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Global Commission on HIV and the Law: Women and HIV

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

The Global Commission on HIV and the Law was formed to interrogate the relationship between human rights, HIV, and legal responses. Officially launched in July 2010 by the United Nations Development Programme, the Commission was tasked with forming evidence-informed recommendations that will spur national, regional, and global action to protect the human rights of people living with and vulnerable to HIV.

The Commission held 7 Regional Dialogues during 2010 and 2011. Over 1000 submissions were sent to the Commission from groups of people living with HIV, from lawyers and activists and grassroots organizations, from those negatively affected by laws and seeking to make change through the legal system. First-hand testimony from these individuals was given over the course of seven regional dialogues held in Asia-Pacific, the Caribbean, Eastern Europe and Central Asia, Latin America, the Middle East, Africa, and North America. Activists presented their concerns to both the Commissioners and to the government representatives from their region invited to attend the dialogues.

The Global Commission had four areas of focus, one of which was "law and practices that mitigate or sustain violence and discrimination as lived by women." Of the many injustices that allow HIV to spread, gender discrimination is perhaps the most pervasive and deadly. Women have disproportionately higher rates of HIV globally; they also bear the burden of caring for the sick and the dying even as they are denied the knowledge, the resources, and the autonomy to protect themselves. The continued trampling on the human rights of women drives the AIDS pandemic.

How is HIV disproportionately impacting women?

• In sub-Saharan Africa, the region most impacted by the epidemic, women account for 80% of new HIV infections.1
• In the Caribbean, the second most highly affected region in the world, HIV prevalence is twice as high among young women than among young men.2
• In the United States, HIV was the first leading cause of death for African-American women ages 25-34, and the third leading cause of death for all women ages 35-44.3

The law is heavily implicated in discussions of women and HIV because most legal systems are deeply rooted in patriarchy. In many countries laws do not mandate equality for women or prohibit gender discrimination. Even when laws are on the books to prohibit gender discrimination, legal systems are rarely used diligently or effectively to prosecute rapists, or to remedy other violations of women’s human rights. Women attempting to seek justice face stigmatization and abuse from police, doctors, prosecutors, and judges, who often deride or ignore their experiences of violence or deny them the information and resources they need to make informed choices about their health.

The Report from the Commission — with recommendations and summaries — won’t be available until later in 2012, but discussions on women’s issues highlighted several dominant themes:

Bodily integrity and informed consent

Commissioners repeatedly heard from women living with HIV whose rights around bodily integrity and informed consent are being violated. Women around the world reported that they had been told:
  •    • they should abort their pregnancies
  •    • doctors would not deliver their babies
  •    • they could not adopt children
  •    • they could not provide foster care for children
  •    • they must sign a document promising they would never have children
  •    • they must prove they were HIV-negative in order to get married
  •    • doctors would not operate on them
  •    • they should be sterilized
  •    • they must present documentation of their sterilization before they could have a job

In fact, many women living with HIV were forcibly sterilized. Cases of widespread forced or coerced sterilization of HIV-positive women have now been documented in many countries, including Chile, Namibia, South Africa, United States, Uzbekistan, and Swaziland. Women reported that they were forcibly sterilized without giving informed consent, and some reported that their husbands then abandoned them because they could not have children. Their forced sterilizations — traumatic enough — were compounded by societal gender roles and expectations.

Individual women’s reports captured the anguish of being HIV positive and pregnant:

  •    • “It is my body, yet I did not get the information I was entitled to.  They treated me like I didn’t own my own body” — woman from Sri Lanka
  •    • “My primary care doctor looked at me like I was sick for even thinking of becoming pregnant.  I just felt that the consensus was that I should not, that I was selfish and irresponsible for even thinking about it” — woman from United States
  •    • “Throughout my pregnancy I was very, very sick.  I got admitted several times, my CD4 count was very low and my viral load was high.  Every visit to my doctor was a nightmare because my doctor would always remind me of how disappointed in me he was.” — woman from Swaziland

Forced Sterilization in Uzbekistan

The Global Commission’s Technical Advisory Group reports that:  “In 2011, hundreds of reports emerged from Uzbekistan concerning forced sterilization of women, primarily targeting low income women, women with HIV, tuberculosis, drug dependence or other conditions. Instruments used for the procedure are often not sterile, which puts women at increased risk.”

What will the Global Commission on HIV and the Law say?

The Commission’s final report will be released in the first half of 2012. 

AIDS-Free World says:

Forced sterilization — a horrific, irreparable violation of a woman’s right to sexual and reproductive autonomy, to dignity, to have a family, to informed consent, to non-discrimination — is just the end of a long line of violations women face when seeking HIV prevention and treatment. Again and again, women are denied agency, choice, and the information they need to protect their own health.  Paternalistic policies are often focused on the health of infants while neglecting the health of mothers, and leave women uninformed and at risk.

In many countries, pregnant women living with HIV are given single-dose nevirapine to prevent transmission of the virus to their babies, yet they are not informed of the risk nevirapine can cause to their own health by creating resistance to HIV drugs. Information given on infant feeding for HIV-positive mothers is frequently incorrect or contradictory, leading to confusion and unnecessary risk. Recently publicized data suggests women using injectable contraception may be at twice the risk of acquiring or transmitting HIV, yet no information has been shared with women at a community level about the best precautions to take. Until women are given the information, dignity, respect, and choice that they need and deserve, the pandemic will not cease.

Criminalization of HIV transmission: The Impact on Women

Countries throughout the world continue to criminalize HIV transmission or exposure. Prosecutions against people living with HIV are currently the highest in Western Europe and North America, and over 20 African countries have introduced laws criminalizing HIV transmission and exposure in the last decade.4

The emergence of these laws was the subject of debate throughout the Regional Dialogues of the Global Commission on HIV and the Law.

Some of the testimony offered arguments for the criminalization of HIV transmission:

  •    • Fear of malicious, intentional HIV transmission:  Ministers of Parliament attending the Africa Regional Dialogue reported that they felt pressure from the public to address this.  The public wanted to feel safe from those who may intentionally spread the virus.
  •    • Some argued that the criminalization of HIV transmission could protect women  -- if women are unable to negotiate safe sex in their marriages or relationships, the law protects them by making their husbands criminally liable for infecting them. 

Other submissions and testimony from the Regional Dialogues made arguments against criminalization of HIV transmission — and specifically why it is bad for women:

  •    • Women are often the first to learn their HIV-status because of testing at prenatal centers. Yet many remain afraid to disclose their status because disclosure may subject them to abuse from husbands or relatives — HIV-positive women are ten times more likely to experience violence and abuse than women who are HIV-negative. Their knowledge of their status and their inability to disclose leaves them susceptible to prosecution for transmission of HIV to their husbands.
  • “In most of the cases women in monogamous relationships get the infection from their husbands – the bread winners of the family.  She is usually an illiterate, unskilled housewife left to care for her children and ensure the wellbeing of the family.  They are denied property rights and most of the times their basic rights of food, shelter and access to medical support are violated due to the prevailing stigma in our society.  On top of all this women are always left behind to bear the blame of giving infection to their husband.” — submission from NGO in Delhi, India
  •    • Marital rape complicates the criminalization of HIV transmission. An activist from Malawi asked, “how are women expected to negotiate safer sex if they are refused the power to negotiate the very act of sex?”
  •    • Cultural practices can place women in impossible positions with regards to HIV transmission. Lawyers from Kenya reported that the practice of wife inheritance — traditionally used to provide economic security for widows – is now being abused, and the “inheritance” of widows by their husbands’ brothers is used as a pre-condition for the widows to remain on their marital property. Faced with the choice of being “inherited” or being evicted and homeless, many widows are forced to choose inheritance. Yet art of this “inheritance” requires the widow to have unprotected sex with her new husband — if she is HIV-positive already she becomes susceptible to prosecution for infecting her new husband.
  •    • Kenya’s law criminalizing HIV transmission does not require intent; women now fear being prosecuted for giving birth or for breastfeeding their babies.
  •    • Activists expressed fear that the criminalization of HIV transmission will result in the targeting of sex workers, who are often treated merely as vectors of the virus.

What will the Global Commission on HIV and the Law say?

The Commission’s final report will be released in the first half of 2012.

AIDS-Free World Says:

Laws criminalizing HIV transmission and exposure, already problematic for the overall population, cannot be untangled from the context within which they exist — a context of pervasive and toxic gender discrimination where women frequently experience violence and blame if they disclose their HIV-positive status. The combination of gender discrimination and criminalization laws is deadly for women, rendering them especially vulnerable to targeting and prosecution by the State.

Sexual violence

More than 2.6 billion women live in countries where marital rape has not been explicitly criminalized.  Throughout the Regional Dialogues women urged their government representatives to put these laws in place, and pushed the Global Commissioners to take a strong stance on the issue. A woman from Malawi testified that, “the criminalization of marital rape will allow women to be seen equally under the law and will allow for a needed change in the social perception of women. It will give Malawian women the legal rights to their own bodies.”

Even where marital rape is outlawed, lawyers and activists conveyed a dismal record of enforcement and prosecution:

  •    • A Minister of Parliament from Zimbabwe reported that there have been no prosecutions of marital rape in her country because the Attorney General has to give his personal consent before the crime is prosecuted.
  • “In the displacement following the 2005 earthquake in Pakistan, a 28-year old woman was gang-raped by a group of looters…A few months after the rape, she began to feel ill, and discovered she was pregnant and then that she was HIV-positive.  Her husband abandoned her and her twin sons.” — submission from Pakistan
  •    • The leading human rights organization in Botswana, BONELA, said that Botswana’s Parliamentarians removed the country’s martial rape law in 2008.
  •    • In Nepal someone guilty of rape receives a minimum sentence of 5 years; someone guilty of marital rape will only be sentenced to 3 to 6 months of imprisonment.

Within a context of HIV, a lack of protection against marital rape is incredibly dangerous for women, who are often infected by their husbands and then abused or abandoned after disclosure of their HIV status.  HIV then becomes both a cause and consequence of the violence perpetrated against women throughout the world.

What will the Global Commission on HIV and the Law say?

The Commission’s final report, with recommendations on marital rape,  will be released in the first half of 2012.

AIDS-Free World Says:

The appalling fact that marital rape is still condoned around the world indicates that women are still considered to be the property of men.

Property and inheritance laws

Activists from African and Asian countries testified about laws and practices that deprive women of land and inheritance rights:

  •    • In Botswana, under customary law only men are permitted to inherit from a parent’s estate.
  •    • In Malawi, at the time of divorce a woman must show monetary contribution to the marital property in order to claim her share of it.
  •    • In Kenya, women have a statutory right to own property yet many traditional male leaders and government officials do not believe women should own property, and make it difficult for women to claim their rights. 
  •    • Nigerian activists reported that HIV-positive women were simply told that they didn’t need to inherit property because “they were going to die soon.”

What will the Global Commission on HIV and the Law say?

The Commission’s final report will be released in the first half of 2012.

AIDS-Free World Says:

Yet again, HIV sheds light on the underlying systems of misogyny that are at the root of the pandemic. Property laws that make women economically dependent on their husbands, and unable to negotiate safer sex within their marriages, must be overturned.  Inheritance laws that leave widows homeless, forcing them into impoverished lives in urban areas and placing them at a higher risk of rape and disease, must be overturned. To end AIDS, we must end the oppression of women.

1 Joint United Nations Programme on HIV/AIDS (UNAIDS) and World Health Organization (2009) Epidemic Update:  http://data.unaids.org/pub/Report/2009/JC1700_Epi_Update_2009_en.pdf

2 "Women, HIV and AIDS": http://www.avert.org/women-hiv-aids.htm.

3 Submission to the Global Commission on HIV and the Law from the National Association of People with AIDS, USA. 

4 The Global Criminalisation Scan Report 2010, produced by the Global Network of People Living with HIV: http://www.gnpplus.net/programmes/human-rights/global-criminalisation-scan/1648-2010-global-criminalisation-scan-report

See our introduction to the Global HIV Commission and the Law here.