Risks, Rights & Health Key Findings & Recommendations

Emilie Pradichit

Human Rights & Law Consultant United Nations Development Programme (UNDP)

HIV, Health & Development Group, NY

Columbia Law School 20 February 2013

Key Question

How do legal environments (law, regulations, law enforcement and access to justice) influence: • HIV prevention, treatment and care – coverage

and quality

• Social support for people affected by the epidemic

• Human rights protection and promotion

• Efficiencies and effectiveness of HIV investments

WHY THE LAW MATTERS?

WHY THE LAW MATTERS?

Critical enablers such as the law can contribute significantly to reducing HIV incidence for a relatively low cost (Investment Framework) • : The Lancet 2011; 377:2031-2041 (in

(DOI:10.1016/S0140-6736(11)60702-2

Why A Global Commission on HIV & the Law?

• UNAIDS target: by 2015, halve the number of countries with punitive laws and practices around HIV transmission, sex work, drug use or homosexuality. Create legal environments that advance and safeguard dignity, health and justice in the context of HIV

• To develop action-oriented, evidence based recommendations for effective AIDS responses that mitigate the impact of HIV and promote and protect the human rights of people living with and most vulnerable to HIV

Objectives & Outcomes

1. Analyse existing evidence

and generate new evidence

2. Develop rights-based and evidence-informed recommendations

3. Increase awareness amongst key constituencies

4. Engage with civil society and strengthen their ability to campaign, advocate, lobby

Consolidated, coherent and compelling evidence base

Greater awareness among key stakeholders

Leadership of law and policy makers to create a positive legal environment

Public dialogue on social attitudes, human rights and legal issues relating to HIV

Civil society engagement

The Global Commission on HIV & the Law www.hivlawcommission.org

(1) Laws and Practices That Effectively Criminalise People Living With and Vulnerable to HIV (2) Laws and Practices That Mitigate or Sustain Violence and Discrimination as Lived by Women (3) Issues of Law and HIV pertaining to children (4) Laws and Practices that Facilitate or Impede HIV-related Treatment Access

3 Mutually Reinforcing Axes

The Commissioners

Technical Advisory Group

• The Hon. Michael Kirby (Co-Chair) • Allehone Mulugeta Abebe (Co-Chair) • JVR Prasada Rao (Member Secretary, Commission) • Aziza Ahmed • Jonathan Berger • Chris Beyrer • Scott Burris • Joanne Csete • Mandeep Dhaliwal • Sophie Dilmitis

• Vivek Divan

• Richard Elliot

• Sofia Gruskin

• Wendy Isaack

• Rick Lines

• Kevin Moody

• Vitit Muntarbhorn

• Cheryl Overs

• Purna Sen

• Susan Timberlake

• Tracey Robinson

• Matthew Weait

Commission Report

Launched on 9 July 2012 in New York HIV and the Law: Risks, Rights & Health

Report (EN, FR, SP & RU) & resources available at…

www.hivlawcommission.org

Commission Report

Key Messages: 1. Epidemic of bad laws is fueling the spread of HIV,

resulting in human rights violations and costing lives

2. Epidemic of bad laws is limiting effectiveness and efficiency of HIV and health investments

3. Good laws and practices that protect human rights and build on public health evidence already exist - they strengthen the global AIDS response, and they must be replicated

Criminalization of HIV Transmission, Exposure and Disclosure

FINDINGS (Legal Frameworks)

1. In over 60 countries, it is a crime to expose another person to HIV or to transmit it, especially through sex.

2. Worldwide, countries and

jurisdictions have promulgated HIV-specific criminal laws:

34 States & territories in the

USA 27 countries in Africa following

the N'Djamena Model Law (2005) 13 countries in Asia-Pacific 11 countries in Latin America 9 countries in Europe

At least 600 individuals living

with HIV in 24 countries have been convicted under HIV-specific or general criminal law.

General Findings

(I) Overly broad criminalization provisions:

• laws often vaguely worded, prosecutions for mother to child transmission, spitting or biting

(ii) Prosecutions disproportionately target marginalized people

• Example: Asylum seekers & immigrants (ii) Criminalization is only justifiable in very limited

settings of malicious intend and proven transmission

• Intend, harm, risk, proof, penalties

Criminalization of HIV Transmission, Exposure & Non-disclosure

FINDINGS: Criminal law is not a HIV prevention tool 1. No evidence that criminal prosecutions prevent new

HIV infections 2. Such laws do not increase safer sex practices 3. Instead, criminalization of HIV transmission

reinforces stigma and discrimination vs. PLHIV

Criminalization of HIV Transmission, Exposure & Non-disclosure

FINDINGS: Is criminalization ever justified? 1. The rare cases of malicious intentional transmission

can be addressed by existing criminal or public health laws

2. Defining specific HIV offences is not warranted and,

in fact, violates international human rights standards.

Recommendations

To ensure an effective, sustainable response to HIV that is consistent with human rights obligations: • Countries must not enact laws that explicitly

criminalise HIV transmission, HIV exposure or failure to disclose HIV status

• Law enforcement authorities must not prosecute

people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to have taken place

Recommendations (continued)

• Countries must amend or repeal any law that explicitly or effectively criminalizes vertical transmission of HIV

• Countries may legitimately prosecute HIV

transmission that was both actual and intentional, using general criminal law

• The convictions of those who have been successfully

prosecuted for HIV exposure, non-disclosure and transmission must be reviewed

Implementation

PACHA Resolution on HIV-specific Criminal Laws

• 7 February 2013: President’s Advisory Council on AIDS (PACHA) voted Resolution on Ending Federal and State HIV-specific Criminal Laws, Prosecutions, and Civil Commitments

“Today’s announcement is an important advancement in our collective effort to modernize unjust and

discriminatory HIV criminalization laws”

Congresswoman Barbara Lee, co-chair of the Congressional HIV/AIDS Caucus.

Women and HIV

At the end of 2010, there were 16.8 million women living with HIV:

– HIV is the leading cause of death in women of reproductive age.

– 51% of all people living with HIV are women - significant

regional variations. – 26% of all new infections take place among women aged 15

to 24. – HIV-related causes contributed to at least 20% of maternal

death

Women, HIV & the Law

FINDINGS (Legal Frameworks)

• Constitutional equality, accession to international covenants, legislation on the books

• Legal loopholes, multiple legal frameworks, reservations to international agreements, inadequate enforcement

• Gender inequality leaves women and girls vulnerable to HIV.

Women, HIV & the Law

FINDINGS (Violence) • Rape persists, despite legal prohibitions. It

is increasingly a prime weapon of war.

• Legal definitions of sex crimes may preclude prosecuting some coerced acts (ie, marital rape).

Marital rape

Women, HIV & the Law

FINDINGS (Violence - continued)

• Even where laws criminalize sexual violence, they are often poorly enforced.

• Survivors of violence fail to get timely HIV and health services, including therapy to reduce HIV infection.

• Disclosure of HIV-positive status also puts women at risk of violence.

Women, HIV & the Law

FINDINGS (Sexual & Reproductive Health) • Reproductive health centers are not friendly spaces for many

women living with HIV. Coercive and discriminatory practices include: – forced HIV testing – breaches of confidentiality – denial of health care services – coerced or forced sterilizations and abortions

• Where HIV exposure and transmission are criminalized,

pregnant women and mothers fear testing and treatment, for themselves and their children.

Women, HIV & the Law

FINDINGS (Property Rights) • Without equal rights to property, women are severely

disadvantaged within the family

• International covenants guarantee equality between men and women in family life, marriage and its dissolution. Regional agreements also deal with laws and traditions in relation to these issues.

• Formal and customary marriage, property and inheritance laws, and practices such as “property-grabbing” fuel gender inequality.

• Governmental or traditional legal systems fail to outlaw customary practices (ie, early marriage) and put girls and women at increased risk of HIV exposure.

Recommendations RECOMMENDATIONS INCLUDE:

• End all forms of violence against women and girls, including in conflict situations and post-conflict settings: – Enact and enforce laws that prohibit domestic violence, rape and

other forms of sexual assault. – Remove immunity from prosecution for rape when the perpetrator is a

married or unmarried partner. • Remove legal barriers that impede women’s access to sexual and

reproductive health services. Ensure that: – Health care workers provide women with full information on sexual

and reproductive options and ensure that women can provide informed consent

– Prohibit and take measures to stop the practice of forced abortion and coerced sterilization of HIV-positive women and girls

– Provision of health services, including post-exposure prophylaxis, legal services and social protection for survivors of violence, must be guaranteed.

– Health care workers are trained on informed consent, confidentiality and non-discrimination.

Recommendations RECOMMENDATIONS INCLUDE:

• Reform property and inheritance laws so that women and men have

equal access to property and other economic resources, including credit: – Ensure that, in practice, property is divided without gender

discrimination upon separation, divorce or death and establish a presumption of spousal co-ownership of family property.

– Leaders of religious or customary legal systems must make reforms to protect women, including widows and orphans.

• Ensure that laws prohibiting early marriage are enacted and enforced. • Religious and customary laws must prohibit practices that increase HIV

risk, such as widow inheritance or “widow cleansing”.

32

Children, HIV & the Law

• Laws are failing to ensure that orphans and

children affected by HIV are protected from discrimination

• In several countries, laws explicitly prohibit

HIV positive adults from adopting children, including HIV positive children, regardless of the adult’s own general health status and prognosis.

FINDINGS

Children, HIV & the Law

• In some countries, laws completely prohibit

age-appropriate sexual health education in schools while in others, laws impose ‘abstinence-only’ or other restricted curricula.

• Some countries have established different

legal ages for consent to sex and for autonomous access to sexual and reproductive health services.

FINDINGS

Recommendations RECOMMENDATIONS INCLUDE:

• Laws must:

– Ensure that the birth of every child is registered. This is crucial for ensuring that an appropriate legal framework is in place for children to access essential services and for their rights to be protected and promoted as per the Committee on the Rights of the Child (CRC).

– In the event of the death of a parent, ensure that an appropriate adult is

appointed as the child’s guardian. This includes provisions for transfer of guardianship of AIDS orphans from deceased parents to adults or older siblings who can ensure the well-being of the child.

– Support community based foster care for children orphaned by AIDS as an

alternative to institutionalization, when formal adoption is not possible or appropriate.

– Ensure access to HIV-sensitive social protection as required such as direct

cash transfers for affected children and their guardians.

• Laws must prohibit discrimination against children living with or affected by HIV, especially in the context of adoption, health and education.

Recommendations RECOMMENDATIONS INCLUDE:

• Enact laws which ensure that the right of every child, in and out of

school, to have access to age appropriate comprehensive sexual health education to enable them to protect themselves and others from HIV and to live positively with HIV.

• Reform laws to ensure that the age of consent for autonomous access to HIV and sexual and reproductive health services is equal to or lower than the age of consent for sexual relations, enabling sexually active young people to confidentially and independently access health services and protect themselves from HIV

Implementation

• 14 February 2013: Congresswoman Lee (D-CA) and Senator Frank R. Lautenberg (D-NJ) introduced the Real Education for Healthy Youth Act of 2013

⇒Legislation would give America’s youth the knowledge they need to make educated decisions about their health, and

⇒would expand comprehensive sex education programs in schools and ensure that federal funds are spent on effective, age-appropriate, medically accurate programs.

Impact of Commission’s work Country action catalyzed before the launch of report:

• In Guyana (Sept. 2011) rejection of the inappropriate criminalization of HIV exposure and transmission.

• Fiji also rejected the inappropriate criminalization of HIV transmission and exposure and lifted HIV-related travel restrictions.

• In Argentina, Parliamentary sensitization on HIV and legal issues affecting transgender people contributed to the adoption of a progressive gender identity law (May 2012).

• Belize (Oct. 2011) and Panama (Dec. 2011) held national dialogues on HIV, human rights and the law. In Panama, the Ministry of Women’s Affairs committed to reviewing all laws pertaining to women’s rights and HIV

• At the Asia-Pacific High-level Intergovernmental Meeting on the Assessment of Progress Against Commitments in the Political Declaration on HIV/AIDS and the Millennium Development Goals (February 2012), hosted by UNESCAP, senior government and civil society representatives from Asia and the Pacific discussed the importance and challenges of law reform for HIV responses in the region

Impact of Commission’s work Country action catalyzed after the launch of report: In 2012-2013 UNDP has mapped Commission follow up activities in 82 countries (31 UNAIDS priority countries): • Legal environment reviews • Legislative Reform • National Dialogue & Action Planning on HIV and the Law • Judicial Sensitization • Parliamentarian Sensitization • Access to Justice – Law Enforcement & Legal Services • Media & Religious Leader Sensitization

World Map on the Implementation of the Recommendations of the Global Commission on HIV & the Law

Impact of Commission’s work Country action catalyzed after the launch of report: • The Commonwealth Eminent Persons’ Group, influenced by the Commission,

presented its report to the Commonwealth Heads of Government Meeting, including a clear call for the removal of punitive laws blocking effective HIV responses.

-> Recommendation adopted with comments on 19 Dec. 2012 by Heads of Government of Commonwealth countries: • Rec No 60: Heads of Government should take steps to encourage the repeal of

discriminatory laws that impede the effective response of CW countries to the HIV/AIDS epidemic, and commit to programmes of education that would help a process of repeal of such laws.

• Comment:

Member governments have the discretion to identify which, if any, laws are considered discriminatory, and the steps deemed appropriate to address these.

Thank You “The end of the global AIDS epidemic is within our reach. This will only

be possible if science and action are accompanied by a tangible commitment to respecting human dignity and ending injustice.”

Fernando Henrique Cardoso,

Chair of the Commission & Former President of Brazil

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