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Q&A: Punitive Laws Problematic For HIV Response – UNAIDS

Evelyn Matsamura Kiapi interviews UNAIDS senior advisor for human rights and law, SUSAN TIMBERLAKE, on the criminalisation of HIV transmission.

ARUSHA, Dec 7 2009 (IPS) - The East African Community is currently developing a law to guide the region’s response to HIV/AIDS. The move comes ahead of the commencement of the East Africa common market protocol.

The law will allow for a common stance on HIV/AIDS, which aims to be non-discriminatory. Based upon consultations with people in east Africa, the proposed law aims to provide joint treatment policies for people in the region while they move freely across the borders.

UNAIDS supports the removal of punitive policies, laws and practices that could block an effective response to HIV/AIDS.

Excerpts from the interview follow.

IPS: East Africa is in the process of drafting a regional HIV/AIDS law. How necessary is this law, and how do you think it will change the face of HIV/AIDS in the region? Susan Timberlake: From my understanding, the East African Legislative Assembly has asked that such a law be drafted. Because the East African Community is about to come closer and closer together in terms of collaboration, this law provides opportunity to ensure that the best practices are supported by law throughout the region. So I think in those terms, it could have a very positive effect on the HIV response in the region.

IPS: One of the contentious issues arising from consultations on the proposed law is the issue of criminalisation of HIV transmission. What is UNAIDS position on that? ST: Since the beginning of the epidemic, there have been two different approaches. One of them is trying to use the law to provide protection and support to those who are vulnerable to the infection and to those who are infected.

And the other is to use the law to identify and punish. But we basically found throughout the years that when there are punitive laws on the books, this is problematic for the HIV response. It means that people who are vulnerable to infection or are living with HIV are driven away from the health services and health care professionals that they need to be in touch with to reduce their vulnerability to infection and to be able to successfully take up HIV testing, treatment, disclosure.

So UNAIDS has made a corporate priority to remove punitive policies, laws, practices, stigma and discrimination that block effective responses to HIV and AIDS. We consider laws that are overly broad in criminalising HIV transmission and sex workers, drug users and men who have sex with men represent obstacles to effective responses and should be removed.

IPS: Which sections in society would be most affected by such a law? ST: If very broad laws to criminalise HIV transmission are passed, then it runs directly in conflict with our efforts to create universal access to HIV/AIDS prevention, treatment, care and support. You cannot do HIV prevention, treatment, care and support unless people are tested for HIV and know their status and change their behaviour. And if they fear that they will be prosecuted for HIV transmission, they are less likely to get tested, to use condoms, to disclose their status and to even get treatment. So we are worried that people living with HIV will keep hidden and that means that they may transmit HIV more.

With regards to most at risk populations – (which include) sex workers, people who used drugs and men who have sex with men are criminalised – they stay away from authorities, treatment, and even from prevention.

They are hidden in the margins of society. So they are more likely to get infected and to transmit the infection. So we are asking governments to try to find a pragmatic solution and avoid criminalisation.

That means avoid applying the criminal law to these populations that result in them getting a criminal record and going to jail. You can still – in the case of sex work and drug use – regulate these things and criminalise the harmful aspects of them. But we are worried that if you send anybody that possesses small amounts of drugs, anybody who sells or buys sex to jail, the jails (will) fill up with non-violent offenders. And in jail, they are more susceptible to HIV transmission, TB and even to drug use.

IPS: So if criminalisation of HIV transmission is not a solution to prevention, what alternatives do you suggest? ST: Some people have an idea that criminalising things deters behaviour and that may be true in some things. But it’s less obvious that it works when you are dealing with intimate relations, sexual relations between adults.

Sex, unfortunately, is about taking risks and doing things that are not rational, and so to expect the criminal law to actually work to deter sexual behaviour is unlikely to succeed. What we say as alternatives, is that in the case of criminalisation to transmission, you limit the application of criminal law to the people who intend to transmit HIV and do so. People who know they are infected, know how it’s transmitted and intend to transmit it should be prosecuted because justice is served.

IPS: What impact would criminalisation of HIV have on women? ST: With regard to criminalisation of transmission, a lot of people think that this is the way to protect women because their husbands and boyfriends are infecting them.

But we are worried that in fact, women will be the ones prosecuted. And we say this because women usually know their status before men do because they learn about it in antenatal clinics; they have less social and legal power, so the men are likely to have the resources to prosecute women.

Men already blame women for bringing the infection into the relationship. So we think that these laws, instead of protecting women, will actually lead to women being prosecuted.

With regard to sex work, it is a similar situation. Many women do not want to be sex workers; they sell sex because they are forced to, to get food, housing, be able to feed and educate their children. It’s a matter of necessity. If you prosecute them on top of the many difficulties they are already facing, then you make their lives even harder. So this has a very bad impact on women’s lives.

What we rather see is that governments spend resources of creating alternatives to sex work; training and education programmes, skills building programmes for women to have access to loans and credit would get people out of sex work than criminalising sex work.