Austria: Discriminations against Sex Workers

Degrading Treatment by Forced Vaginal Inspections

In 2010, journalists observed that there are involuntary examinations at the Vienna Communal Health Office: ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Police accompanied handcuffed women to gynecological examinations against their will and even watched these examinations. Such examinations are a routine in Austria, although the European Court of Human Rights qualified forced medical investigations of the intimate sphere as degrading treatment and a violation of the private life. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Austria thus applies systematically torturous medical interventions, although the prohibition of torture and degrading treatment under international law (ius cogens) is absolute and irrevocable.
Sadly, worldwide women in sex work suffer from such treatment. For instance, with respect to Azerbaijan, the United Nations Committee on Discrimination criticized that “forced medical control of prostitutes, where such measures were not implemented with respect to clients … [was] discriminatory and might be counterproductive”. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Further, that Committee expressed concern that in Indonesia the problem of HIV/AIDS had been attributed to women in prostitution and that women had been subjected to forced vaginal examinations. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
There are also forced HIV tests as part of criminal prosecution: HIV positive persons are criminalized for consensual sex with informed partners. They face criminal sanctions under the Penal Code (three years prison term), even if they themselves do not know their HIV status. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} This is counterproductive for public health, as by criminalizing sex workers who are infected, authorities discourage them from being tested voluntarily and undergo treatment. Therefore Austria should repeal such criminal law regulations. HIV-positive persons, also sex workers, are no threat to public health, if they consistently undergo retroviral therapy and use condoms. Education of clients about their own responsibility for risk reduction is a much more effective instrument for infection control than the application of criminal law.

3. Degrading Treatment at Public Health Offices

Both the United Nations Committee against Discrimination of Women in 2013 and the United Nations Committee against Torture in 2010 were concerned about the implementation of the mandatory health checks, as Austria does not respect the dignity and privacy of the affected women. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Austrian Parliament inquired Austrian Government about measures to stop this degrading treatment, but government declared no interest. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Consequently these concerns persist.
The following information from media reports illustrate the untenable situation: Women sex workers in Vienna are bound to attend weekly gynecological inspections at the Vienna Communal Health Office. It is only accessible for 20 hours a week, and grossly understaffed with three to four doctors on duty, who then handle each gynecological inspection in about 1 to 2 minutes. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Journalists, who visited it, reported about humiliating circumstances and lacking hygiene, use of non sterile instruments, and they interviewed women, who suffered from physical injuries and pain as a result of the inspection. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} There are not even multilingual brochures to inform properly about the medical interventions (to explain e.g., what STIs are in the focus of inspections, and what are not, e.g. condyloma). The situation is not better at other Austrian cities. For instance, the public health officer of Klagenfurt, Carinthia, requested sex workers to undress and line up in a row of 40 women, so that he could complete the “health check” in an hour or less. In Salzburg, a certain health officer repeatedly injured sex workers, but the office ignored complaints.
Austria did not even implement the most straightforward remedy, namely to allow sex workers consult doctors of their own choice for health checks. Medical interventions, which ignore the right to choose a doctor, who one can trust, are not consensual. Thus, such interventions violate Article 12. As a consequence, sex workers are also exposed to the risk of degrading treatment by over-tasked health officers.

4. Counterproductive Character of Prostitution Laws

Austria applies essentially the same regulations of prostitution that Germany abolished in 2001. This (in Germany abolished) prostitution law, was characterized by Special Rapporteur on Health: ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} It was “designed to combat venereal disease, required prostitutes to undergo mandatory medical examinations. This law legally stigmatized sex workers as being almost solely responsible for the spread of venereal disease, despite the absence of epidemiological studies to support this.” Also in Austria the only purpose of mandatory health checks is the protection of public health against allegedly unhealthy sex workers. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} However sex workers are known not to be vectors for sexually transmitted infections. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Rather, such infections are driven by irresponsible behavior of man and women alike, whereby women would suffer most, as e.g. HIV infection risk for unprotected sex is ten times higher in the path of a man to a woman than in the path of a woman to a man. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Thus, the very logic of Austrian prostitution laws contradicts evidence-based medicine: Society does not need protection against sex workers, but conversely sex workers would need the protection of society. If they were empowered, then out of self-interest they would educate customers in safer sex practices. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
However, registration, vaginal inspection and HIV testing do not empower women. On the contrary, in 2008 the Government of Austria admitted negative health impact for women, as clients of sex workers assume that mandatory testing of health workers keeps their own risk for infections low, whence they pressure sex workers for sex without a condom (supra note 7 at p 35). Thus, Austrian regulations are a factor that makes HIV and STI infection risk higher for women; in view of the diagnostic window this risk then increases also for their male clients. Further, such regulations drive illegal prostitutes underground, away from health care interventions, thus making the system of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests largely ineffective: 83% of the 30,000 women in sex work are outside the system, as they did not register (statistics: section 1.2). This is an outcome that is to be expected from the very system of mandatory testing: ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} “Mandatory testing is against the principles of human rights, and furthermore, these approaches chase sex workers away, when what is needed is cooperation.” For this reason, in 2010 the Office of the High Commissioner of Human Rights voiced concerns that Austria’s approach may be counterproductive for HIV-prevention. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Actually, when compared to Germany with a similar socio-economic situation, but no registration or forced health checks of sex workers, HIV incidence in Austria is twice as high, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} and also incidence of Syphilis is significantly higher in Austria, than in Germany. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} This offers evidence that the Austrian system is counterproductive with respect to HIV and STI prevention.
The International Guidelines on HIV/AIDS and Human Rights of UNAIDS (supra note 53) were informed from such considerations. They summarize in § 115: “HIV prevention and care for women are often undermined by pervasive misconceptions about HIV transmission and epidemiology. There is a tendency to stigmatize women as ‘vectors of disease’, irrespective of the source of infection. As a consequence, women who are or are perceived to be HIV-positive face violence and discrimination in both public and in private life. Sex workers often face mandatory testing with no support for prevention activities to encourage or require their clients to wear condoms and with little or no access to health-care services.” It continues on § 137 with respect to compulsory HIV tests, as e.g. required by Austrian AIDS Law: “This coercive measure is often utilized with regard to groups least able to protect themselves because they are within the ambit of Government institutions or the criminal law, e.g. soldiers, prisoners, sex workers, injecting drug users and men who have sex with men. There is no public health justification for such compulsory HIV testing. Respect for the right to physical integrity requires that testing be voluntary and that no testing be carried out without informed consent.”
In 2010, the HIV & AIDS Recommendation R200 of ILO (supra note 53) recommended to implement these guidelines. European Court of Human Rights endorsed these guidelines, too. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} The importance of these guidelines was also emphasized by this Committee, when it recommended their application to Algeria and Colombia, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} and by the United Nations Committee on the Rights of the Child, when it recommended their implementation to Bosnia, Equatorial Guinea, Nicaragua, Sri Lanka, Sudan, Togo, and Ukraine. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} In 2013 the United Nations Committee on Discrimination against Women expressed concerns about mandatory HIV testing of sex workers and recommended the implementation of UNAIDS guidelines to Austria. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
The author considers that any medical intervention that is legally prescribed and enforced by police is fundamentally incompatible with the Article 12 protection against non-consensual medical treatment, if there are no substantial proven public health benefits. It follows: Austria applies a system of obligatory registrations of prostitutes, mandatory vaginal inspections and compulsory HIV tests. These medical interventions are not truly consensual, as they are based a legal obligation, whence they are a restriction of the Article 12 right to health and personal autonomy. However, these interventions cannot be justified in terms of Article 4, as there is no proven public health benefit from them; instead there are negative impacts upon public health. They are thus unethical and in violation of Article 12. Hence, Austria should consider an amendment of AIDS Law, prohibit compulsory testing, and guarantee rights to confidentiality and to protection against discrimination for those who are HIV-positive.

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