- Advocates -
John Mathenge, the founder of the only organisation that caters to male sex workers and Men who have Sex with other Men (MSM) who are living positively, HOYMAS and Phelister Abdalla the National Coordinator of the Kenya Sex Workers Alliance (KESWA) has been given international accolade by the Global Network of Sex Workers Project.
The NSWP recognized John for his efforts for sex workers rights when they presented him with the Global Youth Activist on Sexworkers at the ongoing Sex Workers Freedom Festival in Kolkata, India.
Mathenge is heading the Kenyan delegation at the festival after the US denied them Visas - as well as other sex workers from over 40 countries - to attend the International AIDS Conference in Washington, DC.
Mathenge has been in the forefront of advocating for the rights of sex workers in Kenya for years now. A sex worker himself, John has been particularly passionate about sex work activism appearing in media and organising protests to create awareness.
In an interview with Behind the Mask's correspondent, Melissa Wainaina, Mathenge said he had been living positively for close to 10 years and had pioneered a program to reach out to young persons selling sex.
'I am currently working on UNFPA on a programme dealing with people aged under 18 years selling sex. The purpose is to implement a life skills program for these young persons through outreach and education workshops.'
“We are the people. We are the problem and we are the solution. No one can make decisions for us. They’ll never make decisions for us anymore. Sex work is work and sex workers’ rights are human rights. As Obama joined the government [he promised change]. Where is the change? Why are they still discriminating sex workers? They need to repeal the Anti-Prostitution Pledge for us to have freedom, freedom to work and right to health,” Mathenge told the packed meeting hall at the sex workers freedom festival.
- Sodomy case -
When a Kenyan radio station reported that a man had been arrested and charged with sodomy last week, there was alarm in the LGBTI community. BTM correspondent Melissa Wainaina spoke to lawyer, Monica Mbaru, to get the details of what actually happened and why the charge was changed.
Please give us some insight to the incident that affected a member of the LGBTI community? What were the circumstances and what were the allegations that led to an arrest?
On the morning of Friday, July 15 John* was arrested at his home in Nairobi, allegedly for sodomy. He was held briefly at Ngara Chief’s Camp [in Nairobi] and then forwarded to Nairobi Central Police Station in the afternoon. This was to avoid the constitutional holding limit that require any arresting person not to keep a suspect overnight while the police cannot hold such a person for more than 24 hours unless the arrest falls over a weekend.
John managed to call a friend on Saturday July 16 and we got the information on Sunday morning to assist him. I managed to meet the Officer Commanding Police Station (OCS) prior to seeing John and he alleged that the accused had greeted somebody along the streets, given him Sh20 (US$0.22) and “confused him.” He led him to a lodging [house] and sodomised him. He asserted that the arrest was made by the Ngara Chief’s Administration Police.
However, there was no recorded statement from the complainant, only the arrest had been recorded. The OCS summoned the investigating officer who indicated that the arresting AP was off duty at the time.
What is the progress of the case as of Thursday July 21, 2011?
John was charged at the Makadara Magistrate’s Court in Nairobi on Monday, July 18 with the offence of indecent assault as the complainant had not filed the necessary medical documents to confirm the sodomy allegations, maybe due to the fact it never happened or they had hoped John would simply pay a bribe and get the police to drop the case. Now that there was a lawyer giving attention to the case, the officers needed to have an offence.
What are the Kenyan legal strengths and/or challenges in regards to this case?
The challenge will be to prove the case of indecent assault, what exactly happened and the evidence available. So far the complainant has not written his statement and could use this opportunity to cook up some.
Another challenge is to frustrate the case with many adjournments, [a tactic] which investigating officers [are known to] use to avoid taking responsibility for illegal detentions and malicious prosecutions and just ‘punish’ the accused for hiring a lawyer instead of either paying [them] off for the closure of the case or admitting to the offence.
The police did not expect that he would get a lawyer. My presence at the station caused such a huge commotion.
What is your way forward in this particular case?
The accused is out on a cash bail of Sh 50,000 (US$555). He was released on July 20 upon a deposit of the cash bail.
The case comes up for mention on 1st August 2011 and the hearing date set for 3rdOctober 2011.
Any other pertinent thoughts?
As the LGBTI community in Kenya seeks to address equality and non-discrimination based on the new constitution, a case like John’s gives that opportunity to address decriminalization of same-sex behavior. As it stands today the sodomy law potentially creates a gap where blackmailers and extortionists use the law to their advantage.
John’s case would form a good test case to challenge these laws and the potential conflicts it creates in addressing personal freedoms and rights as well as other public health concerns.
Further, an arrest based on one’s perceived or real sexual orientation sets in motion other human rights violations most specifically the invasion of privacy.
It seems clear in this case that John has suffered clear violations of his rights including being in custody for six days. He is being charged with a crime that is difficult to prove without having to violate individual freedoms for instance in order to “catch one in the act” it would necessitate an invasion of privacy.
*Not his real name.
- AIDS poses unique challenges -
Kenya has the fourth-largest HIV epidemic in the world. In 2012, an estimated 1.6 million people were living with HIV, and roughly 57,000 people died from AIDS-related illnesses. Moreover, there are now 1.1 million orphans to the epidemic.
The first case of HIV in Kenya was detected in 1984, and by the mid 1990s it was one of the major causes of mortality in the country putting huge demands on the healthcare system as well as the economy. HIV prevalence peaked at 10.5 percent in 1996. By 2012, this had fallen to 6.1 percent due mainly to the rapid scaling up of antiretroviral treatment (ART).
Key affected groups
Kenya’s HIV epidemic is often referred to as generalised – affecting all sections of society including children, young people, adults, women and men.
However, in recent years, a number of studies have identified concentrated epidemics among certain groups who are particularly vulnerable to HIV transmission.
Men who have sex with men (MSM) and HIV in Kenya
HIV prevalence among men who have sex with men (MSM) in Kenya is almost three times that among the general population. In 2010, HIV prevalence among MSM was an estimated 18.2 percent. In the city of Mombasa, one study found that up to 24.5 percent of MSM were living with HIV.
Condom use among MSM is fairly low but has been on the increase. In 2013, an estimated 69 percent of MSM reported using a condom the last time they had anal sex (which has a much higher risk of HIV transmission than vaginal sex), up from 55 percent in 2011.
Sexual relations between men are illegal in Kenya and can carry a prison sentence of up to 21 years. Homosexuality is "largely considered to be taboo and repugnant to [the] cultural values and morality" of Kenya. This stance leads to high levels of stigma and discrimination towards MSM as well as other members of the lesbian, gay, bi-sexual and transgender community (LGBT), deterring many people from seeking the HIV services they need.
Moreover, it has been reported that these attitudes have lead to members of the LGBT community being harassed by state officials and held in 'remand houses' without being informed of the charges against them and even brought to court on false charges. Corrupt police have also extorted and blackmailed LGBT people with the threat of arrest and imprisonment.
Despite this, a number of organisations such as the Kenya Human Rights Commission work to protect and improve the rights of the LGBT community in Kenya.
- Sex Worker Human Rights -
Sex Worker Rights are Human Rights was a leading slogan in a July 2006 protest on the Las Vegas Strip by sex workers and allies. The concept brought mixed reaction from the crowd. Some supportive, some mixed, some filled with vitriol. Without a doubt this will be a controversial piece on the Sex Workers Without Borders’ website. SWWB advocates the concept of sex worker rights being a human rights issue.
Criminalization of sex work and sex workers that are legal adults and consenting solves nothing. Criminalization should be focused on actual criminals, those who commit crimes against sex workers, those who force sex work in non consenting situations, those who traffic in human beings for the purpose of forced labor both related and unrelated to sex work and certainly those who prey on children. Children are not tourist attractions either in the United States or any other country. Sex with children is pedophilia. Pedophiles belong in prison. However, one must also consider the factors that cause children to be in the sex industry. Unless the causes are addressed and alternatives created, there will be many children that end up in the sex industry. Runaway and homeless teens require some source of income. Simply stating the problem exists and trying to legislate it as a criminal offense without bringing resources to the homeless and runaway youth is pointless. Children in the United States and other countries are often forced into the sex industry by families desperately poor and seeing no other choice. This is a social issue that has to be addressed at the source.
Sex Worker Human Rights
Ending criminalization of sex work involving consenting adults creates opportunity for positive social change. With an end to criminalization, sex workers are no longer marginalized for abuse and victimization by customers, the legal system and law enforcement. Instead, the legal system would serve to protect sex workers, to represent them in the event they are victimized by a crime. Rather than having to fear the police and be easy targets for renegade cops abusing their positions, sex workers would be able to access assistance from the police just as any other citizen victimized by a crime. SWWB’s website has many testimonials from individuals victimized in the sex industry that had no recourse due to current social views regarding sex work, criminality and the stigma and marginalization that comes with them.
Current policies of criminalization also really serve no value for those either in the sex industry in a non-consenting situation, trafficking victims or those underage. Those who; coerce, traffic or exploit both adults and youth are aware that criminalization keeps the victims from viewing law enforcement and the legal system as allies to assist them in getting out of the sex industry. The victim becomes imprisoned by a system that is allegedly setup to protect them. It is both unrealistic and simplistic not to recognize that people who prey on those who are coerced into the sex industry will use criminalization – the knowledge that the victim fears being punished by the law as a criminal – as reinforcement in a dynamic of fear that makes it difficult for such a victim to leave. Predators use criminalization and the legal system to coerce and deny access to people under their influence who want to leave the sex industry.
The right to form and join professional associations and unions allows for empowerment of sex workers to have greater authority and rights within the sex industry through the strength of a group and networking.
Sex Work, Taxation, and Representation.
Currently the Internal Revenue Service requires individuals to report income earned from illegal sources. Criminalization denies the sex worker access to legal rights and representation related to taxation as admission of how the income is earned may not be covered under client privilege. This causes denial of the ability to receive accurate and complete legal rights and representation. Ending criminalization would allow the sex worker to fulfill requirements of paying taxes, consult with tax specialists without fear of the session being used against them in court.
Coercion, Violence, Sexual Abuse, Child Labor, Rape and Racism.
Sex workers should be entitled to protection from coercion, violence, sexual abuse, child labor, rape and racism just as any employee in any citizen working in any occupation in the United States of America is. Coercion is enforced by criminalization. Knowing that turning in the coercing party may lead to the sex worker being arrested is a substantial barrier from leaving a coercive situation. Those that coerce are aware of this dynamic realizing the victim has little recourse to escape the coercion through the legal system without significant risk. The victim is likely to think of themselves as a criminal because of current laws and social attitudes and to see the legal system and law enforcement not as those that can bring justice but as those who will likely arrest, prosecute and further victimize the person they should be protecting.
Sexual abuse and rape in sex work is virtually unaddressed as an issue. Social attitudes most often assume sex workers can not be sexually abused, assaulted or raped by virtue of being a sex worker. Sex workers are at very significant risk of sexual abuse and rape. Exchange of money for agreed upon services does not negate the fact that anything beyond what the sex worker consents to is rape. Payment of money or anything else of value is not a blank check to force any sexual act upon a sex worker. Yet, current legalities and social attitudes make bringing a rapist of a sex worker to justice virtually impossible. Many rape crisis centers either will not accept clients that are sex workers or are improperly trained to assist them. Medical care providers are also often improperly trained or not trained at all to deal with rape and sexual assault of sex workers. This along with criminalization leaves the sex worker often unable or unwilling to access medical services after an assault. Sex workers are easy targets for violence. Violent offenders realize the marginalization and criminalization aspects of sex work leave the sex worker with little legal recourse in the event of being victimized by violence. Violence sometimes extends all the way to the murder of the sex worker with little legal interest as in the case of the Green River Killer, Gary Ridgeway who killed dozens of prostitutes before finally being caught. Had the victims been seen as “regular women” rather than prostitutes there would likely have been a much higher emphasis on the capture and prosecution of the killer.
One of the most controversial topics is child labor related to the sex industry. The vast majority of youth in the sex industry in the US are runaway/throwaway youth. There is a significant issue that often goes unaddressed. Critics will state that youth should not be in the sex industry. They are correct. However, this requires more than press releases, position statements and pusillanimous policies of government. The youth that are in the sex industry often have no other way to earn money. They are in a situation of survival sex which is trading sex for survival needs. It is nothing short of a waste of time to state this problem exists without concrete solutions. Suggestions advising the youth to just go home are unrealistic. Often times the youth left for a reason, the street was safer than home or where thrown out. Going home may not be an option. Suggestions advising them to go to the local McDonald’s or like employer and get a “normal job” are absurd. Where do they get the work permits? What do they list as an address on the job application? What telephone number do they give for the job application? What do they do while they are waiting for this “normal job” to consider and process their application? Unless resources are created which provide food, clothing, shelter and education this will always be a problem.
In many countries outside the US, child labor is a different issue. Families so poor they have no choice but to either have the children work in the sex industry or even sell children into the sex trade are common scenarios. The basic issue is poverty and often sexism as the male child is considered more valuable, the female child more easily dispensable into the sex industry. Children are not a tourist attraction and it is the responsibility of governments to address this issue including the governments of the “first world” countries to punish their citizens that engage in child sex tours. It is simplistic to blame the parents of these children. Poverty has to be addressed as a global issue. Also, often unaddressed is the myth that a job in a sweatshop making minimal money for epic work hours is a better option for children or anyone for that matter. Both amount to little more than slave labor.
Compounding the problem is current the US Governments ban on funding unless organizations helping child sex labor victims unless they take a specific anti prostitution pledge. This is absurd. The problem isn’t going to be legislated away with a quick stroke of the pen, a nice photo op, with mission accomplished written as the answer to this problem. Access to needed resources including medical attention, prophylactics, and education on sexually transmitted diseases are being denied by an alleged effort to fight human trafficking by cutting off funding to agencies that “collaborate with traffickers”. Until the issues of poverty and other factors are addressed in realistic form, this is going to be a problem. Denial of service for political gain through the December 19, 2003: Trafficking Victims Protection Reauthorization Act of 2003 is nothing but a disingenuous play to convince the world that a social problem is being addressed. What is really happening is an unrealistic US Government has aligned with some feminists and the religious right to posture about fighting trafficking while their actions endanger and often end the lives of victims around the world. Victims supposedly helped by this legislation.
Legal Support for Sex Workers Wanting to Sue for Exploitation of their Labor
The focus on fighting to end the sex industry and continuing to maintain the status quo of criminalization places too much emphasis on the punishment of men that are either pimps or clients. Forgotten is both the reality that women and transgendered bear the brunt of arrests. Also lost in the fight to end the sex industry is the reality that criminalization takes away civil remedies for sex workers that are exploited for their labor. The current social and legal environment empowers those who exploit the labor of sex workers as criminalization leaves no option for legal recourse. Knowing the legal and social implications of sex workers attempting a lawsuit to gain compensation for exploitation of their labor, those who exploit have little to fear in using current circumstances to their advantage. This leaves the sex worker vulnerable to inadequate payment for doing their job, exploited by having to pay a series of fees to work such as in the case of many strip clubs, overtime pay laws become irrelevant as many sex workers are not even paid an hourly wage but instead tips and only after paying fees to club management, bartenders, security, disc jockeys and other staff. In the event the sex worker suffers exploitation or harm there is little ability to sue for financial, physical or emotional damages. In the event of workplace injury there is often no workers compensation, disability pay or other benefits.
Ending criminalization would allow for labor rights allowing sex workers to file suit against those who exploit their labor, to seek compensation for various forms of damages, fair compensation for their work, legal benefits in the event of injury resulting from accident or negligence on the part of the employer and a much stronger legal remedy having the effect of keeping potentially predatory employers accountable for their actions.
Clean and Safe Places to Work
Ending criminalization would bring sex work out from underground. Without fear of arrest, incarceration, criminal record and other legal issues, sex workers would have the same legal protections as an employee of any other industry. Rather than having to fear law enforcement, it would become the police’s responsibility to enforce the same laws and same rights afforded employees of other industries. Ending criminalization, stigmatization, marginalization and other forms of isolation and discrimination would provide opportunities for clean, safe work environments, access to medical services without fear of being victimized by the judgment of the medical provider or denial of services due to their occupation. Ending criminalization would allow for the same laws which protect workers in other industries from workplace hazards to be enforced providing clean and safe work environments for sex workers.
The Right to Choose Whether to Work on our Own or Co-cooperatively With Other Sex Workers
Current legal environments in various countries, states, provinces and municipalities either force sex workers to work together as in the case of legalized brothels in some counties in Nevada, or to not be able to work together in other areas fearing it would bring too much awareness and catch the attention of law enforcement. Sex workers need to have the right to choose their work environment just as any other individual does. That choice may be to work for an employer, to work as an independent or to create their own business of the size they choose.
The Absolute Right to Say No
One of the greatest flaws of criminalization is the absolute lack of protection from clients or employers refusing to respect the sex workers boundaries. There is virtually no recourse for a sex worker forced into sexual acts against their will either by a client that exceeds the agreed upon terms or an employer that forces the sex worker to go beyond personal boundaries as part of their job. The exchange of money does not eliminate the sex workers right to say no, it does not give a client the right to exceed the sex workers boundaries and does not give the employer the right to force a sex worker to engage in sexual acts against their will, ones they consider dangerous or simply ones they do not feel comfortable with. Sex workers have the right to their own bodies and if and when that is violated they need the right to recourse. Current legal and social stances often deny the sex worker the right to control what happens to their bodies.