A female sex worker has been sentenced to house arrest by a judge in Chuquisaca, Bolivia, because she continued to work despite being diagnosed HIV-positive. What are the implications for other sex workers living with HIV?
A female sex worker, 25, and the mother of two children, working in Sucre and Potosí, Bolivia, has been given the unusual sentence of house arrest because she continued to work after being diagnosed HIV-positive.
The Departmental Health Service filed a complaint and asked the Chuquisaca Departmental Court under Judge Ximena Mendizábal to take preventive measures against the sex worker living with HIV because they considered her to be a risk to public health. The judge ruled that the accused was guilty of a crime against public health. She ruled that the defendant should be given medical treatment, should report to the public prosecutor’s office every two weeks and be kept under house arrest with a police guard.
News of this case was published in today’s edition of the morning paper La Razón. The item also incldued responses from the Organización de Trabajadoras Sexuales Nocturnas, OTN (Organisation of Night Sex Workers) and the Head of the National HIV/AIDS Programme, quoted as follows.
“She didn’t know anything about HIV. She agreed to have a rapid test but was surprised by the result. We will monitor the case to ensure she does not suffer discrimination”, said Lily Cortez of OTN.
“The lady should not have continued working, but we need to look at why she continued exposing her clients to infection”, said Carola Valencia of the National Programme.
“Confidentiality was violated and this is a case of discrimination. Moreover, the government should provide alternative work to people who are HIV-positive, but we get no help at all, not even counselling”, said the OTN spokesperson.
Carola Valencia said: “The ministry of health is unable to look for alternative work for those diagnosed with the virus, but provides counselling and medicines to treat the illness”.
An interpretation of the facts
This woman, a sex worker, is the victim of a series of human rights violations resulting from the prejudices and ignorance of health and court officials. The woman in question has been subjected to a series of discriminatory measures, while the case will have an incalculable negative impact on sex workers and people living with HIV/AIDS in Bolivia.
This sex worker is the victim of a ruling that criminalises HIV transmission and criminalises her profession as a sex worker and as a woman living with HIV. The judge sentenced her for a crime she did not commit: “the transmission of HIV to another person”. As far as we are aware, this was not proved in court.
What lies behind this ruling? The idea that a sex worker diagnosed with HIV must not continue to exercise the profession and becomes a kind of “dangerous weapon” that threatens the health of others, including the clients.
The impact of this prejudiced judicial error has been magnified by the statement made by the head of the HIV/AIDS programme, Carola Valencia, who is quoted to have said that she personally thought that HIV-positive sex workers should not continue to exercise their profession and expose their clients to infection. Note how use of the words exercise and expose in the same sentence can criminalise and stigmatise the whole sector.
All the international technical guidelines on sex work and HIV, including those published by UNAIDS, maintain the contrary. Sex workers living with HIV can continue to exercise their profession.
This case also involves other serious violations of the rights of people living with HIV, including the right to confidentiality and the right to free movement.
So, in brief, this woman is being blamed for not seeking or receiving treatment and not because evidence has been offered to prove she knowingly infected a client with HIV during sexual relations. Treatment for HIV is voluntary. To not receive treatment cannot be interpreted as intent to harm another person. Moreover, her colleagues claim she was unaware of her serological status.
In April 2012, UNAIDS published a Guidance Note on HIV and Sex Work, which states: “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 programmes (…). Stigma and discrimination must be effectively addressed; violence and abuse of sex workers must be reduced; and legal barriers to participation should be revised. Achieving the changes in social and legal conditions that limit access to those services [HIV] will take time, but it is critical to implement needed legal and policy reforms now.”
The main focus for preventing HIV must be to change clients’ attitudes towards female, male and transgender sex workers, and to the use of condoms. Sexual acts typically involve two people. Both are responsible for practising safer sex, although it is important to recognise that the dynamics of the relations of power in commercial sexual encounters tend to favour the clients, especially if they are willing to pay more for sex without a condom. Whatever the penal regime, sex workers are being forced to undergo compulsory HIV testing and other medical procedures. The situation is aggravated by a context in which sex workers are intimidated by abuse and police extortion.
What happened in Bolivia is not an isolated event, but one more painful symptom of a trend towards the criminalisation of HIV transmission in Latin America. Today the victim was a female sex worker but it could happen to others tomorrow: transgender people, gay men and other men who have sex with men, and any other person living with HIV.
Even if they are unaware of their serological status, people living with HIV can be indicted if they cannot irrefutably prove they used condoms during sexual relations or communicated their serological status prior to having sex. The Chuquisaca case raises the stakes and “the witch hunters” will now target recalcitrant patients who do not go to the doctor or take their medicine.
Some officials, who have barely finished reading and understanding the new WHO guidelines, use the concept of “treatment as prevention” to maintain that “anyone who does not seek treatment transmits and is therefore dangerous”. This represents an extreme expression of the effects of the medicalisation of the fight against AIDS.
RedTraSex and its national counterpart ONAEM repudiate what has happened, but one has to ask what will other civil society organisations in Bolivia and the region do? In any case, today a sex worker sleeps under police guard .
Note: I have sent a series of questions to the head of the National HIV/AIDS Programme in Bolivia and I will include their reply in this article. At the time of publication, we have not received an official reply.