Commission Key Findings & Recommendations - Columbia Law School, Feb. 2013


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Presentation given at Columbia Law School in Feb. 2013 by Emilie Pradichit, Human Rights & Law Consultant, HIV, Health and Development Group, BDP, UNDP NY.

The presentation provides an overview of the Global Commission on HIV & the Law's work and presents the key findings and recommendations of the Commission Final Report "HIV and the Law: Risks, Rights & Health". More specifically it focuses on findings and recommendations as they relate to HIV Criminalization, Women and Children and describes UNDP's work in implementing the Commission's recommendations in 82 countries at national and global level.

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Commission Key Findings & Recommendations - Columbia Law School, Feb. 2013

  1. 1. Risks, Rights & Health Key Findings & Recommendations Emilie Pradichit Human Rights & Law Consultant United Nations Development Programme (UNDP) HIV, Health & Development Group, NY Columbia Law School 20 February 2013
  2. 2. Key QuestionHow do legal environments (law, regulations, lawenforcement and access to justice) influence:• HIV prevention, treatment and care – coverage and quality• Social support for people affected by the epidemic• Human rights protection and promotion• Efficiencies and effectiveness of HIV investments
  4. 4. WHY THE LAW MATTERS?Critical enablers such asthe law can contributesignificantly to reducingHIV incidence for arelatively low cost(Investment Framework)• : The Lancet 2011; 377:2031-2041 (in (DOI:10.1016/S0140- 6736(11)60702-2
  5. 5. Why A Global Commission on HIV & the Law?• UNAIDS target: by 2015, halve the number of countries with punitive laws and practices around HIV transmission, sex work, drug use or homosexuality. Create legal environments that advance and safeguard dignity, health and justice in the context of HIV• To develop action-oriented, evidence based recommendations for effective AIDS responses that mitigate the impact of HIV and promote and protect the human rights of people living with and most vulnerable to HIV
  6. 6. Objectives & Outcomes  Consolidated, coherent and1. Analyse existing evidence and generate new compelling evidence base evidence  Greater awareness among2. Develop rights-based and key stakeholders evidence-informed recommendations  Leadership of law and policy makers to create a3. Increase awareness positive legal environment amongst key constituencies  Public dialogue on social4. Engage with civil society attitudes, human rights and and strengthen their legal issues relating to HIV ability to campaign, advocate, lobby  Civil society engagement
  7. 7. The Global Commission on HIV & the Law Laws and Practices That EffectivelyCriminalise People Living With andVulnerable to HIV(2) Laws and Practices That Mitigateor Sustain Violence andDiscrimination as Lived by Women(3) Issues of Law and HIV pertainingto children(4) Laws and Practices that Facilitateor Impede HIV-related TreatmentAccess
  8. 8. 3 Mutually Reinforcing Axes
  9. 9. The Commissioners
  10. 10. Technical Advisory Group• The Hon. Michael Kirby • Vivek Divan (Co-Chair) • Richard Elliot• Allehone Mulugeta Abebe • Sofia Gruskin (Co-Chair) • Wendy Isaack• JVR Prasada Rao • Rick Lines(Member Secretary, Commission)• Aziza Ahmed • Kevin Moody• Jonathan Berger • Vitit Muntarbhorn• Chris Beyrer • Cheryl Overs• Scott Burris • Purna Sen• Joanne Csete • Susan Timberlake• Mandeep Dhaliwal • Tracey Robinson• Sophie Dilmitis • Matthew Weait
  11. 11. Commission Report Launched on 9 July 2012 in New YorkHIV and the Law: Risks, Rights & Health
  12. 12. Report (EN, FR, SP & RU) & resources available at…
  13. 13. Commission ReportKey Messages:1. Epidemic of bad laws is fueling the spread of HIV, resulting in human rights violations and costing lives2. Epidemic of bad laws is limiting effectiveness and efficiency of HIV and health investments3. Good laws and practices that protect human rights and build on public health evidence already exist - they strengthen the global AIDS response, and they must be replicated
  14. 14. Criminalization of HIV Transmission, Exposure and Disclosure FINDINGS (Legal Frameworks) 1. In over 60 countries, it is a crime to expose another person to HIV or to transmit it, especially through sex. 2. Worldwide, countries and jurisdictions have promulgated HIV-specific criminal laws:  34 States & territories in the USA  27 countries in Africa following the NDjamena Model Law (2005)  13 countries in Asia-Pacific  11 countries in Latin America  9 countries in Europe  At least 600 individuals living with HIV in 24 countries have been convicted under HIV-specific or general criminal law.
  15. 15. General Findings(I) Overly broad criminalization provisions: • laws often vaguely worded, prosecutions for mother to child transmission, spitting or biting(ii) Prosecutions disproportionately target marginalized people • Example: Asylum seekers & immigrants(ii) Criminalization is only justifiable in very limited settings of malicious intend and proven transmission • Intend, harm, risk, proof, penalties
  16. 16. Criminalization of HIV Transmission, Exposure & Non-disclosure FINDINGS: Criminal law is not a HIV prevention tool1. No evidence that criminal prosecutions prevent new HIV infections2. Such laws do not increase safer sex practices3. Instead, criminalization of HIV transmission reinforces stigma and discrimination vs. PLHIV
  17. 17. Criminalization of HIV Transmission, Exposure & Non-disclosure FINDINGS: Is criminalization ever justified?1. The rare cases of malicious intentional transmission can be addressed by existing criminal or public health laws2. Defining specific HIV offences is not warranted and, in fact, violates international human rights standards.
  18. 18. RecommendationsTo ensure an effective, sustainable response to HIVthat is consistent with human rights obligations:• Countries must not enact laws that explicitly criminalise HIV transmission, HIV exposure or failure to disclose HIV status• Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to have taken place
  19. 19. Recommendations (continued)• Countries must amend or repeal any law that explicitly or effectively criminalizes vertical transmission of HIV• Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law• The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed
  20. 20. Implementation
  21. 21. PACHA Resolution on HIV-specific Criminal Laws• 7 February 2013: President’s Advisory Council on AIDS (PACHA) voted Resolution on Ending Federal and State HIV-specific Criminal Laws, Prosecutions, and Civil Commitments “Today’s announcement is an important advancement in our collective effort to modernize unjust and discriminatory HIV criminalization laws” Congresswoman Barbara Lee, co-chair of the Congressional HIV/AIDS Caucus.
  22. 22. Women and HIVAt the end of 2010, there were 16.8 million women living withHIV: – HIV is the leading cause of death in women of reproductive age. – 51% of all people living with HIV are women - significant regional variations. – 26% of all new infections take place among women aged 15 to 24. – HIV-related causes contributed to at least 20% of maternal death
  23. 23. Women, HIV & the LawFINDINGS (Legal Frameworks)• Constitutional equality, accession to international covenants, legislation on the books• Legal loopholes, multiple legal frameworks, reservations to international agreements, inadequate enforcement• Gender inequality leaves women and girls vulnerable to HIV.
  24. 24. Women, HIV & the LawFINDINGS (Violence)• Rape persists, despite legal prohibitions. It is increasingly a prime weapon of war.• Legal definitions of sex crimes may preclude prosecuting some coerced acts (ie, marital rape).
  25. 25. Marital rape
  26. 26. Women, HIV & the LawFINDINGS (Violence - continued)• Even where laws criminalize sexual violence, they are often poorly enforced.• Survivors of violence fail to get timely HIV and health services, including therapy to reduce HIV infection.• Disclosure of HIV-positive status also puts women at risk of violence.
  27. 27. Women, HIV & the LawFINDINGS (Sexual & Reproductive Health)• Reproductive health centers are not friendly spaces for many women living with HIV. Coercive and discriminatory practices include: – forced HIV testing – breaches of confidentiality – denial of health care services – coerced or forced sterilizations and abortions• Where HIV exposure and transmission are criminalized, pregnant women and mothers fear testing and treatment, for themselves and their children.
  28. 28. Women, HIV & the LawFINDINGS (Property Rights)• Without equal rights to property, women are severely disadvantaged within the family• International covenants guarantee equality between men and women in family life, marriage and its dissolution. Regional agreements also deal with laws and traditions in relation to these issues.• Formal and customary marriage, property and inheritance laws, and practices such as “property-grabbing” fuel gender inequality.• Governmental or traditional legal systems fail to outlaw customary practices (ie, early marriage) and put girls and women at increased risk of HIV exposure.
  29. 29. RecommendationsRECOMMENDATIONS INCLUDE:• End all forms of violence against women and girls, including in conflict situations and post-conflict settings: – Enact and enforce laws that prohibit domestic violence, rape and other forms of sexual assault. – Remove immunity from prosecution for rape when the perpetrator is a married or unmarried partner.• Remove legal barriers that impede women’s access to sexual and reproductive health services. Ensure that: – Health care workers provide women with full information on sexual and reproductive options and ensure that women can provide informed consent – Prohibit and take measures to stop the practice of forced abortion and coerced sterilization of HIV-positive women and girls – Provision of health services, including post-exposure prophylaxis, legal services and social protection for survivors of violence, must be guaranteed. – Health care workers are trained on informed consent, confidentiality and non-discrimination.
  30. 30. RecommendationsRECOMMENDATIONS INCLUDE:• Reform property and inheritance laws so that women and men have equal access to property and other economic resources, including credit: – Ensure that, in practice, property is divided without gender discrimination upon separation, divorce or death and establish a presumption of spousal co-ownership of family property. – Leaders of religious or customary legal systems must make reforms to protect women, including widows and orphans.• Ensure that laws prohibiting early marriage are enacted and enforced.• Religious and customary laws must prohibit practices that increase HIV risk, such as widow inheritance or “widow cleansing”. 32
  31. 31. Children, HIV & the LawFINDINGS• Laws are failing to ensure that orphans and children affected by HIV are protected from discrimination• In several countries, laws explicitly prohibit HIV positive adults from adopting children, including HIV positive children, regardless of the adult’s own general health status and prognosis.
  32. 32. Children, HIV & the LawFINDINGS• In some countries, laws completely prohibit age-appropriate sexual health education in schools while in others, laws impose ‘abstinence-only’ or other restricted curricula.• Some countries have established different legal ages for consent to sex and for autonomous access to sexual and reproductive health services.
  33. 33. RecommendationsRECOMMENDATIONS INCLUDE:• Laws must: – Ensure that the birth of every child is registered. This is crucial for ensuring that an appropriate legal framework is in place for children to access essential services and for their rights to be protected and promoted as per the Committee on the Rights of the Child (CRC). – In the event of the death of a parent, ensure that an appropriate adult is appointed as the child’s guardian. This includes provisions for transfer of guardianship of AIDS orphans from deceased parents to adults or older siblings who can ensure the well-being of the child. – Support community based foster care for children orphaned by AIDS as an alternative to institutionalization, when formal adoption is not possible or appropriate. – Ensure access to HIV-sensitive social protection as required such as direct cash transfers for affected children and their guardians.• Laws must prohibit discrimination against children living with or affected by HIV, especially in the context of adoption, health and education.
  34. 34. RecommendationsRECOMMENDATIONS INCLUDE:• Enact laws which ensure that the right of every child, in and out of school, to have access to age appropriate comprehensive sexual health education to enable them to protect themselves and others from HIV and to live positively with HIV.• Reform laws to ensure that the age of consent for autonomous access to HIV and sexual and reproductive health services is equal to or lower than the age of consent for sexual relations, enabling sexually active young people to confidentially and independently access health services and protect themselves from HIV
  35. 35. Implementation• 14 February 2013: Congresswoman Lee (D-CA) and Senator Frank R. Lautenberg (D-NJ) introduced the Real Education for Healthy Youth Act of 2013⇒ Legislation would give America’s youth the knowledge they need to make educated decisions about their health, and⇒ would expand comprehensive sex education programs in schools and ensure that federal funds are spent on effective, age-appropriate, medically accurate programs.
  36. 36. Impact of Commission’s workCountry action catalyzed before the launch of report:• In Guyana (Sept. 2011) rejection of the inappropriate criminalization of HIV exposure and transmission.• Fiji also rejected the inappropriate criminalization of HIV transmission and exposure and lifted HIV-related travel restrictions.• In Argentina, Parliamentary sensitization on HIV and legal issues affecting transgender people contributed to the adoption of a progressive gender identity law (May 2012).• Belize (Oct. 2011) and Panama (Dec. 2011) held national dialogues on HIV, human rights and the law. In Panama, the Ministry of Women’s Affairs committed to reviewing all laws pertaining to women’s rights and HIV• At the Asia-Pacific High-level Intergovernmental Meeting on the Assessment of Progress Against Commitments in the Political Declaration on HIV/AIDS and the Millennium Development Goals (February 2012), hosted by UNESCAP, senior government and civil society representatives from Asia and the Pacific discussed the importance and challenges of law reform for HIV responses in the region
  37. 37. Impact of Commission’s workCountry action catalyzed after the launch of report:In 2012-2013 UNDP has mapped Commission follow up activities in 82countries (31 UNAIDS priority countries):• Legal environment reviews• Legislative Reform• National Dialogue & Action Planning on HIV and the Law• Judicial Sensitization• Parliamentarian Sensitization• Access to Justice – Law Enforcement & Legal Services• Media & Religious Leader Sensitization
  38. 38. World Map on the Implementation of the Recommendations of the Global Commission on HIV & the Law
  39. 39. Impact of Commission’s workCountry action catalyzed after the launch of report:• The Commonwealth Eminent Persons’ Group, influenced by the Commission, presented its report to the Commonwealth Heads of Government Meeting, including a clear call for the removal of punitive laws blocking effective HIV responses.-> Recommendation adopted with comments on 19 Dec. 2012 by Heads of Governmentof Commonwealth countries:• Rec No 60: Heads of Government should take steps to encourage the repeal of discriminatory laws that impede the effective response of CW countries to the HIV/AIDS epidemic, and commit to programmes of education that would help a process of repeal of such laws.• Comment: Member governments have the discretion to identify which, if any, laws are considered discriminatory, and the steps deemed appropriate to address these.
  40. 40. Thank You“The end of the global AIDS epidemic is within our reach. This will only be possible if science and action are accompanied by a tangible commitment to respecting human dignity and ending injustice.” Fernando Henrique Cardoso, Chair of the Commission & Former President of Brazil www.hivlawcommission.orgTwitter