The Challenging Criminalization Globally: Un-Policing Identity, Morality,

Sexuality and Bodily Autonomy

The 2n d CCG inter-disciplinary and intersectional pre-conference

July 22n d, 2018

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ContentsPre-conference objectives.............................................................................................................5

Brief overview................................................................................................................................5

Theme 1: Data on criminalization..................................................................................................6

Dialogue.....................................................................................................................................6

Summary....................................................................................................................................8

Comments on responding to criminalisation.............................................................................9

Law application......................................................................................................................9

Criminalised poverty..............................................................................................................9

Interconnected matters.........................................................................................................9

Theme 2: The law and criminalization.........................................................................................10

Dialogue...................................................................................................................................10

Summary..................................................................................................................................13

Comments on legal considerations..........................................................................................14

State regulations..................................................................................................................14

Building bridges................................................................................................................... 14

Traditional colloquium & the political will...........................................................................15

Theme 3: Partnerships in Challenging Criminalisation.................................................................15

Comments on joint efforts.......................................................................................................19

Litigation and redress of KPs................................................................................................19

Signing vs. implementation..................................................................................................20

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Theme 4: Best practices in Challenging Criminalization...............................................................20

Comments on root causes.......................................................................................................25

Closing synopsis...........................................................................................................................25

Analysis........................................................................................................................................ 26

Recommendations and Conclusion..............................................................................................28

Our Accountability Framework....................................................................................................30

TRANSPARENCY....................................................................................................................... 31

DIALOGUE................................................................................................................................31

ACTION.................................................................................................................................... 31

Suggested findings.......................................................................................................................31

Transparency........................................................................................................................... 31

Dialogue...................................................................................................................................32

Action.......................................................................................................................................33

References................................................................................................................................... 34

Copyright/ Creative commons.....................................................................................................36

Feedback......................................................................................................................................36

Get Involved & Contact details....................................................................................................37

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Section 1: Executive summary

In recent decades we have seen a call for criminalization of perceived wrongdoing, from courts and police services to civil society and governments. There has been a reliance on the coercive power of the law to control, police and punish people who are perceived as being “morally unacceptable.” This fear-mongering and over-securitization has in turn led to restrictions of liberties and rights. Entire groups of people have become criminalized because of identity, morality, sexuality and bodily autonomy decisions. Some examples include, but are certainly not limited to: access abortions, men who have sex with men (MSM), drug use, HIV or other disease transmission, women accused of adultery, sex work and being or perceived as being, sexual orientation and gender identity & expression (SOGIE). A broad scope of expert communities and civil society players have witnessed the impact of criminalization on the freedom and well-being of the individual. These human rights defenders have also extensively documented the detrimental effects on the community and society. Those monitoring press, media and civil society freedoms and rights have been warning us of how criminalization deliberately shrinks the space for civil society.

The Challenging Criminalization Globally Initiative is a response to all of this work being done by so many people, all around the world. Accountability has been the entry point to our work for more than a decade and it has led us to work with so many movements and witness the incredible resilience they display even as funding, space and human resources decline. The natural nexus of this and our work on sexual and reproductive health and rights (SRHR), and as an ally on the continent and globally of marginalized communities, we saw the need for an umbrella project that would connect the excellent work being done across sectors, communities, and/or regions to increase accountability around criminalization.

This work began at the 2016 First CCG Pre-conference in Durban, just prior to the International AIDS Conference, and has continued since mid-2017 as a fully-fledged project with one full time staffer, kindly

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funded by the Ford Foundation. In New Haven in April 2017, the participants at the Interdisciplinary and intersectional dialogue on un-policing identity, morality, sexuality and bodily autonomy, a meeting held by AI in partnership with CREA, Global Health Justice Partnership and ARROW, the very real need for such a space for activists, academics and other actors to engage on challenging criminalization at a global level, became very obvious.

Section 2: International AIDS Conference 2nd Challenging Criminalization Globally Pre-conference

On July 22nd, 2018, Accountability International with the support of Ford Foundation convened the 2nd

Challenging Criminalisation Globally Pre-conference, prior to the International AIDS Conference in Amsterdam, the Netherlands. The main objective of this interdisciplinary dialogue was to mobilize a critical mass of stakeholders and to advance a global discourse and increase space for civil society to advocate on the impact of penal provisions on the achievement two global commitments of ending HIV and AIDS by 2030 as an epidemic and the achievement of the Sustainable Development Goals (SDGs)1.

Pre-conference objectives

a. To mobilize a critical mass of stakeholders to advance a global discourse and increase space for civil society to advocate on the impact of penal provisions on the achievement of the end of the AIDS epidemic and the achievement of the SDGs.

b. To engage partners in a global discourse of the punitive form that development has taken, by ensuring the ultimate accountability is to the individual, the society and to ourselves as civil society.

c. To create a space for all stakeholders, from business to tech geeks, from sex work activists to women’s human rights defenders, from the United Nations to government bureaucracies, to dialogue around the issues of criminalization in order to stop the infringements on the rights of others.

1 This refers particularly to the Sustainable Development Goals (SDGs): Goal no. 3 [good health and well-being]; Goal no. 5 [gender equality]; Goal no. 16 [peace, justice and strong institutions] and 17 [partnerships for the goals] https://www.un.org/sustainabledevelopment/sustainable-development-goals/

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Brief overview

The programme of the dialogue was structured and covered the following 4 areas:

a. Data on criminalization: What exists, what are the gaps, what needs to be prioritized? What role does data potentially play in challenging criminalization globally?

b. The law and criminalization: Criminalization principles and other legal considerations. c. Partnerships in challenging Criminalization: Various stakeholder roles in pushing the CCG

movement forward? What do you think will push the CCG movement forward? and why? and how?

d. Best practices in Challenging Criminalisation: How has Challenging Criminalization improved the human rights for your community?

Section 3: Meeting Report

Theme 1: Data on criminalization

Session Objective: This section aims to assess the existing data on criminalization, the current gaps, and what needs to be prioritized. In doing so, it unpacks the potential role played by data in challenging criminalization globally.

Dialogue

Philippa Tucker (Accountability International) facilitated this session

Lucinda O’Hanlon (World Health Organisation) spoke specifically to ‘Criminalisation of abortion: Linking Data and Laws. In her presentation, O’Hanlon sited that there are 85 million unsafe abortions worldwide, with the poor being more unlikely to access to safe abortions, and that 1/2 of all abortions in Africa are unsafe. Stressing on the effects of restrictive laws and how they have direct effect on unsafe abortion, the following three factors were mentioned: global abortion policy database, criminal and penal codes and lack of accessing safe abortion. Additionally, negative public health and human rights impact, gender norms and stereotypes that strongly influence what is acceptable sex, namely sex in heterosexual relationships and for the sake of reproduction – are cut across issues.

Sally Cameron (HIV Justice Network) began with illustrative examples from the “If we don’t know about it, we can’t fight it’: Building community capacity to monitor and respond to HIV criminalisation globally” report. Looking at the link between HIV and prosecution – mapping cases of prosecutions around the world allowed the identification of hot spots, and shed light on the misunderstanding in the

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analysis, the criminal law and the legal system. In many cases, general criminal laws are used to prosecute people; there are 73 countries that have specific HIV laws, and 100 jurisdictions in which is being proposed. Cameron, concluded by emphasizing the need for engaging with, and supporting affected communities, as well as sharing technical knowledge.

“It’s about individual people living with HIV, those experiences cannot be lost”

Estefanía Vela (Centro de Investigación y Docencia Económicas, CIDE) presented on ‘The devil is in the details: The right to access public information as a pillar of justice’, starting with defining criminalisation as “considering a certain conduct a crime that is to be punished by the State using criminal law”. Positioning the story within the context of Mexico, where certain ‘crimes’ are explicitly sanctioned, such as abortion that was decriminalized only in Mexico City and is legal only under certain exceptions. Referring to the crime of the risk of contagion, Vela raises the problem that in some cases this laws date back to the end of the 19 th century and are very HIV specific. Asking “how does our conception of criminal law shape gender, shape sexuality and shape reproduction?” was interestingly connected with the fact that in Mexico, criminal law is the response for almost everything – which is now applied by women’s rights and the LGBT movement as well, successfully criminalizing femicide, sexual abuse, rape, sex trafficking, discrimination and more recently, political violence against women. This being the context for demanding decriminalisation of certain issues and more State intervention – raises the dilemma if the criminal law is always bad or not, and when and how is the use of criminal law justified, especially when there are certain contradictions. In Vela’s analysis it appeared that “the view of criminalisation per example from gender violence is radically opposed to the arguments used by abortion”. Lastly, the existing gap between what is happening and who gets convicted points out on the need of exploring the data and to gain insight and understanding about what is happening.

Dalia Abd El-Hameed (Egyptian Initiative for Personal Rights (EIPR)) held a presentation on Anti-debauchery law in Egypt and its application to punish gays. The presentation focused on the criminalisation of same-sex relationships in Egypt. Even though there is no law in Egypt against homosexuality, an existing law against prostitution that is both redundant and ambiguous is used to punish gay people. El-Hameed mentioned that the government is capitalising the homophobic environment in the country. For instance, in October 2013, the Egyptian police decided to launch a targeted crackdown against gay males and trans women, focusing especially on those involved in sex work. Continuing to provide legal assistance to those who were arrested gave access to case files and the opportunity to collect testimonials and build a network of lawyers. El-Hameed said that because of homophobia, building the network of lawyers proved to be difficult, and that in fact they were not involved, but only financially interested. Another crackdown was in 2015, targeting men having sex with men (MSM), when at least 323 men were arrested. In this case, EIPR monitoring work with media and through case files showed that there was an organized campaign by the morality police. Documenting the violations of the police, allowed to further identify patterns such as: online entrapment through the

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police use of fake accountable to meet and arrest people; deportation of gay foreigners; and creation of sexual scandals. Finally, El-Hammed emphasized the crucial role of having a human rights community that is more educated and informed, and better equipped.

Dr. Ehab Salah (United Nation Office on Drugs and Crime) gave an update on HIV in prisons and other closed settings. Dr. Salah pointed out that in 2000 the prison population increased by 20% and that the majority of all prisons in the world are overcrowded. Even though the transmission of HIV and other infectious diseases is influenced differently by a variety of factors, a common denominator is the high representation to key populations (KPs) in prisons due to laws and policies in different countries. Poor prison condition in nutrition, ventilation, overcrowding or gang violence are other factors. Furthermore, Dr. Salah discussed the global review of HIV in prison, which revised that there was higher HIV prevalence in prisons compared to the general population globally. It was pointed out that, in general, the HIV prevalence in prison is 3.8%, and that people in prisons are 5 times more likely to be infected, compared to the general population. Women represent 5 to 10% the total prison population, yet the numbers had increased by 50% in the same period of time. Likewise, women in prison have higher HIV prevalence compared to both, men in prison and with women in the community.

“All the means of transmission of infection that is happening in the community is also happening in the prison. […] According to the Nelson Mandela rules2 or the UN standard rules3, health care services in prisons should be the same as in the community but this is not the case in many countries. “

In addition, condoms in prison are hardly provided, and only 9 countries have needle exchange as an evidence-based intervention to prevent HIV transmission4. Likewise, integration of the health care system in prison, its coordination with the public health services, the involvement of civil society organisations, limited or not needs-based resources are amongst the many barriers for HIV prevention in prison settings. Health services should be available in prisons and services such as promoting HIV testing on entering prison, with confidentiality and counselling for social stigma of people living in prison should be provided. Likewise, the approach to children in prison should be considered.

Summary

Philippa Tucker (Accountability International) highlighted that UNODC’s official position on drugs and narcotics was not decriminalising. Tucker mentioned that in order to help the UNODC to take a more 2 UN Nelson Mandela Rules, The Standard Minimum Rules for the Treatment of Prisoners (2015) https://www.penalreform.org/priorities/prison-conditions/standard-minimum-rules/ 3 UN General Assembly Resolution A/RES/70/175, “the Nelson Mandela Rules”, https://cdn.penalreform.org/wp-content/uploads/1957/06/ENG.pdf 4 The Global State Report of Harm Reduction (2016) https://www.hri.global/files/2016/11/14/GSHR2016_14nov.pdf

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progressive stand, there is need to maintain a conservative position coming from the U.S. Advocacy which must start from the bottom up, working on civil society partnerships, governments and other national institutions to sentence governments to hold a more progressive strand at global meetings. Advocacy and policy making needs to take place at national level, with a government that is informed, and has knowledge of data that criminalisation of narcotics is not something that makes the healthy individuals.

“Good practise is that change has to be taken from the national level to the global level. Capacity building of people who are in decision making positions needs to be improved . Push to ensure decriminalising. […] data on criminalisation does not give healthy people. More strategic policy’s need to be changed in the country.”

Comments on responding to criminalisationLaw application

Even though challenging criminalisation is a long process, it is crucial to ask for the right application of the law. In a context where the right to privacy is limited, it makes people feel good about themselves. Further the paradigm of consent, the discussion about pre-marital sex, bodily integrity, or the discussion about marriage should be seen as a contractual agreement. As well, it was noted the importance of having a conversation with techies about the extent to which we want the State to have access to our own personal choices (e.g.: engaging in same-sex intimate activities) insofar as practices might be sometimes different than the theory.

Criminalised poverty

Criminalisation has the ability to sustain poverty among communities. For instance, in most cases criminalising men means taking away the bread winner of the family. Women while remaining economically marginalised make expensive trips (50 USD per trip) to visit their husbands in prisons, thus taking away from their minimal income that maybe as low as 300 USD. This shows the extent to which crimes have various consequences for women.

Interconnected matters

It was stressed the importance of acknowledging that when comes about responding to the criminalization for KPs, everything is connected. The argument was built upon the importance of social acceptance of gay men, and the fact that homosexuality needs to be decriminalized. It was pointed that the data from member states can be used to change the law, and that the SDGs can be used to analyze it. Another focus could be to develop tools to implement the goals. Lastly, it was noted that there is a higher proportion of HIV positive women than men, and asked if there is data on those who are in

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prison, and become HIV positive. Finally, it is crucial that all human rights interventions should be based on evidence.

Theme 2: The law and criminalization

Session Objective: The aim of this section was to explore criminalization principles and various other legal considerations

Dialogue

Luisa Cabal (UNAIDS) facilitated this session

Jakob Schneider (UN Office of the High, commissioner for Human Rights) spoke on the human rights impact of unjust criminal laws – in substance, procedure and application. Schneider spoke about how human rights treaties have no explicit provisions on decriminalisation, HIV transmission, sex work, and that there are only few vague provisions in CEDAW convention5. Mentioning that the treaty bodies consider laws which penalize individuals because of their SOGI as incriminatory, and that states should repeal such laws, Schneider gave the example of a leading case from the Human Rights Committee from 1994 – where the committee stated that criminalisation of adult consensual same-sex activity, violated the privacy, even when the penalties foreseen in the criminal court where not enforced. The provisions failed the test of reasonability and where not convincing. The holding of the committee was that sexual orientation was one of the prohibited grounds of discrimination under Art. 2 and Art. 26 of the International Covenant of Civil and Political Rights. 6

5 Convention on the Elimination of All Forms of Discrimination against women (1979) https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx 6 International Covenant on Civil and Political Rights (1966) https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

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“Criminalisation drives individuals underground where they are more vulnerable to transmission and where they have no access to services. […] Criminalisation of HIV will discourage people from testing and lead to limited quality of healthcare services.”

Even though CEDAW recommended in 2010 decriminalization of all women who engage in sex work, independent of their reasons, the jurisprudence related to sex work is generally not clear, and very few ask for complete decriminalization of sex work. The only few mechanisms in which sex work is decriminalized are adopting the viewpoint that people are being forced into “prostitution” or are victims of human trafficking. Schneider further pointed out that, the jurisprudence of human rights mechanisms is quite clear in regards to HIV transmission: CEDAW asked for decriminalisation of non-disclosure of HIV when transmission is not intentional or when was no transmission, or when the transmission risk is minimal.

Sibongile Ndashe (Initiative for Strategic Litigation in Africa) presented on Litigating to decriminalize consensual same-sex in Africa : A decade of progress. She started stating that the law on its own, is not enough in addressing continued criminalisation. Ndashe spoke about the importance of starting a dialogue around decriminalisation and highlighted the importance of engagement. In a hostile context, health and HIV are considered as entry points, yet the public health is not involved in decriminalisation, but the laws. There is a need for an engaged civil society that is able to see those laws and their impact on the various communities that are targeted by the law. Pointing out that the intersect between the needs of the various people and the objective of the health programs can be problematic, Ndashe emphasized that public health is about programming, and that the objectives are very clear when we want to be able to eliminate HIV and AIDS. Further, Ndashe noted that even though human rights are about how stigma and discrimination hinders access to services and treatment, there is a lack of an overall view as to how these laws violate various rights, and how that can be solved. It was further added that there should be special attention to the ways various actors communicate with each other. Ndashe further pointed out, the role of the tradition in the application of the law, as a second concern. This refers to human rights and the issue of morality and whether social change is led by courts, or by people ratifying it. Moving further to the matter of decriminalisation in the context of legal reasoning and the analysis, it can be seen that sometimes these laws violate rights. However, it does not result in the ruling that these laws must be changed. Sibongile emphasized the need for a very active moment and an incremental approach, especially as the courts understanding of privacy remains very limited.

Lastly, Ndashe spoke about the need to invest in people, to work collaboratively, the need to invest in a pool of local lawyers. These lawyers could be supported by international NGOs with their expertise and technical support.

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“We are holding the belief that the Court will uphold the rights […] We have to understand that legal reforms and social change is not just one case, but a continuing process. The engagement is vital.”

Catherine Hanssens (The Center for HIV Law and Policy) talked about Legal and Legislative Strategies : Wins That leave No One Behind. Hanssens pointed out that the context is everything insofar as public health physicians get automatic respect from the court and also from prosecutors because they have been working with them. Further, Catherine noted that in some litigation cases, the conservatism about how risk is characterized and the intentional or unintentional lack of correct data occur as main challenges. Catherine mentioned that people with a particular disease are singled out and prosecuted, based on an exaggerated perspective of risk of transmission and their mortality. It is thus important to be responsive instead of talking about constitutional rights, to focus on rights of people and treat them equally. However, still and only people living with HIV (PLWHIV) get prosecuted as a felony. In addition, there is a process going on to criminalize hepatitis and tuberculosis. Lastly, Catherine pointed out that Sweden is using the viral load as an indicator of liability which is very dangerous as it creates a whole new underclass of PLWHIV. As well, it reinforces the notion that are there are good and bad PLWHIV. In this case, the role of law for the prosecution is to give evidence beyond reasonable doubt that the person intended to transmit; but now the accused is asked to demonstrate that they had no intent.

Edwin Cameron (Constitutional Court, South Africa) spoke on Limits of the law’s police power - irrationality, stigma and HIV.

“Is rationality enough? No, it is not.”

Justice Cameron started with two examples of rational decisions in Africa: the Hoffman Case – in which was ruled that you have got to employ someone with HIV7, and another case from Malawi, in which the court ruled in favour of a mother who was allegedly accused of having transmitted HIV through breastfeeding to a baby. It then argued that rationality is not enough, and that it is important to give attention to the movement and to find partnership with organizations like Amnesty International in order to not to add PLWHIV, to the list of consciences offenders. It further discussed the need to fight stigma, by highlighting that stigma has been the dominant feature of HIV since the start of the epidemic in 1981. Stigma manifested itself with healthcare workers refusing to treat PLWHIV and despite the fact that the San Francisco hospital revealed that the risk of transmission in the occupational setting was virtually zero, and that outside the hospital setting, the risk of causal transmission is virtually zero – there is still irrationality in healthcare settings in many countries, and there are still healthcare workers who refuse to treat PLWHIV.

7 Hoffman vs. South African Airways (CCT 17/00, 28 September 2000) http://www.saflii.org/za/cases/ZACC/2000/17.html

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“How do you make rationality prevail in the traditional mind, it is a long process. It goes back to treatment literacy in all aspects of stigma realisation for legal profession, for the elite, for the medical profession and general treatment as well. We must stop all prosecutions of any people in consensual sexual relationships. It is morally wrong to prosecute a person with HIV, when there has been consensual sex. Why single out people with HIV? When someone consents to unprotected sex whit somebody else, they are agreeing to an intimate act with all sorts of unimaginable risks. Why single out HIV? We have to start a worldwide alliance of organisations – a sustain pried for rationality”

Livio Zilli (International Committee of Jurists) presented on Jurists ‘principles addressing criminalisation’s detrimental impact on health, equality and human rights. Discussing the role of ICJ, Zilli raised the question of what is effective criminal law, and what should be made criminal if, presumably it is a law that determined the behaviour that it describes. What do we want to describe as a society? Considering the pitfalls of criminalisation of key populations (KPs), it is a great risk to health, and a risk of inequality and human rights in general. Zilli pointed out that many people do not feel empowered enough to change the law, and that is important to understand whether jurists can play a role and what would be their meaningful contribution. By looking at previous exercises were communities and movements elaborated principles to address certain issues, and embedded them in efforts that communities and local organizations are leading. It was stated that these are the natural constituencies that people found these tools to be useful. It was therefore suggested that a group of jurists would come up with a set of principles to address the consequences of criminalisation of HIV, drug use and consensual sex and reproduction. Lastly, Zilli referred to how local organisations have used the Yogyakarta principles 8 in their advocacy, and that these principles have now been cited in two major judgements in India, by the Supreme Court, concerning some constitutional provisions concerning legal gender recognition. Finally, ICJ wants to ensure that it makes the right connections with all communities. Once elaborated, the success of these principles will be based on whether or not they serve the interest of the communities and civil society.

Summary

This section outlined the importance of having context-specific strategies by unpacking whether human rights standards are relevant. As well, it explored the importance of context-specificity and applicability of the existing tools. Secondly, it noted that one recurrent item is around movement building. It further delved into, whom is the law targeting and whether a legal strategy would be helpful to tackle certain issues, and movement engagement possibilities. Finally, it was stressed that even with the best of

8 The Yogyakarta Principles plus 10 (2017) http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf

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intentions, the use of science as an argument can further marginalize others, and that this is something we should be careful with.

Comments on legal considerations

State regulations

As it is vital to prevent further marginalization of people who are already being marginalized, the conversation explored possibilities about changing the law and the judges, and how law is applied. In addition to the development of principles addressing criminalisation, it was raided the importance of educating prosecutors. This is especially crucial because there is confusion between infection and sex (e.g.: poor cases of intentional transmission where the intention was of course ‘sex’, not ‘transmission’ yet the court read the cases as ‘the intention to transmission). For instance, this could be done by bringing together researchers, scientists and doctors who can communicate on the same level as the legislation. For example, one-by-one legislators need information on HIV, and doctors could educate lawyers in this regard. Likewise, is important to target sexual moralism, specifically moralism towards sex workers. Finally, it was noted that decriminalizing sex work, abortion, consensual same-sex, and bodily autonomy have one aspect in common; respectively, they are all about the state regulating what one can do with its own body – which then recalls on the importance of implementing women human rights issues and sexual rights.

Building bridges

Besides developing principles, it is crucial to have various stakeholders involved, to have a proper distribution strategy and to be aware of the need of the movement. It was noted that civil society could be engaged in an analysis of earlier principles, on unpacking the lessons learned and by negotiating with the representatives of those communities and the stakeholders’ groups. Cross-movement, such as sharing lessons learned from the disability movement, and cross-disciplinary efforts such as looking at the issue of stigma and how criminal law reinforces stigma and how criminal law has stigma in itself, are equally important. Even though women groups have used expressive functions of criminal law for protective functions, the question of how much faith do we have in the law and in their protective functions for the most vulnerable remains challenging, and highlights the need to build bridges across movements, rather than fighting in silos. In addressing the gender bias by both the law and judges, it is crucial to start with human rights law and women’s rights and to address the stereotypes used by judges. Likewise, there is a need for training the judicial staff on these matters, as well as in relation to sexual relations and orientation. Moreover, there is a need to dialogue with them, at local and regional levels. Lastly, it is important to challenge the right to privacy versus discrimination.

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Traditional colloquium & the political will

Starting from the fact that the department of police threatens the community, sex workers and LGBT persons, the discussion focused on effective strategies (i.e.: peer to peer best practices) aimed to change this status quo. It was hence mentioned the example of the what was called the “traditional colloquium” – a practice in the 80s – 90s that led to the development of some principles around the use of courts to domesticate international law in that country that dealt with fair trials. It was further noted that tensions in the law can both protect or violate an individual’s rights, depending on each case. This sometimes leads certain crimes unreported because people know that they might end criminalized. Lastly, it was raised the point that the lack of political will sometimes affects the implementation of certain strategies (e.g.: in the South African context, young women came together to end violence).

Theme 3: Partnerships in Challenging Criminalisation

Session Objective: Various stakeholder roles in pushing the CCG movement forward? / What do you think will push the CCG movement forward? and why? and how?

Susana Fried (Global Health Justice Partnership/CREA) facilitated the session.

Sannia Sutherland (Caribbean Vulnerable Communities Coalition, CVC) discussed the role of civil society working in the Caribbean. She began by addressing the importance of taking context into consideration insofar as behaviour and cultures are very different across regions. Sannia spoke about the work that is being done by the CVC to remove barriers on stigma and discrimination, and to reduce the prevalence of HIV among KPs. This work includes grassroots programs aimed at engaging CSO partners. CVC is as well working on shared incidence database interventions aimed at collecting comprehensive reports on human rights violations. To date, this database has recorded 1425 cases. Likewise, it added that community peer leaders support redress as well through social justice and pro bono services. Moreover, Sutherland mentioned that whilst community driven actions are important, the main catalyst should be expanding civil society presence in the Caribbean , based on shared values on similar issues. Local and contextual work and engagement is fundamental, thus is important to:

“Supporting redress, creating a culture of seating redress, establishing partnership with various government institutions, responsible for governmental monitoring and accountability and of transparency for their Civil Society, establishing a human rights commission. […] Another aspect of pushing the agenda forward is working with our stakeholders to uphold human rights violations.”

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Finaly, Sannia discussed the role of ‘confidentiality’ – positioned in the context of LAC, where rejection from access to service is a reality, and in order to redress CVC must be careful to no harm their clients. Even though there are some inroads in terms of litigation, CVC found out that when a community member decides to do redress independently, without a community lead organisation, the push back is severe. In Trinidad, this resulted in an increase of violence, homophobia and a general blow back from the general public and the church.

Pedro Villardi (Brazilian AIDS Interdisciplinary Association) discussed about the Intersection between HIV and criminal law in Brazil. Villardi noted they have been working for 30 years in activities related to a wider perspective in developing citizenship and democracy, and that even though the public health system has universality and social participation among its principles – the culture of rights has never really grown in Brazil. This is because the fulfilment of rights under the Brazilian public health system is constantly under threat. It is thus important to bring two elements, criminal law and HIV – in the debate around citizenship and democracy. Likewise, the rise of conservative parties in Brazil which threatens the achievements of HIV organisations working on stigma and discrimination toward PLWHIV. In addition, the concept of ‘civil death’ – which has been used to refer to the status of those getting a HIV positive diagnosis. This concept was developed by a Brazilian thinker and activist, stressed that ‘civil death’ happens when a person is stripped of all their rights, and deprived of their citizenship, including right to health. This concept is still valid today.

“Access to prevention, diagnoses and treatment is closely related to the discrimination of people living with HIV. The less threatened the person feels to receive some kind of violence, the more likely the person will have access to health services and have their rights guaranteed.”

Furthermore, Villardi pointed how history allows us to better understand how HIV is criminalized in Brazil. It drew on the relationship between the Napoleonian penal code which was transported in LA countries as a model, the first Brazilian republican penal code approved in 1989, and the 1990 republican constitution – highlighting how the criminal law inspired the constitution itself and grounded the legal and political culture on Brazil. HIV transmission is criminalized under a piece of law. For example, in the penal code of 1940, transmission of contagious diseases was defined as a crime; based on this, doctors who would not disclose the name of the patient affected with a contagious disease were criminalized. Since then the article has not been reformed. However, in 2005 it was a partial reform of the code concerning rape, and defined transmission of HIV as special circumstances which requires high penalties. In 2000, a proposed law in congress that was specifically referred to HIV transmission as hideous crime was blocked by civil society and UNAIDS local office. This proposed law suggested a jail sentence of two to eight years. The justification around the proposed law was based on a television show showing “seropositive people who were gathering together to teach other seropositive people

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how to transmit HIV. The main character in this show, was a person who identified himself as being under treatment for the last 10 years.” Policy makers favouring this proposed law, argued that that HIV criminalisation must go beyond HIV and include behaviours and populations that are deemed to be to related to the spread of the disease. Related to this is the proposal to have clear policy that is against LGBTI.

Agnes Atim Apea (African Commission on Human and People’s rights, ACHPR) talked about the role of ACHPR in challenging criminalisation in Africa. Dr. Apea began by highlighting the African Commission mandate to promote and protect the rights of all Africans. Further, Dr. Apea mentioned that the Commissionhas played a huge role within different mechanisms, commissions, special rapporteurs or resolutions that have sought to address the issue of criminalisation and forced sterilisations across the continent. Further, it was added that the Commission has a mandate to investigate human rights violations through fact finding missions and to document and report where cases are found. The commission also has special mechanisms and special rapporteurs on women and children rights, and a special rapporteur on prison. The current state of human rights violations on the continent are document through the above mechanisms and feed into providing evidence and knowledge at a global level. These violations include the documented cases of criminalisation. Dr. Apea also mentioned that law across the continent was not always used in a bad way around criminalisation. This is evident in cases where the law has been used to address discrimination and access to medication. Lastly, Dr. Apea discussed the need to work in partnership, both local and global; with state partners, courts of law, and civil society. She further added that, in the context of a shrinking civil society, there is the need for scientific evidence, which is essential for dialogue with states.

Boris Dittrich (Human Rights Watch, HRW) spoke about The importance of decriminalization of same-sex sexual intimacy and started with a video of the Indonesia Human Rights crackdown9. With a focus on Indonesia, Boris provided the link between HIV prevalence raising and the pursuit against LGBT people which started in 2016. The situation in Indonesia currently is marred by several factors: healthcare workers are afraid of providing information and services; LGBT persons are equally afraid of seeking health services and live in fear of being arrested. In 2017, approximately 300 people were arrested during a time when HIV infections were on the increase. Currently, 1 out of 3 infections is related to men having sex with men (MSM), 1 out of 4 MSM are living with HIV and similar rates for transgender women. Boris stated that there was an observed association between putting homophobic pressure on vulnerable communities and the raise of HIV. There are several reasons that led to the crackdown and arrest of LGBTI persons:

a) Elections – as a context in which politicians want to be popular, and they need scapegoats, which are usually vulnerable groups;

b) Religious fundamentalism – as a real driving force against vulnerable groups; c) Negative Media Coverage –

9 Video: Anti-LGBT Crackdown in Indonesia Fuels Health Crisis https://www.hrw.org/news/2018/07/01/indonesia-anti-lgbt-crackdown-fuels-health-crisis

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d) Lots of ignorance – because people do not know how to access information about HIV; e) The existence of conspiracy theories.

For instance, even though Indonesia has laws that are aimed at criminalisation of LGBT persons, people are still being arrested because of an anti-pornographic law that is very vague. Likewise, the possession of condoms is used as evidence of perpetration crimes. This leads to people being afraid to access healthcare, thus missing out on HIV education or possible outreach. Equally HIV outreach workers are afraid of doing their work – which signals a crisis in accessing healthcare for vulnerable groups.

In this context, the LGBT activists asked HRW to develop a strategy on how to put pressure on the government to stop this. On the one hand, there is a need for external pressure – through the Universal Periodic Reviews, which are tabled Human Rights Commission in Geneva. Equally there is need for domestic pressure – which should be exercised from inside the country, and placed on the President Yokomi, who used to be a human rights lawyer currently influenced religious extreme groups. As well, even though the Indonesian government promised to end violence against LGBT people, the police are still arresting them. Therefore, the HRW developed a strategy to identify LGBT allies in Indonesia, including international and local business community. Lastly, Boris ended by referring to the a recently published report with recommendations to the Indonesian Ministry of Health, to global funds and the WHO – finding needs to be delivered so that the local community can really use the funds, which need to be monitored.

Fanny Gomez (Synergia) shared with us the Challenges and opportunities regarding criminalization in the Inter-American Human Right System. Fanny Gomez started by asking what are the lessons learned from the advocacy programmes conducted, and how those can be used to push forwards the decriminalisation agenda. As well, Gomez highlighted the need to start talking about CSOs. She mentioned that it has been more than 10 years since organisations gathered into the Inter-American System to push for inclusion of LGBT and their visibility within the human rights agenda, and that there are more than 50 public hearings assuring that the commission takes on the LGBT work. In this regard, the first milestone was the adoption of the resolution organisation of the American States General Assembly in 200810, saying that all member states condemned the act of violence related to same-sex relations. Moreover, within the Inter-American Human Rights System there are two main bodies, respectively: the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. They act independently from the countries, and monitor, promote and protect human rights in the LAC region. For instance, one recommendation in a report on violence against LGBT people was to reform the laws that criminalize same-sex intimacy. Furthermore, Fanny Gomez mentioned that one recent development is the adoption of an advisory opinion that informs member states how the American Convention (1969)11 needs to be interpreted as to include the right of same-sex partnership

10 AG/RES. 2361 (XXXVII-0/08) http://www.cidh.org/annualrep/2008eng/ANNEX%204.RESOLUTIONS_GA_2008_IACHR.pdf 11 American Convention on Human Rights, Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969 https://www.cidh.oas.org/basicos/english/basic3.american

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and families – to have the same rights as different sex families. The recommendation talks also about the violation of human rights by laws that criminalize. Even though LGBTI organisations have pushed for change and inclusion of LGBTI language within the IAHR Court, the progress of decriminalising same-sex intimacy and gender expression has been slower.

“How do we translate these lessons learned to other areas like: the criminalisation of sexuality, like HIV transmission and disclosure or non-disclosure, and sex work?”

Furthermore, Fanny Gomez spoke about the visible resistance in many countries regarding abortion, especially coming from the right-wing governments and strong religious groups and evangelicals. The IACHR has been active in this regard, and made a strong statement against laws that criminalize abortion; yet progress has been slower. Likewise, the presence of anti-choice groups on decriminalisation of sex work became stronger, and there are many problems with funding these groups in LA that impacts on their work. Lastly, Gomez mentioned that in relation with HIV – there is a lack of work focused on the impact of law, and that there is no data in LA. Likewise, the limited data, if any, does not reach the commission. Finally, despite the fact that there is great potential within the IAC to make changes, changing the commission at every 4 to 8 years affects progress. As well, many of the commissioners do not know the issues or what should be a human rights approach. Thus, there is a need to work from local level, up to the regional level, and there is a need to focus on sensitization, awareness raising and more public hearings. Equally important is to anticipate the possible resistance, and to adapt the strategies as “to improve the access to those groups we are now leaving behind”.

Comments on joint efforts

Litigation and redress of KPs

Discussing about different ways to redress, in relation with the cultural component and limited confidentiality aspects highlighted that in some cases, HIV positive women that were not littered, got dismissed from work after signing a letter in which they were laid off. Further, it was noted that people who use drugs are part of the KPs, yet there are no specific cases in that regard. However, it was noted that the Commission is open to receive complaints and that is an area requiring further investment and reporting. Moving further to LGBT groups, the crucial question is how to address stigma when many LGBT groups have no ECOSOC status.

Signing vs. implementation

Because the criminal law has been drafted decades ago, accessing medication remains a vital challenge. This highlights the mandatory and urgent need to look at the criminal law, and how it needs to be

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reformed. Even though the majority of countries have signed various documents in this regard, the actual implementation remains insufficient. Another aspect to unpack is understanding the law when people cannot read, and the extent to which harmonizing culture and religion would play a role in this context. Because storytelling has more effect, and people will remember – is important to ally with the media and business as a means to influence politicians. Finally, it was underlined the need to think about the big picture in terms of working collaboratively with different groups, rather than forming silos; to be context-specific; and to improve the culture of engagement.

Theme 4: Best practices in Challenging Criminalization

Session Objective: To understand how challenging criminalization improved the human rights for various communities.

Dr. Sheila Tlou (Global HIV Prevention Coalition) Sheila facilitated this Panel

Naina Khanna (Positive Women’s Network, PWN) spoke on PLHIV Challenge Criminalisation using a Racial and Gender Justice Analysis in the United States. Khanna began by providing background on PWN which was founded in 2008 in the United States (U.S) as a response to the lack of organised collective voice of women living with HIV, which was not surprising due to the fact that the AIDS epidemic was shaped by, and mainly based on racial injustice inequality. Naina Khanna mentioned that PWN is inclusive of women with trans experiences, and that their mission is to prepare and involve women living with HIV in all their diversity, including gender identity and sexual expression at all levels of policy and decision-making. As well, PWN approach is human race and social justice ground, and the focus is on impact on communities and building long-term power. Khanna further reiterated that the epidemic is increasingly racialized and feminised, and that for instance people of African and LA communities are invisible in the data, and signalled the loss of attention for human rights policies and quality of life for PLWHIV. She further highlighted experiences in the USA where black feminists interrogate intersectionalities by looking at different forms of power, privilege and passion, stating that:

“Power, including access to human rights, is very much structured by all these different locations that people occupy in terms of power privilege. HIV status is just one focus beside race, gender, classism, and an increasing amount of homophobia.”

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It further mentioned that narrative of criminalization of HIV had been that the laws had been placed to protect women and that there are 30 states and territories that criminalize HIV exposure, not disclosure and not transmission. These laws have been put in place by a federal programme in the 1990s and it basically required each state to have a mechanism to prosecute intentional transmission in order to qualify for funding – which lead to draconian, very racist and gendered laws criminalizing PLWHIV. Unfortunately, these laws are built on a legacy of policing: the same people, and the same bodies; in particular people of African descent, LGBT people, indigenous communities, black gay males. These are persons with the least access to power, and they have been transported throughout the world. Likewise, Khanna stated that some of the strategies used by PWN are: doing political education on the impact of these laws, working on the ground in terms of advocacy, building coalitions at state level, and elevating racial justice work by adopting a very intersectional policy agenda. One example Khanna gave was about a group, entirely run by black people living with HIV in South Carolina, that trains other PLWHIV. Another example is coalition at state level that includes a Planned Parenthood Organisation, a women’s rights empowerment network, and HIV groups that have more access to lobby, resources and power. As well, Khanna highlighted the progress currently being made in reforming laws in California.

Lastly, Khanna stressed that the situation in the U.S is very hostile, and it is not safe for people to come in 2020 for the AIDS Conference. Iterating that human rights activists have been detained at the airport, there are active travel bans on sex workers and people who use drugs from multiple countries, and that the U.S is demanding 5 years of social media handles for all East Africans – asked for the AIDS 2020 to be moved out of the U.S.

Daughtie Ogutu (African Sexworkers Alliance, ASWA) talked about African Sex Workers : Victimized and Criminalized: Best practices that work best for us. She began by addressing how we challenge criminalization of sex worker movement in Africa. In doing so, Daughtie Ogutu stressed the need to challenge human rights, violation, rape and extortion of sex workers around the world, not only in Africa. Daughtie Ogutu mentioned that Africa was lacking behind and raised the issue that there was no legal framework for sex workers to work freely and express themselves. The legalisation and full decriminalisation of sex workers, their children and partners – means to not criminalize the support system. Further, Ogutu spoke about case studies pushing boundaries in Kenya, Senegal and South Africa, in connection to a regional network of sex workers and family alliances. For instance, even though in Senegal sex work is legalized and there are state-imposed medical HIV tests, one remaining problem is the naming and shaming if a test is positive. Despite the fact that many African countries agree with non-criminalization, they still place many restrictions on sex workers across the continent. This ultimately affects mobility of sex workers given that they would be easily criminalized in certain places. Moreover, Daugthie Ogutu stressed that there is a strong movement in Africa that is drafting guidelines for the media and sex workers on how the narratives should be described beyond HIV or victimhood . It

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further reiterated that “this is the way to change the narrative, so it can change the perception of the wider society.”

Further citing examples, Daughtie Ogutu added that in Kenya there is research on what is a legal framework for sex work is. This has led to further discussions in courts. In South Africa, many sex workers now appear in public to share their stories as a response to many cases in which sex workers have been murdered.

Jaime Todd-Gher (Amnesty International) talked about ‘Body Politics’ – The broader human rights impact of criminalizing sexuality and reproduction and tools for change. Jamie Todd-Gher discussed Amnesty International’s work on challenging criminalization through its work on sexuality and reproduction. In doing so, Jaime Todd-Gher spoke about Amnesty International’s global perspective on governments criminalizing sexuality, while mentioning their internal focus on making Amnesty International a better, stronger and progressive partner. Jaime Todd-Gher lead the Program on Criminalization of Sexuality and Reproduction, that started in 2012, and stressed that Amnesty International decided to use the criminalization frame in an effort to show the linkages between the range of sexual reproductive actions and decisions and gender expressions that governments around the world would criminalize. She further highlighted that Amnesty International’s work specifically focused on: sex work, abortion, same-sex intimacy, adolescent sexuality, HIV, pregnancy and consensual sex outside of marriage, and adultery.

“In the end we see that we all being punished for non-normative identities of sex that do not fit the heteronormative patriarchal norms, or for challenging social gender roles.”

Given that the connections were very clear, Jaime Todd-Gher further explained that they tried to use a broad definition of criminal law and how the existence of a criminal law can have a punishing effect. Being thus mindful of their position as an international NGO, Amnesty tried to provide leadership on these issues for the last 6 years. In so doing, Amnesty International developed an analytical framework to help the thinking about the way human rights laws and policies are being or could be used to challenge state criminalization. As well, Amnesty International conducted a research on the human rights impact of criminalization of sex work. However, it was noted that because there are many good organisations working on HIV criminalisation, they did not conducted research in this area, but developed international standards. For instance, Amnesty international updated their own policy framework to be more progressive: calling for decriminalization of sex work, a resolution on an updated abortion policy, and as well as a policy of drug use. Lastly, Jaime Todd-Gher mentioned that Amnesty International is trying to provide a platform for activists and civil society and encouraged the use of the published primer on criminalization of sexuality and reproduction12 and Body Politics toolkit. 12 Amnesty International, Body Polictics: A Pimer on Criminalization of Sexuality and Reproduction https://www.amnesty.org/download/Documents/POL4077632018ENGLISH.PDF

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Kenyon Farrow (TheBody.com) gave us a report on Building Black Movement in the U.S against HIV criminalisation: A Report-back on the first Gathering of The Black United Leadership Institute. Kenyon Farrow began by giving his experiencing attending the 2018 conference called “HIV is Not a Crime” – a US national event, held every two years by several organisations. Moving then to what was the Black United Leadership Institute (BULI), and why it existed – Farrow stressed that it was based on the fact that plenty of HIV work in the U.S was led by white organisations and white advocates, with a narrow idea about HIV criminalisation among minority populations. There is a need for organisations to think more broadly about racial issues and economic injustices, and there contribution to ending HIV criminalisation. Thus, BULI’s aim was “to develop a Black agenda for addressing HIV criminalisation in U.S.A, to build strategies for addressing race and racial justice within the HIV criminalisation movement, as well as trying to build more awareness related to HIV within the Black movements”. Farrow added that:

“In the timeline of HIV and mass imprisonment in the U.S, people began to tell their stories on how they were diagnosed and about their time in prison, mixed with political and historical moments. It really helped people to ground themselves. “

Furthermore, Farrow stressed the importance of calling us ‘black’ instead of ‘African American’, due to the rich variety of people coming from different regions, with different immigrant backgrounds – which leaded to a sort of collective healing, by leaving no one behind. Touching upon BULI’s results, Farrow mentioned that they have seen rapid responses and support in developing strategies to help people who face criminalisation, not only concerning HIV; but for sex work, homeless people or drug users . As well, it was noted that some people found out in smaller sessions the fact that they were criminalised: in this case, BULI is raising money to get legal support for them and are building a support network in the state they are located. Lastly, Farrow spoke about their work on skills building, organising webinars, and developing toolkits, and the importance of the role played by the media. In this regard, BULI is having a dialogue with journalists aimed to re-think their views and approach on various stories, as they mostly cover criminal issues and rarely think or write about public health. Farrow ended by noting that they have created a place for growing awareness and perspective for black legal scholars and attorneys to start thinking about these issues. There is a need to push back against being identified as a sex offender, and to build a multi-generation movement.

Juan Fernandez Ochoa (International Drug Policy Consortium, IDPC) spoke about the Local Actions, Global Voices: Support Don’t punish. Juan Ochoa firstly noted that IDPC is a global network of 170+ NGOs from more than 60 countries that aims to promote an objective and open debate on drug policy and NGOs’ participation, as well as policies based on evidence, health, human rights and development. Secondly, Ochoa spoke about the roots of global drug regime which refers to the construction of an international legal framework that has gone through several stages since 1909. Further, it was noted the

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importance of adopting measures by Parties, as it may be necessary to establish a criminal offence under domestic law, “when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption”, contrary to the provisions of the 1961 Convention, the 1961 Convention as amended13 or the 1971 Convention14. Additionally, Juan Ochoa stated that Parties have the possibility to provide as an alternative to conviction or punishment, measures for treatment, education, aftercare, rehabilitation or social reintegration. Further, it was mentioned that the drug law is ineffective and costly. Looking at the data during the 1925-2014 from the U.S State and Federal prison population, it can be observed a dramatic increase in funding for punitive responses to drugs. Only spending 10% of USD 360 billion on health, will decrease HIV in drug users 15. Moving further, Ochoa spoke about the Community Action on Harm Reduction (CAHR) Campaign 16 that aims to expand harm reduction services to more than 180,000 injecting drug users (IDUs), their partners and children in China, India, Indonesia, Kenya, and Malaysia. Further, the campaign messages can be categorized as “support” – promotion of harm reduction approaches, greater funding for health services, respect for human rights, and public support for drug policy reform, whereas the second category “do not punish”17 looks at – ending the “war on drugs” and the criminalisation of drug use, and to changing the laws and policies which impede harm reduction. Lastly, Ochoa spoke about the broad range of actions (e.g.: messages, activities, financial support) occurring during the Global Day of Action, June 26th and about the crucial role played by the development of drug user leaders in Malaysia. Finally, Ochoa underlined that one size does not fit all, and that it is important to create synergies, centring the voices of affected communities, to change the laws, and to give leadership to local communities.

Maya Zaman (Forum for Dignity Initiatives) gave us a view on Criminalisation effecting transgender human rights in Pakistan Zaman firstly noted that there are general elections to be held in Pakistan on July 25th, 2018. In relation to that, Zaman added that 4 transgender persons are contesting in the upcoming general elections, whilst other 124 trans diverse persons are set to work as observers. Further, Zaman discussed the Transgender Persons (Protection of Rights) Bill18 aimed at ensuring the rights of transgender persons in Pakistan, that passed both in the National Assembly and the Senate. In addition to that, Zaman spoke about the various interconnected challenges trans diverse people are facing, such as many rape cases, criminalisation, sodomy law, and that there is a high risk of getting caught when trying to access health care needs, such as hormones. It was noted that in some cases, people cannot report anal rape because they would be then punished. Lastly, it was noted that even

13 Single Convention on Narcotic Drugs (1961) as amended by the 1972 Protocol https://www.unodc.org/pdf/convention_1961_en.pdf 14 Convention on Psychotropic Substances (1971) https://www.unodc.org/pdf/convention_1971_en.pdf 15 Harm Reduction International (2016). The potential to end AIDS among people who inject drugs: Why member states at the HIV High Level Meeting must champion harm reduction16 Community Action on Harm Reduction (CAHR) http://www.cahrproject.org/ 17 #SupportDontPunish is a global advocacy campaign calling for drug policies based on health and human rights http://supportdontpunish.org/ 18 The Transgender Persons Bill, Pakistan (2018) http://www.na.gov.pk/uploads/documents/1526547582_234.pdf

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though many charters have been signed, there was no implementation which calls for the importance of advocacy and working on social movements.

Comments on root causes

Looking at the root causes of rape, and acknowledging the fact that there are some people who deliberately want to infect others, coheres or violate, it was suggested that, to a certain extent the issue is in the non-consent, and that it is up to each person to decide whether or not to engage in any sexual activity. Additionally, it was noted that it is problematic that nobody addresses perpetrators of such acts, and that health care providers have no experience in the emotional and psychological aspect of transgender persons. It is thus important to partnership with media and discuss about human rights, as well as to collaborate with legislators.

Closing synopsis

Tshepo Ricky Kgositau thanked all participants for a full, emotional moving day and stated that “the key to the door of your freedom is getting the challenge of criminalisation globally”. Tshepo Kgositau further thanked everyone for the work put into this day: the team, the moderatos and facilitators, the very powerful experts, and also the technical team and the catering, and called everyone to please say thank you on the way out as it will motivate the staff. The best practice session was the best way to close!

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Section 4: Analysis and way forward

Analysis

Creating a space for various stakeholders, from business to tech geeks, from sex work activists to women’s rights defenders, from the UN to government bureaucracies, to dialogue around the issues of criminalization allowed to better understand the extent to which the excellent work being done across sectors, communities, and/or regions to improve accountability around criminalization interconnects. Likewise, the dialogue was constructed around the importance of focusing on joint efforts and strategic partnerships to ensure that the ultimate accountability is to the individual.

In multiple co-existing contexts, the various interplays between a) the criminalization of perceived wrong-doings, from courts and police services to civil society and governments, and b) the reliance on the coercive power of law to control, police and punish people who are perceived as “morally unacceptable” – enabled a framework of fear-mongering and over-securitization that restricts or denies people’s liberties and rights. Because of identity, morality, sexuality and bodily autonomy decisions, entire groups of individuals have been criminalized (e.g.: MSM; PLWHIV; being, or being perceived as sex worker; etc.).

In this vein, it important to be cognizant of 1) the crucial role played by evidence and 2) that all human rights interventions should be based on evidence. The data on criminalization section highlights the importance of thinking in terms of cut across issues, and understanding the extent to which punitive or restrictive laws or policies, or – in their absence, the extent to which draconic interpretations of redundant and vague laws or policies, are used to criminalize abortion, sex work, PLWHIV, LGBTQI persons, etc. In doing so, the problem underlined is that in many cases, the criminal laws or policies that are used to prosecute people date back to many decades ago, and are further marginalizing communities that are already treated as peripheral and are left behind. Further looking at the data on criminalization, it can be observed the extent to which the conception of criminal law shapes gender, sexuality and reproduction thinking in various countries and spaces, posing the challenging question about the nature of criminal law, respectively – whether the criminal law is always bad or not, and in which contexts and under what circumstances, is the use of law justified. In this highly problematic

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context, social stigmatization and discrimination, negative stereotyping and prejudice, are putting pressure or impeding on various individual’s agency to accessing fully and equally their human rights, well-being, and living their lives.

As a general direction, the law and the criminalization thematic area shows that most of the times, the approach to, the interpretation and the use of law to criminalize people has immediate, short and long-term negative, severe and harmful consequences. For instance, considering laws which penalize individuals because of their real, or perceived sexual orientation and gender identity as being incriminatory, or PLWHIV that have engaged in a consensual sexual relationship – triggers a domino and spill over effect that has the potential to drive individuals underground. This makes various individuals and/or communities even more vulnerable. While the domino effect refers to how one’s life is negatively impacted in terms the interplay between the ‘official criminalization’ and the generalised social prejudice, the spill over effect specifically refers to the issue of criminalized poverty.

Moving further, the Partnerships in challenging criminalization panel sheds light on the importance of history, behaviour and culture as key elements, and the role they play in terms of understanding criminalization of: HIV, sexuality, abortion, etc. It also iterates the crucial role played by each context, and how working collaboratively, and with the communities is strategic and impactful. Because each one of these three elements are interrelated with one another, yet remain distinct and context-specific, it is crucial to adopt a holistic approach when discussing removing barriers on stigma and discrimination. Hence, positioning for instance, the criminal law and HIV in a historical context, allows to better understand how is HIV criminalized in different contexts, the extent to which the criminal codes are rooted in a colonial thought, and in what ways that thinking had inspired the current laws and political culture. Hence, understanding the dynamics of each space, and the role played by various stakeholders, informs a better, context-specific and evidence-based approach on ways to cultivate change. Likewise, in order to change or to interpret the law, one crucial aspect is to look at, understand, and respond to the existing challenges in an intersectional way, rather than perceiving sexuality and health for instance, as separate matters.

Last but not least, the final section on the best practices in challenging criminalization underlines various ways in which the challenging criminalization movement improved human rights for marginalized communities. One pivotal aspect pointed out is to have a person’s/ communities-centred approach, and to actively, and directly engage them, and with them. The panel reiterates the inclusion of gender identity and sexual expression at all levels of policy and decision-making as one key focus area. In addition to the fact that some laws are draconian, racists and gendered, one can observe that “they are built on a legacy of policing: the same people, and the same bodies”. Particular groups reiterated here were those that sometimes have least access to power, namely: people of African descent, LGBTIGNC people, indigenous communities, black gay males, etc. This further points out the importance of ensuring that various groups or communities are not invisible, and further marginalized.

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Recommendations and Conclusion

Since transparency is the first step in our Theory of Change, it is suggested the vital need for strong evidence and data, in quality and quantity, case studies and narrative. There is a need to know that data is context-specific, and get it to decision makers to empower them to make the rights decisions. Reiterating that personal choices are all intersecting, it is crucial to be cognizant of what are the challenges and the problems, because “when you know your problem, you know your response”.

Moving further to dialogue, equally important is to bring ‘unusual suspects’ together in a room, as there is a huge demand to cross movement work, a need to be the ‘brick in the wall’, and to let it then multiply. Likewise, it is decisive to start thinking and acting in terms of strategic delinking through letting other organisations getting on with the work, to coordinate and work with those who are experts. Moreover, there is a need for community lead. This need is visible especially in terms of filling in the gap between communities and decision-makers. Furthermore, there is a clear need to have dialogue with broader civil society, cultural leaders, religious leaders, business, techies, data people – and to bring them all into this movement, as movement building and visibility are the most powerful tool as long as we create safe spaces.

Turning then to action, there is a crucial need of implementation and checking what the impact is, calling for a strong push for the International Commission for Jurists’ (ICJ) principles that communities can then use. It is important to change the hearts and minds of the people in the public through advertising in the media or through religious leaders. It is crucial to not settle for partial decriminalisation, but only for full decriminalisation. One important issue for the future is, how do we connect this discussion to a larger political debate? Our aim is multi-disciplinary and intersectional. The emphasis is on the individual, the social, and the civil society.

Finally, it is important to be cognizant of the fact that that personal narratives are very moving and therefore influential.

“We have to oppose the issue of law. We need to move from the punitive to the true justice!”

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Our Accountability Framework

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People as the starting point Fostering Dialogue - Free and fearless

participation, learning from sucess and failureEnsuring Action - Tangible, pragmatic, measurable and realistic

Creating Transparency - using PAR to gather evidence that is full, relevant, accurate and

unbiased

Resilient, Sustainable,

Inclusive Universal

Access

(Health,, Education, Housing,

Sanitation, Employment, Safety and

Accountability from all

stakeholders

(govt, civil society, public,

international development

partners incl UN bodies etc)

TRANSPARENCY

Data, full, relevant, correct, accurate and unbiased data that is methodologically sound, periodically, transparently and inclusively collected, analysed and reported as well as transparent about its failings and limitations is a vital starting point for any discussion on developing a response to attain sustainable, resilient and inclusive human rights access.

DIALOGUE

Dialogue should mean all relevant stakeholders can meaningfully and freely participate, without fear, in the discussions and debates, share their successes and learn from their failures, so that all leaders, including duty-bearers, are able to be more accountable to the commitments they must implement.

ACTION

Action is necessary for leaders to improve their delivery on human rights. Tangible and pragmatic, measurable and realistic are required so that we can realise a world where there is accountability for the lives, human rights and wellbeing of all persons, across all spheres of society. All leaders, not just governments, need to act to ensure transparency and dialogue are part of the development process.

Suggested findings

Transparency

In a general context in which policies, laws, gender norms, stereotypes, stigma and discrimination, amongst other things, are heavily influencing what is and what is not ‘acceptable’ in all spheres of society, and what is and not reported, accentuates the crucial momentum for gathering both qualitative and quantitative data from various groups.

In the context of a shrinking civil society, there is the need for scientific evidence and dialogue with states, and there is a need to change the laws, and to fight biases.

There is a need to explore the data and gain insights about how the law is used to prosecute people because of identity, morality, sexuality and bodily autonomy decisions.

A reassessment of the existing gap between the context (what is happening) and who gets convicted.

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Context-specific mapping of what are the misunderstandings in analysis and in interpretation of law.

There is a need to make the existing laws and their impact on the various communities that are targeted by the law visible to the civil society as a means to engage them.

It is crucial to adopt an intersectional lens and holistic approach to challenging criminalization globally, and to translate the lessons learned to multiple areas: criminalization of sexuality, HIV transmission, disclosure and non-disclosure, sex work, etc. For instance, in order to change the law, “HIV transmission needs to be seen an intersectional way, not only related to HIV, but also related to other behaviors and populations that must be controlled”.

There is a need of having a human rights community that is more educated and informed, and better equipped.

There is a need to need to challenge human rights, violation, rape and extorsion for various communities around the world, and to change the narratives.

There is a need for a conversation with techies about the extent to which we want the State to have access to our own personal choices (e.g.: engaging in same-sex intimate activities) insofar as practices might be sometimes different than the theory.

Health services should be available in prisons and services such as promoting HIV testing on entering prison, with confidentiality and counselling for social stigma of people living in prison should be provided. Likewise, the approach to children in prison should be considered.

Dialogue

Creating a space for various stakeholders from business to tech geeks, from sex work activists to women’s rights defenders, from the UN to government bureaucracies, to actively engage in a dialogue around the issues of criminalization allowed to better understand how all the work being done is interconnected, while highlighting the vital importance of engagement.

In this vein, there is a crucial need to dialogue around (de)criminalization and there is a need for an engaged civil society that is able to see and understand the laws, and their impact on the various communities that are targeted by the law.

There is a need for engaging with, and supporting affected communities, as well as sharing technical knowledge. For example, one-by-one legislators need information on HIV, and doctors could educate lawyers in this regard.

It is important to invest in people, and to work collaboratively with different groups across all sectors, to be context-specific and to improve the culture of engagement. For instance, it is important to invest in local lawyers, and that international NGOs could provide expertise and technical support.

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It is highly important to be responsive, and to focus on rights of people and treat them equally, rather than focusing or talking only about constitutional rights, and to work in partnership, both local and global; with state partners, courts of law, and NGOs, amongst others.

When creating synergies, it is important to center the voices of the affected communities, and to give leadership to the local communities.

Action

The dialogue made it clear that all human rights interventions should be based on full, relevant, correct, accurate and unbiased evidence. Thus, any campaign, initiative, policy or initiative must be informed directly by the affected communities themselves – women, sex workers, IDUs, LGBTI persons, prisoners, etc. – positioning communities at the center of any action.

There is a need for community-driven actions, and local and contextual engagement of the civil society, that it is based on shared values and similar issues.

In terms of advocacy, there is a need for both internal and external pressure. From a bottom-up perspective, there is a need to work on civil society partnerships, governments and other national institutions to sentence governments to hold a more progressive strand at global meetings.

Advocacy and policy making needs to take place at national level, with a government that is informed, and has knowledge of data around criminalization. For instance, the criminalization of narcotics is not something that makes the healthy individuals.

There is a need to work from local level, up to the regional level, and there is a need to focus on sensitization, awareness raising and more public hearings.

Equally important is to anticipate the possible resistance, and to adapt the strategies as “to improve the access to those groups we are now leaving behind”.

Importance of doing political education on the impact of these laws, working on the ground in terms of advocacy, building coalitions at state level, and elevating racial justice work by adopting a very intersectional policy agenda.

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References

Sustainable Development Goals (SDGs) https://www.un.org/sustainabledevelopment/sustainable-development-goals/

UN Nelson Mandela Rules, The Standard Minimum Rules for the Treatment of Prisoners (2015) https://www.penalreform.org/priorities/prison-conditions/standard-minimum-rules/

UN General Assembly Resolution A/RES/70/175, “the Nelson Mandela Rules”, https://cdn.penalreform.org/wp-content/uploads/1957/06/ENG.pdf

The Global State Report of Harm Reduction (2016) https://www.hri.global/files/2016/11/14/GSHR2016_14nov.pdf

Convention on the Elimination of All Forms of Discrimination against women (1979) https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx

International Covenant on Civil and Political Rights (1966) https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

Hoffman vs. South African Airways (CCT 17/00, 28 September 2000) http://www.saflii.org/za/cases/ZACC/2000/17.html

The Yogyakarta Principles plus 10 (2017) http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf

Video: Anti-LGBT Crackdown in Indonesia Fuels Health Crisis https://www.hrw.org/news/2018/07/01/indonesia-anti-lgbt-crackdown-fuels-health-crisis

AG/RES. 2361 (XXXVII-0/08) http://www.cidh.org/annualrep/2008eng/ANNEX%204.RESOLUTIONS_GA_2008_IACHR.pdf

American Convention on Human Rights, Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969 https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm

Amnesty International, Body Polictics: A Pimer on Criminalization of Sexuality and Reproduction https://www.amnesty.org/download/Documents/POL4077632018ENGLISH.PDF

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Single Convention on Narcotic Drugs (1961) as amended by the 1972 Protocol https://www.unodc.org/pdf/convention_1961_en.pdf

Convention on Psychotropic Substances (1971) https://www.unodc.org/pdf/convention_1971_en.pdf

Harm Reduction International (2016). The potential to end AIDS among people who inject drugs: Why member states at the HIV High Level Meeting must champion harm reduction

Community Action on Harm Reduction (CAHR) http://www.cahrproject.org/

#SupportDontPunish is a global advocacy campaign calling for drug policies based on health and human rights http://supportdontpunish.org/

The Transgender Persons Bill, Pakistan (2018) http://www.na.gov.pk/uploads/documents/1526547582_234.pdf

Section 5: About Accountability International 35

Accountability International (AI) is an African-led civil society organization that works to improve accountability to the most marginalized. From our heard office in South Africa, we conduct research and advocacy that allows us to do our work as a watchdog and hold various leaders accountable.

We conceptualize and implement innovatively designed projects that are led by our collaboration with marginalized communities. We put huge emphasis on needs-based research and community-led advocacy. We have developed more than a dozen scorecards since we began in 2005, all as a means to contribute to the demand for accountability from all leaders, weather at global, regional, national or community level. We provide technical advice in many spaces, and yet remain committed to ensuring that our spaces, communications and products are highly accessible to all people.

We play a watchdog role and work to enhance the capacity of other civil society actors to also take up their roles as watchdogs, for sustainable, resilient and inclusive human rights for all.

We use Participatory Action Research (PAR) model, a best practice in which communities co-develop and lead the methodology, development of research tools, conduct the research and produce the final analysis & context-specific and advocacy-focused reports.

Partnerships are a fundamental element in our work. Over the years, we have developed excellent partnerships with hundreds of organizations, from major implementing partners to community-based organizations with national or local bases.

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(www.creativecommons.org) to stimulate and facilitate the dissemination of the ratings and other materials, or tools we develop. Therefore, Accountability International under this license gives you the right to remix, tweak, and build upon our work non-commercially; as long as you credit us and that you license your new creations under the identical terms. Others can download and redistribute this work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on our work. All new work based on ours will carry the same license, so any derivatives will also be non-commercial in nature.

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Get Involved & Contact details 1. Find out more about our work at https://accountability.international/

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What can you do to get involved?

2. Subscribe to our newsletter on our website (see sidebar on the right of the page) and get updates on meetings, discussions, advocacy tools and trainings.

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5. Join the discussion at the Accountability International Sexual and Reproductive Health and Rights LinkedIn Discussion Forum.

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