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Global Commission on HIV and the Law: Criminal Law as a Risk Factor for MSM

On July 9, 2012, the Commission released its final report, "HIV and the Law: Risks, Rights & Health," which can be accessed here

Regressive laws endanger LGBTI individuals

International human rights law has slowly progressed in recent years to better ensure that people of all sexual orientations and gender identities can exercise their human rights.1 Yet recent years have also witnessed the increasing criminalization of sexual minorities, particularly men who have sex with men (MSM), in many countries. This rise in criminalization and homophobia often means that the proportion of MSM who contract HIV remains very high, as many are simply too traumatized or afraid to seek treatment, or even to carry condoms to protect themselves, and governments make no attempts to reach them with targeted information, prevention, or treatment services.

“I pay tribute to the young homosexuals who died in anonymity without anyone caring about them. Today I want to cry out and express my anger. And there’s every reason to be angry.”—activist from Cameroon

Currently 76 countries in the world outlaw homosexual acts.2 Punishments range from monetary fines to the death penalty. Many of these discriminatory laws in sub-Saharan Africa and the Caribbean are remnants of colonization; within the Commonwealth of Nations, an association of countries once ruled by Great Britain, 40 out of 51 member states continue to criminalize homosexuality in some form. In some instances, it is right-wing Christian movements from the United States that are seeking to strengthen and reinvigorate these legal relics from colonial times, as a way to spread their anti-gay agenda around the world.

The testimony given to the Global Commission on HIV and the Law brought the discrimination against MSM into frighteningly vivid focus. Individuals whose lives are at risk on a daily basis, either because of their sexual orientation or gender identity or merely for supporting MSM advocacy, told their stories. Here are just a few examples, given by activists during the Global Commission’s Regional Dialogues, of the crimes perpetrated against them.

Murder

  •    • “‘Social cleansing’…is committed by neighbors or strangers whose primary aim is to eliminate gay and transgender people from the neighborhood or community. ‘Social cleansing’ appears to be the main source of the murders of LGBT people.” — activist from Honduras

  •    • “Within the last year, more than 20 trans and gay people have been assassinated. These are the only ones that we have been able to detect through out networks and friends in the community.” — activist from Guatemala

  •    • “Although incidences of violence, harassment and murder against people who live with HIV and have a different sexual orientation than heterosexuality continue in Latin America, there is no real response from the state or a true public response to the situation.” — activist from Colombia


Torture

  •    • “A number of men in MSM networks in Trinidad who sought sexual partners on an extremely popular internet site began to fall victim to a pattern of opportunistic crimes. In the worst instances they were kidnapped, tortured, robbed, anally gang-raped and threatened with blackmail if they reported the crimes.” — activist from Trinidad & Tobago

  •    • “‘Corrective’ rapes of lesbians to ‘make them straight’ are not uncommon” — lawyer from Jamaica

Abuse by the state and by law enforcement

  •    • “I was 24 when I was imprisoned unfairly on the basis of my sexual orientation and my HIV status.” — activist from Ivory Coast

  •    • “The police use condoms as evidence to arrest people, close down entertainment venues and thus hamper prevention efforts. MSM are compelled not to carry condoms…” — NGO submission from Thailand

  •    • “Recent reports indicate that there is an increasing number of Caribbean nationals seeking political asylum in the UK and North America on the basis that they fear persecution on account of their sexual orientation.” — lawyer from St. Lucia

The deadly link with HIV

Expert evidence provided to the Commission demonstrates that the criminalization of sexual orientation and gender identity has a devastating impact on HIV prevention work and on access to health care generally. In addition, the activists at the Regional Dialogues articulated ways that the criminalization of MSM has made them increasingly vulnerable to HIV:

  •    • “The HIV prevalence rate among Jamaican men who have sex with men (MSM) is 32% as against 1.6% in the general population… The criminalization of male same-sex conduct not only breeds homophobic violence; it also systematically drives Jamaican lesbians, gays, bisexual, transgender and intersex individuals underground, away from effective HIV prevention, treatment, care and support interventions.” — lawyer from Jamaica

  •    • “HIV prevalence among men who have sex with men in Trinidad & Tobago has been measured at 20%, four to eight times higher than estimated national rates of HIV.” — activist from Trinidad & Tobago

  •    • “…the majority of MSM meet in conditions of secrecy and imminent risk, in places without guarantee of physical, emotional or personal security.” — activist from Mexico

  •    • “[The laws against MSM] preclude the distribution of condoms in Jamaican prisons with the result that the HIV prevalence rate among inmates is twice the national average.” — lawyer from Jamaica

  •    • “These narratives [from MSM] illustrate a sense that they have no confidence that health care providers, protective services, or even NGOs specializing in support for victims of sexual violence will not simply re-victimize them.” — activist from Trinidad & Tobago

Debates, Controversy, Challenges

Government officials attending the Regional Dialogues often expressed resistance to slowing or reversing the criminalization of MSM.  Many claimed that they were merely supporting overall public opinion, and that they were unable to change their laws until “society changes first.” Activists argued strongly that the law exists to protect and defend people, and the state has a duty to all individuals — governments will never halt HIV if they only address “moral” people and exclude those they see as “immoral.”

AIDS-Free World Says…

AIDS-Free World denounces, in no uncertain terms, the criminalization of LGBTQI identities and the criminalization of any same-sex behavior. Not only does this criminalization violate human rights law, it has and will continue to serve as a death sentence for individuals all over the world — allowing them to be targeted for brutal violence, and putting them at a heightened, and completely unnecessary, risk of HIV. 

There is an area of the Global Commission’s work where the need for a rights-based legal environment is painfully clear — an environment where religions, societies, or cultures that discriminate are kept in check, an environment where the law works to defend and protect individuals, and where culture is never used as justification for the violation of fundamental human rights. 

AIDS-Free World has focused our organizational work in this area on the Caribbean, and we have just presented the first-ever legal challenge to Jamaica’s anti-gay laws. Read more about the legal challenge here.

The Commission on HIV and the Law Says…

The final report of the Global Commission on HIV and the Law will be released in the first half of 2012.


1 See The Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, available at http://yogyakartaprinciples.org/; See also CESCR, General Comment No. 14 (2000): The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/2000/4, (11/8/00), para. 18.

2 State-sponsored Homophobia: A world survey of laws criminalizing same sex sexual acts between consenting adults. The International Lesbian, Gay, Bisexual, Trans and Intersex Association. Available at http://ilga.org/ilga/en/article/1161.