South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections
Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.
An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.
And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.
“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”
Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.
Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.
And often, she said, clinics give women HIV tests when they come in for prenatal visits.
The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.
“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”
Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.
“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”
Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.
Venezuela: National Assembly unanimously passes new rights-based law that protects people living with HIV from discrimination in all areas of life
On August 14th, the National Assembly (NA) of Venezuela passed a set of laws that, among other functions, ensure the rights of people carrying the Human Immunodeficiency Virus (HIV) and their families. The Law on Protection of People with HIV will aim to prevent discrimination and provide health care to AIDS patients as well as those who are HIV positive. “This law is born of the living history of these patients and family, who suffers discrimination he faced, he had no right to health, education, work, sport, recreation, housing, vehicle, and this law lay that story they told us the family and patients, “ said Vice President of the Permanent Commission for Integrated Social Development, Henry Ventura. (from http://lainfo.es/en/2014/08/14/venezuela-will-protect-people-with-hiv/)
The bill guarantees HIV-positive people equal conditions in terms of the right to work and hold public office, to education, healthcare, culture and sports, the benefits of social programmes, bank loans, confidentiality about their health status and respect for their prívate lives. It also states that having AIDS cannot be grounds for the suspension of paternity rights, while establishing that families are responsable for caring for and protecting people living with HIV.
The law guarantees equality for young people, because 40 percent of new cases are in the 15-24 age group. It also does so in the case of women, for whom it orders that special care be provided during pregnancy, birth and the postpartum period, as well as for people with disabilities and prisoners. The bill establishes penalties, disciplinary measures and fines for those found guilty of discrimination.
The idea is to prevent a repeat of situations such as one faced by a schoolteacher in a city in western Venezuela, who remains anonymous at her request. She was fired after a campaign against her was mounted by parents who discovered that she had gone to the AIDS unit in a hospital to undergo exams. However, the miliary and the police are exempt from the protective provisions against discrimination.
“We do not agree with that exception,” Estevan Colina, an activist with the Venezuelan Network of Positive People, told IPS. “No one should be excluded and we hope for progress on that point when parliament’s Social Development Commission studies it and it goes to the plenary for the second debate,” which will be article by article.
Nieves is confident that the second reading will overturn the military-police exception. But more important, said the head of ACCSI, “is the positive aspect of the law, starting with the unanimous acceptance of a human rights issue by political groups that are so much at loggerheads in Venezuela’s polarised society.”
The law, which NGOs and activists expect to pass this year, will give a boost to anti-AIDS campaigns. The support will be similar in importance to that given by a July 1998 Supreme Court ruling that ordered public health institutions to provide free antiretrovial treatment to all people living with HIV.
India: Supportive, protective HIV law introduced in the Rajya Sabha (upper house)
Bill to end HIV/AIDS discrimination introduced – A bill aiming to protect people with HIV/AIDS against discrimination was introduced in the Rajya Sabha Tuesday. The HIV/AIDS (Prevention and Control) Bill 2014 was introduced in the upper house amid din.
The draft of the bill was finalised in 2006, and civil society groups and HIV/AIDS-affected people have long been demanding passage of the draft legislation. Under the proposed law, HIV/AIDS-affected people will be provided protection against discrimination in employment, healthcare, education, travel and insurance, in both public as well as private sectors.
The bill proposes imprisonment and fine for those spreading hatred and discrimination against HIV patients. According to official information, a fine up to Rs.10,000 and two years’ imprisonment has been proposed as punishment for spreading hatred against people with HIV/AIDS.
The bill also proposes a legal commitment to provide Anti-Retroviral Therapy (ART) by the government to the patients as far as possible.
Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried
Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.
Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference. It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.
Switzerland: Decriminalisation of unintentional HIV transmission and exposure
Alec Von Graffenried, MP, Switzerland, 2013. “I am delighted my amendment was successful. We can still prosecute for malicious, intentional transmission of HIV. But I expect those cases will be very rare. What has changed is that now people living with HIV – which these days is a manageable condition – will be able to go about their private relations without the interference of the law. They can access medical services without fear. All the evidence suggests that this is a better approach for public health.”
Name of act
The Epidemics Act 2013
Summary
Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).
Why the law is important for HIV
Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.
How and why was decriminalization of HIV transmission and exposure introduced in parliament?
In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.
In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.
Was cross-party support secured and, if so, how? How was a majority vote secured?
The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.
During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.
How long did it take to pass the law?
It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.
Read and/or download the entire publication below.
We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.
Legislative changes now protect persons living with HIV against discrimination in the workplace, and it is mandatory for employers with more than five regular employees on staff to develop a written policy on HIV and AIDS.
The law forms part of the regulations which will accompany the Occupational Health and Safety Act and is intended to prevent the spread of HIV in the workplace and also stem the associated stigma and discrimination.
HIV testing is not a precondition to employment and no employer is allowed to ask any person whether directly or indirectly about their HIV status.
Ghana: New supportive, human rights-focused HIV law expected to pass soon
The Ghana AIDS Commission and its partners have drafted a new legal framework, HIV and the Law which is expected to be passed into law soon. According to Ghana AIDS Commission’s Abu Mahama, the legal framework is to address issues bordering on HIV/AIDS and human rights, and it is also expected to protect those living with HIV/AIDS as well as those affected by the disease.
He said the Commission is also putting together a Stigma and Discrimination Strategy to reduce stigma and discrimination against People Living with HIV (PWHIV) in the country. Mr. Mahama further stated that the Ghana AIDS Commission is providing funds to government health facilities that provide Anti-Retroviral Therapy (ART) services to register PLHIV for the National Health Insurance Scheme (NHIS).
India: Gujarat high court rules that hospitals, media should respect privacy of PLHIV
AHMEDABAD: Gujarat high court on Thursday directed that the identity of HIV positive people should not be disclosed by hospitals, as it could deter other patients from coming for treatment. The bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala called for strict concealment of the HIV positive person’s identity in response to a PIL filed by advocate Vijay Nangesh.
India: Advocates push for enactment of enabling, supportive omnibus HIV/AIDS Bill
“When we first started talking about the HIV/AIDS Bill, we were talking about how our children needed to be taken care of. Today, those children are adults waiting to be married, and have a different set of problems, but there is no law yet,” Daisy David, a woman living with HIV says. After about three years of preparation in consultation with many groups, the HIV/AIDS Bill took final shape in 2006 and was submitted to the Law Ministry the next year.
The Law Ministry took three years to clear it, and sent it back to the Health Ministry. Since then it has been lying idle or being foot balled between the Health and Law Ministries, activists charged. Meanwhile, the community got tired of waiting for the State to take over and do the rest. So they took to the street again, campaigning for the bill to be tabled in the coming session of the Parliament.
“It is extremely disappointing, the way this Bill has been shuttling between the two Ministries. We demand that the government should table the Bill in this monsoon session,” says Reni Jacob of World Vision. He stresses the importance of bringing into force a law that will protect the rights of persons living with HIV and offer them a forum for redress. The Bill envisaged wholesome coverage of issues relating to persons living with HIV/AIDS addressing issues of stigma and discrimination, care and protection, treatment and ensuring their rights. “We have a lot of problems now, from access to anganwadis, health care, and education, to denial of property rights. We can only keep quiet because there is no law to protect us,” Ms. David says, detailing her own experiences.
The Bill protects people living with, and affected by HIV from discrimination in both private and public sectors, bringing the private sector into the ambit for the first time, Kumaravel of the Tiruvallur Network of Positive People explains. Also, the Bill puts an obligation on the State to provide complete treatment including antiretrovirals, diagnostics, treatment for opportunistic infections, and nutritional supplements to every person living with HIV in the country, adds Noori of the South Indian Network of People with HIV/AIDS.
Surekha N of the Lawyers Collective, which originally drafted the Bill, explained that it has recently been sent to the Law Ministry.
Global Commission newsletter highlights recent developments on HIV and the law around the world
Dear subscribers, We are delighted to share issue 2 of the Global Commission on HIV and the Law Newsletter – Issue 2 for 2013. Since the last Newsletter was released, there have been a number of significant developments on HIV and the law some of which are briefly described below in digest format.
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