Commentary Law and Policy

Bad Laws Hindering the Global Response to HIV

David Scamell

The US immigration rules place restrictions on the ability of sex workers and people who use drugs to enter the country. These rules are but one example of the many ways in which national and international laws, regulations and policies are impacting on the HIV vulnerability of most at-risk groups across the world.

Cross-posted in partnership from the HIV Human Rights blog and part of Rewire’s coverage of the International AIDS Conference, 2012.

United States immigration rules place restrictions on the ability of sex workers and people who use drugs to enter the country, and have meant that the voices of two key constituencies are being effectively marginalized at the 2012 AIDS Conference in Washington D.C. However, the rules are but one example of many ways in which national and international laws, regulations and policies are exacerbating the vulnerability to HIV infection of most at-risk groups across the world.

A global report released earlier this month has called for the removal of all discriminatory and punitive laws, policies, and state practices which are fuelling the global HIV epidemic. The final report of the UNDP-led Global Commission on HIV and the Law, HIV and the Law: Risks, Rights and Health, has found that national and international legal frameworks across the world are “creating and punishing vulnerability,” and exacerbating “the stigma and social inequalities that make people more vulnerable to HIV infection and illness.”

The Commission is the most comprehensive examination by a global forum about the impact of various national and international laws on the ability of people living with HIV, and those most vulnerable to infection, to access health and social services and take the action necessary to protect their own health, and the health of others. After a process that lasted two years, garnered more than 1,000 submissions from 140 countries, and saw civil society organizations engage with government through seven regional dialogues, the findings of the Commission are both stark and reflect the realities that many OSF grantees have been documenting, and advocating about for some time.

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Punitive laws against people living with HIV, sex workers, people who use drugs, men who have sex with men and transgender individuals are widespread across the globe, creating stigma and driving people away from vital services. As the executive summary of the report states:

“Nations have squandered the potential of the legal system. Worse, punitive laws, discriminatory and brutal policing and denial of access to justice for people with and at risk of acquiring HIV are fuelling the epidemic.”

Laws and legally-permitted customs perpetuate gender inequality, increasing the vulnerability of women and girls to infection. International trade and intellectual property law allows countries to prioritize patent monopolies over patient rights, leaving many people living with HIV without access to life-saving medicines.

Importantly, the Commission put forward a comprehensive range of recommendations on how countries can reverse this situation and harness the law for good in the battle against HIV. Key recommendations include the decriminalization of same-sex sexual acts and consensual adult sex work; removal of all laws that explicitly criminalize HIV transmission, exposure or non-disclosure of HIV status; decriminalization of drugs for personal use and the closure of all drug detention centers; prohibiting forced abortion and coerced sterilization of HIV-positive women and girls, and removing legal barriers that impede women’s access to sexual and reproductive health services; and, calling for developed countries to stop trying to prevent poorer nations from buying affordable generic medicines.

At report’s launch, the final topic of conversation was the issue of accountability and leadership of governments. The UNDP Administrator, Helen Clark, who as Prime Minister of New Zealand, oversaw the introduction of the first framework for the decriminalization of sex work in the world and advances in the rights of LGBT people and people who use drugs in her country, put out a challenge to leaders of the world. The Commission’s report contains conclusive evidence about the correct way forward in responding to HIV. Governments and policy decision-makers now have the responsibility of turning that evidence into action. As Clark said, we should expect the same courage from leaders as was expected from affected populations when they stood up before the Commission to tell their story with hope for better laws, policies and practices.

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