Anti-prostitution Pledge - Legislation and Implementation

Legislation and Implementation

U.S. President George W. Bush announced the five-year $15 billion President's Emergency Plan for AIDS Relief in January 2003; Congress passed it in May 2003 under the name "United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act (Global AIDS Act)". The act identifies prostitution and sex trafficking as contributing to the spread of HIV and explicitly advances a new U.S. policy goal: the eradication of prostitution. The act further states:

• "No funds may be used to promote or advocate the legalization or practice of prostitution or sex trafficking."
• "No funds may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking."
• nothing in the anti-prostitution clause "shall be construed to preclude" services to prostitutes, including testing, care and prevention services, including condoms.

In December 2003 Congress passed the Trafficking Victims Protection Reauthorization Act which provided for funding of anti-trafficking activities, subject to the following restrictions.

• "No funds may be used to promote, support, or advocate the legalization or practice of prostitution."
• "No funds may be used to implement any program through any organization that has not stated in either a grant application, a grant agreement, or both, that it does not promote, support, or advocate the legalization or practice of prostitution.

The anti-prostitution pledge language in both acts was authored by Representative Chris Smith, Republican from New Jersey.

The Consolidated Appropriations Act of 2004 amended the AIDS Authorization to exempt the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative and any United Nations agency from having to sign the anti-prostitution pledge.

While the language of the legislation does not distinguish between foreign and US-based organizations, the pledge was initially only enforced for the former, as the US Department of Justice had expressed First Amendment concerns. In September 2004 a letter by Assistant Attorney General Daniel Levin reversed this opinion, and the U.S. Agency for International Development issued a directive in June 2005 that expanded the pledge requirement to all NGOs.

A document issued by the CDC in May 2005 sought to extend the pledge requirement to the large group of organizations that receive funding through the multilateral Global Fund to Fight AIDS, Tuberculosis and Malaria (to which the U.S. contributes). This was quickly overturned by US Director of Foreign Assistance Randall L. Tobias.