Decriminalizing Behaviors and the Global AIDS Epidemic


RH Reality Check is publishing a series of articles and opinion pieces on global AIDS and HIV in conjunction with the International AIDS Conference in Vienna, which ended this weekend.  We welcome vigorous policy debates on these and other issues.

The International AIDS Conference’s theme of “Rights here, Right now” was clearly in evidence throughout the five days of the international meeting. An exuberant march through the streets of Vienna, a large human rights networking zone, multiple sessions on various aspects of human rights and numerous poster presentations addressed topics such as rights of sex workers and people with different sexual orientations, monitoring human rights violations, and combating stigma and discrimination. The subject receiving the highest level of attention, however, concerned the law: criminalization of behaviors and groups of people in the context of HIV/AIDS.

More than 10 panels and round tables in the official program and satellite/side sessions argued for decriminalization of sex work, drug use, sexuality outside the heterosexual sphere and transmission of HIV. Several points reiterated during these sessions were especially noteworthy because they can also be applied to another area of reproductive health that is prohibited and criminalized in many countries: women’s access to contraception/emergency contraception and safe legal abortion.

A number of speakers, including Johanna Kehler of the South African AIDS Legal Network, Anand Grover, UN Special Rapporteur on the right to health, Manfred Nowak, UN Special Rapporteur against Torture and Michel Sidibé, Executive Director of UNAIDS, emphasized that there is no evidence to show that criminalization of sex work, drug use and sexual behavior has any efficacy in changing behaviors or practices. On the contrary, people are driven underground and become afraid to access – or are prevented from accessing – protective health services. The same is, of course, true for women who wish to terminate unwanted pregnancies where legal abortion is inaccessible. Research by the Guttmacher Institute and World Health Organization have shown that the prevalence of abortion is not lower where abortion is criminalized; the difference is that women who have legal abortions undergo safe procedures while women who have only the option of clandestine, backstreet or self-induced abortions suffer high rates of morbidity and mortality.

During a panel discussion on law reform and how this can either compromise or protect people’s rights, Kehler commented on the fact that discriminatory laws in some countries are not enforced, which implies that it might be better to leave things well enough alone. She noted, however, that decriminalization has symbolic value; moreover, it can help protect people from mistreatment and harassment by law enforcement personnel (e.g., police who may not arrest sex workers but then use threats of jail to demand sex). Again, the same is true for women who are desperate to deal with unwanted pregnancies: enabling them to use emergency contraception and to terminate pregnancies safely can help lower the associated stigma and protect them from clandestine providers who demand large sums of money and who use unsafe methods which endanger their health and lives.

Morten Kjaerum, of the European Union Agency for Fundamental Rights, noted the importance of getting gatekeepers to become defenders of human rights when he spoke about the role of prison medical staff in ensuring that prisoners can obtain needed medical care. Similarly, health-care workers can be important advocates for women’s access to safe services for pregnancy termination and should be considered human rights defenders in this regard. Anand Grover argued that criminalization of HIV transmission, sex work and drug use dehumanizes the people involved and contributes to the spread of HIV and hepatitis C, requiring a pragmatic rather than moralistic approach to harm reduction. At the risk of being repetitious, it can be stated that such an approach is also needed to reduce maternal mortality and morbidity due to unsafe abortions.

The series of sessions on decriminalization culminated on the fourth day of the conference with a round table entitled: “Leaders against Criminalization of Sex Work, Sodomy, Drug Use/Possession and HIV”. The participants included Michel Sidibé, Gill Greer (Executive Director of IPPF), Festus Mogae (former President of Botswana and a member of the new Global Commission on HIV and the Law), Tim Barnett (World AIDS Campaign) and Stephen Lewis. Sidibé noted that the resources used to enforce criminalization could be better spent on HIV prevention – similarly, the costs to health systems and countries of providing safe, early pregnancy terminations are much lower than those needed for post-abortion care to deal with the serious consequences of unsafe abortions.

Gill Greer criticized the criminalization of behaviors that only some people in societies find unacceptable; she noted that this moreover does not address the complex issues involved in areas such as drug use. This session ended with a rousing call for everyone to support decriminalization. Could we expect a panel of world leaders to do the same for decriminalization of contraception and abortion at the next international conference that deals with reproductive health and/or HIV/AIDS?

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