as well as adults and children living with and affected by HIV.

We have testified on the critical role the protection of human rights plays in promoting public health before numerous international and national bodies including the United Nations, the US Congress, and national health and legislative bodies in countries as diverse as Uganda, South Africa, Ukraine and Jamaica. We are currently investigating the practice in the District of Columbia of using condoms as evidence of prostitution, a practice that raises human rights concerns as it interferes with the right of everyone, including sex workers and others who exchange sex to support basic needs, to protect their health and prevent HIV and other sexually transmitted diseases. Our research on this issue has made us familiar with many local issues relevant to today’s hearing.

Bill 19-567 proposes that the Chief of Police can declare any public area a permanent prostitution free zone for any period of time. The Chief of Police can exercise this power on a number of grounds including when he has verifiable information “to ascertain” that there is threat to public health or safety by prostitution in an area. In a permanent PFZ, the police can disperse any group of two or more persons they believe to be there for the purpose of engaging in prostitution or prostitution-related offenses and can immediately arrest those so ordered who do not comply. These powers are an extension of the more curtailed, but still problematic powers created by the Omnibus Public Safety Emergency Amendment Act of 2006, to establish temporary PFZs. The penalty for failing to disperse from a PFZ is a fine of up to $300, imprisonment for up to 180 days, or both. The bill therefore extends broad discretionary powers to the police and extends the scope of offenses that carry serious penalties.

Human Rights Watch is concerned that both the existing powers and the proposed extension pave the way for police to engage in unjustified interference with lawful activity, arbitrary and pre-emptive arrests for the purpose of social control and in effect create status offences. The US Supreme Court in Robinson v. California, 370 U.S. 660(1962)held that the criminal law must target a specific act not a person’s status. Yet the powers under the proposed bill will allow police to move someone on and potentially arrest them because they believe their behavior suggests that he or sheis a type likely to commit an offence in the future, rather than for an act they have committed. The system of PFZs allows individuals to be criminalized for who they are – sex workers - or for a perceived ‘proclivity’ rather than for the actual commission of any criminal act. As such, the system violates the basic principle that criminal law should target specific conduct accompanied by the requisite intent. Due process protections require that crimes should be classified and described in precise and unambiguous language that narrowly defines the punishable offense. Human rights standards and the rule of law require that the law be foreseeable and predictable.The system of offences created by the establishment of PFZs does not meet this criteria. The powers also undermine basic due process protections, such as the presumption of innocence, in that individuals may be punished on the presumption by police that they may commit an offense rather than for criminal behavior they have actually engaged in.

The US is a party to the International Covenant on Civil and Political Rights (ICCPR) which protects the rights of freedom of assembly, to liberty and security of the person, and to be free from arbitrary detention and discrimination based on race, gender or other status.[1]The US Constitution also protects these fundamental rights, and the decision of the US Supreme Court in Chicago v. Morales, 527 U.S. 41 (1999) raises concerns that the Prostitution-Free Zones may be unconstitutional. In Morales, the court found that the anti-loitering statute directed at gang activity in Chicago was so overbroad and gave such wide discretion to the police as to violate the right to be free from arbitrary deprivations of liberty.

Human Rights Watch is also concerned that the law is likely to have a disproportionate and discriminatory impact on particularly marginalized groups, such as the transgender community. Human Rights Watch has regularly reported on the vulnerability of transgender people to abuse, harassment and extortion. Some transgender individuals may also engage in sex work, which renders them particularly vulnerable. Reports from Honduras, South Africa, Kuwait and other countries detail high levels of violence against transgender people and how transgender people often have little recourse in holding police accountable for violations of fundamental rights including the rights to liberty and security of the person and non-discrimination.[2]

In Washington DC particularly, the DC Trans Coalition released its 2011 preliminary findings of an updated assessment of the needs of the transgender community.[3]This survey indicated a high level of violence and abuse experienced by transgender people in DC, frequently at the hands of the police. Moreover, the survey’s mapping feature indicated that the areas in the city most heavily policed for sex work activity are often the areas most utilized by transgender people for residing, socializing, support and networking purposes. Police powers that would allow police to move people out of neighborhoods they are familiar with may be interfering with legal behavior and jeopardizing the safety of groups proven vulnerable to violence and abuse. Safety is of particular concern in light of the recent murders of two transgendered people in DC since July 2011.[4]

Human Rights Watch is also seriously concerned about the impact that the police powers bestowed by the bill will have on public health and in particular on the rights of sex workers to access health care and essential HIV services for both prevention and treatment.

Globally and in the US, sex workers are at high risk of HIV and sexually transmitted diseases.[5]Sex workers are clearly a population in great need of health care and other support services, yet the evidence indicates that they are a group less likely than others to have access to essential HIV prevention and other services. UNAIDS, the international agency directing HIV prevention and treatment efforts around the globe, has found that:

• In many countries, laws, policies, discriminatory practices, and stigmatizing social attitudes drive sex work underground, impeding efforts to reach sex workers and their clients with HIV prevention, treatment, care and support programs…Inadequate service access is often compounded by abuse from law enforcement officers. Documented and undocumented migrants working in sex work often face particularly severe access barriers as a result of linguistic challenges, exclusion from services that are available locally and minimal contact with support networks.[6]

Human Rights Watch’s research in several countries has established that arbitrary and abusive law enforcement practices targeting marginalized groups such as sex workers, people who use drugs, and LGBT individuals, threaten their rights to health and to life. [7]Washington DC has the highest AIDS diagnosis rate in the United States.[8]Indeed, the HIV prevalence of 3.2 percent among adults in Washington DC is three times higher than the World Health Organization definition of a generalized epidemic, higher than that of countries in sub-Saharan Africa such as Ethiopia and Rwanda.[9]The DC Department of Public Health, specifically the HIV/AIDS, Hepatitis, STD and TB Administration (HAHSTA) has recently invested enormous resources into combating the epidemic and stepping up prevention efforts, including distribution of more than 3 million free condoms to DC residents in each of the last two years.[10]Yet there are disturbing indications that police enforcement of anti-prostitution laws, including the PFZs, may be undermining the goals and objectives of the city’s health department by impeding access to condoms and other HIV services to sex workers.

In 2008, Different Avenues, a DC-based advocacy organization, produced a detailed report entitled “Move Along: Policing Sex Work in Washington DC” (2008).[11]This report, based on hundreds of in-depth interviews with people engaged in sex work or exchange of sex for basic needs, their advocates, and public officials, found high levels of abuse, harassment and extortion for sex on the part of the police; that transgender women and transgender youth had particularly negative experiences with the police; that profiling of people as prostitutes and arrests based on this profiling rather than illegal acts were occurring both in and outside of the Prostitution-Free Zones; and that health and other social support services were inadequate for sex workers, transgender women and LGBT youth. The report further found that the Prostitution-Free Zones institutionalized the practice of police requiring people to “move along” so as to avoid the charge of loitering for the purpose of prostitution, and that this policy had the effect of regularly removing people from areas where they lived, socialized and found support services. The enforcement of PFZs pushed people into areas that were less familiar to them, less safe and where they were less able to access support services or assistance, including health and HIV outreach services.[12]

Police can, and should, partner with public health officials to ensure that enforcement of the criminal law does not undermine the health and safety of all. Human Rights Watch would encourage the authorities to examine instances where states have implemented structural changes in policing practices with respect to drug laws to ensure drug users' access to HIV prevention and other health services as examples of a balanced approach that can ensure the rights of sex workers to health and HIV prevention.[13]

In light of the incompatibility of the legal framework for PFZs with basic human rights and due process protections, the risk of disproportionate and discriminatory impact on marginalized groups such as transgendered persons, and the severity of the city’s HIV/AIDS epidemic, Human Rights Watch urges the District of Columbia Council to oppose Prostitution-Free Zones as incompatible with human rights and public health.