A month ago, I attended a press conference announcing the release of the Global Commission’s Report on HIV and the Law (now available online). The Commission is an independent body supported by the United Nations Development Programme, designated to investigate the role the law plays in combating, or alternatively in exacerbating, the HIV epidemic. The press conference made for an excellent introduction to the report. Speakers were split equally between articulate policy trailblazers, and the victims of “bad” HIV law. American congresswoman Barbara Lee ably summarized the Commission’s recommendations. Nick Rhoades, a man sentenced to 25 years in an Iowa prison for not disclosing his HIV-status to a sexual partner, discussed misplaced intentions and misused resources in the criminal system. Neither last nor least, Canadian diplomat and former UN Special Envoy for HIV in Africa Stephen Lewis unleashed a scathing indictment of abusive patenting and marketing practices for HIV related pharmaceuticals. This colorful cast of contributors left me eager to tackle the report itself.
Global Commission’s Report on HIV and the Law
The report focuses on six major areas of regulation that significantly affect public health: discrimination, criminalization of transmission, stigma in marginalized populations, gender disempowerment, children, and access to affordable treatment. It successfully captures the staggering scope of the legal problems relating to HIV. I was left with a sense that this is an epidemic of legal-, rather than immuno-deficiency. Such a potential diagnosis is profound, perhaps even disturbing. It strikes at fundamental assumptions that both legal practitioners and regular citizens have about the law: that the law exists to protect us; that even bad laws are often better than no laws; that while the law may seem harsh in individual circumstances, this is necessary for the greater good.
The report draws on the perspectives of thousands of victims of degrading laws on a sweeping, international scope. The result is a humbling, compassionate, and diverse set of criticisms. Academics, particularly legal scholars, prefer to remain insulated in the abstract. But combining rigorous analysis with human narrative makes space for the highest principle needed in the public health debate: human dignity. Indeed, the report emphasizes that the fearful dismissal of the dignity of those with HIV is in part what fuels this peculiar epidemic. It drives marginalized populations further underground and towards riskier behaviors, away from accessing preventative tools and treatments.
The report has some shortcomings. First, it fails to offer clear national, regional, or international priorities. This is a predictable trap for international policy recommendations, and a particularly inescapable in this case. Attitudes about HIV, prostitution, homosexuality, and criminal responsibility vary widely between nations, a difference compounded by law’s general tendency for parochialism. While the compassion and urgency of the report have general application, some of the recommendations do not.
A second problem with the report is its tendency to misrepresent liberal ideology as international consensus. While the recommendations are compelling, compassionate, and evidence based, they are framed by a single, overriding concern: HIV harm reduction. Policy makers do not have the luxury of such single-mindedness; few are likely to share the Commission’s readiness to decriminalize disclosure, legalize prostitution, and provide safe-injection sites for drug users. In the face of stigma and ignorance, however, it is clear why this call for legal reform has been made vociferously.
While the content of this report is susceptible to criticism, the spirit in which it was drafted is not. Law-making is a conversation, one that tends to exclude those with the most at stake. The Global Commission’s Report on HIV and the Law succeeds in giving these victims voice.
McGill Journal of Law and Health 