In the balance - HIV and the Law

A series of articles by guest writers for World AIDS Day Part of AVERT's World AIDS Day 2012 campaign, ‘Reflections on the Epidemic’ are a series of articles by guest writers. Our guest writers range from global leaders, writers, experts, activists, physicians and people personally affected by HIV and AIDS; and they represent various countries, experiences and backgrounds from all over the world. We are grateful to all our guest writers for their effort and the diverse and insightful viewpoints that they contributed to the world’s response to HIV and AIDS. We will be re-featuring these articles over the next few weeks on a weekly basis. Browse through this week’s featured articles, and see the full list below.

Next year marks the 25th anniversary of World AIDS Day.  Time enough, then, for a few traditions to take hold—among them, a look back at 12 months of progress, and pitfalls in the fight against HIV. When it comes to the law, there were plenty of both in 2012.

Two years ago, the Global Commission on HIV and the Law¹ was set up by agencies of the United Nations to consider how legislation on the books, judgement in the courts and law enforcement on the streets is shaping the global response to HIV. Twenty-four months, and more than 700 personal testimonials and expert submissions later—the Commission published its results and recommendations in July.
 
Our report makes for sober reading, informed as it is by those on the sharp end of making and breaking HIV-related laws in more than 140 countries. We heard from people living with HIV who are deprived of the medicines they need because of intellectual property laws that put prices out of reach. Men-who-have-sex-with-men and female sex workers told us their harrowing experiences of arbitrary arrest and abuse by police; people who inject drugs spoke of their time in detention, denied clean needles or substitution therapy to help them reduce the harms associated with their habit. Migrant workers expelled from countries with laws which ban the entry of, or deport, foreigners with HIV, and HIV-positive citizens denied healthcare, schooling, employment, or housing because of stigma and discrimination—these are just some of the people for whom protective laws, even if they exist on paper, offer little relief in practice.

This myriad of laws, across multiple legal systems, has one thing in common: by punishing those who have HIV, or the practices that may leave them vulnerable to infection, such laws simply serve to drive people further from disclosure, testing and treatment—fostering, not fighting, the global epidemic.

It is time to say, “No more.” Just as we need new science to help fight the viral epidemic, we need new thinking to combat an epidemic of bad laws that is undermining the precious gains made in HIV awareness, prevention and treatment over the past thirty years. Our Commission put forth a number of prescriptions:

Deliberate and malicious transmission of HIV is best prosecuted by existing laws on assault, homicide or bodily harm, rather than the special HIV criminal statutes that have sprung up in recent years and that sweep up those — pregnant women among them — to  whom they should never apply. Existing intellectual property laws require a complete overhaul when it comes to pharmaceuticals, to ensure that the interests of public health are balanced against incentives for innovation, and that the best new medicines for HIV are available to all. Laws that criminalize sex work, drug use, same-sex relations or transgender identity do little to change behaviour, aside from discouraging people most at risk of infection from taking measures to protect themselves, and their communities, from HIV. Laws against gender-based violence and towards the economic empowerment of women are badly needed, and need to be enforced, to reduce women's vulnerability to HIV.

“by punishing those who have HIV, or the practices that may leave them vulnerable to infection, such laws simply serve to drive people further from disclosure, testing and treatment”

A number of countries are already taking steps in the right direction. This year alone, legal challenges and court decisions in Canada have opened the way to more equitable treatment of sex workers. Nasarawa became the latest Nigerian state to pass anti-HIV-discrimination legislation. Indonesia started using flexibilities enshrined in international trade agreements to issue compulsory licenses on a number of antiretroviral drugs, in effort to increase affordability and access. These are just a few examples of recent advances, but there have been plenty of setbacks too. Homophobic legislation and legal practices persist in many countries, ill-conceived laws on HIV disclosure and transmission continue their trail of collateral damage—the list goes on.

As a member of the Global Commission on HIV and the Law, I would like to think that 2012 represents a turning point in how we look at the impact of law on the global epidemic. Indeed, a recent commitment by Commonwealth Foreign Ministers—whose countries account for almost a third of the world’s population and some of the most repressive legislation on the planet when it comes to HIV—to work towards repealing discriminatory laws that hamper their response to the epidemic, sets an encouraging course for the years to come.  But the reality is that change takes time, particularly when laws, and law enforcement, are influenced by conservative currents and selective interpretations of religion and tradition. Nonetheless, my experience on the Commission gives me hope that as more evidence of the impact of laws comes to light, and more voices are brought to calls for reform, the tide is slowly shifting towards a more tolerant, pragmatic, and just legal environment for all whose lives are touched by HIV.

Shereen El Feki is a writer, broadcaster, and academic who started her professional life in medical science before going on to become an award-winning journalist with The Economist and a presenter with Al Jazeera English. She is vice-chair of the UN's Global Commission on HIV and the Law, as well as a TED Global Fellow. Her first book, Sex and the Citadel: Intimate Life in the Changing Arab World, will be published by Random House in March. Shereen writes for a number of publications, among them The Huffington Post. With roots in Egypt and Wales, Shereen grew up in Canada; she now divides her time between London and Cairo.

For further information on HIV and the law, see AVERT's page on Criminal Transmission.

Image copyright: Mike Reys