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Risks, Rights and Health: Highlights from the Report of the Global Commission on HIV and the Law

Last April, I was honoured to have the chance to meet Stephen Lewis at an event on women, leadership and social change. During our short but memorable conversation, we discussed a number of issues that are very close to my heart – sex workers rights, drug policy reform and HIV and the law. At the end of our conversation, Stephen left me with some exciting parting words. He said that I will be very encouraged when the Global Commission on HIV and the Law releases its report in the lead up to the international AIDS conference in the summer of 2012. The Commission, he said, would be taking some very strong and progressive positions on many of the human rights issues that are at the centre of Pivot’s work. 

When the report was released yesterday, I devoured every word. But before I describe the exciting content of this report, I should tell you a bit about the Commission. The Global Commission on HIV and the Law is an independent body, established by the Joint United Nations Programme on HIV/AIDS and the United Nations Development Programme. The Commissioners are a very influential and prestigious group that include former presidents, congresswomen, members of parliament, journalists, physicians, former UN staff and internationally recognized social activists.  They examine legal and human rights issues in the HIV context, such as criminalization of HIV transmission, drug policy, sex workers' and LGBT rights, violence against women, access to antiretroviral treatment and prisoners', migrants', and children's rights.  
In the preparation of its latest report, the Global Commission carried out extensive research, consultation, analysis and deliberation on HIV, health and the law in 140 different countries. The report looks at key populations that are at particular risk of HIV and asks the question - can the law save lives? The Commission's answer to that question is a resounding “yes”; the law has a central role to play in the fight to end the AIDS epidemic. By prohibiting or permitting certain behaviours and activities, the law has a significant impact on public health and, in particular, the prevention of HIV.
I will touch on the key aspects of this report that are particularly relevant to Pivot’s work, but I strongly recommend you check out the whole report. 

Drug Policy:

The Commission report states clearly that “repressive drug control laws and policies fail to achieve their purported goals, whether fighting crime or reducing drug use or drug-related harm. They worsen health and contribute to increasing human rights violations against people who use drugs.” As a result of prohibition, people who use drugs face police harassment, violence and incarceration, discrimination in health care, housing, employment and schooling and political disenfranchisement. Criminalization of drug use undermines human rights–based HIV education, prevention and treatment, including harm reduction. Therefore, the report recommends that countries reform their approach towards drug use. Rather than punishing people who use drugs who do no harm to others, governments should offer access to effective HIV and health services, including harm reduction and voluntary, evidence-based treatment for drug dependence. Specifically, the report recommends the decriminalization of possession of drugs for personal use.  

Sex Work:

The Commission describes how more than 100 countries explicitly criminalize some aspect of sex work and how this criminalization, in collusion with social stigma, increases sex workers’ vulnerability and risk of exposure to violence and HIV. The Commission describes how sex workers are denied many legal protections that are afforded to other workers and other members of society, including protection from discrimination and abuse. The Commission specifically rejects the “Swedish approach” which is often lauded as a less punitive and more gender-sensitive legal strategy. “Based on the premise that women in sex work need protection, it regards the sex worker as the “victim” and the client as the “exploiter”. Since its enactment in 1999, the law has not improved—indeed, it has worsened—the lives of sex workers.” Based on their extensive review of sex work, health and the law around the world, the Global Commission recommends that all countries repeal laws that prohibit consenting adults to buy or sell sex, as well as laws that otherwise prohibit commercial sex, such as laws against “immoral” earnings, “living off the earnings” of prostitution and brothel-keeping. Further, they recommend complementary legal measures must be taken to ensure safe working conditions to sex workers.


The Global Commission considered the health status of the 10 million prisoners around the world and the fact that HIV rates among prisoners are estimated at twice to 50 times those of general adult populations. These tragic rates of HIV are the result of harmful prison policies that result in tattooing with homemade and unsterile equipment, drug use and needle sharing, high-risk sex and sexual assaults. Overcrowding of prisons, stress, malnutrition, violence and drugs also increase the vulnerability of the prison population through weakened immune systems. Despite the fact that prisoners have a right to standard of care that is equal to those who are not incarcerated, this is certainly not the reality. In many countries, prisoners are denied access to condoms. In Canada, and in many countries around the world, prisoners who inject drugs are denied access to clean syringes. In this report, the Global Commission encourages all countries to provide necessary health care services, including HIV prevention and care services, condoms, comprehensive harm reduction services, and voluntary and evidence-based treatment for drug dependence and antiretroviral treatment.

Criminalization of Non-Disclosure of HIV:

In Canada, and many other countries around the world, it is a crime to expose another person to HIV or to transmit it through sex. The report describes such laws as “fundamentally unjust, morally harmful, and virtually impossible to enforce with any semblance of fairness” and says these “laws impose regimes of surveillance and punishment on sexually active people living with HIV, not only in their intimate relations and reproductive and maternal lives, but also in their attempts to earn a living.” The report concludes that criminalization is justified under one condition only: where individuals maliciously and intentionally transmit or expose others with the express purpose of causing harm. In cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission, there should be no criminal justice involvement. 

What does this all mean?

The Commission’s report is a powerful tool, adding to the many voices that are demanding reform of the laws that stigmatize communities and increase their risk of contracting HIV. It clearly outlines how legislators can create a legal environment that promotes public health and upholds human rights. 
The question for me, when thinking about the Canadian context, is how can we get Stephen Harper to listen? I suspect that despite the hundreds who gathered on Parliament Hill to mourn the “death of evidence”, Harper will continue his ideology-driven ways. But I am an optimistic person. I believe that this report will play an important role in educating Canadians, supporting court challenges to Harper's regressive legislation and creating momentum for Canada to shift towards evidence based law and policy on some of the most pressing social issues of our time. 
By Katrina Pacey
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