THE JURIDICAL PERSPECTIVE
Legislation regulates a society and projects the political will on how and what its member population should abide to. One could say they are the pillars on which society rests. These laws can be used to oppress, and to set people free. They can most certainly affect how the HIV pandemic continues and they can have a strong influence on good practice to prevent the spread of HIV.
Through legislation connected to HIV, it is possible to support constructive and efficient care, treatment and prevention actions to be taken by staff within the health sector, but it should also help people in other areas of the civil society, including people living with HIV or AIDS and affected. The legislation can be a support to people living with HIV or AIDS and the fight against stigma. It should take into account the human rights aspects and be updated on the accurate knowledge about the disease. Importantly, it is also connected to the issues of equality between genders and the juridical protection for children, especially orphans from parents having died of AIDS.
In the Juridical Perspective I will highlight legal areas affecting people living with HIV or AIDS, as well as how governments try to use legislation as a means to prevent the spread of HIV in the sense that the legislation will try to prevent the general public, or specific groups of society, to influence certain behaviours and also use the law as a method to exclude people in different ways. Most legislation in countries now a day is influenced by the global AIDS situation especially connected to the disease control and human rights acts.
In the 1980’s and 90’s in Sweden, there was a law against sauna clubs and porn theatres. In these facilities it was possible for visitors to meet and have sex with one another, mainly connected to meeting places for men who have sex with men. The law is now obsolete since it had no effect on the spread of HIV.
These types of legislation are based on the knowledge (or lack of knowledge) and the morality existing within the national political apparatus. I could place the juridical perspective within the political perspective, but I believe 1) not all countries in the world have a western-like democratic political system where political processes often result in the acquisition of new knowledge and changed laws and 2) the legislation processes involve many other persons and officials, when investigating, suggesting and complying it.
A legal environment (as UNAIDS call it) can enable a local and therefore universal access to HIV prevention, treatment, care and support (i.e. protective laws) or it can block such access for people living with HIV or AIDS, sex workers and their clients, men who have sex with men and people who use drugs, and other vulnerable populations (i.e. punitive laws).
Laws and regulations should protect people living with HIV or AIDS against discrimination, and non-discrimination laws or regulations specifying protection for vulnerable subpopulations should be outlined. Meaning, laws, regulations or policies presenting obstacles to access to prevention, treatment, care and support for vulnerable subpopulations should be changed or abandoned.
Many countries have dealt with HIV through Disease Control Legislation. Some countries have travel regulations making it “impossible” for people living with HIV or AIDS to travel to or reside for a longer period of time. In Iraq, for example, all people who want to stay longer than two weeks need to visit the Department of Passport and Residence within fifteen days and submit a blood sample to be tested for hepatitis B and C, and HIV. If any of the tests are positive the person is immediately expelled.
HIV-specific restrictions on entry, stay or residence often lead to a feeling of security among the original population, leading to a higher degree of risky behaviour, since the thoughts (wrongfully) are “there is no risk for us since HIV is stopped at the boarder”. This reasoning does not take into account the so called “window period”, meaning it could take up to six months from time of infection untill it can be shown in a test result. Neither does it take into account specific groups of travellers, such as
businessmen, returning on a regular basis but who stays only for a couple of days each time.
Laws specifically criminalise HIV transmission or exposure put all responsibility on a person living with the disease, and it could be regarded, as it is just not every ones responsibility to take care of their own health. The WHO statement that everyone should have access to as much information as possible in order to make decisions about how to live their lives, does also need to be reflected in the juridical discussions in every country. We also need to take into consideration the large proportion of people living with HIV who are not aware of their HIV status.
Laws criminalising same-sex sexual activities between consenting adults are probably just based on sexual frustration among those who suggest them!? I know this is not an objective reasoning, but at the bottom end, this is a matter of human rights and to understand this you need more knowledge about human sexology. If there is a punitive law on same-sex sexual activities, this takes place in hidden environments where possibilities of taking HIV (and STI) preventive measures decreases. Therefore the laws are indirectly increasing the spread of HIV.
When it comes to the support for girls, boys and women abused and victims of trafficking, the legislation has many challenges. The risk of being abused in these matters also increases the risk of HIV transmission, and is more likely a source for the exploiters and their customers to also catch the disease, not to mention the variety of psychological wounds this causes the abused. What can the juridical sector contribute to in this sense? Which legislation supports the children and women, and which legal processes and community institutions play a part in this, and can bring the offenders to justice?
For a long time in South Africa, there existed a view among people with lack of knowledge about HIV and AIDS that HIV infection could be cured by having sex with a virgin. Many young girls and even babies were therefore raped by men, willing to conduct these terrible acts because they did not have accurate knowledge about the disease. One reason for why this belief was kept alive for so long was associated with the unwillingness from the government to work on HIV prevention in a comprehensive way, and the denial from the former president Thabo Mbeki that HIV causes AIDS. What rights do the raped children have in a society where these expressions are allowed to exist?
The right to control their own sexuality and reproduction are fundamental to all people. Sexual and reproductive health and rights (so-called SRHR issues) includes every persons’ equal opportunities, rights and conditions to have a safe and satisfying sex life, and that no one through the use of force, violence or discrimination shall decide over his/her own body. Today, it is unfortunately common to withhold knowledge, and discrimination and oppression takes place in relation to sexual and reproductive health and rights. Abuse is also rising rapidly and systematised often in conflict, post-conflict and crisis situations.
Working on Sexual and Reproductive Health and Rights is one of the strongest and comprehensive ways of working on prevention combined with legislation, and can support the legal processes to be developed to fit the contemporary HIV and AIDS situation.
Laws imposing compulsory treatment for people who use drugs and/or provide for death penalty for drug offenses do not prevent intravenous spread of HIV. Even if I am against the use of non-prescribed drugs, I can never accept death penalties for people who do use drugs! In fact, I can never accept death penalties.
There are always different reasons for why a person uses drugs, and this should be regarded as symptoms of something that has gone wrong, and therefore needs to be dealt with in other ways. Furthermore, laws can never prevent smuggling of drugs, but skilled staff and better procedures at customs can reduce it.
Finally, the juridical perspective also needs to address the legislation situation surrounding the pharmaceutical companies, drugs and the distribution of ART (anti-viral therapies) and other types of medicine, which help people living with HIV or AIDS to a better and longer life. Does the legal system support those in need of medicines or is there any laws that obstruct justice? What are the legal conditions for the pharmaceutical companies operating in a country, and how can there be a balance between the need for revenues for these companies and at the same time stop them from taking advantage of the AIDS situation, making unreasonable profit from the medicines so needed? The situation has, in these 30+ years become much better, to a large extend due to the actions taken from the political initiatives in Brazil and India, just to mention a few.