Track D report by Laura Ferguson
The session focused on the epidemic of bad laws that criminalize populations
and behaviors and stand in the way of progress in addressing HIV. Getting the
services to those that need them most is not possible in this context. Creation
and application of the law is often based on prejudice, fear, myth and not
science or evidence. And the problem is growing. The lack of enforcement of protective laws is problematic while there is an increase in intolerance and rights violations of male, female and transgender sex workers. Presentations showed different aspects of the issue.
Personal story from Iowa, USA: undetectable viral load,
consensual sex, wore a condom, no transmission, convicted for criminal
transmission- 25 years. The conviction was later overturned but the personal
impact has been huge.
The impacts of the decriminalization and subsequent re-criminalization
of sex between men in India have been far-reaching. Following
decriminalization, there was an upsurge in pride, decrease in stigma and
discrimination and increase in respect for transgender people. All of this has
been reversed with re-criminalization and access to services has decreased.
In addition to the law against ‘unnatural sex’ in
Nepal, a range of other laws exists that are often misapplied, especially
against transgender people. The police and judiciary lack understanding of
transgender issues and lean towards punishment rather than support. On the
positive side, there is some movement towards a same-sex relationship law and
issues around sexual orientation and gender identity are addressed in schools
Criminalization laws in Uganda are a legacy of
colonialism but are currently being made harsher. This is driving sex workers
underground, impeding access to HIV-related services, impeding adherence to ART
and putting lives at risk.
The Global Commission made recommendations but how many
countries changed laws? How can we make change happen and ensure that the
democratic process works in the interest of the citizens? We need brave,
courageous politicians and lawmakers. It is insufficient to leave bad laws on
the books and simply say they will not be enforced. Reports and talks are
Realizing that the ‘war on
drugs’ was detrimental, a range of actors got together to create a harm reduction
response meaning that the police can serve as an entry point to social services
e.g. housing, mental health etc.
The questions and discussion marked that laws that criminalize key populations and behaviours specifically can be used to perpetuate violence, hinder access to services and violate human rights but a whole host of other laws that are also used to this effect. In some cases archaic laws need to be modernized but there is also a range of new laws being passed curtailing human rights and impeding the HIV response.There is a difference between laws and policies on paper and in practice; unfortunately it is often the protective laws that are not implemented. There is little political advantage to taking up the issues of key populations but civil society-led legal advocacy work continues. The Global Commission report has the right recommendations but nobody is implementing them. Nobody is funding this work – judicial dialogues, police training etc
- There needs to be funding available for creating the “enabling environment” and for getting laws and policies right.
- Avoid general terms that can be understood differently by different actors. Plain speak is something we need to ensure in all our communications.
- Partnerships – communities, scientists, legislators, law enforcers, national human rights commissions etc. – are key. We need togetherness, and to not separate out key populations.
- International AIDS Conferences etc need to be real about where we are: we have lots of reports, suggestions and evidence but not much action, which is a very serious predicament for us to be in.
Community report by Paul Nsubuga Semugoma
An 'Oprah' style panel,
with Mandeep Dhaliwal of UNDP ably playing the lady herself.
Panelists/activists included John Berry, Daisy Nakato from Uganda,
Manisha Dhakal, Ashok Row Kavi, Nick Rhoades, and Ruth Morgan Thomas.
On the technical side to enrich further the discussion were James
Pugel, Ruben Frank del Prado of UNAIDS, Nepal and Judge Michael Kirby
The session opened with
activists showing the breadth and personal impact of the laws on the
lives of people. Nick Rhoades detailed his 25 years prison sentence
saga for consensual sex when he was HIV positive because he didnt
disclose. Bangladesh and Indian presentations charted the loss of
lives in extra judicial killings and loss of livelihoods,
discrimination and dependency on the whim of police 'mercy' for sex
workers and and LGBT individuals. Daisy detailed the breadth of new
laws in Uganda that would impact and criminalised her as LGBT and
also as a sex worker who is HIV positive. The understanding was
universal that though the laws themselves were narrow in definition,
the effects on individuals and communities were broad, diverse, and
generally detrimental to HIV programming.
How to respond was a
great challenge. Justice Kikby challenged everyone saying that since
the HIV & the Law report, everyone knew the problems. They were
well detailed. But, nothing had been done about them. Indeed, more
bad laws had been enacted. He challenged everyone that they needed to
change Legislators minds. The activists noted that changing
legislators minds depended on communities challenging and confronting
the legislators. Dr. del Prado opined that marginalised, criminalised
communities cant do it alone. In democracies, they had to have the
majority of the population with them, to put pressure on leaders.
The discussion was very
lively. The consensus was that much needed to be done, and now. That
the laws need being changed. It was important for the laws to be
changed and not to rely on half solutions like 'sympathetic'
law-enforcement, or judges who were fair, or on things like 'the law
is not enforced'. Base line, the laws needed to be changed. Other
themes was that, good laws needed to be enacted. Because it was
important to protect vulnerable commuties. Also it was pointed out
that people in academia like scientists had to be made aware of the
deleterious effects of the laws.