Intro: Links between positive
prevention, the legal
environment and
programmes to empower
Susan Timberlake
International Technical Consultation on
Positive Prevention
27-28 April 2009

Can the law empower people to avoid
infection?
Can the law empower those infected
to live successfully and safely with
The role of the law in the AIDS
response
to live successfully and safely with
HIV?
Can the law support an effective and
just response to HIV?

Major past and current debate about role
of law in response to HIV
Compulsory: To compel people to act or not act in a
certain way: get tested, disclose status, use
condoms, not discriminate, get treated, get sterilised
OR
Protective and enabling: To protect people from
discrimination, to enable (ensure) access to testing,
treatment, prevention modalities so as to
create environment where people feel safe to get tested,
use condoms, disclose status, get and stay on treatment,
not fear discrimination
create govt structures and accountability

Govts committed to protection
“By 2003, enact, strengthen or
enforce…legislation…… to eliminate all
forms of discrimination against, and to
ensure the full enjoyment of all human rights
and fundamental freedoms by people living
with HIV/AIDS..; in particular to ensure theirwith HIV/AIDS..; in particular to ensure their
access to, inter alia……legal protection,
while respecting their privacy and
confidentiality; and develop strategies to
combat stigma and social exclusion…”
Declaration of Commitment (2001)

Specific protection
• Overcoming legal barriers to commodities and services
• Full protection of confidentiality and informed consent
• A social and legal environment that is supportive of
safe and voluntary disclosure of HIV status
• Intensified efforts to enact…or enforce legislation to
eliminate all forms of discriminationeliminate all forms of discrimination
• Eliminating gender inequalities, including harmful
customary practices, abuse, rape and other forms of
sexual violence, battering and trafficking
• Ensuring evidence- and skills-based, youth-specific
HIV education, mass media interventions and the
provision of youth-friendly health services.
From Political Declaration 2006

But punitive laws continue:
• Criminalisation of transmission of HIV
and nondisclosure of HIV status
• Criminalization of behaviours (same
sex sex, sex work, drug use, adultery,sex sex, sex work, drug use, adultery,
fornication)
• Discriminatory laws, e.g. travel
restrictions
• Mandatory testing, abortion,
sterilization

60 countries have HIV-related restrictions on entry,
stay and residence
In 2007, 84 out of 136 reporting countries report
having “laws and regulations that present
obstacles to effective prevention, treatment,
care and support for vulnerable sub-pops”.
Some 85 countries criminalize HIV transmission –Some 85 countries criminalize HIV transmission –
with some 20 countries in Sub-Saharan Africa
having adopted such laws in the last 4 years
Some 86 countries criminalize same sex sex, 7
with death penalty

Debate without data
• Pro-punitive: punitive law deters harmful
behaviour (risky sex, non-disclosure,
deception, irresponsibility, recklessness,
negligence, immorality, transmission)negligence, immorality, transmission)
• Contra-punitive: punitive law deters
positive behaviour (getting tested,
disclosing status, being responsible, safe
sex, getting treatment)

Is positive prevention an alternative
to punitive laws?
Potential to:
• Empower people with means to protect
themselves and others
• Reorient lawmakers from the• Reorient lawmakers from the
compulsory/punitive to the protective
But then what must we do better at?

Need to improve entire legal
environment:
1. Written law and traditional law
2. Law enforcement
3. Access to justice - ability to use3. Access to justice - ability to use
the justice system to get redress
EACH IS CRITICAL TO HIV prevention,
treatment, care and support AND to
positive prevention

Three strategies to improve legal
environment
1. Empower affected communities
to know right and laws, access
justice system and advocatejustice system and advocate
2. Improve law enforcement
3. Legislate or reform law
****IN ORDER OF IMPORTANCE****

1. Empower the community with
Legal Literacy
• To know rights and laws
• To mobilize around rights and laws,
including traditional laws
• To get legal aid or support• To get legal aid or support
• To get redress and dispute resolution
• To be able to advocate for good laws
• To be able to negotiate with Parliamentarians
• To be able to conduct strategic litigation

2. Improve Law Enforcement
• Train police and prison staff – to not be
violent or discriminatory against PLHIV or
members of affected groups, to deal with
domestic violence/rape, to not blockdomestic violence/rape, to not block
access to HIV services
• Train judges – to not discriminate; and to
deal with domestic violence/rape, to
protect rights of women and children

3. Legislate or reform law
• Difficult, time-consuming, labour intensive
Must prepare the ground
• Politically complex
• Fraught with risks• Fraught with risks
Bad law is easier to make than good law!
• Not useful unless will be enforced and those
who need it can use it….. back to community
empowerment

Monitor the legal environment
• Law: Does law criminalize transmission? Does it
criminalizes key pops? Protect PLHIV against
discrimination? Protect against sexual violence?
Protect prop and inheritance rights (traditional law)?
Protect orphans?
• Law Enforcement: Is it a barrier to UA for
marginalized pops? Are they being arrested? Aremarginalized pops? Are they being arrested? Are
women’s rights being enforced? Have people been
prosecuted for transmission of HIV?
• Access to justice: Is there a “know your rights/laws
programme? Is there legal aid for PLHIV? Have
PLHIV brought a discrimination case? Have police and
judges been trained? Are there programmes to reduce
stigma and discrimination?

Work with the right partners
• Establish contact/advocate with the MofJ and
MofI, judiciary, Parliamentarians, police, National
Human Rights Institution, human rights NGOs.
• Identify/create national or regional NGO/center
of excellence on HIV and the lawof excellence on HIV and the law
• Promote programmes to empower civil society
re. law in funding proposals
• Offer/create “safe spaces” for criminalised
groups to meet
• Conduct operational research on how law
impacts epi and response.

Support/demand essential
programmes at proper scale
• Know your rights/laws campaigns
• Programmes to reduce stigma and discrimination
• Human rights education for key service providers (health
care workers, police, judges): nondiscrimination,
confidentiality, informed consent, ethical partnerconfidentiality, informed consent, ethical partner
notification
• Programmes to change harmful gender norms, violence
against women
• Provision of legal aid, community paralegals, working
with traditional leaders
• Economic empowerment of caregivers

Positive Prevention’s legal side?
• Take debate into own hands
• Become expert in rights/legal literacy
• Be outspoken and organized against bad laws/law
enforcement and for good laws
• Demand that “combination prevention” includes core
programmes to support human rights
• Demand that donors fund and govts implement and
scale up of these programmes
• Support nondiscrimination as fourth pillar of universal
access
• Demand indicators re. reduction in stigma and
discrimination
• Call for operational research on impact of bad law