Punitive laws pertaining to HIV are affecting the fight against the infection in several countries including India, says UN report

According to a latest independent expert report, punitive laws and human rights abuses are costing lives, wasting money and stifling the global AIDS response.

The Global Commission report on “HIV and the Law: Risks, Rights and Health” finds evidence that governments across the world have wasted the potential of legal systems in the fight against HIV; and concludes that laws based on evidence and human rights strengthen the global AIDS responses.

More than 100 countries criminalise some aspect of sex work. The legal environment in many countries exposes sex workers to violence, and results in their economic and social exclusion. It also prevents them from accessing essential HIV prevention and care services.

In more than 60 countries, it is a crime to expose another person to, or transmit, HIV. More than 600 HIV positive people across 24 countries, including the United States, have been convicted of such crimes. These laws and practices discourage people from seeking an HIV test and disclosing their status.

As many as 78 countries criminalise same-sex sexual activity. Iran and Yemen impose the death penalty for sexual acts between men; Jamaica and Malaysia punish homosexual acts with lengthy imprisonments. These laws make it difficult to prevent HIV among those most vulnerable to infection, the report points out.

Laws that criminalise and dehumanise populations at highest risk of HIV – including men who have sex with men, sex workers, transgender people and injecting drug users – drive people underground, away from essential health services and heighten their risk of HIV infection.

The report, released globally on Monday, coincides with the third anniversary of the Section 377 judgement in India that decriminalised homosexuality. Three years ago, in July 2009, a landmark judgement delivered by the Delhi High Court un-did decades of injustice to India’s homosexual community: Section 377 of the Indian Penal Code - that had been misused to target the gay community was finally repealed. Homosexuality was de-criminalized, which means, it is no longer illegal to be gay in India.

While the repealing of Section 377 came as a huge victory for the people with different sexual preferences, the situation remains grave for vulnerable groups. The people living with HIV (PLHIV) in India continue to be discriminated against. From being denied treatment at hospitals and being sacked from workplaces, to children being thrown out of school for being HIV + and tenants being asked to vacate houses, India joins a list of nations where the law does not stand up to protect the PLHIV community.

Since 2005, passport applicants have the option of identifying themselves as male, female, or “others’’ regardless of whether they have had sex change operations.

The Global Commission on HIV and Law – comprising former heads of state and leading legal human rights and HIV experts – based its report on extensive research and first-hand accounts from more than 1,000 people in 140 countries. The Commission, supported by the United Nations Development Programme on behalf of the Joint United Nations Programme on HIV/AIDS, found that punitive laws and discriminatory practices in many countries undermine progress against HIV.

Similarly, laws in some countries criminalise proven interventions for injecting drug users, including in Cambodia, China, Myanmar, Malaysia and the Philippines. In contrast, countries that legalise harm reduction services, like Switzerland and Australia; have almost completely stopped new HIV infections amongst injecting drug users.

Laws and customs that disempower women and girls – from genital mutilation to denial of property rights -- undermine their ability to negotiate safe sex and to protect themselves from HIV infection. As many as 127 countries, including India, do not have legislation against marital rape.

The report further points out that the laws and policies that deny young people access to sex education, harm reduction and reproductive and HIV services, help spread HIV. Excessive intellectual property protections that hinder the production of low cost medicines, especially second-generation treatments, impede access to treatment and prevention, it says.

Over the past three decades, scientific breakthroughs and billions of dollars of investments have led to the remarkable expansion of lifesaving HIV prevention and treatment programmes, which have benefitted countless individuals, families and communities. Yet, the Commissions report finds that many countries squander resources by enacting and enforcing laws that undermine these critical investments.

“Governments across the world have a responsibility to take bold action and repeal or amend laws that stem from ignorance, prejudice and intolerance’’, said JVR Prasada Rao, Commissioner and the UN Secretary General’s Special Envoy for AIDS, Asia and the Pacific.

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