Transforming Legal Norms to Empower Women, including Marriage, Inheritance and Property Rights
[15] 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 reinforce the subordinate status of women by denying 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 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, with increased risk for HIV acquisition, as both age and marital status tend to impact condom negotiation (Ezer et al., 2006). Some countries, such as Ethiopia, have reformed their 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 in Ethiopia is to enforce this new legal minimum (CHANGE, 2009). 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. These legal norms directly impact 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. While being a woman alone denies women their rights in certain countries, these limited rights can be restricted even further if a woman is infected with HIV. In some countries, people living with HIV have little access to the formal legal system (Kalla and Cohen, 2007).
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 Chapter 4. Prevention for Key Affected Populations]
Criminalization of HIV Can Hinder Prevention, Treatment and Care Efforts
Recent attempts to criminalize transmission of HIV can also have adverse impacts on women and girls. No evidence exists that HIV-specific criminal laws are effective in preventing transmission and in fact, may be harmful. “[…] Women, who are more likely to be tested for HIV than men...may be disproportionally exposed to the risk of criminalization…when it is precisely because women too often lack autonomy in their sexual relations…that they may be unable to disclose or negotiate safer sex” (Jurgens, 2007b: 53). Criminal liability may be assigned even when safer sex was practiced, HIV status disclosed, or even when the threat of violence precluded disclosure (Clayton et al., 2008). Criminal penalties may create an incentive not to be tested for HIV (Kalla and Cohen, 2007).
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 11F. Reducing Stigma and Discrimination] A 2007 review of data from 128 country reports on progress towards fulfilling the 2001 Declaration of Commitment on HIV/AIDS found that 59% of countries report laws that cause obstacles for the provision of HIV prevention programs to vulnerable groups, with 42% of countries reporting barriers to accessing services for sex workers, 37% of countries reporting barriers to accessing services for IDUs, 30% for prison inmates and 25% of countries reporting legal barriers for young people to access services. Legal reform to ensure proper support for vulnerable groups is necessary (Gruskin and Ferguson, 2008b).
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 sorts of nuances should be taken into account in any legal reform process.
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 and Divorce Laws Need to Protect Women
Marriage is not a protective factor for reducing risk of HIV transmission. [See Chapter 3. 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. 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). “With the exception of South Africa, sexual violence laws around the continent fail to recognize rape in marriage as a crime. In countries such as Ghana and Kenya, consent to sex is considered to be implied by marriage, so a husband cannot rape his wife by definition” (HRW, 2003a: 80). The 1999 Federal Constitution of Nigeria discriminates against women. “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 grevious 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.
Women’s Inheritance and Property Rights Must Be Secured
“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). In Kenya, women rarely own land titles either individually or jointly with their husband. Husbands may sell the matrimonial home without his wife’s knowledge or consent. The lack of equal property rights upon divorce drives women into poverty, thus wives feel they must remain in abusive marriages as they have no property. This dependence also prevents negotiation of safe sex practices and an increase in transactional sex for survival (FIDA Kenya and Georgetown University Law Center, 2009). Interviews with 1,270 widows in India found that only 22% received widow’s compensation, with no legislation to protect property and inheritance rights (Devasahayam et al., 2008). A support group for 100 widows in Kenya found that 60% had lost property after the deaths of their husbands and 20% had either to be inherited by relatives of the deceased or vacate the matrimonial home. Most could not afford legal fees to fight for their rights (WambuiWaweru, 2004). Women in polygamous marriages have additional concerns in accessing property where only one wife is entitled to property (Knox et al., 2007). In some countries, women are excluded from the decision-making process in land disputes as men hold the vast majority of seats in institutions that adjudicate land rights (FIDA Kenya and Georgetown University Law Center, 2009). “Many women are not aware of their legal rights to inherit property nor do [they] have the capacity to have them enforced by the judiciary” (Oja, 2008: 10). 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). Access by women to pro bono legal assistance is critical (COHRE, 2004).
International treaties, laws, and other instruments that protect women’s inheritance and property rights 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). During in-depth interviews with widows, widowers, and traditional leaders in the Ohangwena Region of Namibia, a difference between inherited property (property given by both families to formalize a marriage) and common property (property accumulated during a marriage) became apparent. Common property was often sold during times of hardship while the inherited property was sold as a last resort. Many inheritance disputes are often about who owns the property that came from the spouse’s family. Relatives often take all movable property, such as livestock and furniture, regardless of whether it was inherited or common property.
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).
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 is underway in countries such as Kenya, Namibia, 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, 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. In Kenya, for example, customary laws that undermine efforts to improve statutory legislation are allowed by the constitution. 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 advancing public awareness (Kim et al., 2008; ARASA, 2009). 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. In these cases, strategic legislation, such as the lawsuit by TAC in South Africa to require provision of ARVs can advance the rights of people living with HIV.
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 (http://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 (http://www.iawj.org/) – working with women judges to ensure promotion and sharing of gender equal laws.
[15] As noted in Chapter 2. 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. Some references to groups working on legal issues are provided in this section.