The United States Agency for International Development (USAID) claims to support "programs in more than 60 countries in Africa, Asia, Latin America, the Caribbean, Eastern Europe and the former Soviet Union" with "high quality, voluntary health care services that are easily available to many people" that include "counseling and services, training of health workers, contraceptive supplies and their distribution, financial management, public education and marketing, and biomedical and contraceptive research and development."
Of course, if your otherwise-qualified program counsels women that abortion services are available, you can kiss USAID support goodbye, as has been the policy (known as the "Mexico City Policy") since Ronald Reagan was president – with, of course, a suspension during the Clinton years.
But as of June 9, a new USAID Acquisition and Assistance Policy Directive has required, among other things, that U.S. and foreign non-governmental organizations (NGOs) receiving USAID funding must adopt a policy "explicitly opposing prostitution and sex trafficking" – at the cost of losing all federal funding if they fail to do so.
There's just one problem: Most of the rest of the world isn't nearly as prostitution-phobic as the Bush administration and its religio-reactionary supporters, and those countries, many of which receive USAID funds, understand that prostitution is a fact of life for a recognizable segment of their societies – and they, and the U.S.-based NGOs that work in those countries, need those funds to educate and in other ways prevent the spread of HIV and other sexually-transmitted infections (STIs) among the populace. When it comes to selling sex, "Just say 'no'", they realize, ain't gonna cut it.
Enter Philip D. Harvey, president of DKT International, a D.C.-based non-profit organization that manages contraceptive social marketing programs for family planning and AIDS prevention in eleven countries in Africa, Asia, and Latin America. Harvey is also the owner of Adam & Eve, the giant adult mail-order company which got its start selling condoms by mail to customers who were unable, unwilling or too ashamed to purchase them in stores.
"DKT International filed a lawsuit yesterday in the District Court of the District of Columbia challenging the U.S. government’s 'anti-prostitution' policy as promulgated under the U.S. Agency for International Development’s Acquisition and Assistance Policy Directive (AAPD) of June 9, 2005," Harvey wrote in a statement released on August 12. "This policy requires, among other things, that U.S. and foreign non-governmental organizations receiving USAID funding must adopt a policy 'explicitly opposing prostitution and sex trafficking.' DKT’s lawsuit challenges this policy as an unconstitutional infringement of speech that is also undermining international efforts to stem the scourge of HIV/AIDS."
According to Harvey's statement, the USAID policy creates a multitude of harms:
"1. The policy undermines those of us working to prevent the spread of HIV/AIDS. In poor countries, AIDS is a killer disease. If we are to ameliorate its impact, we must work with persons at highest risk of infection, including those in the sex trades. We deal with sex workers as equals. We accept what they do as part of the reality of today’s world, and we do our best to empower them so they can adopt practices that will minimize the risk of HIV transmission for themselves and their partners and improve their chances of getting access to life-saving health services. To do this work under an 'anti-prostitution' policy would be dysfunctional. Such a policy further stigmatizes the very people we are trying to help. It requires us to condemn what sex workers do for a living, thus undermining the relationship of trust and mutual respect required to effectively conduct AIDS-prevention work. DKT will not allow its field workers to be put in that position.
"2. The policy harms America’s image and America’s interests abroad. An anti-prostitution 'policy' is a hollow gesture. No one pretends that such a policy will contain or ameliorate the darker aspects of the world’s oldest profession. Rather it represents posturing by American politicians who are increasingly seen around the world as patronizing, bullying and obsessed with sex.
"3. By coercing the speech of private parties, the policy violates the First Amendment rights -- and the integrity -- of the organizations that are forced into compliance. US humanitarian assistance abroad has always been conducted by private organizations whose policies are set by their boards of directors, not by USAID. Such organizations do not wish to be, and should not be, mouthpieces for government officials whose opinions, in many cases, they do not share. Freedom of speech means that Americans may, without risking punishment, express their opinions freely and not be forced to express the opinions of others."
At the very least, the June 9 policy puts the lie to USAID's stated claims, on a Web page titled "USAID: Ensuring Quality Family Planning Services Throughout the World," (link: http://www.usaid.gov/our_work/global_health/pop/publications/docs/qualityfp.html) to "[t]reat clients with respect and tailor counseling, services and methods to individual preferences, knowledge, beliefs, skills, needs and concerns about contraception," and "[t]each clients how to use their chosen methods properly."
According to DKT's lawsuit, "In 2003, President Bush signed the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 ('Global AIDS Act'), 22 U.S.C.A. §7601 et seq. into law. The Act contains two restrictions regarding prostitution. The first restriction, 22 U.S.C.A. §7631(e), prohibits the use of U.S. Government funds under the Act from being spent on activities that 'promote or advocate the legalization or practice of prostitution or sex trafficking.' The second restriction provides, 'no funds made available to carry out 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.' 22 U.S.C.A. §7631(f). The legislation exempts the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AID Vaccine Initiative and United Nations agencies."
DKT, which had been receiving USAID funds from Family Health International (FHI), lost approximately $60,000 which it was in the process of using to fund a condom lubricant program in Vietnam which had been approved by USAID several months earlier.
"FHI cancelled the earlier-promised $60,000 USAID grant for packaging of lubricants and condoms in Vietnam because DKT refused to sign the USAID-required certification," the DKT lawsuit states. "The FHI Country Director informed DKT that 'it will not be possible for FHI to fund DKT to carry out this work.'"
DKT is hardly the only healthcare provider affected. The government of Brazil has already refused $40 million in USAID funds because it will not sign the agency's "prostitution loyalty oath." Brazilian AIDS workers argued that even if the Ministry of Health were willing to accept USAID's demand, it could not do so legally. Under Brazilian law, two people having sex in exchange for money is neither a felony nor a misdemeanor, but rather the equivalent of a parking ticket offense.
"Prostitution in Brazil isn't legalized, but it's not illegal either," explained Dr. Petro Chequer, director of the Brazilian government's AIDS program.
As far as Harvey is concerned, it's a First Amendment issue – and as long-time AVN readers know, free speech battles are not things that Harvey shrinks from fighting.
"DKT has no policy on prostitution and does not wish to adopt one," the lawsuit states. "It believes it has a First Amendment right not to do so. In addition, as an organization working to prevent the spread of HIV/AIDS, it strongly believes it can best do that in the many countries in which it works by maintaining neutrality on the controversial question of how to handle the complex problems that arise at the intersection of the HIV/AIDS epidemic and prostitution.
"In addition, if DKT were to adopt the government-prescribed policy to be eligible to receive USAID funding, the policy would then require it to restrict its own speech, outside of its work with USAlD funds, to speech consistent with that policy. Thus, the USAID-required policy would restrict even speech and activities paid for with private and non-U.S.-government funds."
But squelching speech outright isn't DKT's only problem with the policy.
"In addition, the statute and regulation, which condition eligibility for USAID grants on adopting a policy 'explicitly opposing prostitution,' are vague because DKT cannot reasonably predict whether its other speech and activities (funded by private donors and other governments) might be deemed by USAID to insufficiently oppose prostitution. And the consequences for predicting wrongly are potentially significant: organizations who are found to have violated their agreements by not having an adequate policy (or not adhering to it) may be required to repay in full an already-spent grant. Further consequences, such as debarment or false claims actions, are also not beyond the realm of possibility."
Concurrent with filing its lawsuit, DKT also filed a motion for preliminary injunction to prevent USAID from implementing its anti-prostitution policy. At press time, no date had been set for a hearing on that motion.
At least six other agencies whose work would be affected by the USAID policy have also provided statements in support of DKT's suit. Among those are the International Planned Parenthood Federation, the Center for Health and Gender Equity, the Global AIDS Alliance, the American Jewish World Service and Family Care International.
