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Links between positive prevention, the legal environment and programmes to empower

  1. Intro: Links between positive prevention, the legal environment and programmes to empower Susan Timberlake International Technical Consultation on Positive Prevention 27-28 April 2009
  2. 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?
  3. 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
  4. 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)
  5. 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
  6. 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
  7. 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
  8. 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)
  9. 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?
  10. 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
  11. 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****
  12. 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
  13. 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
  14. 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
  15. 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?
  16. 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.
  17. 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
  18. 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