The Second International Consultation on HIV-Related Legal Services and Rights brought together lawyers and activists from Southern Africa, the Middle East and North Africa (MENA), Latin America and the USA.
The objectives of the Consultation were: to review progress in strengthening and expanding HIV-related legal services and rights; share regional perspectives on criminalization, the rights of women and girls, and access to medicines; and identify actions for the next year.
1.1 Regional Updates
Regional updates described a diverse range of activities led by lawyers and activists. Presentations
confirmed that significant progress in addressing HIV-related legal services and rights is occurring, although the context is highly challenging. Capacity building efforts are increasing the overall number of lawyers and activists with knowledge and skills on HIV-related legal issues.
In all regions resource mobilization is increasingly difficult as funding levels decline due to global economic conditions and the increased focus of donors on other health priorities.
Many HIV funders prefer to focus on less controversial treatment and awareness programs, rather than human rights advocacy. In every region, lawyers and activists confront personal safety threats by speaking out on controversial issues.
Strategic litigation is delivering results in Southern Africa, the USA and Latin America.
Strategic litigation has been successful as a result of community mobilization strategies involving organized collaborations between communities and lawyers.
A case against the Zambia Air Force established that a policy of non-consensual testing was unlawful. Women are mounting legal challenges against coerced sterilization in Namibia.
Cases in Malawi and Botswana have addressed homophobic laws. Cases in relation to women’s property and inheritance rights have been conducted in Botswana, Malawi and Lesotho. In Malawi, mandatory testing of sex workers is being challenges. The rights of HIV positive prisoners are being considered in cases in Zimbabwe and Botswana.
In the USA, there has been progress in challenging punitive sodomy laws enforced against sex workers in Louisiana. In another case, the US Court of Appeals struck down the requirement that recipients of federal funds oppose the decriminalization of sex work. In Latin America, litigation has been successful, particularly in relation to access to treatment.
Lawyers in Brazil have played an important role in challenging patents. In the context of the revolutions being experienced in the MENA region, there is hope for improved human rights protections for people living with HIV (PLHIV), women and girls, and key populations such as sex workers, people who use drugs and men who have sex with men (MSM).
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However, it was noted that in all regions, the coverage of legal services that have HIV experience or expertise remains extremely low. Litigation is time consuming and costly.
Creating demand from communities for litigation involves tackling stigma. There is a very limited culture of providing pro bono legal services, outside of the USA.
1.2 Rights of Women and Girls
Advocacy needs to engage with culture as well as law reform to achieve progress in addressing gender inequalities that contribute to HIV vulnerability. Customary laws are often more important than statutory laws in determining gender relations. Practices such as female genital mutilation and polygamy, and concepts of honor divorce, can be harmful.
Property and inheritance issues are primarily resolved under customary law provisions in Africa. In Central America, women have very limited inheritance rights under the customary laws of indigenous communities.
Engaging religious leaders and training of police, judiciary and NGOs are important. With the assistance of evidence and science, women can act as leaders to change the way religion is interpreted, and to challenge violence against women.
The separation of religion and state was a key theme. In Southern Africa, culture and religion are associated with polygamy. In Latin America and Southern Africa, advocacy needs to address the influence of the Christian churches on policies related to sexual and reproductive health rights. Some leaders have been persuaded to change their perspectives.
Church leaders are now preaching against homophobia in some communities. In Louisiana, USA, advocacy groups were able to persuade the churches to support law reform by emphasizing the impact of sex work prosecutions on women’s lives.
Despite the existence of protective domestic violence laws, violence against women persists.
Many countries in Latin America, the Middle East and North Africa do not criminalize marital rape. Laws that establish sexual and reproductive health rights for women are slowly developing. Women living with HIV lack access to reproductive health services and receive little or no information about their sexual and reproductive health rights. Women living with HIV are subjected to sterilization and forced abortion. Policies should support assisted child-birth and adoption as options for women living with HIV.
In Southern Africa, property and inheritance rights are a major equality issue. There are numerous laws that overtly discriminate against women and girls. HIV testing of pregnant women without their consent occurs in all regions. Lawyers have not yet pushed far enough on constitutional rights to test issues such as women’s right to abortion. There is very little priority placed on women’s rights and reproductive health issues because there is very little funding for programs addressing these issues. In Southern Africa, ensuring women living with HIV obtain access to prevention and treatment services for cervical cancer is an urgent priority.
Advocates in Egypt persuaded parliamentarians that the unequal age of eligibility to marry contributes to HIV vulnerability. This resulted in a change in the law to equalize the age.
Key gender equality issues that can be addressed through networks include assisted reproduction, forced sterilization and violence against women.
1.3 Criminalization
Participants discussed criminalization of sex work, drug use, homosexual acts, and HIV transmission. A key principle for advocacy is that governments should not interfere in sexual matters between consenting adults. Participants agreed that governments should be secular rather than impose religious moral values. Decriminalization requires changing the mindsets of lawyers and policymakers regarding sexual minorities and sex workers, and community mobilization. In El Salvador, sex workers organized themselves to resist abuses.
In Argentina, sex workers formed a labor union and there is now a network promoting the rights of sex workers in Latin America and the Caribbean.
Same sex practices are illegal in many countries and reports of police abuses are common.
Sex between men has been decriminalized in India as a result of litigation based on constitutional rights. A similar constitutional challenge may not work in the African context.
Instead, a range of interventions may be required including ‘know your rights’ campaigns, documentation of and redress for specific rights violations, legal aid, and work with national human rights institutions and mainstream human rights and HIV organizations. Africa is experiencing a growing movement of activism, with increasing visibility of sexual minority rights issues.
There is a proliferation of HIV exposure laws in the USA, where the criminal law is used to prosecute PLHIV for spitting, although there is no basis in science for HIV transmission risk in such contexts. Laws and law enforcement have a disproportionate impact on African Americas living with HIV. Although sodomy laws in other states are considered unconstitutional, the state of Louisiana has continued to enforce the Crimes Against Nature Statute (CANS) against sex workers. A strategy was implemented to challenge the CANS law using litigation, advocacy and media. This approach has partially succeeded and a new law has removed many of the problems.
There are similar intersections of issues relating to HIV vulnerability, stigma, criminalization, housing, employment and race in Southern Africa and Southern USA. Sex workers in Southern Africa are often charged with loitering and pay bribes or provide sex to police to avoid prosecution. Sex workers are exposed to police harassment and sexual violence. Sex workers are difficult to reach: stigma is a barrier to rights protection.
It is helpful to use public health arguments e.g. in Uganda, these arguments helped to defeat the Anti-Homosexuality Bill. Collating case data to provide evidence of trends to present to legislators and policy makers is important. Advocates need to highlight inconsistencies such as lack of alignment between policies of the justice sector, which punishes MSM and drives communities underground, and the health sector, which is urging MSM to come forward and access health services.
Advocates in different regions could benefit from comparative research on the concept of the criminalization of unnatural acts, and research on how the legal system addresses sex workers, people who use drugs and MSM – looking at issues relating to evidence, police conduct, duration of detention and penalties.
1.4 Access to Treatment
Obstacles to treatment access include discriminatory laws and practices, interruptions to supply, high prices, and patent laws. Access to treatment can be supported by reducing stigma and discrimination and addressing barriers created by criminalization that prevent outreach services reaching hidden populations. When first-line treatments fail, patients need to be able to access second-line treatment regimens, which are far more expensive. The effect of patents on drug prices is a critical issue for all regions.
In 2009, the MENA region had an ARV coverage level of around 12%, the lowest in comparison to other regions of the globe. Yet, in theory, ARVs are affordable – almost all MENA countries provide ARVs for free. However, obstacles to treatment access include discriminatory laws and practices, centralization and control of distribution and interruptions to supply due to procurement issues, policies on prices, and patent laws.
Litigation has been a successful strategy in Latin America. In Venezuela, a court ordered the government to supply patients with antiretroviral drugs. In Peru, a case confirmed the rights of PLHIV to permanent supply of drugs and monitoring tests. The Inter-American Commission on Human Rights has made a series of important findings to secure the right to health of PLHIV in OAS Member States. In Brazil, advocacy has focused on the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Lawyers have mounted in six patent challenges. Experience has demonstrated that use of pre-grant opposition processes to prevent patents being issued can produce fast and positive results.
Two important treatment access court cases are pending in Brazil.
In South Africa, the Treatment Action Campaign (TAC) focused on community mobilization and advocacy to force the government to draft a national treatment plan. TAC uses litigation, public protests and the media to pressure government departments. The AIDS Rights Alliance for Southern Africa (ARASA) has learnt the importance of combining bottom up and top down approaches. ARASA promotes treatment and rights literacy at the community level so that there is demand for the right to health, and also targets governments through advocacy at national, regional and global levels.
Governments need to strengthen resolve to exercise TRIPS flexibilities. The Medicines Patent Pool provides access to some ARVs but many middle-income countries are excluded.
Some wealthy countries have cheaper ARVs than poor countries because of pricing regulations. For countries with less demand it may be possible to work with regional organizations to find joint solutions so low HIV prevalence countries are not penalized.
There is a correlation between countries that lack democracy and low levels of treatment access because people are not equipped to demand their rights. The starting point is awareness raising that access to treatment is a human right.
1.5 Future Actions
It was suggested that future collaborations (whether within regions or between regions) should focus on a limited number of agreed priorities. Joint actions should avoid duplicating of activities that can already be done via existing networks. Regional networks can supply leadership to progress national issues. Discussions relating to inter-regional networking
identified rights of women and girls and decriminalization issues as priorities, particularly in relation to sex work. Another opportunity is cross-regional collaboration on access to treatment.