The failure of the U.S. Supreme Court to uphold the constitutionality of a prohibition against federal HIV/AIDS funding for any group “that does not have a policy explicitly opposing prostitution and sex trafficking” is extremely disappointing and tragic for all victims of sexual exploitation, including sex trafficking, said Congressman Chris Smith (NJ-04), the author of the landmark Trafficking Victims Protection Act. This provision (22 U.S.C. §7631(f)) is in the federal legislation for the program known as the President’s Emergency Plan for AIDS Relief (PEPFAR).
“As the dissent accurately points out, it is ‘a matter of the most common common sense’ that the government should enlist those who believe in its ideas to implement federal government programs,” said Smith, co-chairman of the Congressional Human Trafficking Caucus. “In the initial legislation, Congress found that prostitution and other sexual victimization are not only degrading to women and children, but that the sex industry, the trafficking of individuals into that industry, and sexual violence are causes of and factors in the spread of the HIV/AIDS epidemic. In dedicating hundreds of millions of taxpayer dollars to combat this dreaded disease, why should the government fund groups that do not actively oppose – even with their own resources – activities that fuel the spread of HIV/AIDS?”
The provision, commonly referred to as the “prostitution pledge,” though it mandates opposition to both prostitution and sex trafficking, was originally challenged by DKT International. DKT lost the case in an appellate decision rendered by the D.C. Circuit Court in February 2007. The Alliance for Open Society International and Pathfinder International also challenged the provision in New York district court. The petition for a writ of certiorari of the Second Circuit decision in favor of those plaintiffs was granted by the Supreme Court in January 2013. The original provision was added by an amendment sponsored by Smith when PEPFAR was first approved by Congress in 2003.
Smith, chairman of the global human rights panel on the Foreign Affairs Committee, explained that “the majority opinions’ characterization of this requirement as coercive is erroneous and misleading. There is no requirement that groups who want to advocate or remain neutral about prostitution and sex trafficking have to apply for federal funding and have a policy in opposition to these demeaning activities. But the Court, through this decision, will now force the federal government to fund groups that will undermine the government’s efforts to fight this disease.
“The Court also wrongly dismisses the government’s prescient argument that forcing the government to fund groups that promote sexual exploitation, even if federal funds are not used for that promotion, will allow these groups to use more of their private funds to undermine the government’s legitimate policy goals. One does not have to search far into the Open Society’s website, for example, to see the extent to which providing this group with federal monies will enable it to encourage the spread of prostitution – and therefore AIDS – in countries where HIV/AIDS remains a major public health scourge. As the minority opinion simply and clearly states, ‘money is fungible.’
“This decision is very sad for the potential victims of HIV/AIDS, for those who are being sexually exploited, and for the future of all U.S. foreign assistance. The U.S. taxpayer may well now legitimately question whether U.S. assistance being given for laudable purposes is being administered by hands that undermine those very goals.”
The Trafficking Victims Protection Act, (TVPA—Public Law 106-386), among its numerous provisions, authorized the State Department’s annual Trafficking in Person’s report (TIP report) that was released June 19.
