Advancing Human Rights and Access to Justice for Women and Girls
- Community organizing and mobilization, including "know your rights" initiatives and engagement with customary leaders, can help women claim their legal rights and minimize the impact and further spread of HIV.
- Enacting and enforcing laws and policies that respect, protect and fulfill women’s human rights, including those protecting women’s rights to land, property and inheritance and addressing violence against women, can enhance women’s ability to cope with HIV.
- Decriminalization of drug possession and drug use and legalized comprehensive harm reduction services can significantly reduce HIV infections among people who use drugs, compared with persistent or growing rates in countries where such services are restricted or blocked by law.
- Integrating legal education and services into health care settings can help ensure that women are able to secure their rights.
- Legal challenges to redress rights violations for women can advance women’s human rights.
- Decriminalization of sex work can promote access to health care and support safer working conditions, including safer sex practices, among sex workers.
- Repealing laws, policies and practices that criminalize same-sex sexual activity and exacerbate stigma and discrimination against LGBT communities can promote greater access to HIV prevention, treatment and care among MSM and, more broadly, LGBT communities.
1. Community organizing and mobilization, including "know your rights" initiatives and engagement with customary leaders, can help women claim their legal rights and minimize the impact and further spread of HIV.
The International Center for Research on Women (ICRW) and the Uganda Land Alliance (ULA) partnered to establish a program in Luwero District, Uganda to support women’s property rights by training community members as paralegals to provide legal advice, mediation services and education about property rights issues to people in their communities. ULA trained two cohorts of paralegals between 2009-2012 and met periodically with them to discuss their work and to provide them with technical assistance on their legal services to clients. An evaluation of the program indicated that targeted sensitization messages help to support the intensity and reach of community education efforts on women’s property rights; both formal, structured trainings on the law and women’s property rights and ongoing, more personalized assistance on handling property rights disputes/cases and delivering sensitization messages is important; strengthening relationships with local leaders and institutions — whether with local council persons, religious leaders, or law enforcement bodies — is critical; and implementing a comprehensive monitoring and evaluation system enabled the program to identify challenges and formulate new approaches to help increase its effectiveness. The evaluation also found that community members and local leaders viewed the paralegals as important resources for legal knowledge about property rights and believed that their work led to fewer land-related conflicts and more peaceful approaches taken to resolve them. It also found that paralegals’ sensitization events and client casework seemed to increase awareness of women’s property rights among community members, helped to empower women and reduced resistance to women’s property rights within communities.
In 2009, the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) pioneered a new approach for obtaining access to justice for widows and their children through an initiative called "Working with Cultural Structures to Ensure Access to Justice by Widows and Orphans." KELIN has helped to reconstruct community-based mediation systems so that they respect Kenyan law and human rights in Nyanza Province (now Kisumu and Homabay Counties) through community dialogues with widows, elders and government officials to get their buy-in for the project. They then conducted trainings for the elders and widows on the human rights provisions of Kenyan laws relating to property. Customary structures (Luo Council of Elders, Kabondo Elders, and Nyakach Elders) have mediated family disputes to reinstate widows and children in their homes and family land. Since 2009, KELIN has taken on 285 cases involving the disinheritance of widows, with 238 completed successfully in favor of the widow with the others pending as of June 2014 (KELIN, 2012; update 2014).
In Malawi, training for women on their legal rights resulted in 1,000 women gaining title to their land.
Researchers developed a multi-layered anti-violence intervention for female sex workers that included legal empowerment workshops as part of wider HIV prevention programming involving approximately 60,000 female sex workers in Karnataka state, India. Researchers "found strong evidence of a reduction in the proportion of [female sex workers] who reported violence at follow-up compared with baseline," and that sex workers "who reported experiencing violence in the past year were less likely to report using condoms with their clients, were more likely to be infected with gonorrhea, and were less likely to have accessed the HIV prevention services than [female sex workers] who did not report violence" (p. 476).
Ntengwe for Community Development, a non-profit organization, trained women and girls on comprehensive legal rights, resulting in 600 women regaining their property in Zimbabwe, where property rights are legally protected. Paralegals and peer educators interacted with community elders in the training to show support from the elders.
An evaluation of GROOTS (Grassroots Organizations Operating Together in Sisterhood) Kenya, self-help and community organizations for women in Kenya which formed to strengthen the visibility of women in development and decision-making, found that the intervention resulted in both increased awareness and an increase in the number of women and girls receiving legal support (186 as a result of the intervention compared to 15 in the six months prior to the start of the intervention). The intervention was successful in raising women’s participation in their communities around the issue of HIV and property and inheritance rights for women and girls. GROOTS Kenya focuses on: property rights, community responses to HIV and AIDS, women’s leadership and governance, and community resources and livelihoods. The intervention was evaluated through discussion questions administered pre- and post- radio listening group discussion and community discussions, focus group discussions with project beneficiaries and records of paralegals.
Training for leaders in Kenya responsible for enforcement of customary law reduced gender-based discrimination for women to access and control land and property. Grassroots women were trained to involve leaders responsible for customary law on the topic of taking land and property from widows. The study, based on 20 in-depth interviews with community leaders charged with implementing women’s rights to property, found that these customary leaders transformed the attitudes of other men with respect to women’s rights to land and property.
In South Africa, the Women’s Legal Centre (WLC), in collaboration with the Sex Workers Education and Advocacy Taskforce (SWEAT) and Sisonke, South Africa’s national sex worker movement, conducts weekly workshops for sex workers on human rights and the law and employs sex workers as community-based paralegals who provide other sex workers with information and advice, accompany them to medical clinics and to court, and help them with bail applications. WLC also produced a "Know Your Rights" resource for sex workers laying out rights applicable upon arrest or detention, in addition to general labor rights and remedies. In addition to a marked improvement in the attitudes of police toward sex work, both WLC and SWEAT have reported increased empowerment of the sex workers they serve thanks to the legal information they have received.
Survivors Self Help Group was formed in 2000 in Busia, Kenya, to support and empower female sex workers. Along with providing the sex work community with legal support, the Survivors lawyer trains local sex workers as paralegals, who in turn educate the community about the concerns of sex workers and the relevance of human rights to sex work. After some initial backlash, Survivors noted an improvement in relations between sex workers and law enforcement authorities, and police officers began offering their mobile phone numbers so that sex workers could contact them directly when problems arose with their clients. Survivors has also observed improved access to health care services as a result of the participation of many medical professionals in Survivors’ workshops.
In Indonesia, lawyers at LBH Masyarakat trained former drug users as paralegals who become community educators, conducting sessions on the specifics of Indonesian law at meetings convened by local AIDS organizations and groups for people who use drugs. They also work to support people who use drugs in detention by visiting them after their arrest, delivering antiretroviral medications, taking their testimony and, where procedural violations have occurred, trying to secure their release. People who use drugs report that having peers as “first responders” at the police station reduces the risk of extortion, as the arrival of a lawyer on the scene could signal that the detainee’s family has money. While LBH Masyarakat’s paralegals initially encountered resistance from police, they have succeeded over time in developing positive working relationships with police and prison wardens alike.
The Omari Project in Kenya trained three paralegals, all of them former drug users, to act as an important bridge between the drug-using community and the health care, legal aid and harm reduction services that the Omari Project provides at its drop-in center. Not only can the paralegals refer those facing drug charges to the Omari Project’s lawyer, but their interactions with people who use drugs help identify broad community needs that the Omari Project can address directly in its weekly training sessions on topics concerning law, health and drug use. Since the Omari Project has begun challenging the inflated charges faced by people who use drugs, there has been a remarkable shift in police conduct. Officers are increasingly aware of the risks associated with bringing false or exaggerated charges and are now more hesitant to bring charges without compelling evidence. This change has enabled Omari Project staff to shift their focus and work more closely with probation officers to direct those arrested for simple possession to health care and rehabilitation services.
Lawyers at Uganda Network on Law, Ethics and HIV/AIDS (UGANET) have trained more than 100 paralegals in Uganda, among them women living with HIV, on basic principles of law enforcement, case assessment, conflict resolution, mediation and negotiation. In addition to ongoing support following their training, UGANET provides its paralegals with bicycles so that they can respond over a large area to legal needs and conduct outreach initiatives at health care centers and community gatherings. UGANET’s paralegals not only inform people living with HIV about their rights, they also mediate disputes, carry out follow-up consultations with the police, and empower people to engage in community activism and perform simple legal acts like preparing a will. Between November 2011 and April 2012, UGANET took on 171 new clients, two-thirds of whom were women. More than half of these cases concerned property disputes, though a great number of others involved child support disputes for children abandoned because of their HIV status. In the majority of its cases, UGANET promotes the use of alternative dispute resolution methods, and among the small number of cases that are taken to court, UGANET has enjoyed a 90 percent success rate on behalf of its clients.
2. Enacting and enforcing laws and policies that respect, protect and fulfill women’s human rights, including those protecting women’s rights to land, property and inheritance and addressing violence against women, can enhance women’s ability to cope with HIV.
A global review of empirical evidence of efforts in low- and middle-income countries to prevent violence against women by their husbands and other male partners found that where there have been legal reforms to protect women from violence, there is some evidence to show such laws help to redefine the boundaries of acceptable behavior and reduce repeat violence against some victims.
A review based on 18 months of research and testimony from 700 people most affected by HIV-related legal environments from 140 countries found that prosecuting perpetrators of sexual violence, including marital rape, as well as rape related to conflict, against women may improve a country’s response to HIV.
An overview of 40 organizations working at a national level on property and inheritance rights, based on a survey of 60 community-based organizations in East and Southern Africa, suggests that where women’s property and inheritance rights are upheld, women acting as heads and/or primary caregivers of HIV- and AIDS- affected households are better able to mitigate the negative economic and social consequences of HIV and AIDS. Conversely, the denial of property and inheritance rights drastically reduces the capacity for households to mitigate the consequences should a member be infected with HIV. Recommended interventions can be categorized as legislation, litigation and education: activities promoting gender sensitive legislation and a legislative framework that protects women’s human rights; activities enhancing the judicial sector’s capacity to uphold women’s rights and provide for effective litigation; and activities that advance public awareness, understanding, and application of women’s rights.
3. Decriminalization of drug possession and drug use and legalized comprehensive harm reduction services can significantly reduce HIV infections among people who use drugs, compared with persistent or growing rates in countries where such services are restricted or blocked by law. (Global Commission on HIV and the Law, 2012: 29). [See also Women Who Use Drugs and Female Partners of Men Who Use Drugs]
In 2001, Portugal decriminalized possession and use of illicit drugs in small enough amounts to suggest personal use. The number of people on methadone and buprenorphine for drug dependency rose from 6.040 to 14,877 following decriminalization. Lifetime heroin use in ages 16 to 18 dropped from 2.5% to 1.8%. New HIV infections among people who used drugs fell by 17% from 1999 to 2003.
Until the 1980s, Switzerland’s approach to narcotic drugs was based on rigorous criminal sanctions for illicit drug use, the rejection of sterile syringe provision and onerous licensing requirements on any doctor wishing to prescribe methadone for the treatment of heroin dependency, contributing to the highest estimated HIV prevalence (38%) amongst the European countries monitored in the 1980s, driven in large part by drug injection. In response, the Swiss government passed a law providing the legal framework for prescription of narcotics, including heroin and methadone, and endorsed harm reduction as part of a federal drug policy, enabling the provision of heroin-assisted therapy and the dramatic expansion and normalization of low-threshold methadone services and needle and syringe programs, including in prison. This strategy led to a marked reduction in the number of new HIV infections linked to drug injection, from an estimated 68% in 1985 to about 15% in 1997 and about 5% in 2009.
Insite, a supervised injection site, was opened in Vancouver, Canada in 2003 in response to epidemic levels of infectious diseases and drug overdoses in the neighborhood of the site. The facility enables people who inject drugs to inject pre-obtained drugs under the supervision of health care professionals, and was permitted to operate pursuant to an exemption from Canada’s federal drug law, which criminalizes drug possession and trafficking. Extensive research indicates that Insite has facilitated entry into detoxification services and subsequent injection cessation.
Estonia had experienced a concentrated HIV epidemic among people who inject drugs, with the highest per capita HIV prevalence (40–90%) in Eastern Europe. In the capital Tallinn, an increase in the number of syringes exchanged, from 230,000 in 2005 to 770,000 in 2009, coincided with a decrease in HIV infection among new injectors, from 34% to 16%.
After 1989, the new Czechoslovak Federal Republic reformed its penal code so possession of illicit drugs for one’s own personal use was removed as a criminal offense and made a misdemeanor, among other reforms. While there were subsequent amendments to the penal code in relation to drug possession, the Czech Republic did not criminalize drug use and the drug policy environment in the Czech Republic enabled the development of low-threshold services for people who use drugs, including relatively high coverage of needle and syringe programs and accessible medication-assisted therapy for people with opiate dependence. As a result, unlike some of its counterparts in Europe and the former Soviet bloc facing fast-growing HIV epidemics, the Czech Republic has achieved low HIV prevalence (below 1%) among people who use drugs.
In 2001, up to 66.5% of newly diagnosed HIV infections in China were related to drug use, during a period when harm reduction was controversial because it conflicted with laws and regulations on narcotics control. In an effort to address the epidemic among people who inject drugs, harm reduction was eventually introduced as a prevention strategy and a pilot methadone maintenance treatment program was initiated in 2004 across eight sites. In 2006, several important policy and legislative changes supported rapid expansion of the program and by 2009, the program had expanded into a nationwide program encompassing more than 680 clinics covering 27 provinces and serving some 242,000 heroin users. Clinics offer clients a range of ancillary services, including HIV, syphilis and hepatitis C testing, information, education and communication, psychosocial support services and referrals for treatment of HIV, tuberculosis and STIs. Ongoing evaluation has suggested reductions in heroin use, risky injection practices and criminal behaviour among clients.
4. Integrating legal education and services into health care settings can help ensure that women are able to secure their rights.
A study in Zambia examined the impact of a video-based motivational intervention promoting future planning (such as will writing) in 1,504 HIV-positive couples in Lusaka, Zambia and found that motivational messaging integrated into HIV voluntary counseling and testing services encouraged future planning. Following a group video session, couples randomized to the motivational arm could choose to write a will, identify a legal guardian for their children and make financial plans. Desirable behaviors modeled in the motivational video were measured at quarterly intervals for a year and compared in intervention and control arms. Demographic measures including age, income and educational status were not associated with planning behaviors. Participation in the intervention was associated with will writing (23% versus 5%) and naming a guardian (32% versus 17%) but not with other planning behaviors. The intervention was noted if a male, a female or both wrote wills. The study points to the need to expand existing HIV and VCT services to meet other non-health needs of those living with HIV.
After a 2008 needs assessment found an alarming number of clients at the member health centers of The Christian Health Association of Kenya (CHAK) that reported unfair dismissal from employment, disinheritance, lack of child support and gender-based violence, CHAK integrated human rights awareness and legal services into 15 of its health care facilities, many of which provide HIV care and treatment services. CHAK’s lawyer travels regularly to all 15 sites, training health care providers and "point people" living with HIV on issues related to marriage law, succession law, and gender and its impacts on HIV and teaching community leaders about alternative dispute resolution methods. A subsequent evaluation comparing CHAK clients who had received training on legal and human rights issues to control groups of untrained clients indicated that trained clients appeared to have greater awareness of how and where to access legal services to safeguard their rights.
In 2007, the Coalition on Violence against Women (COVAW) established a legal integration site at a post-rape care centre at Kenyatta National Hospital, Kenya. Services include direct legal aid in cases of sexual violence, referrals to other sources of legal aid and support, paralegal support, and training for clients and service providers on human rights and gender-based violence. Most COVAW clients accessed legal services after presenting for medical care. The legal integration program promoted greater awareness among clients of how and where to access legal services, while trained service providers appeared to be better equipped to provide legal and rights-related information and referrals to clients.
In response to reports of HIV-related discrimination among patients of AMPATH, an HIV outpatient clinic in Eldoret, Kenya, the Legal Aid Centre of Eldoret (LACE) set up its head office directly opposite the AMPATH clinic, creating a one-stop center for medical treatment and legal advice. Since its inception, LACE has represented and counseled hundreds of people living with HIV in cases involving child support, workplace discrimination, land and inheritance disputes, gender-based violence, debt collection, family law, criminal charges and defamation claims associated with actual or perceived HIV status. LACE and AMPATH have also collaborated on the design and delivery of human rights workshops for health care providers, people living with HIV and the broader community and on the integration of human rights elements into AMPATH’s health education programs. LACE’s legal integration program has allowed AMPATH’s health care providers to assist their patients with legal documentation, provide them with general human rights information, and recognize legal problems expressed during outreach and counseling. AMPATH health care workers have observed a mounting sense of confidence in their patients to initiate the resolution of legal problems facing them, and patients also appear to have greater awareness of how and where to access legal services to safeguard their rights (Gruskin et al., 2013).
In spite of pervasive human rights violations against people who use drugs, few programs in Ukraine offer legal services to them. Five organizations in Ukraine have successfully integrated legal services into HIV prevention and treatment programs. The organizations — located in Kyiv, Kherson, Lviv, Nikolaev and Poltava, have increased access to legal services by placing lawyers at locations where drug users already go for needle exchange, counseling, and referrals to drug dependence treatment. The programs have increased access to harm reduction by drawing in new clients who come for the legal services and stay for the HIV prevention services.
In Kenya, integration of legal assistance for survivors of rape increased access to post-exposure prophylaxis (PEP) (Coalition on Violence against Women and Kenyatta National Hospital, 2008).
5. Legal challenges to redress rights violations for women can advance women’s human rights.
The Kenyan National Commission on Human Rights in 2011 launched a public inquiry into sexual and reproductive health in Kenya, following the filing of a complaint in 2009 by the Federation of Women Lawyers in Kenya and the Center for Reproductive Rights, USA. The Inquiry confirmed violations of sexual and reproductive health for Kenyans in violation of the 2010 Kenyan Constitution. Violations found included lack of services for survivors of sexual violence and lack of awareness that services exist, along with a "burdensome and often humiliating justice system" (p. xxi). The Kenyan Constitution mandates the Commission on Human Rights to investigate human rights complaints.
The Inter-American Commission on Human Rights, part of the Regional Human Rights System of the Americas, based on the mandate of the Organization of American States (OAS) is reviewing the case of a Chilean woman living with HIV who was sterilized without her consent (Center for Reproductive Rights, 2010).
In July 2012, the High Court of Namibia upheld a legal challenge by women living with HIV in Namibia who were sterilized without their consent. The Court ruled that consent obtained during labor does not represent informed consent (High Court of Namibia, HN and others vs. Government of the Republic of Namibia).
In 2012, the High Court of Solomon Islands found that a rule exempting husbands from liability for the rape of their wives is no longer applicable. The husband had based his defense on the long standing proposition of law that, since he was legally married to the victim at the time of the alleged rape, it was not possible in law for him to be convicted of rape. In its decision, the Court held that an exemption for marital rape is no longer supported by common law and offensive to modern standards and principles of equality found in international conventions and the Constitution.
In 2013, the Industrial Court of Kenya found that a university had discriminated against a woman on the basis of gender, pregnancy and HIV status by paying her considerably less than her male colleagues; testing her for HIV without her informed consent after she had applied for a promotion to a permanent position; denying her a permanent position on the basis of her HIV status; subjecting her to degrading and dehumanizing conduct by sharing her HIV status with colleagues and superiors without her consent; denying her paid maternity leave contrary to employment law; placing her continuously and deliberately on short contracts solely on the basis of her HIV status and to allow for easy termination; and ultimately terminating her employment based on her HIV status and pregnancy contrary to employment law. The Court consequently ordered the University to pay financial compensation and damages to the woman.
6. Decriminalization of sex work can promote access to health care and support safer working conditions, including safer sex practices, among sex workers.
In order to assess whether the law has an impact on the delivery of health promotion services to sex workers, health promotion programs in three cities in Australia with different prostitution laws were compared. In Sydney, where sex work is largely decriminalized (versus Melbourne, where unlicensed brothels are criminalized and Perth, where all sex work is criminalized), more sex workers reported attending a sexual health center as a source of safer sex training and information. Researchers concluded that the legal context appeared to affect the conduct of health promotion programs targeting the sex industry, and that brothel licensing and police-controlled illegal brothels can result in the unlicensed sector being isolated from peer-education and support.
According to the United Nations Development Programme (UNDP), evidence from New Zealand and the Australian state of New South Wales indicates that decriminalization of sex work empowers sex workers, increases their access to HIV and sexual health services and is associated with very high condom use rates. Very low STI prevalence has been maintained among sex workers in New Zealand and New South Wales, and HIV transmission within the context of sex work is understood to be extremely low or nonexistent.
In an analysis of data from 21 Asian countries reporting under the UN General Assembly Special Session on HIV in 2010, researchers found a correlation between the legal environment toward sex work and HIV-related outcomes. Using the governments’ responses, the researchers found that in most cases, HIV-related knowledge and behaviors among sex workers were poorer in countries that reported an unsupportive regulatory environment, and a general trend of higher knowledge and use of HIV-related services as well as the suggestion of lower HIV prevalence among sex workers in places where laws or policies intended to prevent discrimination are in place. This was particularly marked with regard to the percentage of sex workers reached with HIV prevention programmes. The researchers concluded that not only do legally punitive working environments threaten the rights and health of sex workers, but that they may further exacerbate the HIV epidemics in Asia and in the rest of the world.
A systematic global review of research on the prevention and treatment of HIV and other STIs among sex workers and their clients found that laws that directly or indirectly criminalize or penalize sex workers, their clients and third parties, abusive law enforcement practices, and stigma and discrimination related to HIV and sex work can undermine the effectiveness of HIV and sexual health programs, and limit the ability of sex workers and their clients to seek and benefit from these programs. It was thus recommended that all countries work toward decriminalization of sex work and the elimination of the unjust application of non-criminal laws and regulations against sex workers.
In New Zealand, after the government decriminalized prostitution in all forms in 2003, sex workers exercised greater power to demand safer sex. Prior to decriminalization, sex workers were less willing to disclose their occupation to health workers or to carry condoms or lubrication for fear of it being used as evidence for a conviction. Since decriminalization, sex workers have reported feeling that they have enforceable rights, including the rights to health and security of person, and are increasingly able to refuse particular clients and practices and negotiate safer sex.
7. Repealing laws, policies and practices that criminalize same-sex sexual activity and exacerbate stigma and discrimination against LGBT communities can promote greater access to HIV prevention, treatment and care among MSM and, more broadly, LGBT communities.
A review based on 18 months of research and testimony from 700 people most affected by HIV-related legal environments from 140 countries found that criminalization of same-sex sexual activity both causes and boosts HIV among MSM. In Caribbean countries where homosexuality is criminalized, almost 1 in 4 MSM is infected with HIV. In the absence of such criminal law the prevalence is only 1 in 15 among MSM.
While a 2011 review of the available literature on MSM, HIV and the law did not allow for the direct measurement of laws against homosexuality on HIV rates among MSM, there is compelling and consistent data to demonstrate that legal sanctions and stigma and discrimination limit MSM access to HIV prevention, treatment and care and are a barrier to universal access.