Advancing Human Rights and Access to Justice for Women and Girls

Gaps in Research

1.: Interventions to increase the knowledge of people living with HIV — especially women — regarding their rights and provision of resources for them to access and claim these rights need to be scaled up.
2.: Laws prohibiting discrimination against those who are living with HIV in employment, housing, health and social services and education need to be implemented and more thoroughly evaluated.
3.: Legislation is needed to ensure migrants are not denied access to services, which can increase the risk of acquiring and transmitting HIV.
4.: Supportive legal and policy frameworks are needed to prevent and redress all forms of violence against women, particularly women living with HIV, women engaged in sex work and women who have sex with women, including in intimate partner settings.
5.: Legislation that allows women the right to refuse forced marriage and to divorce and that penalizes marital and non-marital rape is necessary to reduce coercive sex and the risk of HIV transmission.
6.: Laws prohibiting marriage at young age need to be enacted and enforced.
7.: Women’s right and access to, and control over, an equitable share of marital property and inheritance, including land, needs to be recognized and protected in law and practice.
8.: Efforts are needed to further research and repeal laws that criminalize HIV non-disclosure, exposure or transmission — including vertical transmission of HIV—, which can discourage people from testing for HIV, and undermine the relationship between patients and physicians and other service providers.
9.: Laws that criminalize consensual adult sexual behavior, including same-sex conduct and sex work need to be repealed and the impact of such law reform needs to be more thoroughly evaluated.
10.: Efforts are needed to reform laws that criminalize drug use and/or drug possession for personal use and to eliminate compulsory drug detention and instead, provide people who use drugs with access to HIV and health services, including harm reduction, and voluntary, effective evidence-based drug dependency treatment.
11.: Measures should be taken to stop abuses in health care, including breaches of medical confidentiality, HIV testing without informed consent and forced and coerced sterilization of women living with HIV.
12.: Efforts are needed to implement and research interventions to alleviate stigma and discrimination on the basis of HIV status, gender, sexual orientation, gender identity, sex work and drug use in the health care sector, social services, police and the judiciary.

1. Interventions to increase the knowledge of people living with HIV — especially women — regarding their rights and provision of resources for them to access and claim these rights need to be scaled up. Studies found that women had insufficient knowledge of their legal rights and no resources to claim their legal rights.

Gap noted, for example, among female prisoners in Zambia (Todrys and Amon, 2011); DRC (Solhjell, 2009); Uganda (Mabumba et al., 2007); Kenya (Machera, 2009); Zambia, Namibia and Uganda (Steinzor, 2003; Manchester, 2004) and Bangladesh, Cambodia, India, Indonesia, Nepal and Vietnam (WAPN+, 2012); China (Godwin, 2013).

2. Laws prohibiting discrimination against those who are living with HIV in employment, housing, health and social services and education need to be implemented and more thoroughly evaluated. A study found that women feared losing their homes if found to be living with HIV. [See Reducing Stigma and Discrimination]

Gap noted, for example, in Burkina Faso (Obermeyer et al., 2009) and Uganda (Twinomugisha et al., 2011).

3. Legislation is needed to ensure migrants are not denied access to services, which can increase the risk of acquiring and transmitting HIV.

Gap noted in 11 countries of Eastern Europe and Central Asia and globally (Global Commission on HIV and the Law, 2012).

4. Supportive legal and policy frameworks are needed to prevent and redress all forms of violence against women, particularly women living with HIV, women engaged in sex work and women who have sex with women, including in intimate partner settings. [See Prevention for Key Affected Populations and Addressing Violence Against Women]

Gap noted globally (Csete and Cohen, 2010); Malawi (Southern Africa Litigation Centre, 2013) and in sub-Saharan Africa (UNWomen and OSISA, 2013; Crone et al., 2011)

5. Legislation that allows women the right to refuse forced marriage and to divorce and that penalizes marital and non-marital rape is necessary to reduce coercive sex and the risk of HIV transmission. Studies found that in some countries, particularly in regions where there are generalized epidemics, legislation penalizing marital rape does not exist. For younger women: laws stating that a girl under age 16 cannot consent to sex but also that she cannot claim protection from the law if someone has sex with her against her will must be changed: "By granting her neither agency nor security, the law renders her a non-person" (Global Commission on HIV and the Law, 2012).

Gap noted, for example, in sub-Saharan Africa (Crone et al., 2011; Kilonzo et al., 2009b; HRW, 2003a); South Africa (Kehler et al., 2012); Swaziland (Global Commission on HIV and the Law, 2012).

6. Laws prohibiting marriage at young age need to be enacted and enforced. Field reports and studies found that child marriage for girls is still common in some countries, including in some countries where child marriage has been made illegal.

Gap noted globally (Malhotra et al., 2011; CHANGE, 2009; Ezer et al., 2006).

7. Women’s right and access to, and control over, an equitable share of marital property and inheritance, including land, needs to be recognized and protected in law and practice.

Gap noted, for example, in the Middle East and North Africa (COHRE, 2006); Malawi (Canadian HIV/AIDS Legal Network and WLSA-Malawi, 2011) and Kenya (FIDA and IWHRC, 2009 cited in Lu et al., 2013; Lu et al., 2013).

8. Efforts are needed to further research and repeal laws that criminalize HIV non-disclosure, exposure or transmission — including vertical transmission of HIV—, which can discourage people from testing for HIV, and undermine the relationship between patients and physicians and other service providers. Because women are more likely to be tested, legal mandates to disclose HIV-positive serostatus may discourage women from accessing needed services and may lead to increased risk of abandonment and violence (see sections on VAW, HTC, etc).

Gap noted globally (Global Commission on HIV and the Law, 2012; UNAIDS, 2013a); in Burkina Faso (Sanon et al., 2009) and Zimbabwe (GNP+, 2014).

9. Laws that criminalize consensual adult sexual behavior, including same-sex conduct and sex work need to be repealed and the impact of such law reform needs to be more thoroughly evaluated. [See Prevention for Key Affected Populations]

Gap noted globally (Global Commission on HIV and the Law, 2012; Beyrer and Baral, 2011; UN General Assembly, 2010).

10. Efforts are needed to reform laws that criminalize drug use and/or drug possession for personal use and to eliminate compulsory drug detention and instead, provide people who use drugs with access to HIV and health services, including harm reduction, and voluntary, effective evidence-based drug dependency treatment. Detention centers are administered by police, military or other national government public security authorities and operate outside the formal criminal justice system with detainees held without trial or right of appeal; those detained are not allowed to leave voluntarily (Wolfe, 2012). Studies found that female IDU were not given reproductive health services, including PMTCT services in compulsory detention and/or prison settings. Detoxification programs were substandard and ineffective. Despite high rates of HIV, antiretroviral treatment is largely unavailable in compulsory drug detention centers. IDUs who have started antiretroviral treatment should be able to continue treatment in prison with access to medical supervision. [See also Women Who Use Drugs and Female Partners of Men Who Use Drugs]

Gap noted, for example, globally (Global Commission on HIV and the Law, 2012; Csete and Cohen, 2010); Russian Federation, Cambodia, China, Lao PDR, Myanmar, Malaysia, Philippines, Afghanistan, Bangladesh, India, Maldives, Nepal and Pakistan (Global Commission on HIV and the Law, 2012); Azerbaijan, Georgia, Kyrgyzstan, Russia and the Ukraine (OSI, 2009); Tajikistan, Latvia, Estonia and Georgia (Iakobishvili, 2012); Azerbaijan, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan (UNODC, 2010a); China (Jia et al., 2010; HRW, 2010b; Sullivan and Wu, 2007: 121, Liu et al., 2006a: 119); Cambodia (HRW, 2010a); Ukraine (Strathdee et al., 2010); South Africa (Parry et al., 2010); Thailand (Hayashi et al., 2009); Vietnam (Thanh et al., 2009a); and generally (Wolfe et al., 2010; Jürgens et al., 2010; Cowan et al., 2008); Cambodia, China, Malaysia and Vietnam (WHO et al., 2011b); Russia (Sarang, 2011); Russia and Thailand (Global Commission on HIV and the Law, 2012).

11. Measures should be taken to stop abuses in health care, including breaches of medical confidentiality, HIV testing without informed consent and forced and coerced sterilization of women living with HIV. Any mandated HIV-related registration, testing and forced treatment may discourage needed access to testing and treatment and adherence.

Gap noted globally (Global Commission on HIV and the Law, 2012; Baral et al., 2011); in Namibia (UNAIDS, 2012a; ICW, 2009); and Chile (Center for Reproductive Rights, 2010).

12. Efforts are needed to implement and research interventions to alleviate stigma and discrimination on the basis of HIV status, gender, sexual orientation, gender identity, sex work and drug use in the health care sector, social services, police and the judiciary. [See Reducing Stigma and Discrimination and Prevention for Key Affected Populations]