HIV and the Law: Risks, Rights and Health
UN-backed commission finds that punitive laws stifling global AIDS response
9 July 2012 – Punitive laws and human rights abuses are costing lives, wasting money and stifling the global AIDS response, according to a report released today by a United Nations-backed commission.
Entitled HIV and the Law: Risks, Rights and Health, the report by the Global Commission on HIV and the Law – made up of former heads of state and leading legal, human rights and HIV experts, and supported by the UN Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS) – finds evidence that governments in every region of the world have wasted the potential of legal systems in the fight against HIV.
“Bad laws should not be allowed to stand in the way of effective HIV responses,” said the UNDP Administrator, Helen Clark, in a news release, on the findings.
The report also concludes that laws based on evidence and human rights strengthen the global AIDS response, noting that these laws exist and must be utilized more and widely.
With its report based on 18 months of extensive research and analysis, as well as first-hand accounts from more than 1,000 people in 140 countries, the Global Commission found that punitive laws and discriminatory practices in many countries undermine progress against HIV.
For example, laws and legally condoned customs that fail to protect women and girls from violence deepen gender inequalities and increase their vulnerability to HIV; some intellectual property laws and policies are not consistent with international human rights law and impede access to lifesaving treatment and prevention.
Other examples include that laws that criminalise and dehumanise populations at highest risk of HIV – including men who have sex with men, sex workers, transgender people and injecting drug users – drive people underground, away from essential health services and heighten their risk of HIV; and, laws that criminalise HIV transmission, exposure or non-disclosure of HIV status discourage people from getting tested and treated.
The Commission also found that many countries squander resources by enacting and enforcing laws that undermine critical investments in fighting the pandemic. This is despite the fact that over the past three decades, scientific breakthroughs and billions of dollars of investments have led to the expansion of lifesaving HIV prevention and treatment, which has benefited countless individuals, families and communities.
“Too many countries waste vital resources by enforcing archaic laws that ignore science and perpetuate stigma,” said the Commission’s chairperson, Fernando Henrique Cardoso, a former President of Brazil. “Now, more than ever, we have a chance to free future generations from the threat of HIV. We cannot allow injustice and intolerance to undercut this progress, especially in these tough economic times.”
The report also finds that laws based on public health evidence and human rights can transform the global HIV response, and such laws and practices must be replicated. To put an end to bad laws and to promote good laws that support effective HIV responses, the Commission urges Governments to ban discrimination on the basis of HIV status and to repeal laws that criminalise HIV transmission or non-disclosure of HIV status.
It also calls on Governments to use the law to end the scourge of violence against women and girls, and to resist international pressures to prioritise trade over the health of their citizens. As well, it recommends decriminalising same-sex sexual activity, voluntary sex work and drug use, which will allow vulnerable populations access to HIV services.
The Commission’s members include the former President of Botswana, Festus Gontebanye Mogae; a US Congresswoman, Barbara Lee; and, the Co-Director and Co-Founder of AIDS-Free World, Stephen Lewis.
The Commission’s report found that:
In more than 60 countries, it is a crime to expose another person to or transmit HIV. More than 600 HIV-positive people across 24 countries have been convicted of such crimes. These laws and practices discourage people from seeking an HIV test and disclosing their status
78 countries criminalise same-sex sexual activity. These laws make it difficult to prevent HIV amongst those most vulnerable to infection.
Even though they may provide harm reduction services informally, laws in some countries criminalise some aspects of proven harm reduction services for injecting drug users. In contrast, countries that legalise harm reduction services have almost completely stopped new HIV infections among injecting drug users.
More than 100 countries criminalize some aspect of sex work. The legal environment in many countries exposes sex workers to violence and results in their economic and social exclusion. It also prevents them from accessing essential HIV prevention and care services.
Laws and customs that dis-empower women and girls, from genital mutilation to denial of property rights, undermine their ability to negotiate safe sex and to protect themselves from HIV infection. 127 countries do not have legislation against marital rape.
Laws and policies that deny young people access to sex education, harm reduction and reproductive and HIV services help spread HIV.
Excessive intellectual property protections that hinder the production of low-cost medicines, especially second-generation treatments, impede access to treatment and prevention.