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Punitive Laws Against Sex Workers, MSM Hindering HIV Responses, Says Global Report

The final report on the Global Commission on HIV and Law presents a coherent and compelling evidence base on human rights and legal isses relating to HIV.

Avatar of Alessia Valenza

17th July 2012 12:03

Alessia Valenza

The report entitled HIV and the Law: Risks, Rights and Health, cites various laws that obstruct global responses on HIV and calls for their repeal in order to better address factors that increase HIV transmission and infection.

“Bad laws should not be allowed to stand in the way of effective HIV responses,” said the UNDP Administrator, Helen Clark, in a news release, on the findings.

‘Laws that criminalise HIV transmission or penalize non-disclosure of HIV status increase stigma and discourage people from getting tested or treated for fear of prosecution.’


It also says, that Most At Risk Populations (MARPs) like sex workers, Men who have Sex with other Men (MSM) and drug users are more vulnerable to HIV infection on account of laws that criminalize their behavior or activities.

‘Laws and practices that criminalise and dehumanize populations at highest risk for HIV make them more vulnerable and drive them away from HIV, harm reduction and health services.’

78 countries criminalise same-sex sexual activity. In Caribbean countries where homosexuality is criminalised, almost 1 in 4 MSM is HIV-positive, compared to 1 in 15 MSM in countries where it is not, cites the report.

It also highlghts the illegal nature of sex work in most countries saying that sex workers are often denied their human rights and in accessing sexual and health services.

‘More than 100 countries criminalise some aspect of sex work. Cuba, China, Iran, Vietnam, South Africa and most of the U.S. outlaw sex work entirely. Laws in many countries deny sex workers fundamental civil entitlements, increasing their HIV vulnerability.’

Here in Kenya, there are over 40,000 sex workers in Nairobi alone according to statistics and on the spot-mapping up exercises.

The report also says that ‘Laws and customs that disempower women undermine their ability to protect themselves from HIV. Policies that deny youth access to sexual and reproductive and HIV services help spread HIV.’

Furthermore, ‘customary practices in Africa, Latin America, Asia and the Middle East such as early marriage and genital mutilation increase risk of HIV exposure. 127 countries lack legislation outlawing marital rape against women.’

Corporations that provide ARV medication are also on the spotlight with some being accused of unfairness and exploitation and cites the example in Thailand.

‘Even when countries have tried to use the existing flexibilities, they have faced retaliation. For example, when Thailand issued a compulsory license in 2007 on an ART by Abbott, the company announced it would withdraw multiple applications to obtain marketing approval for new drugs in Thailand.’

The Global Commission report is calling for a change to address the HIV infections and reduce the number of infections.

‘Changes in the legal and policy environment, along with other interventions, could lower new adult HIV infections to an estimated 1.2 million by 2031, compared to 2.1 million if current efforts continue without these broader structural changes.’

Additonally, ‘laws that protect at-risk populations are powerful low-cost tools to help ensure that financial and scientific investments for HIV are not wasted.’

The report also cites the example of civil society and health groups calling for de-criminalisation of same sex activity to cut the spread of HIV as a result of silence and high risk behavior associated with same sex activity.

‘In 2012, the Kenya National Human Rights Commission (KNHRC) called for the decriminalization of sex work’ and said such a move ‘can advance effective HIV responses.’

The Global Commission on HIV and the Law is an independent body, convened by the United Nations Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS).

Renowed Prof Miriam Were from Kenya sits on the Commission’s that ‘advocates on issues of HIV, public health, law and development.’

The Commission’s other members include the former President of Botswana, Festus Gontebanye Mogae; a US Congresswoman, Barbara Lee; and, the Co-Director and Co-Founder of AIDS-Free World, Stephen Lewis among others.

The full report (PDF) is here. An executive summary (PDF) is available here and an addendum fact sheet (PDF) on risks, rights and health can be accessed here.