- Last Updated on Wednesday, 01 February 2012 01:17
- Published on Tuesday, 31 January 2012 19:15
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So what does this mean for legal policy on HIV?
Clearly, the law has an important impact on how the HIV epidemic is experienced in any country. This became evident very early on in the epidemic because many of the people affected, such as sex workers, gay men and drug users, were already the target of punitive legal provisions. Moreover, the fear generated by the epidemic has meant that responses relying upon punitive, restrictive models of law have been common. Dominic's case is just one example of many.
In this way, the law has been an important part of the backdrop against which the experiences of people with HIV have been lived and intervention strategies have been implemented. Of course it is only one element of many that go to make up this backdrop, but it has been a critical element - in both a practical and symbolic sense.
So we know that the law matters in the context of this epidemic. The more important and the more difficult issue is to identify the way forward if we are to use (or, on occasions, not use) the law constructively and appropriately in our response to HIV.
In many ways, the principles that should guide legal policy on HIV are very simple. There are four points that I would like to leave you with today.
A Protective and Supportive Legal Framework
The first point, I hope, is obvious. The law can and must be used to establish a protective and supportive framework for people affected by the epidemic and not a punitive one. This is a critical element of the environment I described earlier, the environment of collaboration and mutual support that emphasizes the community of interest between the infected and the uninfected and between governments and individuals. Only in such an environment can we be confident that our efforts to reduce the transmission of HIV and care for those affected will have optimum effect.
Creating a supportive legal environment can involve both negative and positive legal interventions. The negative interventions arise from the need for absence of law in some contexts. The laws that we do not need are the laws which discriminate against people with HIV, which distance them from their communities and which make it less likely that these people will share in the common interest to reduce the effects of the epidemic. Examples of such laws are:
-- Laws that make homosexuality a criminal offense.
-- Offenses relating to drug use and prostitution that have the effect of making it harder to reach drug users and sex workers with HIV care and prevention measures.
-- Laws restricting the availability of condoms and needles and syringes.
-- Censorship and broadcasting laws that restrict the dissemination of safe sex information.
-- Laws that permit HIV testing without consent or the detention of people with HIV.
-- Immigration and travel laws that restrict the movement of people with HIV between countries.
These laws have no place in a sensitive and sensible response to the epidemic and need to be repealed.
Then there are the positive legal interventions - the ones that can actively promote the supportive environment I have described. These legal interventions include:
-- Human rights laws that give legal effect to rights such as the right to privacy, the right to protection against unlawful search and seizure and rights to protection against unlawful detention.
-- Anti-discrimination laws that will provide redress in the event of discrimination in employment, housing, access to health care etc., against people with HIV or their family or friends.
-- Legal provisions that protect the confidentiality of a person's HIV status.
-- Laws compelling a person's consent to be given before HIV testing is undertaken.
-- Laws that encourage appropriate workplace practices, e.g. infection control procedures and HIV education for employees.
These are just a few examples of many. The thrust of this approach to legal policy on HIV must be to use the law not as a weapon but as a protective instrument that respects the worth of all individuals and reinforces co-operative efforts to deal with the effects of the epidemic.