Archaic laws that criminalize HIV transmission and same-sex relations are driving the spread of HIV, costing lives and wasting vital resources, according to a new report by the Global Commission on HIV and the Law.
The Global Commission - made up of former heads of state, and human rights and HIV experts - found that governments in every region of the world have "squandered" the potential of legal systems in the fight against HIV.
The report is based on extensive research and first-hand accounts from more than 1,000 people in 140 countries. "We have never had such a comprehensive analysis of the law in relation to HIV. We have never been able to give it such specific analysis as done in this report," Stephen Lewis, co-director of AIDS-Free World and former UN special envoy for HIV/AIDS in Africa, told journalists at the launch of the report.
In more than 60 countries it is a crime to expose another person to HIV or transmit it, and over 600 HIV-positive people in 24 countries have been convicted. But these laws discourage people from getting tested for HIV, and drive them underground, the report warned.
Although the supporters of criminalization argue that it protects women from the risk of HIV infection, in reality these laws make criminals of the women the legislation is intended to protect.
"HIV-positive mothers are criminals under all of the HIV laws of West and Central Africa, which explicitly or implicitly forbid them from being pregnant or breastfeeding, lest they transmit the virus to foetus or child,” the report noted.
“The law does not acknowledge that women are frequently unable to disclose their HIV status, or demand the use of a condom because they fear violence, abuse or abandonment by their husbands or partners, and/ or are worried that the information might be used as a tool for revenge or coercion."
Moreover, laws and customs that disempower women and girls - from genital mutilation to denial of property rights - undermine their ability to negotiate safe sex and to protect themselves from HIV infection. The report points out that 127 countries do not have legislation to protect women against marital rape.
Populations at high risk of HIV infection, such as men who have sex with men, injecting drug users and sex workers, have also been "strongly damaged by bad laws" Lewis noted. About 78 countries criminalize same-sex sexual activity, making it difficult to prevent HIV amongst those most vulnerable to infection, while laws in some countries criminalize aspects of services proven to reduce harm to injecting drug users.
“Governments across the world have a responsibility to take bold action and repeal laws that stem from ignorance and intolerance,” said Maurice Tomlinson, a Jamaican lawyer and legal advisor at AIDS-Free World.
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“In Jamaica, where HIV prevalence among men who have sex with men is among the highest in the world, the anti-sodomy law breeds fear and violence and drives these men away from the care and treatment they need.”
The report urged countries to reform their approach towards drug use. Instead of punishing people who use drugs but do no harm to others, "they must offer them access to effective HIV and health services, including harm reduction and voluntary, evidence-based treatment for drug dependence."
The Global Commission research showed that countries with legalized harm reduction services, like Switzerland and Australia, have almost completely stopped new HIV infections among injecting drug users.
The report also identified "a growing body of international trade law and the over-reach of intellectual property (IP) protections" hindering the production and distribution of low-cost generic drugs, which could prevent more people from accessing antiretroviral medication.
The report called for the development of an effective IP regime for pharmaceutical products that would be "consistent with international human rights law and public health needs, while safeguarding the justifiable rights of inventors."