Bay Area Reporter - August 18, 2005
Bob Roehr

That policy has been challenged in a lawsuit filed against the U.S. Agency for International Development August 11 in Washington, D.C. The suit claims the provision is a gag order that restricts the free speech of the organizations involved.

The suit was brought by DKT International, a nonprofit organization that provides social marketing for family planning and HIV prevention services to nearly 10 million people in 11 countries around the world. DKT receives about 16 percent of its total funds from the U.S. government either directly or indirectly through grants and contracts; the remainder comes from other national governments, private donations, and groups such as the Gates Foundation.

In July, Family Health International said it could not renew a USAID subcontract with DKT, for continued work making lubricants and condoms available in Vietnam, unless the organization signed the anti-prostitution pledge.

"DKT has no policy on prostitution and does not wish to adopt one. It believes it has a First Amendment right not to do so," the organization argues in its lawsuit. It strongly believes that it can best achieve its goals "by maintaining neutrality on the controversial question of how to handle the complex problems that arise at the intersection of the HIV/AIDS epidemic and prostitution."

"The government can tell us what to do with their money, that is not in question," said DKT President Philip D. Harvey, "but it is reprehensible, and we believe unconstitutional, to tell us what to do with private money."

Humanitarian organizations "should not be mouthpieces for government officials whose opinions, in many cases, they do not share."

Concern over the regulation has been growing among non-governmental organizations that work internationally in AIDS prevention activities. Harvey said, "The extent of the consternation among NGOs doing this work in the field is enormous. Some have simply held their noses and signed it, while others have signed under protest, or refused to do so."

He said the NGOs are spending tremendous amounts of time and energy with USAID trying to find out what is a definition of prostitution, what is meant by "promoting" prostitution, what must be the extent of an organization's policy of opposition, and must that be put in writing.

Harvey has had highly unusual parallel careers in these contentious areas. Graduate study at the University of North Carolina School of Public Health was the launching pad to him becoming a leading practitioner of social marketing in reproductive health and HIV prevention.

At the same time he started Adam & Eve, one of the first mail order suppliers of condoms in the U.S. He started it to help support his international interests and the business has grown to become one of the largest direct purveyors of contraceptives, sex toys, and adult videos in the country. A portion of the profits supports DKT's international activities.

The company became the target of federal smut busters in 1986. An eight-year series of battles, that cost the company $3 million in legal fees, established much of the legal framework that allows Americans to purchase the porn of their choice.

In 2000, Harvey, through DKT's Liberty Project, came to the aid of a Michigan man prosecuted for child pornography for taking sexually explicit pictures of his 17-year-old girlfriend. As the judge in the case wryly noted, it was legal for the pair to have sex, but not legal for them to take pictures of it.

The current lawsuit seeks a preliminary injunction to prevent USAID from enforcing the anti-prostitution provision while the question of its constitutionality is being litigated. A handful of other NGOs have openly stated their support for the lawsuit, though they have not officially joined it. A ruling on the injunction is expected within a matter of days.

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