The panel comprised Ms. Felicity Young (RTI) (Session Chair), Ms. Shen Tingting (Korekata AIDS Law Center, China), Ms. Lydia Karre (Papua New Guinea Development Law Association), and Ms. Varsha Gaikwad (Positive Women’s Network, India).
Ms. Felicity Young (RTI International) The panel was asked to address three questions:
(i) What are the priority HIV-related legal issues for women?
(ii) How can access to justice for women be improved?
(iii) How can HIV-related legal services address gender equality?
The UNGASS Political Declaration on HIV/AIDS (2011) included three specific targets relating to women and universal access, as well as the commitment to legal services. We need to hook our advocacy to UN declarations and commitments. The 2012 ESCAP meeting on HIV also identified gender as a major issue for the region’s HIV response.
Ms. Shen Tingting (Korekata AIDS Law Center)
In 2008-2009 we established two community-based projects. The projects involved outreach to sex workers and harm reduction. These projects adopted legal empowerment approaches. About 80 per cent of sex workers know nothing about the law. Many sex workers have no confidence in the police, so will not
16 report a crime to the police if they are abused. The sex worker outreach project involved provision of information and training on legal rights by peer educators.
Under Chinese law, sex work, organizing sex work, and providing assistance to sex workers is illegal. There are regulations governing some entertainment establishments where sex work occurs, but these are focused on monitoring of business activities by police and officials rather than protecting the health and safety of workers. The penalty for sex work is RMB 5,000, and public security officials have power to detain sex workers at compulsory re-education centers for up to two years under administrative law. Detainees are subject to compulsory testing for STIs and HIV. Detainees must pay for medical treatment themselves.
Police extortion is common. Sex workers often pay much more than the prescribed penalty to corrupt police so that they can continue to work.
Sometimes police detain sex workers and will only release them if a sum is paid.
In one case, RMB 20,000 had to be paid to police to avoid sex workers being sent to a compulsory re-education centre. The problem is that there is no mechanism for the community to monitor improper police behavior.
Police often confiscate condoms as evidence of sex work. The Ministry of Public Security organizes periodic police sweeps of undesirables. In 2010, public security officers implemented a ‘Strike Hard’ campaign. Over 1,000 people were detained and the media broadcast their identities. Police sent letters to the families of these sex workers stating that the families needed to help to ‘rescue’ the detained women from the sex trade.
Under Chinese law, people can only access public health care in the town where they are registered as residents. As a result, sex workers who leave their homes in rural areas to work in the cities cannot access ARVs.
Sex workers need to have an organization to represent their voice in China. The Internet provides a way to share information and create support for law reform.
Ms. Lydia Karre (Papua New Guinea Development Law Association)
Papua New Guinea Development Law Association (PNGDLA) provides services to people living with HIV, sex workers, transgender people, vulnerable women and children.
Culture and custom contribute to women’s vulnerability. Traditionally, the husband’s family pays a bride price. As a result, women are treated as property of their husband’s family. If there is violence in the marriage, women feel that they cannot complain to police because it is considered to be an internal family matter. Women often have little or no education, and may be dependent on their husband’s income. Men usually own the family home, so if a wife seeks to leave her husband she has nowhere to stay and the children are considered to belong to the husband. Traditionally, men are allowed to marry more than one woman.
Many young, uneducated women find themselves in polygamous relationships.
Priorities for PNGDLA are to address sexual violence, marital rape, and abuse of sex workers by police. Sex work is illegal and blackmail by police officers is common. Sex workers are often required to provide sexual favors to secure their release. Although it is a crime for a husband to rape his wife, wives are often afraid to speak out because of bride price and cultural pressures.
The HIV Management and Prevention Act was introduced in 2003, but it has never been enforced in court. Testing without consent is a common practice at
17 antenatal clinics, although this is prohibited by the Act. This practice needs to be challenged.
Breaches of patient confidentiality are known to be common in health care settings. This leads to discrimination.
Police are abusive. In one case, police refused to find and arrest a husband who had breached a restraining order because they said they had no fuel for the police car. PNGDLA had to pay for the fuel.
There is a pro bono system that provides access to free legal services, but HIV cases are given a low priority. Sex workers do not feel comfortable attending the Office of the Public Solicitor because they fear discrimination by lawyers.
The location of the PNGDLA office is important. It is in a busy area that is considered to be safe and is not stigmatized.
Access to justice for women seeking protection from violence has been improved by the introduction of a simple procedure for obtaining interim protection orders from the courts. There is a Sexual Violence Unit at one police station, which is staffed by police officers who have received specialized training.
Empowerment of women requires changes in social attitudes so that violence in the family is condemned. We also have to educate lawyers, magistrates and judges on HIV and the importance of confidentiality.
Gender equality in the workplace can be addressed by ensuring a gender policy is in place, and that practices such as working hours are flexible, so as to take into account child care responsibilities.
Ms. Varsha Gaikwad (Positive Women’s Network, India)
The Positive Women’s Network has provided a national voice for Indian women living with HIV since 1998. The first national consultation for positive women was held in 2002, as a partnership between civil society, the United Nations and government. It was decided that a rights-based approach should be given priority.
Research was conducted to document the experience of women in eight states, in terms of the rights of women living with HIV under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
HIV positive women experience double discrimination – discrimination because they are women and discrimination because they have HIV. Laws protect women from domestic violence but many women are unaware of these laws and how to access the justice system.
In 2007 a national public hearing was held on women and HIV. HIV testing without consent and discrimination against women living with HIV by health care workers were common complaints. When women are diagnosed with HIV, their spouse and in-laws generally blame them as the source of infection.
An advocacy success was to change the terminology used from “prevention of mother to child transmission” to “prevention of parent to child transmission”, to emphasize the role of men in transmitting HIV to their wives.
The Positive Women’s Network implemented a project in eight states. Women living with HIV were educated about their property rights and domestic violence in 35 districts. Cases were referred to legal aid. Over 1,000 cases were identified.
Some problems could not be resolved because women did not have the required
18 documents. Lengthy legal processes can be shortened if legal assistance is provided to help women to obtain documents from the courts or government offices. Identity cards and birth certificates are important so that women can access health care and other services. Lack of a marriage certificate affects inheritance rights.
Peer education, referral networks and organizing of communities are crucial in addressing the rights of women living with HIV.
Points raised in questions and discussion: Women and HIV
ACHIEVE is an NGO in the Philippines that has worked with the police in raising sex work issues. One of the outputs of this is a plan to integrate rights-based approaches into HIV 101 training among the police, with assistance from the Quezon City health department. Training addresses the importance of not confiscating condoms from sex workers, or using them as evidence of prostitution and/or trafficking.
Vietnamese women who are trafficked into China are entitled to free legal services under an agreement between countries. Vietnam and China need to share experiences in supporting victims of trafficking who are living with HIV.
There are very few organizations that provide HIV-related legal services in China.
It is very difficult to reach Vietnamese women who have been trafficked into China. They are a hidden population.
There is ongoing tension in China between public security and public health approaches to sex work. The punitive police approach can make it difficult to conduct HIV prevention outreach and legal outreach to sex workers. There is a need for constructive dialogue and training for police. There have been some positive experiences in working with the police academy in Yunnan and building bridges between public security and health authorities.
In China, there is interest in learning from the experience of sex work law reform in Taiwan, where some brothels have operated legally in red light districts and there is an active sex workers’ rights movement. There is hope in China that opinions will change as ideas spread through new technology. A proposal to legalize sex work was submitted to parliament, although we do not expect law reform for many years. The first step is public education to de-stigmatize sex work and to empower sex workers.
In India, there is a provision in the Immoral Traffic (Prevention) Act that enables police to prosecute sex workers who are identified through police raids. Some states have ordered police not to exercise their powers against sex workers. An internal order of the Police Commissioner in Delhi directs the police to target brothel owners, rather than sex workers. The attitudes of officials have improved and this has been achieved without decriminalization.
A petition is pending before the Supreme Court of India on the rehabilitation of sex workers. Old attitudes prevail in some states of India, but there have been improvements in others.
Use of technologies such as the Internet and mobile phones may enable services to reach more people. In China, Internet chat sites have proved to be useful to reach people because chat sites can be accessed anonymously. However, many clients do not have access to new technologies because they are poor and have low literacy levels. In Nepal and Papua New Guinea, radio has been an effective
19 tool to reach communities. Meeting clients face-to-face and forming personal relationships is very important to gain their trust.