MEXICO CITY—A wave of misguided legislation is threatening to undermine global anti-AIDS efforts, prominent South African Justice Edwin Cameron said today together with a group of legal experts at the International AIDS Conference. Cameron decried laws criminalizing HIV exposure and transmission, denying people access to the most effective HIV prevention measures, restricting HIV education for young people, and imposing mandatory HIV tests that violate international human rights standards while doing nothing to protect people from HIV.
"Governments are passing laws thinking they can legislate against the AIDS epidemic, but these laws can do more harm than good," said Cameron, who has been living with HIV for over a decade. "Just like faulty condoms or unsafe medical supplies, bad laws can spread the virus."
Cameron, who will give a plenary address at the conference on Friday, singled out laws criminalizing HIV exposure and transmission as a particular threat. Many countries in Africa and elsewhere are passing new laws against HIV transmission that are overly broad. Some of these laws punish pregnant women as well as HIV-positive people who engage in behavior that carries absolutely no risk of transmitting HIV, such as kissing. While intended to deter HIV infection and provide justice to those infected, such laws can have the opposite effect and undermine HIV prevention efforts. The fear of prosecution may deter people from getting HIV tests and seeking treatment. Criminal laws also endanger women, who are more likely than men to be tested for HIV, and thus to be blamed for bringing HIV into a family.
"Criminal law is simply the wrong framework for dealing with HIV transmission," Cameron said. "Everywhere it has been tried, it has been counterproductive and applied unjustly."
Advocates for women said that criminal laws are a cheap substitute for truly protective measures, such as laws against marital rape, domestic violence, and denial of marital property. Enforcement of domestic violence laws remains weak throughout AIDS-affected countries, despite the risk of HIV faced by women with violent partners. Many countries still refuse to recognize the crime of rape within marriage. Rather than passing ineffective criminal laws against HIV transmission, governments should redouble their efforts to ensure women's legal empowerment and equal status under the law.
"It is a tragedy that laws criminalizing HIV transmission fly through parliaments while those against marital rape sit on the shelf," said Anne Gathumbi of the Open Society Initiative for East Africa. "This is political expediency at its worst and most lethal."
The legislation contagion of highly useless laws, as experts have called them, goes well beyond the issue of criminal law. Numerous African countries are passing laws that restrict sex education for young people, or impose mandatory HIV tests for groups such as sex workers, people who use drugs, and couples intending to marry. The World Health Organization and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have long recommended that HIV tests be consensual and confidential, recognizing that those at highest risk of HIV may be deterred from seeking health care by the threat of forced testing. The agencies also urge that young people have access to comprehensive information about HIV prevention, including information about safer sex and condoms.
"The law should guarantee access to HIV services, not restrict it," said Jonathan Cohen, director of the Open Society Institute's Law and Health Initiative.
Outside of Africa, countries with HIV epidemics spread largely by injection drug use are failing to pass legislation that would authorize lifesaving measures such as needle-exchange programs. Many of these governments enact stiff penalties against illicit drug possession and send large numbers of people who use drugs to prison where the risk of HIV transmission increases and prevention measures are largely absent. One glaring example is the Russian Federation ban on methadone, a proven treatment for heroin addiction that reduces sharing of syringes and thus prevents HIV.
"Whether it's Africa or the former Soviet Union, working respectfully with people at risk of HIV rather than punishing them is the best way to fight the epidemic," said Richard Pearshouse, a lawyer with the Canadian HIV/AIDS Legal Network. "HIV will never go away if countries continue passing laws that hinder much-needed HIV prevention and treatment efforts."
According to a 2008 report of the United Nations Secretary General, 63 percent of countries still have laws and policies that impede effective HIV services for people at highest risk. These include laws against same-sex sexual behavior, sex work, and possession of sterile syringes or trace amounts of narcotics in a syringe. One-third of countries have no laws or regulations to protect people living with HIV from discrimination, much less vulnerable groups such as men who have sex with men, sex workers, and people who use drugs. Those countries with anti-discrimination laws largely fail to enforce them.
"The commitment to ensure universal access to HIV prevention, treatment, care, and support, means that governments must overcome legal barriers to access and protect vulnerable groups and the rights of people living with HIV," said Susan Timberlake, UNAIDS Senior Advisor on Human Rights and Law. "The punitive laws being enacted only undermine an effective response to HIV."
Southern Africa, home to the world's highest rates of HIV, has a mix of effective and ineffective HIV laws, experts said. The Southern African Development Community (SADC) Parliamentary Forum recently developed a draft model law that guarantees a full range of human rights to people living with HIV, such as the right to voluntary and confidential HIV testing and treatment services, and freedom from the violence and discrimination that drive HIV in the first place. The SADC model law stands in stark contrast to a similar model law developed in West Africa, which contains overly broad criminalization provisions, the imposition of mandatory HIV tests, and limits on much-needed HIV-prevention information for young people.
"Lawmakers can be leaders in the fight against HIV," said Michaela Clayton, executive director of the AIDS and Rights Alliance of Southern Africa. "The challenge is to use the law to protect the human rights of people living with or affected by HIV, not to codify moral judgments against them."
Additional Contact Information
David Cozac
Canadian HIV/AIDS Legal Network
dcozac@aidslaw.ca
04455-2519-3094 / 52-1-55-2519-3094