To get to the Indian town of Sangli, Maharashtra, from the United States (where many antitrafficking advocates depart for their trips), you would first take a sixteen-hour flight to Mumbai. Once you arrive in Mumbai, you must travel southeast 140 kilometers to the city of Pune. You would rent a car from Pune and drive another 400 kilometers, or five long hours, further south and further inland. While Sangli is known for being a producer of turmeric and is home to historic temples frequented by tourists, it is also, and perhaps most obviously, a busy truck stop: a pass-through point for drivers transporting goods throughout Maharashtra and Karnataka, the Indian state to its south. Its dusty streets are filled with metal parts merchants selling doorknobs and window hinges. In the late 1990s, Sangli also earned another reputation: It had some of the highest rates of HIV and AIDS in India. Not long after that, Sangli, a small town far from any major city, became the site of a transnational struggle over feminist conceptions of risk, consent, and exploitation.

The 2010 case of Ashabai, a local sex worker and HIV/AIDS peer educator arrested for trafficking young girls, demonstrates how a subset of American antitrafficking feminists shaped the regulatory environment on AIDS.¹ When she was arrested, Ashabai worked with an HIV/AIDS initiative called Sampada Grameen Mahila Sanstha (SANGRAM) and was a leader in Veshya Anyay Mukti Parishad (VAMP). Since its founding in 1992, SANGRAM has been held up as an example of how to effectively respond to the AIDS crisis. The organization brings together sex workers who meet in small community centers, clinics, and in brothels. They have organized against violent clients, distributed condoms, and cared for one another as the AIDS epidemic wreaked havoc on the community. But the work of SANGRAM went far beyond simple organizing around a risky vocation. Members fought to stop the discrimination against their children in local schools, created a library for their children, and made plans to help the aging sex workers around them.

In the days I spent with her, Ashabai sashayed around Sangli in her sari, her ears adorned in gold jewelry, her hair pulled back into a tight black braid, a large circular bindhi adorning her forehead. She winked at the local police officers as they passed by on their motorcycles and shouted words of solidarity to sex workers. Her sturdy and confident presence grounded the sex workers organizing in the area. It was due to efforts like Ashabai’s that the soaring rates of HIV among sex workers rapidly began to decline.

As part of SANGRAM’s efforts to organize sex workers, Ashabai ran a safe brothel that was part of a network of harm-reduction spaces promoting HIV prevention by distributing condoms, and equipping sex workers with the skills to use them, and by addressing the issue of violence against women (VAW). Inside the small building, constructed out of mud and cement and painted yellow and brown, Ashabai provided a safe place for women to congregate and sell sex safely. At lunchtime, sex workers gathered on the floor to eat. While some sex workers sold sex, others would care for their children and do chores.

Like many of the poor in India, sex workers do not have access to formal banking, making it impossible to receive loans to build homes, afford tuition, or pay medical bills. Instead, sex workers frequently loan each other funds when necessary, often in large amounts. But Ashabai’s fate changed when her loan to a sex worker drew the wrath of an antitrafficking group.

Ashabai was approached in 2010 by an eighteen-year-old sex worker I will call Reshmi. Reshmi was seeking employment in a brothel, and she needed a loan of 10,000 rupees. VAMP policies do not allow an individual younger than eighteen to work as a sex worker in the brothel, but Reshmi’s age qualified her. Ashabai gave Reshmi the loan and allowed her to work off the loan interest free as part of her stay in the brothel. Reshmi was able to pay off the loan and continued to work in the brothel.

An antitrafficking organization heard that a transaction had taken place in which Ashabai had loaned money that would be repaid by sex work. It planned a raid on the brothel with the federal police – going over the heads of the local police, with whom SANGRAM had established a good relationship. The purported goal of the raid was to rescue the young woman. According to sex workers in the brothel at the time of the raid, a man who posed as a client came in and asked for a girl. Reshmi came forward. The man posing as a client signaled the police, who then barged into the brothel, arrested Ashabai, and took Reshmi to a juvenile home – a locked facility a few miles away. The local government hospital certified that Reshmi was an adult, and the local magistrate transferred her to a government correction home.

Ashabai was arrested and released from detention a few days later. She was charged under the Immoral Trafficking (Prevention) Act (ITPA), Section 3–6, 1956 – the country’s primary legislation addressing sex work and trafficking. Her purported crimes included keeping a brothel, living off the earnings of a sex worker, procuring or taking a person for the sake of prostitution, and detaining a person in a place where prostitution is taking place. Her arrest and time in detention destabilized the larger HIV intervention campaign and the community of sex workers.

Laws like ITPA, passed in countries all over the world, fueled by the US government’s antitrafficking efforts, have also been pushed for and demanded by feminists and conservatives dedicated to using the police arm of the state to address sex-trafficking.² HIV interventions have come under attack, struggled, and sometimes collapsed against the growing pressure of a coalition of antitrafficking advocates that included carceral feminists and churches that see sexual violence (counting sex work in their capacious definition) as the locus of women’s oppression.

To antitrafficking groups, Ashabai’s provision of small loans, a safe place to sell sex, and condoms was not bettering women’s health outcomes but furthering their exploitation. In other words, harm-reduction programs were aiding and abetting trafficking. Ashabai’s arrest represents only one of the many casualties of feminist-led antitrafficking organizing. Through repeat attacks on sex work and harm-reduction services, programs offering AIDS prevention and care to vulnerable populations around the world including in the United States, Thailand, Cambodia, India, and Bangladesh have shuttered. And, because the definition of trafficking continues to expand, sex workers like Ashabai frequently end up in jail or detention centers. Far from being rescued, they are punished repeatedly for selling sex to survive financially.

Feminists are not unified on how to conceptualize or understand women’s risk of AIDS and split on how to manage exposures to the virus. For sex work advocates and feminists who believed sex workers could have agency, changing the conditions that sex workers bargained in meant that transmission of HIV could be reduced. From this perspective, a fair bargain, one that involved safe sex, was possible. But, for anti-sex-work and carceral antitrafficking feminists, the best way to reduce the harms of sex work was to eliminate it by arresting and punishing clients and others profiting off the sex industry. To them, there was no such thing as a fair sex bargain; sex work was coercion and violence all the way down. Criminal law was the preferred mode of regulating a sex market.

These debates mapped onto another division occurring inside the public health community in the late twentieth century: harm reduction versus harm elimination. Each of these frames calls upon opposing legal solutions to address the idea of harm associated with selling sex. The difference lies in competing ideas of harm and exploitation. For harm-reduction practitioners and activists, it is not transacting sex itself that is necessarily the risk. The risks associated with selling sex come from the criminalization of the purchase and sale of sex. These criminal laws create conditions that hamper public health efforts to make selling sex safer.³ For harm-reduction advocates, decriminalizing sex work and enabling state protection is key to improving public health programs and outcomes. Contrary to harm-reduction principles, antitrafficking advocates argue for harm elimination. The harm and risk are in transacting sex itself.⁴ They want the state to mobilize criminal law to prevent prostitution by prosecuting and punishing people who buy sex, not women who sell sex.⁵ This position avoided the possibility that an appropriate response to the AIDS epidemic should include the clients of sex workers beyond arrest.

The stake’s of this debate are high: Sex workers are central to the AIDS response. Since the beginning of the epidemic, epidemiologists noted that sex workers were at high risk of contracting HIV. In the worst moments of the epidemic, some groups of sex workers in AIDS-endemic regions had an HIV prevalence of over 50 percent. Mobilizing sex workers and decriminalizing sex work became one of the most effective strategies in fighting HIV transmission.

Sex work proved to be one of the most controversial issues for feminists, and that manifested in the feminist response to AIDS – resurrecting feminist fights on sex and sexuality but raising the stakes significantly with new and potentially deadly consequences. In the context of the epidemic, it was not only the logic of feminist law reformers that mattered. Epidemiologists and public health practitioners weighed in on the debates about legal reforms. The laws, in turn, shaped the questions epidemiologists were asking about the relationship between sex and HIV transmission.

American stakeholders were uniquely influential in the AIDS response. The US government has historically been the largest funder of HIV/AIDS globally. Hundreds of millions of dollars have been channeled from the United States into aid-dependent countries since 2003, with the aim of restructuring gender and health interventions. By engaging with foreign policy institutions, feminist ideas about risk and harm traveled the world, structuring public health interventions and altering health outcomes.

Following Chapter 4, which documented the rise and contestation of sex bargains as the primary frame for thinking about how women are at risk for AIDS, this chapter delves deep into the heart of feminist conflict around sexual agency. It tracks the powerful and central ways feminist ideas became embedded in the global AIDS response and how feminists turned their attention to US foreign policy and global governance institutions with the specific goal of harm reduction or harm elimination.

The Nineteenth Century and Early Twentieth Century

Understanding contemporary feminist advocacy for and against sex work requires a detour to the nineteenth century. In recounting this history, I focus on how the idea of disease wove in and out of debates on regulating prostitution. Feminist activism from this period acts as a reference point for feminists still today.

An early moment of feminist organizing on prostitution and disease began with the Contagious Diseases Acts (CDAs) of 1864, 1866, and 1869. Passed by the British government, the Acts attempted to regulate prostitution in England and in the colonies for the purpose of controlling the spread of venereal disease.⁶ The CDAs mandated checkups for women, who were ordered by a judge to submit to periodic examinations, and prostitutes were targeted.⁷ Those who were found to have a venereal disease were detained at the hospital and treated.⁸ Supporters of the CDAs often cited the health of British troops as a key reason for the requirement.⁹

The regulation of women’s sexuality for the protection of public health rubbed feminists the wrong way.¹⁰ In the late 1860s, Josephine Butler founded the Ladies National Association (LNA) in Britain to fight the CDAs.¹¹ Butler argued that the medical regulation of prostitution, alongside the brothel system, exploited women’s sexuality “for the gain of men and the state.”¹² Butler and other abolitionists opposed the disrespectful manner in which medical exams were conducted, some arguing that the CDAs left poor women at the mercy of the police, who could easily exploit the Acts for the purposes of harassment.¹³ As described by historian Jessica Pliley, Butler and her compatriots argued for the “reclaimability of all prostitutes, whom she considered to be the victims of sexist circumstances and male abuse.”¹⁴ They argued that instead of focusing on women, it was men who should be targeted and be forced to remain chaste and learn to control their sexual desires.¹⁵ John Stuart Mill, perhaps one of the more well-known opponents of the CDAs, argued that “the wives and daughters of the poor are exposed to insufferable indignities on the suspicion of a police officer.”¹⁶ The vast mobilization of activists through media, letter-writing campaigns, and protest beginning in 1869 led to the eventual repeal of the Acts in 1888.¹⁷

Despite this feminist victory, concerns over venereal disease continued to drive the regulation of prostitution in the UK and the US. In the United States, progressive reformers and physicians decided in 1905 that the goal of the movement to end the spread of sexually transmitted infections (STIs) should be the “complete repression of prostitution.”¹⁸ The fear of prostitution and disease had racial and eugenicist overtones. As legal scholar Kerry Abrams writes, Chinese women bore the brunt of these efforts. Seen to be “harbingers of disease,” the United States banned Chinese women from entering.¹⁹ Legal challenges simply resulted in the Supreme Court’s legitimation of this idea.

With ideas about race and racial purity front and center in the national discourse in the early 1900s, American concerns about prostitution took on a new dimension: the fear of white slavery, a moral panic about the prospect of white women being transported to brothels.²⁰ The fear of white slavery motivated a range of legal and regulatory interventions.²¹ In 1910, for example, Congress passed the Mann Act, also known as the White-Slave Traffic Act, aimed at curbing the transport of any woman or girl for the purposes of prostitution or debauchery.²² While the Mann Act reflected the idea that women selling sex were victims, it continued to facilitate a punitive approach to sex work by channeling resources toward law enforcement. In the same period with the national conversation in the United States, the idea of white slavery shaped a series of international conventions and treaties, including the International Convention for the Suppression of the White Slave Traffic²³ and the 1921 Convention for the Suppression of Traffic in Women and Children.²⁴

The desire to manage STIs through controlling sex work continued through the 1900s, raising the ire of women involved in campaigns to curb the spread of venereal disease. In 1910, the New York State Legislature, for example, passed laws seeking to end the spread of disease by focusing on prostitutes and calling for medical examination and mandatory treatment of women found guilty of soliciting. While social hygienists were supportive, on moral and health grounds, of eradicating prostitution and testing and treating sex workers for disease, like the British feminists before them, women’s groups were angry that women were the primary targets of laws aiming to end the spread of venereal disease. This new generation of feminists argued that women were being punished for spreading disease, while men largely escaped responsibility.²⁵

Concerns for soldiers serving in World War I and World War II provided further motivation to discourage transacting sex. Empowered by the Mann Act and state and city efforts, law enforcement cracked down on women selling sex. These arrests did not work: They had little effect on the incidence of STIs. Historians have noted that by the end of World War I, large numbers of men in the army carried STIs.²⁶

Sexual Revolution

By the 1960s and 1970s, the American political atmosphere around sex, and in turn around STIs, began to transform with the sexual revolution, second-wave feminism, and the sex workers’ rights movement.

Histories of the women’s movements from the 1960s and 1970s are plenty.²⁷ They track the divides of feminists as they navigated how and where to place critiques of capitalism and race in their feminist projects, along with feminist disagreements on housework, sex, sexuality, and gender identity. The complexity of this history makes any summary necessarily incomplete.

Understanding how divergent modes of feminism eventually became a powerful force shaping ideas of sex work and prostitution in the context of AIDS, however, requires recounting the growing tension among feminists on questions of sex work that grew out of this moment.

One divide would be particularly important for the HIV response: between carceral antitrafficking feminists who saw prostitution as inherently an act of objectification of women and, therefore, furthering the subjection of women and another camp of sex-positive feminists and sex workers who wanted to complicate understandings of sex and power.

This split has many roots, but one began with the commitment of feminists to end VAW.²⁸ While radical feminist perspectives differed slightly, many shared a commitment to the idea that prostitution was a form of objectification and oppression of women.²⁹ Feminist organizations of the 1970s, including Women Against Violence Against Women (WAVAW) and Women Against Violence in Pornography (WAVP), sought to end the degradation of women through the imagery of pornography. They protested by the thousands in the streets.³⁰ Radical feminists, including Catharine MacKinnon and Andrea Dworkin, fought for laws outlawing pornography. It was a sustained campaign to rid the world of prostitution and pornography. Many radical feminists claimed the mantle of “abolitionist,” freeing women from sexual slavery as previous movements had done for African Americans.³¹

Against this radical feminist backdrop was the rise of the sex worker’s movement. The sex worker’s movement sought to decriminalize the sex industry, make working conditions safer for the people in it, and unionize its workers. The movement understood that exploitation in the sex industry did and could occur, but it also saw the potential for safe working conditions and consensual sex.

On Mother’s Day in 1973, Margo St. James, a sex worker, formed COYOTE (Call Off Your Old Tired Ethics), the first sex worker organization in the United States. She declared 1973 “the year of the whore.” One of the organization’s primary goals was to decriminalize sex work. The organization won support from anti-racist groups and activists like Flo Kennedy, the noted civil rights leader.

Despite attempts by sex workers and radical feminists to build bridges, tensions between these groups existed from the outset. One tension that would eventually travel into AIDS programming and policy was the idea, put forward by sex worker organizations, that while violence and exploitation was rife in the sex industry, there was the possibility of equality in sex markets and in the transaction of sex. For abolitionist feminists, there was no such thing as equality in a sex market: “Prostituted women” were being exploited.

The early moments of this split are documented in a written exchange between radical feminist organizers of an international conference on sex trafficking and sex worker advocates tucked away in the COYOTE archives. Three feminists, Kathleen Barry, Charlotte Bunch, and Shirley Castley, began to organize what would become the Global Feminist Workshop to Organize Against Traffic in Women. The event was to take place in Rotterdam in the Netherlands. In 1982, Bunch and her colleagues wrote to Margo St. James and Priscilla Alexander, as members of the National Task Force on Prostitution representing sex workers, to invite them to Rotterdam to attend the gathering. As described in the letter, the purpose of the meeting was to gather an international advisory group for an intensive workshop focused on ending trafficking and slavery. The conference was organized under the umbrella of the International Women’s Tribute Centre, Inc. in New York.

Priscilla Alexander replied on behalf of herself and Margo St. James. The tone was warm and engaging. Speaking from the perspective of a sex work advocate, Alexander’s response sought to nuance the claim of prostitution as trafficking and slavery, contending that there was a need to both learn more about trafficking and exploitation and understand how prostitutes could be supported. She asked, for example, whether laws designed to protect women were instead punishing them, noting the similarity of laws being proposed in the United States to the nineteenth-century CDAs. She also warned that the focus must stay on customers to be tested for “venereal disease.” Alexander was also concerned about “how to ‘empower’ the women who work as prostitutes.”

In a response, Bunch clarified that the workshop would not be on “prostitution per se” but rather on the topic of “female sexual slavery.”³² This framing would assume a different set of questions, away from the issues of empowerment and improving the conditions of labor for sex workers that Alexander was interested in, and instead focus on the question of “forced prostitution.”³³

This divide between sex workers who wanted to make their industry safer and abolitionist feminists who saw women as victims of the exploitation by others in the sex market would deepen with time. Between 1982 and 1986, several events would cement the split between radical feminists and sex workers.

In April 1982, a group of feminists organized what is now known as the Barnard Conference.³⁴ Professor Carole Vance, the academic organizer of the conference and co-editor of the book that emerged from the gathering, Pleasure and Danger: Exploring Female Sexuality, describes in a reflection piece that the conference was set to explore a range of issues including the “diversity of women’s sexual experiences,” “the complex meaning of sexual images,” and “the terror aroused by sexuality.” It aimed to complicate the radical feminist claim that sex always equaled subordination. Anti-pornography feminists, including WAVP, WAVAW, and New York Radical Feminists, protested the Barnard Conference as anti-feminist and harmful to women. Staff at Barnard University who supported the conference lost their jobs. The university confiscated conference materials.³⁵ This moment of deep ideological division came with material consequences for the feminists involved, especially those organizing the conference, and came to be known as the sex wars.³⁶ It pitted an emerging group of sex-positive feminists, who sought to explore the complicated relationship between agency, consent, and sexuality, against radical feminists who saw sexuality as the crux of women’s subordination and sex work as emblematic of this oppression.

As this fight played out in New York City, in Rotterdam, despite the earlier outreach, Margo St. James would later note that Barry decided that she would no longer appear on stage with a sex worker. Radical feminists were alienating sex workers: the very women they sought to rescue.³⁷ St. James decided she had to correct the wrong-headed path feminism had taken toward prostitution. In reflecting on her organizing on and for sex workers, she remarked: “Getting the feminists to support prostitutes’ rights was a difficult job in the States. One of the reasons I came to the continent here was to beat Dworkin and MacKinnon to the punch, and save you all from Kathleen Barry and her ‘sexual slavery.’”³⁸

The next year, Barry, Bunch, and Castley published the report from their Rotterdam meeting on human trafficking, titled Report of the Global Feminist Work to Organize against Traffic in Women. Despite the earlier invitation to sex worker rights organizations and their participation at the conference,³⁹ the report revealed that some sex worker groups – those that supported women who were doing sex work – would no longer be partners in the new push to end sex trafficking. In the report, Barry states:

Sex workers responded. In 1985, the World Charter for Prostitutes’ Rights – one of the first charters of its kind – called for decriminalization of “all aspects of adult prostitution resulting from individual decision.”⁴¹ The charter was the product of the first of the two World Whores’ Congresses, held in 1985.⁴² The charter makes demands on behalf of sex workers including the decriminalization of prostitution, shelter, privacy, freedom of association, and the ability to marry and have children.⁴³

As these feminist positions for and against the transacting of sex were concretizing, the circumstances around the debates changed rapidly. A new deadly sexually transmitted virus, HIV, was spreading through the population. While HIV initially played little role in structuring feminist debates about prostitution, given that it did not exist, the progression of HIV through the population gave new life and deadly consequences to this feminist fight.

New Alliances

As confusion about the AIDS virus in the 1980s was sweeping the nation, law became more central to the AIDS response.⁴⁴ With the war on drugs and crime in full swing, and cuts in the welfare state and public health funding, governments increasingly relied on criminal law as a route to better public health outcomes. HIV emerged as a significant public health threat just as resources to actually respond to drivers of disease spread were shifting to crime control. The AIDS crisis provided new fodder for ever-increasing criminal enforcement against individuals.⁴⁵

Outside of hemophiliacs, who were largely understood as the epidemic’s innocent victims, the criminal and punitive legal responses to HIV bore down on those at high risk for contracting HIV and those who had HIV. Gay sex was already illegal, and anti-gay rhetoric took center stage. States passed laws criminalizing intentional transmission of HIV,⁴⁶ HIV-positive Haitians were detained in Guantanamo Bay,⁴⁷ new sentencing guidelines punished drug use more harshly, and gay men became the target of increased public health surveillance. Prostitution, already criminalized, took on a new dimension. Those arrested were no longer simply engaging in an illegal activity; they were now threatening to spread a new deadly disease.⁴⁸

Inside public health, and against the carceral logic that was quickly colonizing social services, a new frame was growing in prominence: harm reduction.⁴⁹ Because many activities that exposed people to HIV were criminalized – including gay sex, injection drug use, and sex work – harm-reduction advocates fought against using criminal law in the public health response. This was especially important, as the specter of criminality that hung over public health interventions in these communities impacted the ability of public health workers to do outreach without being implicated in aiding and abetting a crime.

The difference between these two approaches (carceral vs. harm reduction) was the idea of risk. Motivating the carceral response was the idea that through crime control the government could entirely eliminate a risk category, whether through laws criminalizing sodomy or the purchase of sex. You could abolish the harm altogether. Harm-reduction advocates saw things differently; they took a pragmatist perspective and sought to manage risk by focusing on the sites of potential HIV exposure.

Within the public health community, the harm-reduction frame dominated. The harm-reduction frame was originally pushed by advocates and activists who called for needle exchange and safe injection sites in lieu of the punitive approach of the war on drugs. Civil liberties organizations championed the cause of harm reduction. By the 1990s, harm reduction was widely accepted by public health officials as the most effective means to address drug use. And in 1990, the first international harm-reduction conference took place.⁵⁰ In 1995, the American Journal of Public Health published recommendations to redefine the American drug policy that advocated for harm reduction.⁵¹ US Surgeon General Jocelyn Elders came forward supporting the exploration of legalization as a means to address drug use.⁵² In global fora, a health and human rights movement gained momentum with the appointment of civil rights champion Jonathan Mann as the first director of the new World Health Organization (WHO) Global AIDS Programme in 1986.⁵³ Harm-reduction principles became institutionalized in global governance and US public health advocacy.⁵⁴

The harm-reduction philosophy merged well with the growing sex worker movement.⁵⁵ While formal harm-reduction programs remained focused on drug use, harm reduction as a principle became increasingly central to the sex work response to HIV.⁵⁶ Local and global sex worker activist groups were early adopters of harm-reduction principles to address issues arising from sex work.⁵⁷ Sex workers mobilized harm reduction to resist being characterized as vectors of the HIV epidemic and came to be seen as change agents in the face of the HIV epidemic. Building on the preexisting sex worker movement, sex workers aimed to reframe their status as victims, rather than vectors, of the HIV crisis. It worked. Just as with drug users, the pragmatist principles of harm reduction enabled public health practitioners to focus on the harms surrounding transactional sex and not the sex itself.⁵⁸ Public health practitioners began to see sex workers as victims of the epidemic, subject to harms including sickness, violence, discrimination, prosecution, debt, and exploitation (including trafficking).⁵⁹

Sex-positive feminists supported sex workers in their efforts to organize in the era of AIDS.⁶⁰ This growing union of harm reduction, sex workers, and sex-positive feminism galvanized funding for sex worker initiatives that supported improving the lives of sex workers.⁶¹ New organizations and initiatives took shape. In 1990, sex workers founded the Global Network of Sex Work Projects (then the Network of Sex Work Projects). They would go on to publish a guide Making Sex Work Safe in 1997.⁶² The growing global sex worker movement took on harm reduction as part of its mantle.⁶³

While inside the public health arena harm reduction was the mainstream perspective, outside of public health the antiprostitution feminist fight was reshaping itself into a powerful new movement: carceral antitrafficking feminists (CAFs). They allied with conservatives and a pro-crime-control agenda to achieve their goal of liberating women from sexual slavery.

Kathleen Barry tells the story of the rise of the antitrafficking movement of the 1980s and 1990s in her 1995 book The Prostitution of Sexuality. Her history is rooted in Josephine Butler’s fight against the CDAs.⁶⁴ While she praises Butler’s radical feminist activism, Barry writes that Butler had a weakness: Butler saw a distinction between “forced” and “free” prostitution.⁶⁵ For Barry, that distinction hid the “everyday business of industrial capitalism, a prostitution industry.” It wouldn’t be until the 1980s and 1990s that “feminism could build on Butler’s equality campaigns and focus on fundamental change in the sexual values and power that give men unlimited, unrestrained sexual access, including the purchase of women.”⁶⁶ For Barry, the antitrafficking movement should reject the forced and free distinction. She describes how her contemporary allies, including Catharine MacKinnon and Andrea Dworkin, fought for anti-pornography ordinances and helped to build and support a global movement against the prostitution of women. Barry writes that it was during this period that she helped found the Coalition Against Trafficking in Women (CATW), the first international organization to fight trafficking in women. With CATW, antitrafficking activists began to participate at the United Nations, with the intent to spread the radical feminist message to other women in the world.⁶⁷ In the 1980s, Barry would become the first founding director of the Coalition Against Trafficking in Women. CATW would be a leading voice against harm-reduction programs for sex workers.

Carceral antitrafficking feminists found political allyship in unlikely places. Conservative politicians and the religious right were also focused on ending sexual slavery. Termed neo-abolitionists by Janie Chuang, the coalition was building a base.⁶⁸ While radical feminists were skeptical about the possibilities of law, the law still provided a toolkit, one that they were willing to use. The primary tool for “rescuing” prostituted women and ending prostitution became criminal sanctions and penalties levied against participants in the sex industry, excluding the women in sex work. The Rotterdam report helped lay the foundation for a carceral approach. Barry writes in her book that the “Abolitionists press for the vigorous prosecution of pimps because they force women into prostitution or prevent them from escaping it.”⁶⁹

Now acknowledged for their carceral turn,⁷⁰ the radical feminist emphasis on crime and punishment fit well with the American war on crime, and often mirrored the broader push toward criminalization by feminists in the context of domestic violence.⁷¹

CAFs banded together with conservatives and religious organizations to influence antitrafficking lawmaking, both domestically and internationally. In each instance, this alliance aimed to make the definition of trafficking as broad as possible. The outcome was two important documents for framing the legal intervention into sex work and sex trafficking: the Victims of Trafficking and Violence Protection Act (TVPA) of 2000 and the Protocol to Suppress, Prevent, and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol).

In 2000, the United States passed the TVPA.⁷² CAFs had advocated for a broad definition of trafficking that would include all forms of commercial sex work. Sex-positive feminists wanted to mitigate the expansion of the definition of sex trafficking beyond situations of force, fraud, or coercion. In the end, the TVPA capaciously defines sex trafficking as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act.”⁷³ It states that forms of commercial sex that are induced by “force, fraud, or coercion” are severe forms of sex trafficking.^{74 75}

Feminists also carried these definitional tensions into negotiations for a new UN crime control treaty. Negotiations began in 1999 and culminated in the Palermo Protocol in 2000.⁷⁶ The issue of how to regulate prostitution was fraught. As documented by many scholars, feminist fights over the definition of trafficking were present at the treaty negotiations.⁷⁷ On one side were the abolitionist feminists, including those of CATW, who kept with the organization’s mission to include all forms of prostitution in the definition of trafficking. On the other was the “human rights caucus,” and antitrafficking groups that did not want to conflate all forms of sex work with sex trafficking and wanted to ensure that other forms of labor exploitation were included. The final definition states that trafficking in persons is the:

Documentation of the meeting itself suggests that the definition of sex trafficking in the Palermo Protocol was intended to leave the regulation of prostitution up to the state. As Jo Doezma notes, however, in her summary of the meeting, while the text ought to be read as intentionally ambiguous it has the effect of “banishing” the sex worker to “the margins of the text.”⁷⁸

These feminist debates occurring in the streets and at conferences, and having real effect through the law, would soon make their way into the response to HIV and AIDS.

The Sex Wars Come to AIDS: The Return to “Disease”

As shown in Chapters 1 and 2, by the mid 1990s, it was clear AIDS was impacting women in large numbers. Feminist organizations fell into two camps that mapped onto the harm-reduction and harm-elimination frames offered by public health.

In the first camp were the harm-reduction feminist organizations. They included feminist organizations, individual feminists, and feminist-adjacent organizations (like sex worker organizations, some of whom identified as feminists) who saw AIDS as central or, at minimum, important to their own organizing. They were organizations of women who worked with poor women, worked with sex workers, and saw that feminism had to be a part of the growing harm-reduction movement. I will call these groups harm-reduction feminists. They advocated against the use of criminal law to address the concerns of the sex industry and felt it drove participants underground. In a public health response context, this was counterproductive because it meant at-risk communities were inaccessible.

In the second camp were the CAFs. They advocated for laws to prosecute and punish people involved in the sex industry as purchasers of sex or those who benefitted from the sex industry (e.g., managers). They hoped that through arresting bad actors in the sex industry and “ending demand” for sex work, the world would see a collapse of sex markets. This group was made up of feminist organizations, including CATW, and individual feminists who saw AIDS as an outcome of women’s inequality. Arguably, for many of these organizations, AIDS was not the central issue of concern but provided a strategic opportunity to forward a radical feminist agenda. They sought to eliminate sex trafficking by criminalizing both demand (the clients) and living off the earnings of sex work (pimping). This group, continuing forward with the radical feminist agenda of the 1970s, continued as abolitionist feminists.

CAFs believed in harm elimination.⁷⁹ For the abolitionist feminists, the harm-reduction movement, including the feminists and sex workers in it, was forwarding the subordination of women. The language of Kathleen Barry describes the views taken by CAFs on the issue of women and AIDS.

Barry’s position, taken by CAFs working in the AIDS space, ran counter to that of an emerging orthodoxy within public health: that condoms work and that providing safe resources to sex workers would help stop the spread of AIDS among women. Against the public health sensibility, CAFs felt that harm-reduction was making things worse for women, not better.

The Antiprostitution Loyalty Oath

These two feminist positions came to a head as new AIDS legislation was introduced in the United States. The legislation offered an opportunity to influence national-level policymaking on prostitution around the world.

President Bush announced the President’s Emergency Plan for AIDS Relief (PEPFAR), a commitment to address the global HIV epidemic which would result in over 100 billion dollars to HIV/AIDS relief. This announcement led to the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“Leadership Act”), which became law in May 2003.⁸⁰ This law made the United States the largest government donor for HIV and AIDS globally.

The legislation was immediately contentious.⁸¹ Proposed amendments pushed by the Congressional Pro-Life Caucus alerted left-leaning activist groups of the need to engage with the Leadership Act.⁸² These amendments included the application of the “global gag rule,” which prevented organizations from performing abortions if they received US dollars,⁸³ prioritization of abstinence-only sex education,⁸⁴ and funding provisions for faith-based organizations.⁸⁵

During this time, Republicans proposed another amendment to the Leadership Act that has come to be known as the “antiprostitution loyalty oath” (APLO).⁸⁶ CAFs and conservatives supported the introduction of the APLO.⁸⁷ The amendment mandated that organizations receiving funding through the Leadership Act must have a policy explicitly opposing prostitution and sex trafficking. It banned organizations from promoting or advocating for the legalization or practice of prostitution or sex trafficking. In fact, the Leadership Act incorporated the abolitionist feminist position toward sex work and prostitution: “Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.”⁸⁸ The idea enshrined a core carceral antitrafficking position: that a woman’s risk of contracting HIV during a sexual transaction could only be mitigated if sex markets were abolished. The Act states: “No funds made available to carry out this Act, or any amendment made by this Act, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.”

Further, the legislation states that Leadership Act fund recipients must have a policy opposing prostitution and sex trafficking, what came to be known as the “pledge requirement”: “No funds made available to carry out this Act, or any amendment made by this Act, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”

The CAF conflation of sex work and trafficking not only positioned these feminists in opposition to the harm-reduction position, it indicted both the harm-reduction activists for engaging in sex trafficking, and the feminist and sex work advocates that were seeking to make sex work safer. In other words, supporters of the APLO argued that harm-reduction services that included giving women condoms, treating them for STIs, or enabling them to practice sex work safely, were aiding and abetting in trafficking. Support for this antitrafficking frame necessarily called upon crime control agencies to stop what was a crime: trafficking another human being. Delivering public health services in the mode of harm reduction was a crime.

Harm-reduction advocates argued the opposite. Rather than arrest people, especially the vast numbers of public health peer educators and the clients of sex workers, supporters of harm reduction sought increased access to condoms and supported forming sex workers’ collectives.⁸⁹ The collectives were an integral part of the HIV response and seen as one of the most effective ways to address HIV amongst sex workers.⁹⁰ In these collectives, sex workers engage in community building and empowerment activities, alongside an informal regulation of the local industry.⁹¹ For example, sex workers might identify violent clients so that others could ban them from brothels and protect other sex workers from harm by acting as guards.

Advocacy by sex-positive feminists, public health agencies, funders, and nonprofits, including the Open Society Institute and Global AIDS Alliance, failed. The APLO became part of the Leadership Act. In 2003, the year the Leadership Act was passed, the Department of Health and Human Services (HHS) mandated that all funding recipients had to have a policy “explicitly opposing prostitution and sex trafficking.”

Next on the agenda for CAFs and conservatives was ensuring that the APLO would be implemented. Doing so would ensure the defunding of harm-reduction organizations working with sex workers. Alongside other efforts, in 2005, two years after the passage of the Leadership Act, feminists cosigned a letter with the Christian Medical and Dental Association, Alabama Physicians for Life, World Relief, and the Traditional Values Coalition. The letter urged President Bush to enforce the APLO and stop policies that legalized, regulated, or tolerated prostitution. They reframed public health interventions for and by sex workers as supporting prostitution and, in turn, supporting the trafficking of women and children:

The government continued to implement the APLO. The consequences were grave: Sex worker programs were shuttered, sex workers were arrested under the guise of ending sex trafficking, mothers who were sex workers were separated from their children, and many were denied HIV care and treatment in detention.⁹³ For harm-reduction feminists and public health practitioners, these outcomes were both horrifying and preventable. Providing condoms, organizing sex workers, educating clients, and even working with the police had proven to be effective strategies in preventing the transmission of HIV.

International Advocacy: UN and Human Rights

Tensions in feminist camps between harm reduction and harm elimination were also present in international governance. Over a decade before the Supreme Court ruling, in 2002, UNAIDS offered a technical advisory document on HIV and sex work, stressing the need to decriminalize sex work and involve sex workers in condom promotion and safer sex outreach.¹²² The UNAIDS technical advisory document explicitly called for the decriminalization of sex work and the development of programs not just for sex workers but for all players in sex work:

In 2004, the WHO continued the promotion of harm reduction for sex workers by highlighting the role of sex workers in the implementation of HIV projects and collaborating with sex worker networks to publish a tool kit laying out key principles to effective and sustainable sex worker programs, including:¹²⁴ “ensuring that interventions do no harm”; “recognizing that sex workers are usually highly motivated to improve their health and well-being”; making “sex workers are part of the solution”; “building capacities and leadership among sex workers in order to facilitate effective participation and community ownership”; and “recognizing the role played in HIV transmission by clients and third parties, i.e., targeting the whole sex work setting, including clients and third parties, rather than only sex workers.”¹²⁵

WHO and the Global Coalition on Women and AIDS, a project of UNAIDS, also published a shorter document entitled Violence against Sex Workers and HIV Prevention, which states that the criminalization of sex work leads to violence against sex workers. Sex worker rights activists provided input into the document.¹²⁶ In 2006, UNAIDS and the Office of the High Commissioner for Human Rights published the International Guidelines on HIV/AIDS and Human Rights (“International Guidelines”), which declared that among other structural factors, the decriminalization of sex work was necessary to reach sex workers in the response to HIV:

These reforms were tenuous victories for sex workers in the context of AIDS governance. They acknowledged that the entire sex market could be aided by harm-reduction interventions and prioritized the choice and agency of sex workers. They were soon challenged by American CAFs.

In 2006, UNAIDS sponsored a Global Consultation on Sex Work and AIDS in Rio de Janeiro.¹²⁸ Attendees included members of UN agencies and NGOs from sex worker organizations, including the Asia-Pacific Network of Sex Workers, the Latin American and Caribbean Network of Sex Workers, and the Global Network of Sex Workers (NSWP). Abolitionists had gained influence following their victories of the early 2000s – including the TVPA and the APLO in PEPFAR – and abolitionist activists attended the meeting at the urging of the US government. Until 2006, CAFs had not been involved in discussions on HIV and sex work at UNAIDS. But this time, both sex worker organizations and abolitionist feminists gave presentations.¹²⁹ Melissa Farley, an abolitionist, spoke about “‘healing’ from prostitution” and a “harm-elimination” rather than a harm-reduction approach.¹³⁰ Farley also spoke of the need to reduce demand for sex work through the use of felony-level charges against clients of sex workers.¹³¹ As documented by Anna-Louise Crago in her article The Curious Sex Worker’s Guide to the UNAIDS Guidance Note, the participation of abolitionist feminists and their allies shifted the thinking of UNAIDS on the decriminalization of sex work:

Reports published by sex worker activist attendees from the Sex Worker’s Rights Advocacy Network suggested that the US government also placed pressure on UN officials to adopt an abolitionist position.¹³³

In 2007, only a year after the issuance of the International Guidelines and five years after UNAIDS issued a technical advisory document suggesting that sex work be decriminalized, UNAIDS issued a new Guidance Note prepared by the UN Population Fund (UNFPA). The 2007 Guidance Note on HIV and Sex Work retreated from a sex worker rights perspective advocating decriminalization and focused instead on providing alternatives to sex work and ending demand for sex work.¹³⁴ As signaled by the shift in perspective, the new Guidance Note on sex work was the product of interventions from abolitionists and marked the product of a struggle between abolitionist and sex-positive feminists with and within UNAIDS. In this new 2007 Guidance Note, decriminalization was not mentioned once, in contrast to the numerous United Nations documents produced before the Guidance Note. Further, unlike previous documents, the 2007 Guidance Note explicitly suggested that most sex workers are trafficked into sex work:

This reversal led to a multipronged advocacy effort from harm-reduction feminists and allies, including the Canadian HIV/AIDS Legal Network, the Open Society Institute, and the Global Working Group on Sex Work Policy, as well as the NSWP. At the April 2008 Programme Coordinating Board meeting of UNAIDS, several NGO representatives lobbied UNAIDS to move closer to returning to its 2002 stance on sex work. Another UNAIDS Guidance Note was released in 2009, and though it mentions law as a barrier to accessing care and the need for positive steps toward a nondiscriminatory legal system for sex work, it stops short of calling for decriminalization.¹³⁶ This Guidance Note retained many elements of the abolitionist position, in particular, the conflation of sex work with trafficking:

Perhaps to counter the document’s strong abolitionist focus, at the release of the Guidance Note, Michel Sidibé, the executive director of UNAIDS, established an advisory group co-chaired by NSWP and UNAIDS “to support and advise UNAIDS (Secretariat and Cosponsors), from a perspective that is informed by human rights principles, the best available evidence and the lived experience of sex workers.”¹³⁸ The group was to be guided by the experiences of sex workers, and punitive laws became an important area of focus¹³⁹ and work on four thematic areas, including: the removal of punitive laws, policies, and practices; reduction of demand; the conflation of human trafficking and sex work; and economic empowerment.¹⁴⁰

In 2012, UNAIDS released an updated Guidance Note that was partly the outcome of the consultative process in 2009.¹⁴¹ The 2012 guidelines called for the decriminalization of various aspects of the sex industry including the purchase and sale of sex.¹⁴² The updated Guidance Note states:

While actively acknowledging that trafficking is a problem that must be addressed, the UNAIDS 2012 Guidance Note¹⁴⁴ specifically distinguished its recommendations on sex work from the Palermo Protocol definition of trafficking. The Guidance Note distinguishes the harms associated with sex work from the sale of sex itself:

In addition to the sex-worker-led advisory group, several key events between 2008 and 2012 bolstered the strength of both borrowing harm-reduction principles for sex work and calling for decriminalizing sex work and related practices. In 2008, prominent Indian attorney Anand Grover became the UN Special Rapporteur for the Right to Health.¹⁴⁶ In 2010, Grover submitted an official report that specifically highlighted challenges that the criminalization of sex work and related practices posed to realizing the right to health.¹⁴⁷

That same year the United Nations Development Program (UNDP) established an independent Global Commission on HIV and the Law.¹⁴⁸ The purpose of the commission was to assess legal and regulatory barriers to slowing the HIV epidemic, with three primary areas of focus: criminal laws, laws pertaining to women’s rights, and intellectual property law. Advisory group members produced reports on areas of concern to the commission to guide the commissioners’ recommendations.¹⁴⁹ Importantly, the Global Commission hosted a series of regional meetings that brought together activists, NGOs, and academics to discuss regional issues pertaining to law and human rights.¹⁵⁰ Organizations submitted reports to be considered in the drafting of key recommendations.¹⁵¹ Ultimately, the commission recommended the decriminalization of all consensual adult sex.¹⁵²

In 2012, UNAIDS released a report in partnership with the United Nations Population Fund, the WHO, and the NSWP titled Prevention and Treatment of HIV and Other Sexually Transmitted Infections for Sex Workers in Low- and Middle-Income Countries: Recommendations for a Public Health Approach.¹⁵³ The document placed its recommendations in two tiers: “good practice recommendations” and “evidence-based recommendations.”¹⁵⁴ Good practice recommendations were “overarching principles derived not from scientific evidence but from common sense, ethics and human rights principles.”¹⁵⁵ With regard to good practice, the report recommends that “all countries should work toward decriminalization of sex work and elimination of the unjust application of non-criminal laws and regulations against sex workers.”¹⁵⁶ In doing so, the report cites the report of the Global Commission on HIV and the Law.¹⁵⁷

Shifting Epidemiology: The Rise of Antitrafficking Literature in AIDS Research

In each chapter of this book, the legal debates have shaped the epidemiological environment, and in the context of a public-health-based ideological battle, epidemiology has altered the ability of legal actors to legitimate their legal and political claims. The same is true for the feminist debates on sex work and trafficking. A look at the epidemiological literature suggests a shift in this literature on how to understand risk and consent, and the spread of HIV. While this nascent literature has provided some grounding for legal claims that have been made to justify a capacious definition of sex trafficking, it also reveals how little evidence was required for carceral feminists and conservatives to unleash an ideological project grounded in aid conditions to undermine the most effective programs in AIDS prevention.

Until 2000, the peer-reviewed literature on HIV did not explore the question of how sex trafficking related to HIV. Most studies examined how sex work or prostitution related to HIV transmission. The search terms “sex trafficking” and “HIV” in the Pub-Med database of peer-reviewed public health articles revealed that prior to 2000, there was only one article linking sex trafficking and HIV.¹⁵⁸ The article, however, was a critique of the conflation of sex trafficking and sex work in the context of HIV programming.

The lack of research linking sex trafficking to HIV undermined the ability of abolitionist feminists to claim that it was necessary to abolish the sex industry through the use of criminal law. Public health research was necessary. The studies began churning out in 2000, as attention to antitrafficking programming was growing both in the US and internationally. Between 2000 and 2021, forty-two peer-reviewed articles on sex trafficking and HIV were published.

The primary claim emanating from the literature on sex trafficking and HIV is that sex-trafficked women and girls are at high risk for contracting HIV.¹⁵⁹ To make this claim, however, requires defining trafficking in a consistent way. While several studies cite the Palermo Protocol definition of trafficking as a reference point, the studies themselves reveal a nonstandardized use of the term sex trafficking.¹⁶⁰

Researchers for a study by Gupta et al. in the International Journal of Gynaecology and Obstetrics, for example, decided whether or not a sex worker was trafficked based on her age entering sex work or if she reported being “lured, forced, or cheated” into sex work.¹⁶¹ In another instance, a study looked at case records of a “major non-governmental organization” providing rescue, shelter, and care of minor girls “held against their will in brothels in Mumbai.”¹⁶² In yet another study, Goldenberg et al. considered women with “involuntary” or adolescent entry into sex work to be sex trafficked in accordance with the Palermo Protocol definition.¹⁶³ Several studies also claim that women trafficked into sex work have a greater vulnerability to contracting HIV than those who voluntarily enter the sex industry.¹⁶⁴

While the goal of understanding how sex-trafficked individuals might be at particular risk of HIV is important, it may be equally necessary to consider how varied definitions of sex trafficking may muddy our understanding of who is or is not being trafficked and, in turn, how the data should or should not be interpreted to justify legal intervention. Casting the net of exploitation broadly also results in a broader evidence base for justifying the carceral solution offered by mainstream approaches to sex trafficking.

As this literature continues to grow, so does the literature on sex work and HIV.¹⁶⁵ Importantly for harm-reduction advocacy, the public health literature supports decriminalization of sex work. In 2012, for example, the leading public health journal, The Lancet, stated:

Despite sex worker organizations actively acknowledging trafficking as an issue in the sex industry, the epidemiological research on sex work often avoids the question of coercion. It focuses on the ability to deliver health services to sex workers, the effectiveness of sex worker outreach and programming, and the related health outcomes. The lack of engagement with the trafficking definition could be based on a variety of factors. One might be acknowledgment that the line between sex work and trafficking is too difficult to discern at times, or that even if a woman is trafficked she may benefit from harm-reduction services, given the dearth of other available social interventions. A second reason might be a flaw in the way public health studies are conducted: They look narrowly at specific harms and assume away structural concerns or coercion that might emanate from issues such as poverty. A third reason might be the underlying contradiction between the crime control framework that the definition of sex trafficking rests on and the emphasis on the decriminalization model in research with and on sex workers.

It is clear from the data that the production of public health knowledge centers on sex workers and, in turn, decriminalization for the sake of harm reduction. Yet the antitrafficking frame continues to grow. Despite the dominance of the idea that decriminalization is necessary to stop the spread of HIV, sex workers, their clients, and others within the industry are arrested and prosecuted at the expense of life-saving public health interventions.¹⁶⁷