PEPFAR and Prostitution: The Unintended Consequences of the Anti-Prostitution Pledge by Daniel Hougendobler

After reading the Partners in Prevention report from Tamil Nadu, I was reminded of the damaging effect U.S. foreign policy has had  on HIV/AIDS prevention efforts in contexts such as these.  In many contexts, such as with truck drivers in Tamil Nadu, commercial sex work is a large driver of the epidemic.  Working with this particularly vulnerable population is essential to arresting the spread of the epidemic.

Unfortunately, The President’s Emergency Plan for AIDS Relief (PEPFAR) program instituted a mandatory “anti-prostitution pledge” also known as an “Anti-Prostitution Loyalty Oath” for recipients of aid money. 

This requirement stems from a provision  of the PEPFAR authorizing legislation (22 U.S.C. § 7631(f)) that states: “No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” The statute goes on to exempt the Global Fund, WHO, IAVI, and the UN from this provision.

USAID directives implementing this provision have required that NGO’s “must have a policy explicitly opposing prostitution” to be eligible for grant funding.

This requirement has had a decidedly negative impact on the ability and willingness of NGO’s to collaborate with commercial sex workers on the prevention of HIV/AIDS.  This provision would have a chilling effect on the activities like those taken with commercial sex workers in Tamil Nadu. NGO’s on the ground in several countries have documented the problems that have resulted from the anti-prostitution provision.  For example, this brief video illustrates the problems the legislative requirement has caused.

The case has been successfully attacked on 1st Amendment grounds in the 2nd Circuit.  In the case of Alliance for Open Society International v. USAID, the 2nd circuit upheld a preliminary injunction, suspending enforcement of the anti-prostitution provision of the law, and, in February of this year, denied a request for en banc reconsideration.  In enjoining further enforcement, the court found that the organizations were likely to succeed on their First Amendment challenge, and were likely to suffer irreparable harm from enforcement of the provision.  However, this decision still fails to address organizations based outside the United States, which do not enjoy 1st Amendment protections.

The anti-prostitution provision is an excellent example of good intentions causing unintended and harmful results.  The bill’s authors almost certainly intended the provision as a tool to fight sex trafficking – an important and uncontroversial goal.  However, the way in which the provision was implemented created a situation in which commercial sex workers were marginalized and effective interventions were discouraged.  What had been intended as a tool to help those victimized by sex trafficking resulted in further marginalization of a vulnerable group.

What lessons can be learned from this experience?  First, as the Tamil Nadu interventions demonstrate, effective interventions must be targeted to specific populations.  The more restrictions that a donor places on funds, the less discretion is left to NGO’s to adapt to local circumstances.  Of course some restrictions and requirements are necessary to ensure that money is spent responsibly and accountably.  However, any restrictions should be carefully analyzed, in collaboration with those working in the field, to ensure that they will not have unintended consequences.  This will ensure that programs, like those in Tamil Nadu, can continue with the support they need.

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