Punitive laws are increasing people’s risk of HIV

December 7, 2010

Posted by Christine Stegling

Associate Director, Best Practice, and Senior Human Rights Adviser, International HIV/AIDS Alliance

This World AIDS Day saw the launch of ‘Enabling legal environments for effective HIV responses’, a new report which warns that punitive legal environments are increasing people’s risk of getting HIV. You can read the full report here, but I’d like to take this opportunity to summarise some of the key arguments it contains.

A Human Rights based approach

While much has been achieved internationally in responding to HIV, the area that all of us have struggled with most profoundly is to address the structural barriers that create obstacles for people to access prevention and care services and to fully participate in national HIV strategies.

One set of these structural barriers centres around laws that violate the human rights of people living with HIV, women and girls, men who have sex with men (MSM), sex workers and drug users.

The report makes a strong argument that punitive approaches are counterproductive and can directly impede HIV prevention services. Punitive laws reinforce discriminatory attitudes, and punitive legal environments can add legitimacy to discrimination.

While the report discusses law reform issues with regard to women and girls, sex workers, men who have sex with men (MSM) and transgender people and people who use drugs; I would like to highlight a few issues around criminalisation of HIV infection and criminalisation of sex between men.

Criminalisation of HIV transmission

This is one of the most hotly contested issues in the area of HIV and the law. In my own experience, this is an emotional subject and many people genuinely believe that exposing another person to or indeed infecting somebody else with HIV should be punished.

However, the report joins others in noting that criminal law is an inadequate tool to address the issue and there is no evidence that applying criminal law has any effect in reducing the spread of HIV. Rather, it reinforces stigma and this in turn has an effect on people’s willingness to engage openly with the health sector or in fact to agree to test for HIV in the first place.

Importantly, placing legal responsibility exclusively with people living with HIV for preventing HIV transmission undermines public health messages that encourage everybody to practice safer sex.

While the report notes the worrying trend to increasingly use public health legislation, or to introduce HIV specific offences (as many countries in the Commonwealth have done) there are encouraging examples of countries in the Commonwealth resisting such strategies, such as South Africa and Mauritius. These positive examples should encourages us to engage countries in the Commonwealth in discourse about criminalisation.

Criminalisation of consensual sex between men

The other area that I would like to highlight is the criminalisation of sex between men in the Commonwealth. Many Commonwealth countries have offences for sodomy, buggery and gross indecency for sex between men in their criminal codes inherited from the British colonial era or imposed by Sharia law.

Disturbingly, in 41 of 53 countries of the Commonwealth, criminal codes punish consensual homosexual acts. This in itself is disturbing, but even worse is the fact that in many of these countries, health programmes do not target of men who have sex with men in a comprehensive manner (or even at all) even though in many Commonwealth countries the HIV prevalence rates among men who have sex with men are many times higher than in the general population.

Some people argue that while it is unfortunate that sodomy laws exist, many countries do not enforce such laws and therefore we should perhaps not spend our time arguing about law reform while we have so many other issues to address when it comes to HIV. I beg to differ and I know many of you will as well.

Such laws create numerous problems in HIV prevention and treatment. Associations set up to support men who have sex with men find it difficult to register and therefore have no legal standing. It also becomes difficult for health workers to support and run services targeted at men who have sex with men.

Again, there are positive examples within in the Commonwealth that we could draw on and that should be seen as an inspiration within the Commonwealth family, such as South Africa or the recent developments in the courts in India.

Leadership of the Commonwealth and Opportunities we need to make use of

States have a duty to respect, protect and promote human rights, regardless of their political, economic and cultural systems. The Commonwealth also has a moral duty to tackle HIV head on, with 60% of people living with HIV located in Commonwealth countries. In 2008 over 33 million people were estimated to be living with HIV, 21 million of those living in Commonwealth countries.

Now seems to be an opportune moment for the Commonwealth to make use of its unique set up, structures and wealth of experience to show leadership in this area.

Within the Commonwealth structures, there are several opportunities to engage in discussions around HIV and law reform, such as the up-coming Commonwealth Health Ministers’ meeting, the planned Law Ministers meeting and the Commonwealth Heads of Government meeting to be held in Australia in 2011.

I hope we are now step closer to making use of these opportunities.

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