This document summarizes the key findings and recommendations of a report by the United Nations Development Programme's HIV, Health & Development Group. The report examines how legal environments influence HIV prevention, treatment, care, human rights, and the effectiveness of HIV investments. It finds that punitive laws criminalizing HIV status fuel stigma and do not reduce infections. The report recommends countries repeal discriminatory HIV laws and ensure gender equality, children's rights, and access to health services. It calls for legal reforms to address issues like violence against women and girls, which increase HIV risk.

1. Risks, Rights & Health
Key Findings & Recommendations
Emilie Pradichit
Human Rights & Law Consultant
United Nations Development Programme (UNDP)
HIV, Health & Development Group, NY
Columbia Law School
20 February 2013

2. Key Question
How do legal environments (law, regulations, law
enforcement and access to justice) influence:
• HIV prevention, treatment and care – coverage
and quality
• Social support for people affected by the epidemic
• Human rights protection and promotion
• Efficiencies and effectiveness of HIV investments

3. WHY THE LAW MATTERS?

4. WHY THE LAW MATTERS?
Critical enablers such as
the law can contribute
significantly to reducing
HIV incidence for a
relatively low cost
(Investment Framework)
• :
The Lancet 2011; 377:2031-2041 (in
(DOI:10.1016/S0140-
6736(11)60702-2

5. Why A Global Commission
on HIV & the Law?
• UNAIDS target: by 2015, halve the number of
countries with punitive laws and practices around
HIV transmission, sex work, drug use or
homosexuality. Create legal environments that
advance and safeguard dignity, health and justice
in the context of HIV
• To develop action-oriented, evidence based
recommendations for effective AIDS responses
that mitigate the impact of HIV and promote and
protect the human rights of people living with and
most vulnerable to HIV

6. Objectives & Outcomes
 Consolidated, coherent and
1. Analyse existing evidence
and generate new compelling evidence base
evidence
 Greater awareness among
2. Develop rights-based and key stakeholders
evidence-informed
recommendations  Leadership of law and
policy makers to create a
3. Increase awareness positive legal environment
amongst key
constituencies  Public dialogue on social
4. Engage with civil society attitudes, human rights and
and strengthen their legal issues relating to HIV
ability to campaign,
advocate, lobby  Civil society engagement

7. The Global Commission on HIV & the Law
www.hivlawcommission.org
(1) Laws and Practices That Effectively
Criminalise People Living With and
Vulnerable to HIV
(2) Laws and Practices That Mitigate
or Sustain Violence and
Discrimination as Lived by Women
(3) Issues of Law and HIV pertaining
to children
(4) Laws and Practices that Facilitate
or Impede HIV-related Treatment
Access

8. 3 Mutually Reinforcing Axes

9. The Commissioners

10. Technical Advisory Group
• The Hon. Michael Kirby • Vivek Divan
(Co-Chair) • Richard Elliot
• Allehone Mulugeta Abebe • Sofia Gruskin
(Co-Chair)
• Wendy Isaack
• JVR Prasada Rao
• Rick Lines
(Member Secretary, Commission)
• Aziza Ahmed • Kevin Moody
• Jonathan Berger • Vitit Muntarbhorn
• Chris Beyrer • Cheryl Overs
• Scott Burris • Purna Sen
• Joanne Csete
• Susan Timberlake
• Mandeep Dhaliwal
• Tracey Robinson
• Sophie Dilmitis
• Matthew Weait

12. Commission Report
Launched on 9 July 2012 in New York
HIV and the Law: Risks, Rights & Health

13. Report (EN, FR, SP & RU) &
resources available at…
www.hivlawcommission.org

14. Commission Report
Key Messages:
1. Epidemic of bad laws is fueling the spread of HIV,
resulting in human rights violations and costing lives
2. Epidemic of bad laws is limiting effectiveness and
efficiency of HIV and health investments
3. Good laws and practices that protect human rights
and build on public health evidence already exist -
they strengthen the global AIDS response, and they
must be replicated

15. Criminalization of HIV Transmission,
Exposure and Disclosure
FINDINGS (Legal Frameworks)
1. In over 60 countries, it is a crime
to expose another person to HIV
or to transmit it, especially
through sex.
2. Worldwide, countries and
jurisdictions have promulgated
HIV-specific criminal laws:
 34 States & territories in the
USA
 27 countries in Africa following
the N'Djamena Model Law (2005)
 13 countries in Asia-Pacific
 11 countries in Latin America
 9 countries in Europe
 At least 600 individuals living
with HIV in 24 countries have
been convicted under HIV-specific
or general criminal law.

16. General Findings
(I) Overly broad criminalization provisions:
• laws often vaguely worded, prosecutions for
mother to child transmission, spitting or biting
(ii) Prosecutions disproportionately target
marginalized people
• Example: Asylum seekers & immigrants
(ii) Criminalization is only justifiable in very limited
settings of malicious intend and proven
transmission
• Intend, harm, risk, proof, penalties

17. Criminalization of HIV Transmission,
Exposure & Non-disclosure
FINDINGS: Criminal law is not a HIV prevention tool
1. No evidence that criminal prosecutions prevent new
HIV infections
2. Such laws do not increase safer sex practices
3. Instead, criminalization of HIV transmission
reinforces stigma and discrimination vs. PLHIV

18. Criminalization of HIV Transmission,
Exposure & Non-disclosure
FINDINGS: Is criminalization ever justified?
1. The rare cases of malicious intentional transmission
can be addressed by existing criminal or public
health laws
2. Defining specific HIV offences is not warranted and,
in fact, violates international human rights
standards.

19. Recommendations
To ensure an effective, sustainable response to HIV
that is consistent with human rights obligations:
• Countries must not enact laws that explicitly
criminalise HIV transmission, HIV exposure or failure
to disclose HIV status
• Law enforcement authorities must not prosecute
people in cases of HIV non-disclosure or exposure
where no intentional or malicious HIV transmission
has been proven to have taken place

20. Recommendations
(continued)
• Countries must amend or repeal any law that
explicitly or effectively criminalizes vertical
transmission of HIV
• Countries may legitimately prosecute HIV
transmission that was both actual and intentional,
using general criminal law
• The convictions of those who have been successfully
prosecuted for HIV exposure, non-disclosure and
transmission must be reviewed

21. Implementation

23. PACHA Resolution
on HIV-specific Criminal Laws
• 7 February 2013: President’s Advisory Council on
AIDS (PACHA) voted Resolution on Ending Federal and
State HIV-specific Criminal Laws, Prosecutions, and Civil
Commitments
“Today’s announcement is an important advancement in
our collective effort to modernize unjust and
discriminatory HIV criminalization laws”
Congresswoman Barbara Lee,
co-chair of the Congressional HIV/AIDS Caucus.

24. Women and HIV
At the end of 2010, there were 16.8 million women living with
HIV:
– HIV is the leading cause of death in women of reproductive
age.
– 51% of all people living with HIV are women - significant
regional variations.
– 26% of all new infections take place among women aged 15
to 24.
– HIV-related causes contributed to at least 20% of maternal
death

25. Women, HIV & the Law
FINDINGS (Legal Frameworks)
• Constitutional equality, accession to
international covenants, legislation on the
books
• Legal loopholes, multiple legal
frameworks, reservations to international
agreements, inadequate enforcement
• Gender inequality leaves women and girls
vulnerable to HIV.

26. Women, HIV & the Law
FINDINGS (Violence)
• Rape persists, despite legal prohibitions. It
is increasingly a prime weapon of war.
• Legal definitions of sex crimes may preclude
prosecuting some coerced acts (ie, marital
rape).

27. Marital rape

28. Women, HIV & the Law
FINDINGS (Violence - continued)
• Even where laws criminalize sexual violence, they are
often poorly enforced.
• Survivors of violence fail to get timely HIV and health
services, including therapy to reduce HIV infection.
• Disclosure of HIV-positive status also puts women at
risk of violence.

29. Women, HIV & the Law
FINDINGS (Sexual & Reproductive Health)
• Reproductive health centers are not friendly spaces for many
women living with HIV. Coercive and discriminatory practices
include:
– forced HIV testing
– breaches of confidentiality
– denial of health care services
– coerced or forced sterilizations and abortions
• Where HIV exposure and transmission are criminalized,
pregnant women and mothers fear testing and treatment,
for themselves and their children.

30. Women, HIV & the Law
FINDINGS (Property Rights)
• Without equal rights to property, women are severely
disadvantaged within the family
• International covenants guarantee equality between men
and women in family life, marriage and its dissolution.
Regional agreements also deal with laws and traditions in
relation to these issues.
• Formal and customary marriage, property and inheritance
laws, and practices such as “property-grabbing” fuel gender
inequality.
• Governmental or traditional legal systems fail to outlaw
customary practices (ie, early marriage) and put girls and
women at increased risk of HIV exposure.

31. Recommendations
RECOMMENDATIONS INCLUDE:
• End all forms of violence against women and girls, including in conflict
situations and post-conflict settings:
– Enact and enforce laws that prohibit domestic violence, rape and
other forms of sexual assault.
– Remove immunity from prosecution for rape when the perpetrator is a
married or unmarried partner.
• Remove legal barriers that impede women’s access to sexual and
reproductive health services. Ensure that:
– Health care workers provide women with full information on sexual
and reproductive options and ensure that women can provide informed
consent
– Prohibit and take measures to stop the practice of forced abortion
and coerced sterilization of HIV-positive women and girls
– Provision of health services, including post-exposure prophylaxis,
legal services and social protection for survivors of violence, must be
guaranteed.
– Health care workers are trained on informed consent, confidentiality
and non-discrimination.

32. Recommendations
RECOMMENDATIONS INCLUDE:
• Reform property and inheritance laws so that women and men have
equal access to property and other economic resources, including
credit:
– Ensure that, in practice, property is divided without gender
discrimination upon separation, divorce or death and establish a
presumption of spousal co-ownership of family property.
– Leaders of religious or customary legal systems must make reforms
to protect women, including widows and orphans.
• Ensure that laws prohibiting early marriage are enacted and enforced.
• Religious and customary laws must prohibit practices that increase HIV
risk, such as widow inheritance or “widow cleansing”.
32

33. Children, HIV & the Law
FINDINGS
• Laws are failing to ensure that orphans and
children affected by HIV are protected
from discrimination
• In several countries, laws explicitly prohibit
HIV positive adults from adopting
children, including HIV positive children,
regardless of the adult’s own general
health status and prognosis.

34. Children, HIV & the Law
FINDINGS
• In some countries, laws completely prohibit
age-appropriate sexual health education
in schools while in others, laws impose
‘abstinence-only’ or other restricted curricula.
• Some countries have established different
legal ages for consent to sex and for
autonomous access to sexual and
reproductive health services.

36. Recommendations
RECOMMENDATIONS INCLUDE:
• Laws must:
– Ensure that the birth of every child is registered. This is crucial for ensuring
that an appropriate legal framework is in place for children to access essential
services and for their rights to be protected and promoted as per the
Committee on the Rights of the Child (CRC).
– In the event of the death of a parent, ensure that an appropriate adult is
appointed as the child’s guardian. This includes provisions for transfer of
guardianship of AIDS orphans from deceased parents to adults or older siblings
who can ensure the well-being of the child.
– Support community based foster care for children orphaned by AIDS as an
alternative to institutionalization, when formal adoption is not possible or
appropriate.
– Ensure access to HIV-sensitive social protection as required such as direct
cash transfers for affected children and their guardians.
• Laws must prohibit discrimination against children living with or affected by
HIV, especially in the context of adoption, health and education.

37. Recommendations
RECOMMENDATIONS INCLUDE:
• Enact laws which ensure that the right of every child, in and out of
school, to have access to age appropriate comprehensive sexual
health education to enable them to protect themselves and
others from HIV and to live positively with HIV.
• Reform laws to ensure that the age of consent for autonomous
access to HIV and sexual and reproductive health services is
equal to or lower than the age of consent for sexual relations,
enabling sexually active young people to confidentially and
independently access health services and protect themselves from
HIV

38. Implementation
• 14 February 2013: Congresswoman Lee (D-CA) and
Senator Frank R. Lautenberg (D-NJ) introduced the Real
Education for Healthy Youth Act of 2013
⇒ Legislation would give America’s youth the knowledge
they need to make educated decisions about
their health, and
⇒ would expand comprehensive sex education programs
in schools and ensure that federal funds are spent on
effective, age-appropriate, medically accurate programs.

39. Impact of Commission’s work
Country action catalyzed before the launch of report:
• In Guyana (Sept. 2011) rejection of the inappropriate criminalization of HIV exposure
and transmission.
• Fiji also rejected the inappropriate criminalization of HIV transmission and exposure
and lifted HIV-related travel restrictions.
• In Argentina, Parliamentary sensitization on HIV and legal issues affecting
transgender people contributed to the adoption of a progressive gender identity law
(May 2012).
• Belize (Oct. 2011) and Panama (Dec. 2011) held national dialogues on HIV, human
rights and the law. In Panama, the Ministry of Women’s Affairs committed to
reviewing all laws pertaining to women’s rights and HIV
• At the Asia-Pacific High-level Intergovernmental Meeting on the Assessment of
Progress Against Commitments in the Political Declaration on HIV/AIDS and
the Millennium Development Goals (February 2012), hosted by UNESCAP, senior
government and civil society representatives from Asia and the Pacific discussed the
importance and challenges of law reform for HIV responses in the region

40. Impact of Commission’s work
Country action catalyzed after the launch of report:
In 2012-2013 UNDP has mapped Commission follow up activities in 82
countries (31 UNAIDS priority countries):
• Legal environment reviews
• Legislative Reform
• National Dialogue & Action Planning on HIV and the Law
• Judicial Sensitization
• Parliamentarian Sensitization
• Access to Justice – Law Enforcement & Legal Services
• Media & Religious Leader Sensitization

41. World Map on the Implementation of the Recommendations
of the Global Commission on HIV & the Law

42. Impact of Commission’s work
Country action catalyzed after the launch of report:
• The Commonwealth Eminent Persons’ Group, influenced by the Commission,
presented its report to the Commonwealth Heads of Government Meeting, including a
clear call for the removal of punitive laws blocking effective HIV responses.
-> Recommendation adopted with comments on 19 Dec. 2012 by Heads of Government
of Commonwealth countries:
• Rec No 60: Heads of Government should take steps to encourage the repeal of
discriminatory laws that impede the effective response of CW countries to the
HIV/AIDS epidemic, and commit to programmes of education that would help a
process of repeal of such laws.
• Comment:
Member governments have the discretion to identify which, if any, laws are
considered discriminatory, and the steps deemed appropriate to address these.

43. Thank You
“The end of the global AIDS epidemic is within our reach. This will only
be possible if science and action are accompanied by a tangible
commitment to respecting human dignity and ending injustice.”
Fernando Henrique Cardoso,
Chair of the Commission & Former President of Brazil
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