Provisions Governing U.S. HIV/AIDS Funds
NGOs carrying out HIV prevention activities with U.S. HIV/AIDS funds need to be mindful of new restrictions and conditions governing these funds. Before a U.S. or a foreign NGO may receive Fiscal Year 2004 (FY04) HIV/AIDS funds under a grant or cooperative agreement, they must provide written certification that they are in compliance with applicable provisions related to prostitution and sex trafficking and condoms.Prostitution and Sex Trafficking – New Requirements for U.S. and Foreign NGOs.
No U.S. funds may be used “to promote or advocate the legalization or practice of prostitution or sex trafficking.” Additionally, the following clause must be included in any grant or cooperative agreement involving FY04 HIV/AIDS funds, including subagreements between U.S. and foreign NGOs:
“PROHIBITION ON THE PROMOTION OR ADVOCACY OF THE LEGALIZATION OR PRACTICE OF PROSTITUTION OF SEX TRAFFICKING (FEB. 2004)
The U.S. Government is opposed to prostitution and related activities, which are inherently harmful and dehumanizing, and contribute to the phenomenon of trafficking in persons. None of the funds made available under this agreement may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. Nothing in the preceding sentence shall be construed to preclude the provision to individuals of palliative care, treatment, or post-exposure pharmaceutical prophylaxis, and necessary pharmaceuticals and commodities, including test kits, condoms, and, when proven effective, microbicides."
Sex trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.”
Like the gag rule, however, PEPFAR applies a new requirement solely on foreign NGOs.As a condition of eligibility, foreign NGOs are required to have a policy explicitly opposing prostitution and sex trafficking.U.S. NGOs, the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative and other United Nations organizations are exempt from this requirement. However, U.S. NGOs must enforce on their foreign NGO partners the requirement for an explicit policy prior to entering into a subagreement to provide them with U.S. HIV/AIDS funds.
“Conscience Clause” for Faith-Based Organizations
Organizations that are unwilling to discuss the full range of HIV prevention options with clients are now eligible for U.S. HIV/AIDS assistance.The law specifies that an organization is “not required, as a condition of receiving assistance…to endorse, utilize, or participate in a prevention method or treatment program to which the organization has a religious or moral objection.”
Accurate Information on Condoms
U.S. law requires that condom information provided in U.S.-funded programs “be medically accurate and shall include the public health benefits and failure rates of such use.” Organizations that have a moral objection to the promotion of condoms as part of a comprehensive HIV/AIDS prevention strategy are not required to provide information on condoms or to counsel clients about condoms.They may not, however, disparage condoms as a means of promoting an abstinence only approach to HIV prevention.
For more information on U.S. HIV/AIDS policy, see resources listed at the end of this brochure. Note that while current policy guidelines implementing these legal provisions are final, the provisions may be subject to further changes during the legislative and administrative process in the future.
