Sex worker organisations raise concerns over HIV criminalisation case

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Asia Pacific Regional Correspondent

Sex workers and sex worker rights’ organisations have strongly criticised the verdict and handling of the case of CJ Palmer, a trans woman and former sex worker who was convinced of grievous bodily harm in January 2018. CJ was convicted on the charge, after four hours of deliberation, in relation to her ex-partner testing positive for HIV, and has been remanded in a men’s prison awaiting sentencing on 16th February. She has already spent 9 months in the same men’s prison awaiting trial.

The ruling has been strongly criticised by sex workers and sex worker rights’ organisations both in Australia and internationally. Concerns have been raised about lack of evidence, and the ruling contradicting international public health guidance on the criminalisation of HIV.

NSWP member Scarlet Alliance, Australian Sex Workers Association and other organisations have expressed serious concerns about the ability of the Court to deliver a fair ruling in this case. Since the first breaking news of her arrest, CJ’s case has been reported on in an extreme sensationalised manner, which many fear will have contributed to fuelling misconceptions and stigma around HIV, sex work, and trans people. Organisations have also raised concerns about CJ’s treatment since the charges were brought, as a trans woman being held in a men’s prison, and about the overall pursuit of criminal charges for a case of HIV transmission when this has been proven to be ineffective.

Evidence shows that the criminalisation of HIV is ineffective as both a criminal justice and public health outcome, and is not recommended in the majority of cases. UNAIDS has raised specific concerns about the ways criminal charges can be selectively used against vulnerably groups, including sex workers, at the expense of upholding human rights and good public health practices. A Scarlet Alliance media release from 2008 on this same issue states that criminal prosecutions for HIV transmission “send the message.. that having sex with a HIV positive person is dangerous and this is simply not true. When safe sex equipment is used the risk is negligible.”

Cipriano Martinez, President of NAPWHA also explained that “Prosecutions for HIV transmission undermine the public health response to HIV by creating an environment of fear and prejudice. This reinforces stigma and contributes to further HIV transmissions”. Dr Bridget Haire (AFAO) noted that HIV will not be ended in courts, and argued that resources expended on policing and prosecuting HIV transmission “would be far better spent making HIV prevention tools and medicine available to people who need it.”

Jules Kim, CEO of Scarlet Alliance, Australian Sex Workers Association described the ruling as an “extremely unfortunate outcome, both for the individuals involved and for the wider community.” For Scarlet Alliance, CJ’s case highlights a range of issues inherent to the application of criminal law, courts and prisons to how we respond and prevent HIV transmission. Jules said CJ’s case raises questions of “whether or not a fair trial is possible for those who fall outside the scope of mainstream images of acceptability. The effect of this decision and accompanying sensationalised community discussion is a perception that people living with HIV are criminals. This unfairly reinforces discrimination against sex workers and people living with HIV, which is already pervasive in the broader community”. 

Writing about the context of criminalisation of HIV in Australia, Heath Paynter notes that media coverage of criminal justice cases involving HIV  often draws on the most “salacious evidence” journalists can find, leading to a repeated pattern where “invariably, the accused is presented as dangerous and the claimant as innocent, thus engendering fear in the community.” The media coverage of CJ’s case is yet another clear example of this dynamic, and many have expressed concern that this could lead to a miscarriage of justice. The courts can be left in a position where it’s impossible to find jury members not affected by the media commentary.

An ASHM media release pointed out that the prevention of HIV transmission is a “shared responsibility that does not fall solely on the HIV-positive partner”. The role of sex workers – and in particular of sex workers living with HIV - in educating the public and adopting universal precautions to prevent and respond to HIV has been documented as a critical component of successful  responses to HIV. However, legislation undermines community efforts around HIV education and prevention, by compounding misleading and dangerous ideas that people can rely on a model of one-party disclosure and criminal prosecutions to look after their health.

Laila Lilac, President of local Western Australian sex worker organisation, SWEAR was also highly critical of the way media had reported on the case, describing the reporting as “sensationalist and offensive”. She said that such reporting “has ensured that the stigma of this case lives on long after the details are forgotten. This will continue to negatively affect the trans community, the sex worker community and people living with HIV. This uninformed, stigmatising media ensures that these marginalised communities continue to face real barriers in the legal system".

Summarising the concerns of many sex workers and other communities impacted by unjust colonial laws and “justice” systems, Jules argued that “Cases that come down to perceived credibility are problematic in nature as they inevitably and unfairly impact on people of colour, sex workers, and trans people”.

In court, CJ’s lawyer argued that CJ had been faced with a great deal of hardship, due to the isolation of solitary confinement, but also from practices of prison system, including allowing CJ to be searched by male officers. Organisations speaking out against the injustices of the court case have been critical of the unjust punishments that CJ has faced on the basis of discriminatory attitudes and policies towards trans people. Judge Stevenson openly admitted he accepted prison would be "more onerous" for CJ on the day the he denied bail and ordered CJ be incarcerated until sentencing. Lena Van Hale, Manager of the WA sex worker support project Magenta captured the sentiments held by sex worker organisations in her statement about the ruling and its implication: “We are deeply disappointed that trans and gender diverse prisoners in WA are still not being housed according to their correct gender.” She added, “We do not believe that surgical intervention is an appropriate way to decide which trans prisoners are treated with dignity.”

Descriptions of CJ Palmer have incorrectly referred to her as a “man who identifies as a woman”, as well as referring to her as a "prostitute” instead of using the correct term of "sex worker”. Media organisations reporting on this case or future cases involving people living with HIV and/or trans people were also urged to make full use of the AFAO HIV Media Guide and existing comprehensive guides for reporting on gender identity and trans people.

Following the guilty verdict and the subsequent media coverage and community dialogue, sex workers around Australia were saddened by the outcome and its impact. As Rachel, a sex worker in Perth, WA put it: “it is a sad day for us all and a stark example of the need to decriminalise sex work. Separate from CJ’s offence, as a sex worker we are all faced with demonisation in our public spheres. The amount of media and the narrative around CJ being a trans sex worker has no doubt had a negative impact for CJ. On top of this, the fact she is being sent to a men’s prison is appallingly backwards. CJ lives and identifies as a woman and should be treated as such.”

Prosecution in cases like CJ's stand in contradiction to the consensus statements on HIV which Scarlet Alliance, NSWP and sex workers from over 30 countries were part of creating at the 2014 International AIDS Conference in Melbourne. The criminal prosecution of CJ also goes against recommendations from organisations such as UNAIDS, and are a blight on an already scrutinised human rights record.

A fundraising page for CJ’s commissary account has been set up.