Laws should make things better.
Sadly, as we stand at the precipice of finally ending Aids, an epidemic of archaic and insensitive laws is stifling our efforts and making things far worse.
The Global Commission on “HIV and the Law” came together to address this hidden crisis. The Commission’s just-released report, “HIV and the Law: Risks, Rights and Health”, leaves no doubt: it is time to unshackle the Aids response.
Discriminatory laws that criminalise sex work, drug use and same-sex sexual activity create fear and drive those most at risk away from the very HIV services that could keep them alive. Some laws punish homosexuality with lengthy imprisonment, and others with death. Some criminalise needle exchange, despite it being a proven and effective HIV prevention tool.
Similarly, dozens of countries penalise HIV transmission and exposure, despite such laws being counter-productive to HIV responses. Such laws drive people away from testing and treatment.
No demographic is spared the adverse impact of bad laws: young people are pushed away from reproductive health and HIV prevention services by laws that require parental consent; women are exposed to unacceptable risk by laws and customs such as early marriage and female genital mutilation. Equally troubling are counter-productive intellectual property protections that stymie the production of affordable HIV medicines, rather than providing incentives for the development of drugs that are affordable for the poor.
We recognise that some of these laws may have been implemented in the belief that they would protect people from HIV. We also acknowledge that some laws were created to uphold cultural and moral beliefs and values. But history has proven time and time again that public health policies only succeed when they are driven by evidence and rooted in human rights, not in assumptions and ideology.
It may be difficult, even uncomfortable, to reverse discriminatory laws, but laws – just like language and culture – must evolve with the times. Local and national leaders need to ensure that legal systems move us forward, not set us back.
Courage is needed. India’s High Court of Delhi dismantled parts of its penal code that criminalised homosexuality. Guyana and Fiji recently rejected laws that make HIV transmission a crime. Leaders such as the former president of Botswana, Festus Mogae, and President Joyce Banda are calling for the decriminalisation of homosexuality. The Kenya National Human Rights Commission has called for the decriminalisation of sex work. Vietnam passed a law that abolished the detention of sex workers. Countries like Germany, Australia, Switzerland and Iran have put laws in place that ensure injecting drug users have access to necessary health services.
During our time as leaders in our countries, we saw the health and social impact of bad laws and took swift action. In 1996, Brazil announced it would offer free treatment drugs to all people living with HIV, and later challenged international patent laws so Brazil could produce its own affordable version of life-saving HIV medicines. New Zealand decriminalised sex work and enhanced legal protections for lesbian, gay, bisexual and transgender people. It also put in place laws that encourage harm reduction programmes. In both countries, rates of HIV prevalence have remained consistently low.
The truth is, if we can rally support for a multi-billion-dollar global effort to end Aids, we can all muster the courage to put laws in place that make those dollars work.
For the first time in the history of the epidemic, we have the tools to radically slow the rate of new infections and keep virtually everyone with HIV alive. In July, leaders from around the world gathered in Washington for an historic Aids conference whose overarching themes were progress and hope.
We must aggressively deal with the wasteful, damaging laws standing in our way. There has never been so much to lose – or to gain.
Fernando Henrique Cardoso is the former president of Brazil. Helen Clark is the administrator of UNDP and the former prime minister of New Zealand.