Transforming Legal Norms to Empower Women, including Marriage, Inheritance and Property Rights
[*]In many of the countries where women are most at risk for acquiring HIV, laws to protect women are weak (Mukasa and Gathumbi, 2008; Ezer et al., 2006; Ezer et al., 2007). Laws which deny women the right to divorce, the right to own property, the ability to enter into contracts, to sue and testify in court, to consent to medical treatment and to open a bank account reinforce the subordinate status of women. These are critical legal rights for women. For example, in Swaziland, fathers are automatically granted custody of children (Ezer et al., 2007), which may make a woman less likely to leave an abusive situation that may place her at risk of HIV acquisition. In Tanzania, the legal age of marriage is 15 years of age for girls, which can contribute to an increased risk for HIV acquisition, as both age and marital status tend to affect condom negotiation (Ezer et al., 2006). Women also need the basic right to mobility, i.e., women are not prohibited from accessing transport to services or need permission of male relatives in order to do so.
"Without legal rights, a woman can do little to prevent her husbands relatives from seizing property and land" (Swaminathan et al., 2007). These legal norms directly affect women's risk for HIV. For example, if a woman has no right to divorce, she must stay with a man who may put her at risk for HIV. If a woman cannot own property, she is more likely to have to engage in transactional sex to survive (HRW, 2002). While being a female alone denies women their rights in certain countries, these limited rights can be restricted even further if a woman is living with HIV. In some countries, people living with HIV have little access to the formal legal system (Kalla and Cohen, 2007). "Fundamental means of empowering girls and women include formal education, knowledge of legal rights and advocacy skills, representation in law-making and other decision-making bodies at all levels and participation in the justice system" (Gardsbane, 2010: 6). The implementation of the laws matter just as much as the laws themselves. Thus, the capacity of the government and its institutions to implement the laws, the political will to implement them to their fullest, addressing the potential contradictions and intersections with customary law, and the translation of laws from "legalese" into popular discourse are also important to ensure that women realize and can act on their rights (Jacobs et al., 2011).
Laws often reflect unequal gender norms that discriminate against women. Legal rights and gender norms must be addressed together; because in order to change gender norms, laws must be transformed to empower women with basic legal rights and in order to transform laws in countries where women are disempowered, gender norms must be addressed. Women need knowledge of the legal rights that are in place and women living with HIV particularly need knowledge of their rights. Protecting the legal rights of people living with HIV as well as others at high risk of HIV acquisition, such as same sex partners, sex workers and IDUs, is also critical to addressing the AIDS pandemic. [See also Prevention for Key Affected Populations]
Understanding Legal Systems is Necessary to Determine Entry Points
Legal frameworks can empower women--for example through laws that ensure nondiscrimination on the basis of sex--but unfortunately laws often do not support women. "In many countries, national laws restrict women's ability to own, inherit, or dispose of property. Women suffer inequality in access to education, credit, employment and divorce. Legal and social inequality renders women economically dependent on their husbands, leaving them little choice but to remain in relationships where they cannot refuse sex or insist on condom use. Women often sink into poverty upon the death of their husband or the dissolution of their marriage, finding their choices and possibilities so diminished that they have to trade sex for survival or rely on situations of lodging or work that expose them to sexual abuse or violence. Each of these factors places women at a heightened risk of HIV infection" (Jurgens and Cohen, 2007: 2).
It is important to understand the range of legal systems operating around the world when considering promoting legal changes to protect women. Countries, or "political entities," which can include political subdivisions of countries, operate under a range of legal systems, categorized in various ways, but broadly as Civil Law, Common Law, Customary Law, Religious Law, and Socialist Law (JuriGlobe, 2009). Among these, civil law is the most prevalent system of law in the world, and relies on written law that is codified in statutes or a constitution. Common law, also widely used worldwide and particularly in countries previously under British colonial rule, gives precedence to case-law, or decisions made by judges, over legislation (JuriGlobe, 2009).
Many countries use mixed systems in which customary and religious laws often exist as components of legal civil or common legal systems. These mixed domains can incorporate discriminatory views against women. Nigeria, for example, has three legal systems with three rivaling jurisdictions: common law, customary law, and Sharia (Muslim) law (JuriGlobe, 2009). A study by UNIFEM found that the three systems make it difficult to protect women's rights. Customary courts were found particularly problematic because they "administer 'justice' based on local social norms, beliefs and practices, resulting in significant variation in customary law and its implementation from one locality to another... to the disadvantage of women" (UNIFEM, 2006). These nuances should be taken into account in any legal reform process.
Legal Protections Against HIV-Based Discrimination Are Essential
Studies have documented discrimination based on HIV status; violations of medical privacy; forced HIV testing; HIV status as a barrier to employment and/or education and/or housing (Mukasa and Gathumbi, 2008); and discrimination in health care settings. [See also Reducing Stigma and Discrimination] Between 2006 and 2010, the number of countries reporting the existence of laws, regulations or policies protecting people living with HIV from discrimination increased from 56% to 73% among 85 countries -- but one third of countries still do not have such legislation (UNAIDS, 2010e).
"Laws can protect people living with HIV from discrimination or can increase discrimination against them" (NIDA and IAS, 2010: 66). "However, when the activities of such groups [e.g., IDUs or sex workers] are criminalized, the law and its enforcement can become a major barrier to access and uptake of HIV prevention, treatment, care and support" (NIDA and IAS, 2010: 66). "HIV has always been an epidemic of the vulnerable and legally disenfranchised" (Cameron, 2011: 103). Legal reform to ensure proper support for vulnerable groups is necessary (Gruskin et al., 2007b). Applying criminal law to HIV exposure or transmission does not reduce the spread of HIV and undermines HIV prevention efforts (Jurgens et al., 2009c). AIDS2031 Consortium recommended minimum legal standards to combat the AIDS pandemic:
- Decriminalize HIV status, transmission and exposure;
- Decriminalize same-sex relationships and practices;
- Guarantee equal rights of people living with HIV;
- Guarantee equal rights to men and women;
- Eliminate laws that limit access to health services for marginalized populations, including sex workers, people in same sex relationships and drug users; and
- Decriminalize harm reduction approaches for prevention of AIDS among those injecting drugs (AIDS2031 Consortium, 2010).
Criminalization of HIV Can Hinder Prevention, Treatment and Care Efforts
No evidence exists that HIV-specific criminal laws are effective in preventing transmission and in fact, may be harmful.Criminalizing HIV transmission creates a huge disincentive for HIV testing, since ignorance of one's HIV status may be the safest way to avoid being accused of deliberately trying to transmit the virus (Forbes, 2010). "Many countries [criminalize] HIV transmission itself, possibly as a surrogate for persecuting the groups to whom they attribute such transmission" (Forbes, 2010: 23). The threat of criminal liability for HIV transmission has been used by providers, for example in Ukraine, to ask for bribes to not report two HIV-positive partners who were both open to each other about their serostatus. When the patients could not afford the bribe, the male partner was imprisoned, where he died (Finnerty et al., 2010). "It is evident that criminalizing transmission means criminalizing the behavior of people living with HIV, thus stigmatizing and discriminating against all individuals living with HIV" (IPPF et al., 2011: 9).
With women more likely to be tested in the context of antenatal care, women can be disproportionally impacted by criminalization of HIV (IPPF et al., 2011). In addition, some countries, such as Zimbabwe, have legislation that criminalizes transmission of HIV from mother to fetus, even for women who are not able to access PMTCT or antiretroviral therapy. "This is in a context where medicines that can reduce or prevent transmission are not always made available and where many people do not have control over all aspects of their sexual life" (Cameron, 2009: 64).
Marriage and Divorce Laws Need to Protect Women
"Like any other human being, we take legal resort to stop the abuse and to protect our right" -Ethiopian woman living with HIV (IPPF et al., 2011)Marriage and divorce laws and inheritance and property rights are areas of particular importance for women and require specific action to change the legal norms that keep women unequal to men in the eyes of the law. Marriage is not a protective factor for reducing risk of HIV transmission. [See Prevention for Women] Marriage laws, including those related to forced marriages, child marriages, polygamy, and divorce, are needed to protect women. Laws protecting wives from violence and non-consensual sex, for example, can help protect women from HIV transmission. "Spousal sexual violence including marital rape, where permissible by law, amount to legal sanctioning of violence against women in one of the most intimate spaces of their lives" (Archampong, 2010: 2). For example, in Sierra Leone, "only rape of a virgin is seen as a serious crime. Rape of a married woman or a non-virgin is often not considered a crime at all..." (HRW, 2003a: 65). In Kenya, marital rape is excluded from recent legislation in the "Sexual Offenses Act" as well as customary law, which "results in presumed and perpetual consent to sex" (Sampson, 2010: 23). Ghana also still has no direct prohibition of marital rape (Archampong, 2010; HRW, 2003a). The 1999 Federal Constitution of Nigeria discriminates against women in that "it encourages child marriage when it proclaims 'every woman who is married shall be regarded as an adult,' while it also encourages spousal abuse when it says that 'wives may be corrected provided grievous harm is not committed'" (UNIFEM, 2006: 11). Women's inability or difficulty in obtaining divorce, often coupled with men's ease with divorce, has serious implications for protection of women from HIV transmission. Women's lack of legal rights within marriage is often compounded with custody and maintenance arrangements and lack of property rights upon divorce.
Some countries have made progress. Ethiopia has reformed its laws to make child marriage under age 18 illegal and established 18 years of age as the legal minimum (Ezer et al., 2006); now the challenge is to enforce this new legal minimum (CHANGE, 2009). In Lesotho, the Parliament enacted a bill providing married women--who up to then were considered minors--with status equal to their spouses, with rights to own land, right to inheritance, the right to have a bank account or to take out a loan without their husband's permission. These laws only protect married women, however, and depend on implementation and enforcement of new laws (Braun and Dreiling, 2010).
Womens Inheritance and Property Rights Must Be Secured
"Strengthening women's property and inheritance rights is critical to reversing... new HIV infections across the globe" (USAID, 2010c: 1). "Research and intervention strategies are just beginning to consider the role that women's property ownership and inheritance rights might play in potentially breaking the cycle of AIDS and poverty. There is growing evidence to suggest that where women's property rights are upheld, women acting as heads and/or primary caregivers of HIV/AIDS-affected households are better able to manage the impact of AIDS. Additionally, preliminary evidence indicates that such rights may help prevent further spread of HIV/AIDS by promoting women's economic security and empowerment, thereby reducing their vulnerability to domestic violence, unsafe sex, and other AIDS-related risk factors" (Strickland, 2004: 1).
When women are denied their rights to property, whether in widowhood or desertion by their husbands, they experience deepened poverty and lower social status as a result. This is tragically compounded when they themselves become ill, and they are left destitute without shelter or care (Steinzor, 2003). Women in polygamous marriages have additional concerns in accessing property where only one wife is entitled to property (Knox et al., 2007).
Rights-based training for women is underway in a number of countries in sub-Saharan Africa and training is also underway for police and the judiciary to uphold women's property rights (Oja, 2008). Women's access to pro bono legal assistance is critical (COHRE, 2004). Small grants provided through ICRW to grass roots organizations [in Kenya, Malawi, Rwanda, South Africa, Zambia, and Zimbabwe] resulted in these groups "addressing the links between women's property rights and HIV... Though small in scales, these efforts are educating communities about how property rights affect women and girls in the context of HIV, and mobilizing stakeholders at all levels to take action" (Welch et al., 2007: 1).
Yet international treaties, laws, and other instruments that protect women's inheritance and property rights, like other laws that protect women's rights, may exist but are not consistently applied. Similarly, existing national laws that protect women's property rights are often poorly enforced. A random sample of 219 households in rural Uganda with 74 enrolled in focus group discussions from seven villages found that many women are ignorant about the laws that protect them from widow inheritance and protect their property rights (Mabumba et al., 2007).
A 2007 review found that "more data is needed to guide the design and implementation of interventions that will effectively address women's property rights within the HIV/AIDS context" (Swaminathan et al., 2007: 17). Others have recommended that legal frameworks recognize women's property rights and secure adequate access to justice for women living with or affected by HIV (COHRE, 2009; Welch et al., 2007).
Moving Forward Requires Access For Women and Transformation of Legal Frameworks
Women's access to legal services is critical. Few women have access to legal advice and current provision of services is often dependent on volunteers or paralegals with limited knowledge of women's rights. These networks train paralegals in the fundamentals of property law and dispute resolution. If legal services are available through health services accessed by women and people living with HIV, more of those in need will have access to legal services (Kalla and Cohen, 2007). The tremendous need for HIV-related legal services in some countries has been well documented (Mukasa and Gathumbi, 2008).
In many countries, reform of constitutional, statutory, and customary laws is needed to guarantee equal rights for women. Constitutional reform has been underway in many countries such as Kenya and Tanzania, providing an opportunity to change women's rights. Ensuring that laws are consistent with constitutional change is critical. Protective legal frameworks should encompass inheritance, marriage, division of property upon divorce, custody, land use and ownership, and access to housing. Many organizations are working to change written codes using the Committee on the Elimination of Discrimination against Women (CEDAW) as a guide. In Nepal, for example, women's groups pressured leading political parties to protect the right of women to own and inherit property, and this led to a new law, passed in 2002, which gives a wife equal right to her husband's property immediately after marriage. While some customary laws support the equal rights of women, others are discriminatory. Changing customary laws requires efforts to change community attitudes and practices. Furthermore, the constitutions in some countries are progressive and the issue is to challenge statutes that no longer comply with the constitutions.
Efforts to promote women's legal rights should ensure gender-transformative legislation, the promotion of judicial capacity and effective litigation and advance public awareness (Kim et al., 2008; ARASA, 2009). Partnerships, such as that between the Namibia Women's Health Network and the Legal Assistance Centre which have worked together to seek redress for women living with HIV who suffered coerced sterilization, are a model for meaningful community involvement at the heart of strengthening the enabling environment (Gatsi et al., 2010). While numerous countries have constitutions that recognize women's equality and have ratified international and regional human rights treaties, national legislation is not enforced or is superseded by customary law.
Governments need to establish a gender-sensitive legal framework as a key element of HIV/AIDS policy and programming; one that upholds the human rights of women, including reform of laws and policies that place women at a disadvantage to men. A model legal framework for women's rights in the context of HIV/AIDS has been recently developed by the Canadian HIV/AIDS Legal Network (www.aidslaw.ca/EN/womensrights/english.htm), and includes four modules related to strengthening the enabling environment: (1) sexual violence, (2) domestic violence, (3), family issues, and (4) property issues. Current efforts to share gender equitable laws are also available through the International Association of Women Judges (www.iawj.org/) -- an association of women judges to ensure promotion and sharing of gender equal laws. In addition, legal obligations on women's equality in relation to HIV and AIDS is available at (Gerntholtz and Grant, 2010). Advocacy and training for women to know their rights is critical (ICASO, 2010; IDLO and UNAIDS, 2010). Additional tools and information about property rights are available at (Mumma, 2010) and (COHRE et al., 2012).
*As noted in Methodology, the topic of legal reform related to HIV/AIDS did not receive the same systematic review of the legal literature that health-related topics received in the public health and HIV/AIDS literature. Stakeholders wishing to work on legal reform should consult with legal experts.