29th PCB Thematic SegmentHIV and Enabling Legal

EnvironmentsOVERVIEW

Susan TimberlakeSenior Advisor, Human Rights and Law

UNAIDS SecretariatGeneva

15 December 2011

Challenge: How to use the legal environment to support an effective and

just response to HIV?• How to use it to

empower people to avoid HIV infection?

• How to use it to empower those infected to live successfully and safely with HIV?

What is the role of legal environment in the HIV response?

• Limited role – Cannot bring about HIV prevention, treatment, care and support

BUT • Critical role – Can reduce stigma; protect

against discrimination; provide redress if harmed; create environment to empower people with HIV knowledge, social support, access to services

• IF PEOPLE HAVE ACCESS TO ENABLING LAW, POLICE AND COURTS!

What do we mean by the legal environment?

• Law: written, religious, customary, traditional law; jurisprudence; international law, human rights law

• Law enforcement: police, prosecutors, judges, prisons

• Access to justice: getting redress from courts, tribunals and/or religious or traditional dispute resolution

Law• Often embodies social values; may also

lead new values/attitudes/behaviour

• May provide legal framework for the national HIV response

• But many countries have good laws that are not enforced or to which people have no access OR

• Have punitive laws that may not be enforced but increase stigma, harassment

Enabling laws protect:• Against discrimination in

community, wkplace, education, etc.

• Women’s equality, inheritance, property

• Against gender- based violence/domestic violence

• Against police abuse of key pops

• Informed consent and confidentiality

• Access to prevention, treatment, care, support

What about criminalization?• Harshest sanction of society (harm principle –

should only be used when someone is harmed)• Elements of a crime

– Intent to harm (malice)– Prohibited conduct– Actual or threatened harm to another person

• Possible sanctions: prison, physical punishment or death, criminal record

??? Application to consensual adult behaviour without harm to another

??? Impact on HIV response

Range of alternatives to criminalization

• De-penalization• Administrative penalties• Regulation• Legalization• Public health approaches

• All are less punitive, but all can also be used abusively, it depends on the quality and content of the enforcement

Programmes on law• Legal audits to see how laws are affecting

the HIV response

• Establishment/support to Parliamentary Committee on HIV or health

• Establishment of national working group on HIV and law

• Advocacy/mobilization for law reform

• Advocacy for enforcement of protective laws

Law enforcement• Involves police, judges, prison officials

who may, like rest of society, know very little about HIV and/or have stigmatizing attitudes

• Police/judges/prosecutors have wide latitude on degree and nature of enforcement

• Fundamental part of good governance and justice – bigger than HIV

• Major target of justice reform efforts

Enabling Law Enforcement: • Facilitates access to HIV services, particularly

for marginalized/criminalized populations• Has zero tolerance for police abuse

(harassment, extortion, arbitrary arrest and detention, violence, rape)

• Protects women and children from sexual violence

• Empowers police/justice officials to reduce own HIV vulnerability, as well as their stigmatizing attitudes

• Empowers judges to make evidence-informed decisions

Law enforcement programmes:• HIV sensitization of police

and prison officials, staff• HIV sensitization of

prosecutors and judges• Awareness of rights/laws

among PLHIV and other key populations vis a vis the police and courts

• Linkages with wider justice reform efforts

Access to Justice enables: A basic human right and aspect of governance• Those living with and vulnerable to HIV, as well

as police and judges, to know rights/laws relevant to HIV

• People to be able to access the justice system (go to courts, tribunals, religious/traditional leaders)

People to get redress when have been harmed or when there is a hindrance to effective HIV responses

Access to Justice programmes:• “Know your rights/laws”

campaigns and community mobilization around them

• Legal aid & legal services• Sensitizing religious,

traditional leaders for HIV dispute resolution

• Strategic litigation• Expanding access to courts

and tribunals

Critical Sub-themesFrom focus of Global Commission on HIV and Law

• Criminalization of people living with HIV and other key populations

• Discrimination and violence experienced by women

• Laws and practices affecting children in context of HIV

• Laws and practices affecting access to treatment

Global Commission on HIV & the Law

16

To develop actionable, evidence-informed, human rights-based recommendations for effective AIDS responses that mitigate the impact of HIV and promote and protect the human rights of people living with and most vulnerable to HIV

Secretariat, Global Commission on HIV and the Law UNDP, HIV/AIDS Practice, Bureau for Development Policy, 304 East 45th Street, New York, NY 10017 Tel: (212) 906 5132 Fax: (212) 906 5023

GCHL/MTG1/WP/6

Architecture: 3 mutual, reinforcing axes

• Commission comprises 15 eminent leaders in their field and public life

• Technical Advisory Group of 23 experts on law, HIV, public health and living with HIV which produced papers

• Regional Dialogues in 7 regions based on some 680 submissions from 133 countries

• Report (findings/recs) in February, 2012Secretariat, Global Commission on HIV and the Law UNDP, HIV/AIDS Practice, Bureau for Development Policy,

304 East 45th Street, New York, NY 10017 Tel: (212) 906 5132 Fax: (212) 906 5023

Outline of the Segment

• Preparatory session - small group work

• Welcome and Introduction to the Dialogue

• Interactive Dialogue – 3 sections– Law– Law Enforcement– Access to Justice

• Conclusion

Preparatory Session• Overview of legal

environment/Commission

• Small group work – split by 3 components of legal environment

• Work within groups to prepare 2-3 key points for 3 minute interventions

• Focus on short, sharp messages

• Resource persons available

Interactive Dialogue

• 75 minutes per component of legal environment

• 2 pre-selected speakers to open each section, 1 to close (3 to 5 minutes)

• Balance among Member states and civil society

• SHORT 3 minute interventions from floor

• Positive, practical experiences in creating enabling legal environments

Suggested Ground Rules• Remember it’s a DIALOGUE so listen and

respond• Be respectful of different viewpoints• No power-points• Try not to read statements• Put cell phones on silent and keep noise

to minimum• KEEP TO TIME LIMITS OF 3 MINUTES

so that others can speak