Crime and Punishment: Alternatives to Criminalisation of HIV Transmission

Susan TimberlakeSenior Human Rights and Law Adviser17th International AIDS Conference5 August 2008, 18:30-20:30

WHAT IS THE ROLE OF LAW IN THE RESPONSE TO HIV in 2008?

To support the attainment of universal access to HIV prevention, treatment, care and support, that is

To overcome inequality between women and men, stigma and discrimination against people living with HIV and discrimination against marginalized groups – all identified as major barriers to universal access and all call for legal responses.

But criminalization of HIV transmission has become a distracting and dangerous

“sideshow”.

Growing number of countries apply criminal law to HIV transmission Some thirteen countries in West and Central Africa have adopted criminalization provisions in the last 4 yearsA response to “prevention fatigue”? A “do something”, “get tough” measure”?

Clear role for law in the response to HIV: Declaration of Commitment (2001)

“By 2003, enact, strengthen or enforce…legislation…… to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS..; in particular to ensure their access to, inter alia……legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion…”

Clear commitments in Political

Declaration on HIV/AIDS (2006)

Reaffirmed that “the prevention of HIV infection must be the mainstay of national, regional and international responses to the epidemic” (para.22) and

Pledged “to promote a social and legal environment that is supportive of and safe for voluntary disclosure of HIV status” (para.25).

Are governments meeting these committments?

From UNGASS reports (2007)• Countries that report programmes to

reduce stigma: out of 136, 123 yes; 9 no• Countries that report sensitized members

of judiciary: out of 136, 61 yes; 68 no• Countries that report the availability of

legal aid: out of 136, 62 yes; 61 no• Countries that report laws as obstacles to

UA: out of 136, 84 yes; 49 no

What do we need in the response to HIV? People supported to protect themselves from

infection Alternatives: Laws that ensure HIV prevention

programmes reach all those in need (women, young people, men who have sex with men, drug users, sex workers, migrants, tourists)

Laws that protect against discrimination or decriminalize status

Laws that guarantee sexuality information and education to young people

What do we need in the response to HIV?

People empowered to avoid infecting others

Alternative: Laws that ensure prevention and treatment programmes reach all people living with HIV and empower them with information, education, treatment for STIs, condoms, and antiretrovirals

What do we need in the response to HIV?

People being able to know their status and disclose it, or practice safe behaviours, without coercion or fear

ALTERNATIVES: full access to voluntary testing and counselling; laws and law enforcement and programmes to reduce stigma and discrimination; know your rights campaigns; legal support for people living with HIV

What do we need in the response to HIV?

Women being able to determine the conditions under which they have sex or children.. or neither

ALTERNATIVES: laws and law enforcement against sexual violence inside and outside marriage; educational and economic empowerment programmes; programmes to transform harmful gender norms; protection of property and inheritance rights; access to credit

Critical steps in promoting the alternatives to criminalisation

Implement legal audits to assess impact of laws/enforcement on epidemic

Build leadership among parliamentarians Work with women’s groups and for their

rights Promote the active engagement of people

living with HIV Promote access to justice programmes for

people living with and affected by HIV Promote research into impact of

criminalization of HIV transmission

“There will be calls for ‘law and order’ and a ‘war on AIDS’. Beware of those who cry out for simple solutions, for [in] combating HIV/AIDS there are none.

In particular, do not put faith in the enlargement of the criminal law.”

Hon. Justice Michael Kirby, High Court of Australia. The Ten Commandments. [Australian] National AIDS Bulletin, March 1991.