By Matthew Greenall, independent consultant
According to reports, the new penal code currently being considered by Rwanda’s Senate includes a provision to criminalise sex work. The existing penal code, which dates from the 1970s, gives judicial authorities the option of placing restrictions on the movement of sex workers, and contains a number of provisions against facilitating or promoting sex work, running sex work establishments and living off the earnings of prostitution. The proposed new article would introduce jail terms and fines for sex workers themselves.
The potential impact of changes to the law
Although the existing legislation is far from being supportive of sex work, this new provision would categorically criminalise sex workers. Some commentators have pointed out that the law is unlikely to be applied – and the rarity of convictions under the existing provisions lend some weight to that argument.
But the main problem with laws against sex work isn’t the risk that sex workers will get fined or locked up. It is that the existence of the law, and the threat of fines or jail terms, will make sex workers even more vulnerable to violence and exploitation.
The sight of police officers using the threat of criminal charges to extort sex workers is commonplace in many countries. As a consequence, sex workers often work in even more hidden, precarious environments, giving them much less control over how, when, and for how much money they sell sex.
The law on sex work and HIV
National and international civil society organisations involved in human rights and in the fight against HIV and AIDS in Rwanda have been active in trying to get the Senate to reconsider the proposed article.
They have argued, quite convincingly, that the law will seriously hamper the implementation of Rwanda’s new National AIDS Strategy, a plan that has been recognised internationally for its stated commitment to rights-based, targeted programming sex workers and other stigmatised groups.
While HIV is only one of the many likely negative impacts of the proposed law, the fact is that often, where sex workers are concerned, it is the only argument that gets taken seriously.
Protecting health and rights
Civil society is anxious to see which decision Rwanda’s lawmakers take. It is worth remembering that even if this article is struck, the current penal code is hardly protective of sex worker rights.
Moreover, one suggestion that has been floated is to compromise by replacing criminalisation with a new article which would criminalise the act of paying for or buying penetrative sex without a condom.
Quite apart from condom use being highly dependent on the existence of programmes to ensure they are available and accessible to sex workers and clients – which is far from the case in Rwanda today – the only way an offence under this article could be proved would be through entrapment.
The idea of preventing HIV through the law might be tempting for lawmakers: experience shows that a more effective approach would be one that empowers and supports sex workers rather than one that creates more potential sticks to beat them with.
