Conflicting Rights: How the Prohibition of Human Trafficking and Sexual Exploitation Infringes the Right to Health of Female Sex Workers in Phnom Penh, Cambodia

Lisa Maher, Thomas Crewe Dixon, Pisith Phlong, Julie Mooney-Somers, Ellen S. Stein, Kimberly Page

Health and Human Rights 17/1
Published June 11, 2015

Abstract

While repressive laws and policies in relation to sex work have the potential to undermine HIV prevention efforts, empirical research on their interface has been lacking. In 2008, Cambodia introduced anti-trafficking legislation ostensibly designed to suppress human trafficking and sexual exploitation. Based on empirical research with female sex workers, this article examines the impact of the new law on vulnerability to HIV and other adverse health outcomes. Following the introduction of the law, sex workers reported being displaced to streets and guesthouses, impacting their ability to negotiate safe sex and increasing exposure to violence. Disruption of peer networks and associated mobility also reduced access to outreach, condoms, and health care. Our results are consistent with a growing body of research which associates the violation of sex workers’ human rights with adverse public health outcomes. Despite the successes of the last decade, Cambodia’s AIDS epidemic remains volatile and the current legal environment has the potential to undermine prevention efforts by promoting stigma and discrimination, impeding prevention uptake and coverage, and increasing infections. Legal and policy responses which seek to protect the rights of the sexually exploited should not infringe the right to health of sex workers.

Introduction

Previous research has demonstrated that law enforcement can have adverse effects on public health.[1]  When it does so, such State action is not just bad medical and social policy: it also infringes the right to health of those subject to it. A State may legitimately claim that its laws are intended to promote other rights, including by preventing exploitation. However, the right to be free from exploitation does not trump the right to health. State law and policy must be calibrated so that both sets of rights are protected.

In 2008, Cambodia introduced anti-trafficking legislation ostensibly designed to suppress human trafficking and sexual exploitation. The new law led to police crackdowns and brothel closures, prompting an exodus of female sex workers from brothels to entertainment and street-based sex work. While justified by Cambodian authorities as meeting international legal obligations to tackle sexual exploitation under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol), the effect of the anti-trafficking law was to infringe sex workers’ right to health.[2]

As part of the Young Women’s Health Study, a prospective observational study of young women aged 15-29 years involved in sex work in Phnom Penh, we conducted in-depth interviews in 2009 and 2011 (n=80) designed to explore HIV risk and protective behaviors. Interviews were conducted in Khmer by trained interviewers, transcribed and translated into English, and analyzed for thematic content. This article reports empirical research on sex work in Cambodia which shows that law enforcement against trafficking and sexual exploitation had seriously counterproductive effects in exposing sex workers to increased risk of violence and infection. Such actions severely undermine sex workers’ right to health.

HIV and sex work in Cambodia

Cambodia has historically had one of Asia’s most severe HIV epidemics. Poverty, high prevalence of sexually transmitted infections (STI), a highly mobile workforce, and the patronage of sex workers have been the principal drivers of the epidemic.[3] However, increasing condom use and access to screening and antiretroviral therapy  (ART) have resulted in crucial risk reduction. Recent reports show a decline of HIV prevalence in the general population from 2.7% in 2001 to less than 1% in 2010.[4] However, this progress is threatened by significant changes in the sex work landscape in Cambodia over the past decade, including a 300% increase in the estimated total number of female sex workers, a steady decline in brothel-based sex workers, and a corresponding increase in entertainment-based sex workers.[5] By 2009, 96% of the estimated 35,000 female sex workers in Cambodia were working in settings other than brothels, primarily in entertainment venues or on the street.[6]

Our previous research documented a high prevalence of HIV among young women involved in sex work in Phnom Penh: 23% or almost one in four women.[7] HIV incidence was 3.6/100 person-years (PY) and incidence of gonorrhoea was 6.1/100 PY and chlamydia 18.2/100 PY.[8] Length of employment as a sex worker (Adjusted Hazard Ratio [AHR] 1.1; 95% CI 1.1-1.2) and use of amphetamine-type stimulants (ATS) (AHR 4.3; 95% CI 1.7-11.0) were independently associated with incident STI infection. Women who used ATS had five-fold higher odds of incident STIs, as well as more sex partners and higher levels of alcohol use than non-ATS users.[9]

While individual and biological factors remain important determinants of HIV epidemics among sex workers, structural conditions—including criminalized legal environments—also shape vulnerability to HIV and other STIs in this group.[10] Law and public policy  provide the contexts within which government agencies and civil society respond to HIV. Coercive and punitive legal environments undermine responses to HIV in the context of sex work and the human rights of sex workers by encouraging violence, including sexual violence, against them. This renders women reluctant to report abuses, makes authorities hesitant to offer support or protection, facilitates stigma and discrimination, and restricts access to HIV and sexual health services.[11] In particular, anti-trafficking laws that conflate human trafficking and sex work, and define sex work as ‘exploitation’ to which a worker’s consent is irrelevant, have been used to justify crackdowns and raids that suppress voluntary sex work, resulting in abuses of sex workers’ human rights and undermining responses to the HIV epidemic.[12]

Punitive laws and policies are familiar responses to sex work globally and most countries criminalize aspects of sex work, including in the Asia-Pacific region.[13] Despite growing recognition that legal and policy environments have the potential to undermine the success of HIV prevention efforts, empirical research on their interface has been limited.[14]

Rights in conflict

Action by the Cambodian authorities against sex workers has been justified as meeting international obligations to protect the rights of women and children subject to trafficking and sexual exploitation.

The Palermo Protocol was adopted by the UN General Assembly in 2000 and entered into force on December 25, 2003.[15] Article 3 provides “Trafficking in persons’shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs… The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of the means set forth [above] have been used.” Any dealing with a person for sex work (or ‘prostitution,’ which the Protocol does not define) is prohibited. The sex worker’s consent is irrelevant. Article 5 requires signatory states to “adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in Article 3 of this Protocol.” Article 2 provides that one of the Protocol’s purposes is to “protect and assist the victims of such trafficking, with full respect for their human rights”. The Protocol is directed at those who exploit people, not at those trafficked or exploited. The latter are treated as victims for whom States are to “consider implementing measures to provide for the physical, psychological, and social recovery” (Article 6(3)) including housing, counseling, “medical, psychological, and material assistance” and “employment, educational, and training opportunities.” Article 14 indicates an awareness of potential unintended consequences, requiring that the Protocol “shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons.”

In 2008, the Cambodian Government enacted a new law (Law on the Suppression of Human Trafficking and Sexual Exploitation, 2008) ostensibly designed to suppress human trafficking and sexual exploitation “in order to protect the rights and dignity of human beings, to improve the health and welfare of citizens, to preserve and enhance good national customs, and to implement the UN Protocol to Prevent, Suppress and Punish Trafficking”.[16] This law (‘the Trafficking Law’) included a wide range of broadly defined offences that criminalized most aspects of sex work, including the prohibition of public soliciting, procurement of prostitution, management of an establishment of prostitution, and provision of premises for prostitution.[17] The law effectively made the sale and purchase of sex illegal and was accompanied by widespread police crackdowns and brothel closures.

However, the Cambodian Government is not only bound to protect the rights and dignity of human beings; there is also the right to health. The human right to health is recognized in numerous international instruments, including the Universal Declaration of Human Rights (UDHR, Article 25.1) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, Article 12.1) which provides that states which are parties recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.[18] The UN General Comment 14 (2000) interprets the right to health as “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health”.[19] The Comment clearly acknowledges the challenges that HIV/AIDS presents to the realization of the right to health. In placing an obligation on States to respect the right to health of those affected by HIV/AIDS, these international human rights commitments require States not to impose laws or policies which infringe this right.

The current study aimed to explore the impact of the 2008 Trafficking Law on vulnerability to HIV and the right to health among female sex workers in Phnom Penh.

Methods

The Young Women’s Health Study-2 (YWHS-2), which followed the YWHS-1, was a prospective observational study of young women involved in sex work in Phnom Penh, Cambodia.[20]  YWHS-2 was conducted in 2009 and 2010. The epidemiological aims of the YWHS-2 were to: 1) estimate prevalence and incidence of HIV and human papilloma virus (HPV); 2) examine the prevalence and risks associated with amphetamine-type substance (ATS) use; and 3) assess completion and adherence to a multi-dose HPV vaccine regimen. As part of the YWHS-2, we conducted two waves of qualitative data collection. Results of Phase 1, conducted in 2009 (n=33), identified the impact of the new law and associated police crackdowns as a persistent and recurrent theme.[21] Phase 2 data collection, involving an additional 47 in-depth interviews to further examine and explore the impact of the law on women’s lives, was conducted in 2011.

The Cambodian Women’s Development Association (CWDA), a community partner, recruited study participants who engaging in sex work in brothels, entertainment venues, and in streets and parks.. Eligibility criteria were that women were aged 15 to 29, reported transactional sex (sex in exchange for money, goods, services, or drugs) in the previous three months, and understood spoken Khmer. Following informed consent, women were interviewed at the CWDA offices and the Cambodian Prostitutes Union Women’s Room, a community location used by various sex worker organizations in Phnom Penh. Interviews were conducted in Khmer by trained interviewers under the supervision of two medical anthropologists, including a Cambodian national, and took between 40 minutes and two hours to complete. Interviewees were reimbursed USD $5 for their participation.

Interviews were digitally recorded and transcribed verbatim in Khmer. Transcripts were checked for accuracy against the recordings before being translated into English. Following the general tenets and principles of grounded theory, data were analyzed in both Khmer and English using an inductive approach.[22] Two researchers reviewed the data, one in Khmer and one in English. Interview narratives were read and re-read and emerging themes discussed and refined to develop an initial coding scheme. Data were then formally coded in parallel by two researchers using both open and axial coding to clarify and consolidate initial themes. Identification of final themes and interpretation of results was performed by consensus. Ethical approval for the study was provided by the Cambodian National Ethics Committee, the University of California San Francisco Institutional Review Board and the University of New South Wales Human Research Ethics Committee.

Impact of the Trafficking Law on sex workers’ right to health

Key themes identified in the data included the closure of brothels and the concomitant displacement of women, which impacted their ability to negotiate safe sex, increased their exposure to violence, and reduced their access to health services. While the women had varied perceptions of the reason for the introduction of the Trafficking Law, many felt that it was designed to eliminate sex work.

It tries to stop us from working messily [creating an image of public disorder] on streets. To stop us from sitting messily in parks … They want to eliminate sex work. (Kaseka, 18)

 They said that we ruin the environment by standing on the street. Our job is considered not good for the society. (Chamnan, 28)

However, some women felt that the new law was also designed to eliminate sex workers.

They want to abolish sex workers, so they catch us in order to send us for education and stop working like this. There are many jobs we can do. They don’t want us to do like this because it affects Khmer culture and tradition. (Chakriya, 22-)

[I]t is for the reduction of sex workers in our Cambodian country. They don’t want us to exist. And we protested back saying that it can’t be reduced as long as there’s still poverty. We are poor and we can’t do any other jobs that would feed us. (Viriya, 22)

Closure of brothels and displacement of women

 The Trafficking Law led to police crackdowns on sex work, particularly brothel-based sex work. There was a strong consensus among women that the police crackdown following the introduction of the new law had resulted in the closure of most brothels, displacing sex workers to the streets, entertainment venues, and massage parlors.

Women waving hands [to attract customers] and although this place is closed, there is another opens. Although brothel is closed there is still on the street. There is also at the garden now. Before only at the brothel when the law was not strict. Now they close brothel but there are almost everywhere else. [Where else?] Also in the club, karaoke. Almost everywhere, massage, coining, and also at the café. (Vichheka, 28-)

I think the old law is easier because it was open. I don’t need to work secretly like now. If the new law could totally crack down all the sex work it is good, but if the new law cannot do so and there are still many sex workers at the restaurants and karaoke, it is useless. (Kolap, 29)

The end result was not only that women were doing sex work in a wider array of locations and settings, but that they were forced to conduct their work furtively for fear of being arrested.

It is very difficult now. The new law makes sex work more difficult because it is about the closure of the brothels. We have to work at the shop secretly. We cannot let them know that we are sex workers. (Romany, 26) 

Now we cannot stand openly to work as before. We need to hide from police, hide under the trees. Sometimes we run even if we see the car driving past. (Srey Neang, 29)

Exposure to violence

Examining the impact of this displacement from the perspectives of the women, we identified a number of sub-themes. Key among these was an increase in exposure to violence as a result of increased police harassment and a reduced ability to negotiate safe sex outside the brothel context.

In 2008 [the] government has a new law and they can crack down on brothel and policemen were strict with us. They beat and hurt us, curse us and some even hit us with rock. They cursed and threatened us very badly. (Kanha, 29)

[T]hey threw rock till women’s heads broken. Women tried to swim, but some don’t know how to swim and cannot find a way. There was one woman died at Tonle Sap [night club] when trying to escape from policemen’s catch. (Leap, 22)

They teased and hit us. They pulled our hair to the back. They caught us and they would tear the valuable thing out from us if we had the necklace, bracelet, ring which equal to money. They will take it all. (Sophorn, 29)

In addition to increasing their vulnerability to victimization by police officers, law enforcement crackdowns subsequent to the Trafficking Law also influenced women’s exposure to violence by reducing their ability to screen clients and displacing women to settings where sex was transacted in isolation.

I think that working in the brothel is much better than working outside because some clients try to negotiate the price with me for $5 and agree to have sex at the guest house but they did not go to the guest house. They took me to the rice field and rape me. (Neary, 27)

In the past we could just stay at the brothel. Nobody hurts us. But now we stand independently, secretly. Like I told you, we can face eight clients at a time. Yes. I can compare like that. In the past, we just stay in the brothel and no one dared to hurt us or beat us because we are there in the brothel. But now we cannot know where they take us to. Such as taking us to Prek Ho [a village 15 km from Phnom Penh] and hurt us. We don’t know in advance. There is no one to control us. So it is not safe for us. (Romany, 26)

By equating sex work with trafficking, the Trafficking Law increased the exploitation of women. Participants noted the irony of the law increasing their vulnerability and infringing their rights:

 At the brothel it was comfortable. They didn’t dare to do anything to us. Now they see us standing on the street like that they are always tricky such as not using condom, having sex without paying money, taking us alone to have sex with several people … At the guest house, how can they stop him? We are in the room and they are outside. [So your safety is not like before?] No, not so safe. [How about when you were at the brothel? You screamed?] At the brothel, we screamed because the rooms at the brothel were small and the brothel was also small. They can hear us scream. (Narom, 22)

It [violence] increases because there was the brothel before and there were people to help when clients hurt us, but [now] when we go out with clients, only clients know and if we shout, only people near our room or the guest house owner know … If [we are] in a brothel, we shout out and the door opens. (Vichheka, 28)

If a taxi brings woman to a guesthouse, he is considered to traffic human being. If a guesthouse rents room to women, the guesthouse owner is a human trafficker (Cheata, 29).

 In response to the Trafficking Law, some women reported renting private accommodation, which brothel owners sometimes paid for. This adaptation, as well as the shift from transacting sex on-site to guesthouses and hotels, represents risk displacement from owners/managers to women.[23] Transacting sex in private environments such as apartments or guesthouses, where there is little or no oversight in the form of peer or managerial support or protection, increases the vulnerability of women to violence and HIV.

Reduced access to health services  

The other key sub-theme in our analysis of the displacement that occurred consequent to the police crackdown, was a reduction in access to health services. Sex workers reported being reluctant to carry condoms and entertainment establishments as hesitant to provide them.

When I hold condoms, they [police] will catch me because they said I am a sex worker. (Ny, 27)

It affects the carrying of condoms. When they arrest us and when they check and see condoms in our purse they will order us to chew all condoms they can find … When they come, they hit and throw stones and they use sticks to hit us. (Vitheavy, 28)

We cannot carry [condoms] because we are afraid that police will come to check the shop and the shop owner does not require us to carry condoms. He told us not to carry any condoms. We should not have any condoms at the shop …The police check because they already told the shop not to have any condom in the rooms. If there is any condoms, they will arrest. They would not think we are karaoke women but sex workers. (Kolap, 29)

As we have shown previously, the settings or environments in which women transact sex matters; in the YWHS, women who worked freelance had the highest risk of HIV and STI infection.[24] Women who reported having a boss had lower rates of HIV/STI infection, suggesting that some brothels may provide a less risky work environment and potentially better access to condoms. The relative safety of brothels was a persistent theme in women’s accounts.

I never carry with me. It is dangerous. [How?] When I was working at Doun Penh [a khan or district in Phnom Penh] there was a sex worker whose husband was a Motodop driver. They carried condoms. When the wife was caught, the husband was also caught and they were accused of human trafficking and being the brothel owner because they have condoms. In fact, they received condoms from organization. That is why I don’t want to carry condoms. I am afraid of being accused. (Chorpum, 20)

 [Before] there was no crackdown. There was no policemen disturb us. We were safe living in brothel and we were not scared of police. We also protected ourselves better by using condoms than now. Now some clients may force us not to use condoms but when we lived in the brothel we had more rights than clients and they dared not to force us because they come into our house. (Seiha, 22)

 After the new law is created, we don’t care about wear or not wear condoms. All we care about is money. We don’t have time talk it out [negotiate condom use] with customers because we want money. (Srey Neang, 29)

Some women elaborated on how the displacement of sex workers consequent to the police crackdown had disrupted women’s networks, restricting their access not only to condoms, but to medical services such as HIV testing and treatment.

Because the policemen crack down often we cannot earn money. We are sleepless, so we sleep at day time, so I am lazy to go to check my health. I have no feeling to go. (Chakriya, 22)

 It was much easier before the law was created, much easier. The girls can easily find money, easy to get health service, other service and meet friends to go wherever we want to go, but now it is hard to find them and get those services. (Srey Neang, 29)

Since the new law was passed, fewer women access health care and prevention services because we live at different places nowadays and NGOs could not find us. In the past, women live in one place at the brothel. We also want to contact NGOs but we don’t know the location of the NGOs … So we could not access to prevention services … Since the brothel was closed I have never contacted it again. (Seiha, 22)

The data presented here are also consistent with other accounts. In 2008, activists, sex worker groups, and health workers voiced concerns about increases in police abuses against sex workers, condoms being confiscated and/or used as evidence for arrests, and the decline in women accessing health services. Human Rights Watch found that police extortion and demands for bribes were common in 2008 and 2009, and that sex workers reported arbitrary detention, violation of due process rights, physical violence, sexual assault, forced labor, confiscation of their possessions, being denied medication, and forced separation from their children.[25]  A joint position statement of public health agencies, UN agencies, and NGOs affirmed that the police crackdown in the wake of the new law was increasing the risk of HIV transmission by displacing sex workers and reducing their access to health services.[26] Indeed, the NCHADS reported a 26% reduction in women seeking STI services, a 16% decrease in HIV testing, and a 46% increase in the number of women working on the street following the introduction of the law.[27] The National AIDS Authority has also expressed concerns that the new law displaced sex workers, increased their exploitation, and reduced their access to condoms and health care.[28] While subsequent changes in government policy now prohibit the confiscation of condoms and other police abuses that interfere with HIV prevention, women interviewed in 2011 continued to report ongoing inappropriate police conduct and the conduct of sex work in unsafe and clandestine conditions. In 2012, 440 street-based sex workers were reportedly detained in Phnom Penh prior to the ASEAN Summit.[29]

Public health and the human rights of sex workers

The implementation of the 2008 Trafficking Law clearly stimulated dramatic shifts in the sex work landscape.[30] Historically, brothel-based sex workers were easily accessed and monitored in HIV prevention efforts.[31] As sex work in Cambodia is now negotiated and transacted in a wider range of settings, women at highest risk have become harder for health services to reach.[32] The data presented here indicate that the new law displaced female sex workers in Phnom Penh to entertainment and street settings, increasing their vulnerability to violence and reducing their access to HIV prevention.

While our intention is not to depict a ‘pretty picture’ of the brothel based sex scene, evidence suggests that supportive management practices and access to condoms in brothels is associated with increased condom negotiation among workers.[33] Prior to the implementation of the Trafficking Law, brothels in Phnom Penh were well known, and health officials contacted workers through outreach, prevention, and health surveillance efforts.[34] The new law forced many of these women beyond the public health system. Our data also indicate an increase in exposure to violence, including sexual assaults, following the introduction of the new law. Such violence clearly undermines the right to health and should be regarded as a public health matter. Studies have shown that sex workers at risk of violence are less likely to use condoms, and the literature increasingly points to links between violence, condom negotiation, and HIV/STI infection among sex workers, and how this is mediated by punitive legal and policy environments, including criminalization, aggressive policing, and repressive occupational settings.[35]

Our findings suggest, firstly, that the policing of sex workers in Phnom Penh subsequent to the introduction of the new law resulted in increased human rights abuses. In addition to physical assaults, women reported that police humiliated, degraded, and sexually assaulted them. These are potential violations of their rights to security of the person (Article 9) and to freedom from torture and cruel, inhuman, and degrading treatment (Article 7) under the International Covenant on Civil and Political Rights (ICCPR). Sex workers are entitled to fundamental human rights, including rights to non-discrimination and equal treatment before the law, consistent with the ICCPR and the right to the highest attainable standard of health. Sex workers in Cambodia clearly lack the protections afforded to other workers, including the right to a safe and healthy workplace, reasonable terms and conditions of employment, and freedom from discrimination and exploitation.

Our results are consistent with a growing body of research that indicates that aggressive policing of sex workers increases the risk of HIV and other STI transmission by encouraging women to conduct furtive and hurried transactions and/or by displacing these transactions to isolated or unregulated settings and reducing the ability of women to negotiate condom use and to control the nature of these transactions.[36] A review found that female sex workers in low- and middle-income countries had a significantly increased risk of HIV infection relative to the general female population of reproductive age, with those in Asia at highest risk.[37] Despite evidence showing only modest effectiveness, interventions targeting female sex workers in Asia continue to focus on individual behavioral change.[38] Recent mathematical modelling by Shannon et al.  suggests that decriminalization of sex work could potentially avert 33-44% of HIV infections among female sex workers and their clients over the next decade through its impact on violence, police harassment, safer work environments, and HIV transmission pathways.[39] Similarly, our results suggest that reducing HIV in this population also requires addressing structural conditions, including the legal and policy environments in which sex work is criminalized, the prevalence of police harassment, and occupational conditions that remain conducive to violence and victimization.

Conclusions

Criminalization and police crackdowns are familiar public policy responses to sex work globally. Many Asian countries have instituted punitive ‘prevention’ policies or crackdowns on sex workers.[40] Public health responses are often undermined by moralistic responses, including police crackdowns and ‘raid and rescue’ operations designed to eliminate sex work and sex workers. The Cambodian Trafficking Law designed to implement the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children infringed the right to health of female sex workers by exposing them to risky environments, exploitation, and violence. There is a clear need for greater vigilance and further research about how legal frameworks— including UN protocols and treaties—can have counterproductive effects, including the infringement of the right to health.

We began by noting previous studies which documented the unintended, adverse effects of law enforcement on public health. Authorities have often been disappointingly untroubled by such adverse consequences: short-sightedly, they have prioritized reducing crime or improving social order. In this paper, we have shown how action against trafficking in Cambodia endangered the health of women engaged in sex work. Although the Palermo Protocol, which was the foundation for the Trafficking law, aimed to benefit the victims of trafficking, it has in this instance resulted in the infringement of health rights and has undermined public health.

While the purpose of anti-trafficking laws is to address exploitation, including through lack of consent due to coercion or the involvement of minors, in many instances, including in Cambodia, these laws are used to justify punitive responses and law enforcement practices including crackdowns on sex work and sex workers. The overreach of anti-trafficking measures to suppress voluntary adult sex work is exacerbated by the language of international treaties and regional instruments which view all sex work as exploitation and synonymous with trafficking. Interpreting UN treaties in such a way that their implementation violates human rights is inconsistent with international human rights law. A recent report recommends that the United Nations Office on Drugs and Crime and other multilateral and regional agencies involved in the implementation of law enforcement responses to trafficking should ensure these responses do not violate the human rights of sex workers and are consistent with UN human rights-based HIV policies.[41]

A core obligation of States is to “ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups”.[42] The implementation of the Trafficking Law in Cambodia led to numerous violations of the right to health, including violations of the right of access to health facilities and violations of the obligation to respect defined in General Comment 14.[43]

Despite increasing recognition of the centrality of human rights to HIV responses, most public discourse and academic debate in relation to sex work focuses on decriminalization as a solution.[44] However, as Overs and Loff have recently argued, decriminalization is necessary but not sufficient. A sex worker’s vulnerability to HIV and human rights abuses is also exacerbated by her “lack of recognition as a person before the law”.[45] Moreover, a singular focus on the decriminalization of sex work diverts attention from other factors that create and reinforce the marginalization and social exclusion of sex workers. As this paper has shown, focusing on the legal status of sex work in the absence of a commitment to the application of human rights standards means that the rights of sex workers to legal personhood, health, and the same protections and benefits as other workers, are in conflict with well-intentioned, if misdirected, attempts to tackle human trafficking.

Despite the successes of the last decade, Cambodia’s HIV epidemic remains volatile and the current legal and policy environment has the potential to undermine prevention efforts by exposing sex workers to violence and human rights violations, promoting stigma and discrimination, impeding their access to health services, and exacerbating their social and economic exclusion. The discourse of human rights provides a way to analyze, understand, and improve the situation of Cambodian sex workers and the society of which they are part. Legislative and enforcement action to protect rights against exploitation and trafficking must take account of the right to health of sex workers. If this is done, it will not only benefit this marginalized group but also, though the corollary of protecting public health, Cambodian society as a whole.

Acknowledgements

We are indebted to the women who participated in this study and to the CWDA research team, especially Chan Dyna, Tony Masy, Serey Mealy, Ly Vina, Chhuon Minea, Keo Sichan, Hun Phanna, Sok Phearum, Prak Saban, Khun Saveth, Ni Say, Sok Sreyleak and A Tyna. This study received financial support from NIH grants: U01AI0154241, 1R21 DA025441, and 1R01NR010995 and additional funding from a Faculty Initiative grant from the Pacific Rim Research Program of the University of California. Lisa Maher is supported by a National Health and Medical Research Council Senior Research Fellowship.

Lisa Maher is Professor, Program Head and NHMRC Senior Research Fellow at the Kirby Institute for Infection and Immunity in the Faculty of Medicine at UNSW Australia in Sydney, Australia.

Thomas Crewe Dixon is a student in the Faculty of Law at the University of Sydney in Sydney, Australia.

Pisith Phlong is an anthropologist at the Royal University of Fine Arts in Phnom Penh, Cambodia.

Julie Mooney-Somers is a Senior Lecturer in the Centre for Values, Ethics and the Law in Medicine at the University of Sydney in Sydney, Australia.

Ellen S. Stein is an Academic Coordinator in Global Health Sciences at the University of California San Francisco, USA.

Kimberly Page is Professor and Chief of Epidemiology in the Division of Biostatistics and Preventive Medicine at the University of New Mexico Health Sciences and Center in Alberquerque, New Mexico, USA.

Please address correspondence to Lisa Maher. Email: Lmaher@kirby.unsw.edu.au.

Competing interests: None declared.

Copyright ©2015 Maher, Dixon, Phlong, Mooney-Somers, Stein, Page. This is an open access article distributed under the terms of Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licences/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source credited.

References

[1] L. Maher and D. Dixon, “Policing and public health: Law enforcement and harm minimization in a street-level drug market,” British Journal of Criminology 39 (1999), pp. 488-512; E. Wood, P. Spittal, W. Small, et al., “Displacement of Canada’s largest public illicit drug market in response to a police crackdown,” Canadian Medical Association Journal 170 (2004), pp.1551-1556; C. Davis, S. Burris, J. Kraut-Becher, K. Lynch, and D. Metzger, “Effects of an intensive street-level police intervention on syringe exchange program use in Philadelphia,” American Journal of Public Health 9 (2005), pp. 233-236; R. Pollini, K. Brouwer, R. Lozada,  et al. “Syringe possession arrests are associated with receptive syringe sharing in two Mexico-US border cities,” Addiction 103 (2008), pp. 101-108.

[2] United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Person, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, G.A. Res 55/125 of 15 November 2000 Article 3 (2000) (hereinafter “Palermo Protocol”).  Available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf

[3] S. Saphonn, B.S. Parekh, T. Dobbs,  et al., “Trends of HIV-1 seroincidence among HIV-1 sentinel surveillance groups in Cambodia, 1999–2002,” Journal of Acquired Immune Deficiency Syndromes 39 (2005), pp. 587–592; M. Charles, “HIV epidemic in Cambodia, one of the poorest countries in Southeast Asia: A success story,” Expert Review Anti-Infective Therapy 4 (2006), pp. 1– 4.

[4] National Center for HIV, AIDS, Dermatology and STDs, Estimation of the HIV prevalence among the general population in Cambodia (Cambodia: Ministry of Health, 2011). Available at  http://www.nchads.org/index.php?id=20&event=146.

[5] K. Page, E. Stein, N. Sansothy, et al., “Sex work and HIV in Cambodia: Trajectories of risk and disease in two cohorts of high risk young women in Phnom Penh,” British Medical Journal Open 3/9 (2013) e003095.

[6] National Center for HIV/AIDS, Dermatology and STDs, National Technical Working Group for CoPCT to MARP, Updated data of entertainment workers in Cambodia, Q1 and Q4 2009. (Cambodia: Ministry of Health, 2010). Available at http://www.nchads.org/BCC/EW/2009%20q4%20EW.pdf.

[7] M. C. Couture, N. Sansothy, V. Sapphon, et al.“Young women engaged in sex work in Phnom Penh, Cambodia, have high incidence of HIV and sexually transmitted infections, and amphetamine-type stimulant use: New challenges to HIV prevention and risk,” Sexually Transmitted Diseases 38 (2011) pp.33-39.

[8] Ibid.

[9] Ibid.; M.C. Couture, J. Evans, N. Sansothy, et al., on behalf of the Young Women’s Health Study Collaborative (S. Kien, V. Sapphon, M.C. Vun, et al.), “Correlates of amphetamine-type stimulant use and associations with HIV-related risks among young women engaged in sex work in Phnom Penh, Cambodia,” Drug and Alcohol Dependency 120 (2012), pp. 119-126.

[10] L. Maher, P. Phlong, J. Mooney-Somers et al., “Amphetamine-type stimulant use and HIV/STI risk behaviour among young female sex workers in Phnom Penh, Cambodia,” International Review of Drug Policy 22 (2011), pp. 203-209; L. Maher, J. Mooney-Somers, P. Phong, et al., on behalf of the Young Women’s Health Study Collaborative (S. Kien, V. Sapphon, M.C. Vun, J. Kaldor, et al.) “Selling sex in unsafe spaces: Sex work risk environments in Phnom Penh, Cambodia,” Harm Reduction Journal 8 (2011), p.30; K. Shannon, S. Strathdee, J. Shoveller, M. Rusch, T. Kerr and M. Tyndall, “Structural and environmental barriers to condom use negotiation with clients among female sex workers: Implications for HIV-prevention strategies and policy,” American Journal of Public Health 99 (2009), pp. 659-665; K. Shannon and J. Csete, “Violence, condom negotiation and HIV risk among sex workers,” Journal of the American Medical Association 304 (2010), pp.573–574; D. Kerrigan, J.M. Ellen and L. Moreno,  “Environmental-structural factors significantly associated with consistent condom use among female sex workers in the Dominican Republic,” 17 AIDS  (2003), pp. 415–423; S.A. Strathdee, R. Lozada, R.A. Pollini, et al. “Individual, social, and environmental influences associated with HIV infection among injection drug users in Tijuana, Mexico,” Journal of Acquired Immune Deficiency Syndromes 47 (2008), pp. 369–376.

[11] United Nations Development Program, Sex work and the law in Asia and the Pacific. (Bangkok: UNDP, 2012).

[12] Ibid.

[13] Ibid.

[14] S. Gruskin, L. Ferguson, T. Alfven, et al., “Identifying structural barriers to an effective HIV response: Using the National Composite Policy Index data to evaluate the human rights, legal and policy environment,” Journal of the International AIDS Society 16 (2013), 18000.

[15] United Nations (see note 2).

[16] C. Francis, HIV prevention and anti-trafficking in conflict? The public health consequences of Cambodia’s fight against trafficking, (Durham, NC: Family Health International, in collaboration with PSI, Care and UNAIDS, 2008); R. Plummer, “The sex industry in Cambodia: The traffic police,” The Economist, June 11, 2009.

[17] United Nations Development Program (see note 11).

[18]  United Nations Economic and Social Council, Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights. General Comment No. 14 (2000) – The right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), (Geneva: UN, 2000).

[19] Ibid.

[20] National Center for HIV/AIDS, Dermatology and STDs (see note 6); Couture et al. (see note 7); Couture et al. (see note 9).

[21] Maher, Phlong et al. (2011, see note 10); Maher, Mooney-Somers et al. (2011, see note 10).

[22] A. Strauss and J. Corbin, Basics of qualitative research: Grounded theory procedures and techniques (London: Sage, 1990).

[23] Maher, Mooney-Somers et al. (2011, see note 10).

[24] Ibid; Couture et al.  (see note 9).

[25] Human Rights Watch, Off the streets: Arbitrary detention and other abuses against sex workers in Cambodia (New York: Human Rights Watch, 2010).

[26] United Nations, Donor and Civil Society Position Statement, Protecting Cambodia’s HIV/AIDS Gains: The Public Health Effects of the Kingdom of Cambodia’s Trafficking Suppression Campaign and Law on the Suppression of Trafficking and Sexual Exploitation (United Nations: Phnom Penh, 2009).

[27] Ministry of Health, Standard Operating Procedures (SOP) for continuum of prevention to care and treatment for women entertainment workers in Cambodia (Phnom Penh: Ministry of Health, 2009).

[28] National AIDS Authority, Cambodia Country Progress Report: Monitoring the progress towards the implementation of the Declaration of Commitment on HIV and AIDS (Phnom Penh: National AIDS Authority, 2010).

[29] D. Sen, “Beggars, prostitutes rounded up ahead of ASEAN summit,” Phnom Penh Post,January 5, 2012. Available at www.phnompenhpost.com.

[30] Page et al. (see note 5).

[31] National Center for HIV, AIDS, Dermatology, and STDs (see note 4).

[32] National AIDS Authority (see note 28).

[33] P.M. Gorbach, H. Sopheab, C. Chhorvann, R.E. Weiss and M.C. Vun, “Changing behaviors and patterns among Cambodian sex workers: 1997-2003,” Journal of Acquired Immune Deficiency Syndromes 42/2 (2006), pp. 242-247.

[34] National AIDS Authority (see note 28).

[35] Shannon et al. (see note 10); Shannon and Csete (see note 10); Kerrigan et al. (see note 10); Strathdee et al. (see note 10).

[36] Ibid.

[37] S. Baral, C. Beyrer, K. Muessig, et al., “Burden of HIV among female sex workers in low-income and middle-income countries: A systematic review and meta-analysis,” The Lancet Infectious Diseases 12 (2012), pp. 538-549.

[38] M. Shahmanesh, V. Patel, D. Mabey and F. Cowan, “Effectiveness of interventions for the prevention of HIV and other sexually transmitted infections in female sex workers in resource poor setting: A systematic review,” Tropical Medicine and International Health 13 (2008), pp. 1–21.

[39]  K. Shannon, S. Strathdee, S. Goldenberg, et al.  “The global epidemiology of HIV among female sex workers: Structural determinants,” The Lancet 385/9962 (2015), pp.55-71.

[40] T. Branigan, “Chinese sex workers protest against crackdown,” The GuardianAugust 3, 2010. Available at  http://www.guardian.co.uk/world/2010/aug/03/china-prostitution-sex-workers-protest; B. Lee, “Commercial sex survives despite crackdown,” Korea Joong Ang Daily,  March 16, 2009. Available at http://joongangdaily.joins.com/article/view.asp?aid=2902258; L. Talikowski and S. Gillieatt, “Female sex work in Yangon, Myanmar, Sexual Health 2 (2005) pp.193-202; R. Vijeyarasa, “The State, the family and language of ‘social evils’: Re-stigmatising victims of trafficking in Vietnam,” Culture, Health and Sexuality 12/S1 (2010), S89-102.

[41]  United Nations Development Program (see note 11).

[42] United Nations Economic and Social Council (see note 18).

[43] Ibid.

[44] R. Steen, S. Jana, S. Reza-Paul and M. Richter, “Trafficking, sex work and HIV: Efforts to resolve conflicts,” The Lancet 385/9962 (2015), pp. 94-96.

[45] C. Overs and B. Loff, “Toward a legal framework that promotes and protects sex workers’ health and human rights,” 15/1 Health and Human Rights (2013), pp. 186-196, at p.186.