UNAIDS Deputy Executive Director, Programme, Luiz Loures met and dialogued with civil society and community members during his country visit to Sri Lanka. Credit: UNAIDS/Jayalal

Communities at higher risk of HIV infections should be placed at the centre of the AIDS programme design and implementation in Sri Lanka. This was the central message highlighted through discussions between representatives of civil society and the UNAIDS Deputy Executive Director, Programme, Luiz Loures, during an official visit to the country from 16-18 June.

While in Sri Lanka, Mr Loures visited several community-led programmes and met with representatives of key populations such as men who have sex with men, sex workers and women living with HIV. Through in-depth conversations, he listened to examples of focused programming in the country which have helped facilitate greater access to a number of HIV services for key populations, as well as significant network building.

National HIV prevalence remains relatively low in Sri Lanka, estimated at 0.1%, but the country is one of four in the Asia Pacific region that has shown up to a 25% increase in new HIV infections in the period 2001-2011. Higher levels of HIV are often concentrated around certain geographical sites and within communities at higher risk of HIV infection. According to national studies, in the city of Kandy for example, HIV prevalence among men who have sex with men is estimated to be at 4%—more than 40 times the general population average.

“In Sri Lanka—as more broadly in Asia Pacific and across the globe—we see that where communities are front and centre of the AIDS response, the greatest impact is achieved,” said Dr Loures, commending the programmes showcased during his visit. He highlighted how successful programmes have been initiated with key populations in Sri Lanka despite challenging legal and policy environments which criminalize sex work and same sex relations.

Speaking about the urgency needed to further scale such programmes across the country to stem rising HIV infection rates Dr Loures noted that, “Even in countries with low prevalence, we must maintain a sense of urgency to ensure responses and financing are focused to where they are most needed and that they are developed for communities by communities.”

Across countries that reported on AIDS progress in 2012, only 19% of HIV prevention spending was estimated to be for key affected populations. Despite that 25% of all new HIV infections in the region are estimated to be occurring among men who have sex with men, only around 1% of investments are directed towards programming among this community.

In Sri Lanka, community representatives are urging for much greater attention and resources to be given to ensure coverage and services are increased for people most in need.

“We have built a very successful network and we know what needs to be done, but we need the commitment and the resources to be able to increase programmes in size and scale so we can really make sure people are not being left behind,” said Lalith Dharmawardena, Executive Director of the Heart to Heart Organization, a network visited by Dr Loures set up to promote the sexual health and other human rights of Sri Lankan men who have sex with men.

UNAIDS Executive Director Luiz Loures met and dialogued with community members during his country visit to Sri Lanka.
Credit: UNAIDS/P.Wijayananda

Punitive legal and policy environments and subsequent high levels of stigma and discrimination towards people living with HIV and key communities were also highlighted as presenting a major barrier to Sri Lanka’s AIDS response. Both sex work and sexual relations between men are prohibited by national laws, codes and/or policies. National surveys suggest that many people at higher risk of infection delay testing for HIV and coming forward for treatment because they are concerned by the implications of their identification and testing HIV-positive, and the confidentiality of their HIV status.

Princey Mangalika, President of the Sri Lankan Positive Women’s Network, underlined how normalization of HIV and key communities can have a positive impact on reducing stigma and discrimination. She also urged government and authority officials present at the community interactions to ensure greater participation of people living with HIV and from key communities in decision-making bodies and the national response. Ms Mangalika also thanked the government and the Global Fund for making antiretroviral treatment freely available to those who need it in Sri Lanka.

“We are seeing some really positive signs in Sri Lanka and we now need permanent spaces for women living with HIV and other communities,” said Ms Mangalika, whose efforts—both personal and those of her organization—won a Red Ribbon Award in 2012 for outstanding community based care and support programmes. “We need the authorities to listen more closely to particular community needs—women, men, transgender—and let us help lead. We know how to best reach people,” she said.

The visit of the UNAIDS Deputy Executive Director, Programme to Sri Lanka coincides with his attendance at the Twenty-Ninth Board Meeting Board meeting of the Global Fund to Fight AIDS, Tuberculosis and Malaria which takes place in Colombo on 18-19 June 2013.

L to R: United States Congresswoman and member of the Global Commission on HIV and the Law, Barbare Lee; UNAIDS Executive Director Michel Sidibé; Deputy Secretary-General of the United Nations Jan Eliason; UNDP Administrator Helen Clark; and His Excellency Festus Mogae, former President of Botswana and member of the Global Commission on HIV and the Law.
Credit: D.Lowthian

The Global Commission on HIV and the Law launched its landmark report on 9 July 2012 at UN Headquarters in New York. The new report denounces the detrimental impact that punitive laws have on human rights and the HIV response and makes bold recommendations for addressing them.

“Never before has there been such an examination of the role of law in HIV,” said Festus Mogae, Former President of Botswana and member of the Commission. “What we have found is an epidemic of bad laws that is costing lives. We must end the epidemic of bad laws and enact laws based on evidence, common sense and human rights,” added Mr Mogae.

Stigma, discrimination and punitive legal approaches have long been recognized as barriers to the HIV response. They heighten vulnerability to HIV especially among key populations at higher risk of infection and make it difficult for individuals and communities to access HIV prevention, treatment, care and support services. UNAIDS has long called for the removal of punitive laws and their replacement with protective ones. Yet, countries across the world still maintain laws, policies and practices that infringe upon human rights, fuel discrimination and prevent global and national efforts to address HIV.

Speaking at the launch of the report, UNAIDS Executive Director Michel Sidibé noted that “the strength of this report is that it goes beyond a superficial description of stigma and discrimination to question the legal and structural fabrics that sustains inequality, injustice and human rights violations in the context of HIV”.

The report titled “HIV and the Law: Risks, Rights and Health” is a result of a two-year consultative process during which the Commission received more than 1 000 submissions from people affected by laws, law enforcement and access to justice issues in the context of HIV. The report took into account recommendations from 7 regional dialogues involving governments and civil society, and the input from a Technical Advisory Group of experts on HIV and the law.

Punitive laws increase risk of HIV infection

The Commission—an independent group of political and social leaders from around the world—pointed out that women in many parts of the world are governed by plural legal systems where traditional and customary law perpetuates their social and economic inequality. This situation makes women vulnerable to relationships and/or sexual violence which put them at risk of HIV infection. The Commission described the realities of many pregnant women living with HIV who face discrimination in health care including forced sterilization, even though simple and inexpensive medicine can prevent mother-to-child HIV transmission and keep mothers alive.

In the report, Commissioners called on governments to use the law to protect women from inequality and violence. They also urged governments to end legal barriers that prevent young people from accessing HIV information and services, as well as sexuality education—all necessary to avoid HIV infection.

The Commission also called for the removal of laws that criminalize people on the basis of their sexual orientation and gender identity, possession of drugs for personal use, and engagement in adult consensual sex work. It cited extensive evidence of how such criminal laws exacerbate risk of HIV infection among men who have sex with men, transgender people, people who use drugs and adults who sell and buy sex. According to the report, such laws drive people underground and into the margins of society away from health and HIV services. Furthermore, if convicted and sent to prison, the risks of contracting HIV, TB and Hepatitis C are very high because, in many countries, laws prohibit the provision of health and HIV prevention services and commodities in prisons.

Nick Rhoades from the Center of HIV Law and Policy spoke against the criminalization of HIV exposure and transmission, having himself been convicted in the United States of America, even though he had used condoms, had an undetectable viral load and did not transmit HIV. Citing the many HIV specific criminal laws, he said: “People have hands and can hit each other with their fists, but you don’t see a law specifically criminalizing a hand as a ‘deadly weapon’ like HIV is.” The Commission has called for the criminal law to be strictly limited to the malicious and intentional acts of actual transmission of HIV.

Participants at the launch highlighted how punitive legal approaches are undermining the investment in HIV prevention and treatment that is finally beginning to show the real possibility of halting and reversing the epidemic. They underlined that the persistence of punitive laws and practices is a serious concern at a time when the world has stabilized new HIV infections, increased its knowledge on effective HIV prevention and is preparing to harness the full potential of expanded HIV treatment. “It is outrageous that in 2012, when we have everything we need to beat this epidemic, we still must fight prejudice, discrimination, exclusion and bad laws,” said Mr Sidibé.

Law as an instrument to protect individuals

Commissioners at the launch underlined that there are many positive examples of countries that have used the law as an instrument to protect individuals, to create an environment that addresses stigma and violence thus encouraging access to HIV services. Other countries have used the law to challenge overly broad and stringent intellectual property regimes to reduce the cost of essential HIV medicines and to ensure their availability including through the production of generics.

“Law reform is complex, but countries can do much more,” said UNDP Administrator Helen Clark. “The task before us is to ensure better laws are adopted and enacted,” she added.

The Commission and its work have started dialogues across the world on issues that are difficult, controversial and complex. They are also issues that are central to human dignity, health and social justice. These dialogues are part of what Governments committed to do in the 2011 Political Declaration on AIDS where they pledged to review laws and policies that “adversely affect the successful, effective and equitable delivery of HIV services and consider their review”.

“We now have a powerful tool for advocacy and engagement to ask governments to uphold human rights for all people vulnerable to HIV,” said Ebony Johnson of the Athena Network. “This report should not be shelved.”

The Global Commission on HIV and the Law is an independent body, convened by the United Nations Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS). The Commission was supported by a Technical Advisory Group, which reviewed and analyzed existing public health and legal evidence and also commissioned original analysis. Additional information on the Commission, its processes and work is available at www.hivlawcommission.org.

Justice Michael Kirby (left) and Professor Brian Gazzard during the expert meeting. Geneva, 02 September 2011.

World leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission. The meeting, organized by UNAIDS, took place in Geneva from 31 August to 2 September.  

Participants reviewed key scientific, medical, public health and legal principles that should inform the application of the criminal law to HIV. They also discussed recent developments in a number of countries where the criminalization of HIV is being reconsidered.

The meeting is part of a project to ensure that the application, if any, of criminal law to HIV exposure or transmission is appropriately circumscribed by the latest scientific evidence and legal principles in order to guarantee justice and protection of public health. The key points emanating from the expert meeting will be presented during a High Level Policy Consultation on the criminalization of HIV non-disclosure, exposure and transmission that will take place in Norway in the first quarter of 2012.

UNAIDS.org seized the opportunity to interview Professor Brian Gazzard (scientist and medical expert) and Justice Michael Kirby (a legal expert) to find out about their views on the significance, expected outcomes and potential impact of the expert meeting.

UNAIDS.org - As a scientist, what brings you to an expert meeting on the criminalization of HIV non-disclosure, exposure and transmission?

Professor Brian Gazzard (BG) - I'm not only a scientist, I'm a clinician. And I suppose as a clinician I'm interested for two reasons. One, it's become a very important agenda for most patients that I talk to. They want to know what the rules are about criminalization and the risks that it presents to them. Hopefully I've contributed to a more secure scientific knowledge about what the risks of transmission of HIV are, what the health status of somebody who's HIV infected are. I'm staggered about how little the courts still seem to know about these issues.

UNAIDS.org - What do you consider to be the role of scientists on addressing the overly broad criminalization of HIV non-disclosure, exposure and transmission?

BG - I think they have a role in pointing out what the science is. So what we're really trying to do is saying that HIV has become a manageable condition which should produce a near-normal lifespan if people have access to HIV treatment and of course, take it. This is a very different thing from the vision of the court where this is murder and the patient will die within a few months of the diagnosis and life is a disaster. Quality of life for most HIV patients, I'm pleased to say, is extremely good. And so, to actually have a situation where jurisdictions are still prosecuting people for attempted murder because HIV has been transmitted is totally unrealistic in my view.

UNAIDS.org - In light of recent developments including evidence of the benefits of highly active antiretroviral treatment (HAART), can HIV transmission or exposure still be characterized as murder or attempted murder under the criminal law?

BG - In my view clearly not and I think any prosecutions for that would fail, but of course, even being put up for prosecution is a pretty painful process. I think it's important that prosecutorial guidelines say that this is not reasonable.

UNAIDS.org - More broadly, in your view, how should a better understanding of scientific evidence inform the criminal law in the context of HIV?

BG – Defining the intention to do harm is a complex legal issue. The probability of transmission of HIV to another person is quite low, particularly in the context of safer sex with a condom, or for people who are on HIV treatment.   Whether a given individual transmits HIV or not would be a very rare and arbitrary event. So I think science is important in clarifying these facts. It isn't that the risk is so high that you have an intent when you have sex with somebody; the risk is actually very low indeed.

UNAIDS.org - In your opinion, is there any legal evidence to support the criminalization of HIV?

Justice Michael Kirby (MK) - There are some exceptional cases where the criminal law has a role to play. However, the criminal law has been pushed into a whole range of other activities which are counter-productive from the point of view of a public health response to HIV. The use of criminal law is also likely to lead to disproportionate and highly punitive measures which are not helpful in responding to the epidemic in a way that prevents the spread of HIV.

UNAIDS.org - Criminalization of HIV non-disclosure, exposure and transmission has been enforced for a number of years. Is there anything new or different in 2011?

MK - There are a number of developments which make for difference. For example, when in 2008 the original guidelines on criminalization of HIV transmission were adopted, the suggestion was not to have specific laws against HIV but to leave it to the general criminal law to deal with any egregious cases, very serious cases. We now realize that the general criminal law will often have concepts in it which are very uncertain concepts, such as criminal intention, and will also have provisions in it which are difficult to apply in the context of HIV.

Other developments have been the advances in antiretroviral treatment and, of course, a better understanding of the validity and limitations of the phylogenetic test.

So there have been technological, scientific developments, but also the realization that the 2008 guidelines didn't cover all of the issues.  

UNAIDS.org - Do you think this meeting will advance efforts against the overly broad use of criminal law in the context of HIV? And if so, what needs to be done?

MK - I think the value of the group has been that it has a mixture of science and law [experts] and it has a good representation of people living with HIV. That has allowed us to look again at how and what we can do to explain the new realities of the epidemic and put forward new guidelines to help countries react appropriately regarding the criminalization of HIV.

HIV infection is not the death sentence that it was thought to be when HIV first appeared and we have to modify our policies in accordance with the developments in science and technology.

UNAIDS.org - As a member of the UNDP-led Global Commission on HIV and the Law, how do you see this meeting contributing to the overall objective of addressing punitive laws that negatively impact the HIV response?

MK - This issue has not been a big feature of the Global Commission’s work in which I’ve been involved to date. The value of the UNAIDS driven expert meeting is that it fills an important gap. What has been discussed around our table with the inter-disciplinary people who have participated can be fed into the debates of the Global Commission and that’s exactly what I’m going to be doing.

Professor Brian Gazzard is the Clinical Research Director of the HIV Unit at the Chelsea and Westminster Hospital, one of the largest clinical units in Europe. He was also the founding Chair of the British HIV Association (BHIVA) and chaired the BHIVA Executive from 1995-2004. Brian Gazzard is also Chair of the Expert Advisory Group on AIDS (EAGA), an advisory body to the Department of Health in the United Kingdom.

Justice Michael Kirby is a retired judge of the High Court of Australia. At the time of his retirement, Justice Kirby was Australia’s longest serving judge. Since the early days of the epidemic, Justice Kirby served on many national and international bodies concerned with HIV. He currently serves as a member of the Global Commission on HIV and the Law. He is also a member of the UNAIDS Reference Group on HIV and Human Rights.

Credit: UNAIDS/P.Virot

On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized. The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.

On 7 February, UNAIDS Executive Director Michel Sidibé spoke at the opening ceremony of a high-level consultation on HIV, the law and human rights in Dakar, Senegal.

Ministers of Justice and judges from across West and Central Africa gathered on 6-8 February in Dakar, Senegal, for a high-level consultation on HIV, the law and human rights. The meeting aimed to increase the engagement of judicial officials in the HIV response at national levels.

Eighty percent of countries in West and Central Africa have laws that criminalize HIV transmission, same-sex relations or sex work. Across the region, people living with HIV experience widespread stigma and discrimination in access to employment, education, health and social services. In many countries, people living with HIV and key populations at higher risk of HIV exposure—including sex workers and men who have sex with men—have limited access to legal support when injustices are committed.

“Laws should work for the AIDS response, not against it—they should never obstruct the health or survival of any individual,” said UNAIDS Executive Director Michel Sidibé, in his opening remarks at the consultation. “We must truly address discrimination and injustice related to AIDS,” he added. Mr Sidibé urged justice ministers to base their laws on science and ensure that all people have equal access to HIV prevention, treatment, care and support.

“We can no longer ignore the law as a means of combating HIV,” said Senegal’s Minister of Justice, Cheikh Tidiane Sy, noting that the epidemic had generated complex legal and human rights issues in the jurisprudence of countries across the region. Mr Sy underscored that judicial officials should not be limited to rendering decisions in a court of law. “It is equally important that magistrates involve themselves in activities that will increase legal knowledge among populations and ensure that they have access to justice,” he said.

The consultation—organized by the Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Development Programme (UNDP), the African Association of Highest Francophone Jurisdictions (AA-HJF) and the Office of the High Commissioner for Human Rights (OHCHR)—offered an opportunity for discussion on a range of HIV-related judgements, legal instruments and country-level initiatives. The meeting also provided a forum for individuals directly impacted by HIV-related laws, including people living with HIV, to share their experiences and perspectives.

Speaking to meeting participants on Sunday, Jeanne Gapiya Niyonzima, an HIV-positive woman and President of the Burundian Association of People Living with HIV, recalled how her doctor immediately ordered the termination of her pregnancy and removal of her uterus after she tested positive for HIV. “As magistrates, you can appreciate the gravity of this kind of assault on the physical and social integrity of a human being,” said Ms Niyonzima. “If we fail to provide a conducive social and legal environment, we risk losing all gains in the HIV response,” she added.

Judicial officials can play a critical role in protecting human rights and pushing forward the HIV response. In Burkina Faso, for example, where an estimated 1.2% of the adult population is living with HIV, the UNDP-led Programme d’appui au monde associatif et communautaire (PAMAC) is collaborating with other non-profit organizations and David Kaboré—a judge and human rights defender—on a legal literacy project to promote and safeguard the rights of people living with HIV. Launched in 2003, the project offers free and confidential legal advice to people living with HIV and has been instrumental in highlighting and addressing cases of HIV-related discrimination in the country.

Many countries around the world continue to have laws or policies that undermine HIV responses and punish, rather than protect, people in need. Seventy-nine countries criminalize same-sex relations between consenting adults. More than 100 countries, territories and areas criminalize some aspect of sex work. And 48 countries, territories or entities impose some form of restriction on the entry, stay or residence of HIV-positive people based on their HIV status.

UNAIDS advocates for protective laws and measures to ensure that all people in need benefit from HIV programmes and have access to justice, regardless of health status, gender, sexual orientation, drug use or sex work.

Last year, UNAIDS and UNDP launched the Global Commission on HIV and the Law, bringing together public leaders from many walks of life and regions, as well as experts in law, human rights and HIV. The UNDP-led Commission is working to ensure that laws support effective AIDS responses.

Dr Meskerem Grunitzky Bekele, Director of the UNAIDS Regional Support Team for West and Central Africa and Maître Robert Dossou, President of the Constitutional Court of Benin (centre), with students from the winning team of the 19th African Human Rights Moot Court Competition. Credit: UNAIDS

More than 120 young law students from 60 universities representing 24 African countries gathered in Cotonou (Benin) from 4-9 October 2010 to compete in the 19^th African Human Rights Moot Court Competition.

Law students argued on a hypothetical human rights case as if they were before the African Court on Human and Peoples’ Rights. Law lecturers served as judges in the preliminary rounds and internationally recognised human rights law experts adjudicated the final round of the competition.

Held in a different country each year, this annual competition was organised by the Centre for Human Rights at the University of Pretoria (South Africa) in collaboration with the UNESCO Chair in Human Rights and Democratisation at the Université d’Abomey-Calavi in Benin.  

“The competition provided an amazing opportunity for us, law students, to put our legal training into practice,” said Ms Evy Carole Bouo, from the Université de Cocody (Cote d’Ivoire) who participated in proceedings. “It gave us the chance to meet and interact with prominent African and international legal and human rights experts,” she added.

This year’s hypothetical case raised several human rights issues, including the criminalisation of HIV transmission. Human rights and health experts, civil society organisations and people living with HIV have raised concerns in relation to laws criminalising HIV transmission on the grounds that the overly-broad application of these legal provisions may reinforce HIV-related stigma. Such laws may also deter people from seeking HIV prevention, treatment and care services for fear of prosecution, and may lead to human rights violations.

In their written submissions, students argued, among others, that the overly-broad criminalization of HIV transmission is contrary to the principles of justifiable limitations of human rights provided under the African Charter on Human and People’s Rights and international law.

The removal of “punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV” is one of UNAIDS priority areas as outlined in its Outcome Framework 2009-2011.

During this year’s Moot Court Competition, UNAIDS, UNFPA and UNESCO launched a project, in collaboration with the Centre for Human Rights at the University of Pretoria to compile information on the legal and policy issues relating to HIV and young people in Africa. The project will map laws and policies related to access to HIV-related education for young people, the minimum age of consent to HIV testing, and access to HIV prevention and treatment for young people.

Professor Frans Viljoen, Director of the Centre for Human Rights, noted that this joint initiative with UNAIDS, UNFPA and UNESCO “shows the relevance of the Moot Court Competition for human rights education in Africa and also for getting students involved in a critical research project that can positively influence legal and policy debates in their countries and beyond.”

Speaking at the closing ceremony of the competition, Dr Meskerem Grunitzky Bekele, Director of the UNAIDS Regional Support Team for West and Central Africa emphasised the importance for young law students to get involved in the discussions on complex issues related to HIV and the law.

“An enabling and protective response to HIV that challenges discrimination and empowers all individuals, including young people, to access HIV prevention, treatment and care services is needed today more than ever”, Dr Bekele said.

The inclusion of HIV in this year’s case afforded participants the chance to apply their understanding and knowledge of human rights theory to contemporary issues of concern in Africa such as HIV.

The winner of this year’s competition was the team composed by the Université de Cocody, Côte d’Ivoire (Ms Evy Carole Bouo and Mr Jean-Camille Kouadio), the University of Namibia (Ms Stephanie de Klerk and Mr Albert Titus), and Rhodes University, South Africa (Ms Ingrid Cloete and Mr Fausto Di Palma).

Established in 1992, the African Human Rights Moot Court Competition is the largest annual gathering of law faculties in Africa. It was awarded the UNESCO Prize for Human Rights Education, recognising it as the most far-reaching human rights educational initiative on the continent. Over the past 19 years, it has brought together thousands of students from 131 universities in 48 African countries.

The AIDS epidemic has raised new and complex legal and human rights challenges leading to judicial rulings on matters related to HIV that have become part of the jurisprudence of many countries. Through interpretation of national constitutions, legislation and international human rights treaties, the judiciary has sometimes had a transformative and beneficial impact on the national response to HIV and on the public perception of HIV.

Enabling jurisprudence has emerged in countries as diverse as Australia, Botswana, Brazil, India, Iran, Kenya, Namibia, South Africa, United Kingdom, United States of America and Venezuela. This includes judgments on employment law, access to education, medical insurance, treatment in prisons, segregation, confidentiality, access to medicines, and the rights of prisoners. Through a well-informed, evidence-based and protective application of the law, the judiciary can create the type of legal and social environment necessary to halt and roll back the AIDS epidemic; to provide access to justice to those affected; and to achieve national commitments to attain universal access to HIV prevention, treatment, care and support.

Beyond the court, members of the judiciary are leaders in their communities and societies who should be engaged in the response to HIV. Their stance, attitudes and behaviour towards HIV-related issues, people living with HIV and members of most at risk populations can help shape social attitude towards these populations. Members of the judiciary can challenge stigma and discriminatory practices against people living with HIV and members of key populations both inside the court and within the community at large.

However, in the quickly evolving area of scientific, medical and legal issues related to HIV epidemic, there has been little opportunity for judges to take stock of epidemiological and scientific developments. Nor has role of members of the judiciary as agents of justice and protectors of human rights been fully explored or used to address vulnerability to HIV and ensure human rights protection for all in the context of the epidemic.

Recognising the potential and actual role of the judiciary in the AIDS response, UNAIDS is committed to supporting the judiciary, including in the following areas:

• Providing opportunities for continuing education and discussion among the judiciary on recent developments in the HIV response and their legal implications
• Supporting judges to make the courts more accessible to all people affected by HIV
• Stimulating rights-based and evidence-informed standard-setting on pertinent HIV-related legal and human rights issues by and for members of the judiciary
• Creating opportunities for members of the judiciary to exchange with key stakeholders of the HIV response, including people living with HIV, women affected by HIV, and members of key populations at higher risks.

UNAIDS’ support to judiciary leadership is guided by its commitment to working with key national and international actors towards the removal of “punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS”, as affirmed in the UNAIDS Outcome Framework 2009-2011

UNAIDS sees members of the judiciary as key stakeholders in supporting and enforcing a protective legal environment to the HIV response.

According to Susan Timberlake, Senior Human Rights and Law Advisor at UNAIDS, “Through the courts, judges can  uphold non-discrimination based on HIV status, protect women and  key populations  from violence and denial of services, and overturn  punitive laws that violate human rights in the context of the epidemic.”

As part of the efforts to engage the judiciary in the HIV response a groundbreaking meeting of eminent African jurists was held in Johannesburg, South Africa in December 2009 to discuss HIV and the law in the 21st century.

As part of the 14th session of the UN Human Rights Council taking place in Geneva from 31 May-18 June 2010, the Council held on 4 June 2010 an interactive debate with the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standards of physical and mental health, the Independent Expert on the question of human rights and extreme poverty, and the Special Rapporteur on violence against women, its causes and consequences.

In his report, Anand Grover, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, focused on the impact of criminal law on the realization of the right to health and related rights. He specifically reported on the impact of criminalization of same-sex conduct and sexual orientation, sex work, and HIV transmission – three examples of the criminalization of private consensual sexual conduct between adults.

“We hope the report of the Special Rapportueur will help to generate constructive debate, and catalyze change toward a more rights-based and effective AIDS response,” said UNAIDS Human Rights and Law Officer Jason Sigurdson who delivered a joint statement for the UNAIDS Secretariat and UNDP.

The 14th session of the UN Human Rights Council continues in Geneva until 18 June 2010.

Marking a significant step towards achieving the country’s universal access goals, Fiji passed a law decriminalizing consensual homosexuality through the Fiji National Crimes Decree on 1 February 2010. With this legislation Fiji becomes the first Pacific Island nation with colonial-era sodomy laws to formally decriminalize sex between men*.

The new Crimes Decree removes all clauses about “sodomy” and “unnatural acts” and uses gender neutral language in the remainder of the sexual offences section.

“We’d like to congratulate the Government of Fiji on taking a bold step by removing the punitive law,” said Stuart Watson, the Pacific Coordinator of UNAIDS.

“This reform is an important milestone towards achieving a rights-respecting legal framework, not only for men who have sex with men but the entire community in Fiji.”

HIV, the law and human rights in the Pacific

In 2007 the UNAIDS Secretariat and UNDP reviewed the legislation of 15 Pacific Island countries relevant to HIV issues, including discrimination, ethics, access to treatment and privacy and confidentiality. The Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu were included in this project.

Following this review, UNAIDS’ Pacific office along with the UNDP Pacific Center, and the Regional Rights Resource Team (RRRT) convened a meeting in New Zealand with Attorney Generals and Ministers of Health from the countries. Together with leading international and regional experts they discussed HIV, the law and human rights to relation to the specific national laws in the region that impact the response to HIV. The aim was to better support effective and rights-based legal responses to the epidemic.

The participants reaffirmed the importance of implementing “The Pacific Regional Strategy on HIV/AIDS 2007-2008”, endorsed by Pacific Heads of Governments in Samoa in 2004. This regional strategy is an all-encompassing plan that highlights the importance of human rights in any HIV intervention.

Call for review, reform and enactment of appropriate legislation

The Attorney Generals and Ministers of Health then called for the review, reform and enactment of appropriate legislation that reinforces universal human rights to protect and ensure the dignity of all people affected by HIV; that promotes an integrated response to HIV taking into account the interrelation between sexual and reproductive rights and prevention of HIV; and further protects the rights of people in communities regardless of gender, sexuality, sexual or gender identity, or other defining characteristic.

As a result of this initial UN-sponsored consultation, the Republic of the Fiji Islands requested technical assistance from UNAIDS and WHO to help draft comprehensive rights-based HIV legislation for the country. Parallel to the drafting and community consultation process for the national HIV Decree, and based on the High court’s ruling, the colonial era law criminalizing sex between men was removed. This became law on 1 February 2010 through the Fiji National Crimes Decree.

HIV in the Pacific

The 2009 AIDS Epidemic Update notes that there is generally a very low HIV prevalence in the Pacific compared with other regions. In these small island nations adult HIV prevalence tends to be well below 0.1%. National epidemics are overwhelmingly driven by sexual HIV transmission, although the specific populations most affected vary substantially within the region.

According to the Report of the Commission on AIDS in the Pacific the extent to which HIV is transmitted by sex between men in the Pacific is not known. Since most sex between men in the Pacific is hidden, illegal and denied, it is not addressed appropriately in most national HIV plans.

Behavioural surveillance identifies male-to-male sex among youth in Solomon Islands, Vanuatu and Samoa, as well as police and military in Fiji Islands, STI clinic patients in Fiji Islands and Samoa, and seafarers in Kiribati. Despite a possible link between unprotected sex between men and relatively high rates of HIV infection in Papua New Guinea, Fiji, New Caledonia, French Polynesia and Guam, none of these countries has conducted recent behavioural surveillance surveys or qualitative studies about the characteristics of these men, or initiated targeted campaigns to encourage them to use safer sexual practices.

Major obstacles to making such campaigns effective remain, both with the social stigma and the illegal status of homosexual activity. Not only are men ashamed of or embarrassed about disclosing their sexual activity, they are also deterred from finding out what they need to know to reduce their risk or to buy condoms.

Stuart Watson, believes that legal reform will enable better outreach to these communities.

“The change in law is a huge step towards being able to approach all communities with education programmes and prevention resources. This would enable better access to HIV prevention services for all, reducing HIV and sexually transmitted infection risk,” said Mr Watson.

* Male to male relationships are not legal and are punishable by imprisonment in the following 9 Pacific island nations: Cook Islands, Kiribati, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu.
A further 13 countries and territories in the Pacific do not criminalize men who have sex with men.

In recent years, there has been an apparent increase in the number of people prosecuted for transmitting HIV, particularly in Europe and North America, with cases now numbering in the hundreds in the English-speaking world alone. There is also an increase in laws that criminalize HIV transmission and exposure to the virus, as reported in sub-Saharan Africa, Asia, and Latin America and the Caribbean.

As early as 1996, UNAIDS and the Office of the UN High Commissioner for Human Rights expressed concern over the inappropriate and overly broad application of criminal law to HIV transmission and provided guidance on it in the International Guidelines on HIV/AIDS and Human Rights. In 2002, UNAIDS issued a more detailed policy options paper on the subject. However, in light of growing concern over the spread of such laws, UNAIDS and UNDP felt it necessary to recently publish a policy brief entitled “Criminalization of HIV transmission”.

Intentional transmission of HIV

The policy brief makes specific recommendations for governments, civil society and international partners, urging that criminalization be limited to cases of intentional transmission of HIV. While UNAIDS and UNDP acknowledge that use of the criminal law may be justified in these limited circumstances – i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it – they are concerned that going beyond such cases risks applying criminal sanctions to people who are not actually blameworthy, further stigmatizes people living with HIV, and creates disincentives for mutual responsibility for sexual health and to finding out one’s HIV.

The policy brief highlights concerns about possible negative impacts on effective prevention of HIV transmission, problematic disclosure and partner notification provisions, miscarriage of justice, as well as the possible negative impact on women and girls.

International Consultation on the Criminalization of HIV Transmission

In November 2007, the UNAIDS Secretariat and UNDP hosted an “International Consultation on the Criminalization of HIV Transmission” in order to consider recent developments in the area. The meeting brought together diverse points of view but also a shared concern over the apparent trend of criminalizing HIV transmission. An in-depth report from the three-day meeting has been released, giving an overview of the discussions, summary of the main issues and conclusions by the participants who included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

The report also includes the summary provided by Justice Edwin Cameron, judge of the Supreme Court of Appeal, South Africa.

“What meeting participants underlined was the fact that laws criminalizing HIV exposure and transmission are a dangerous and ineffective ‘sideshow’ in the response to AIDS,” said Susan Timberlake, Senior Human Rights and Law Adviser, UNAIDS Secretariat.

“Criminal law will never do the work of comprehensive and evidence-informed HIV prevention programmes. In fact, widespread criminalization may set back prevention efforts by deterring people from learning their HIV status, disclosing it to partners, and accessing treatment.”

No evidence that the use of criminal law reduces transmission of HIV

The main reasons advanced for applying criminal law are either punishment for someone who has caused harm or to deter risky behaviours that lead to HIV transmission.

However, there is no evidence that the use of criminal law is an effective measure for reducing transmission of HIV, and experts are concerned that criminalization is likely to have a negative impact on the overall response to HIV, including HIV prevention.

Potential negative impacts of use of criminal law

For fear of prosecution, people may be more reluctant to get tested and find out about their HIV status, as a perceived “legal defense”. Such laws and the reporting of individual cases in the media risk undermining the public health message that it is best to take responsibility for your own protection, rather than rely on a legal obligation of HIV positive people to disclose their status.

Criminalization may also create distrust in relationships with health service providers as courts might subpoena medical records in court cases. Finally, though many of these laws appear to have been passed as a “measure to protect women”, many experts fear that these laws will actually be disproportionately applied to women living with HIV. Women are often the first to find out their status and cannot tell their partners for fear of violence or abandonment. They also are less likely to have access to legal counsel than men.

For these and other reasons, many experts are concerned that the potential adverse consequences for both public health and human rights far outweigh any perceived benefits that could arise from an increased and overly broad application of criminal law to HIV transmission.