Crosstalk: HIV and linking across areas of criminalisation

In a moment of global attacks on civil society, an intersectional approach linking issues across HIV, sexuality, adult consensual sex and bodily integrity is critical.  Now, more than ever.

Susana T. Fried
22 July 2016

Speaking Wall, World AIDS Conference, Durban 2016. Photo: Alice Welbourn.

Every international AIDS conference seems to have a theme or two that picks up energy as it goes. For me, at the World AIDS Conference 2016 underway in Durban, this was the growing discussion about disastrous impact of criminal law.  Of course, this isn’t a new issue – not at an international AIDS conference, nor in advocacy more generally. The 2012 Global Commission on HIV and the Law explored this in depth. However, at this AIDS conference there was a renewed energy behind it.  In addition, there were a number of conversations that added a new twist, linking criminalisation of same sex conduct, sex work and HIV criminalisation to criminalisation of abortion. 

For someone who stands with one leg in the women’s movement and another in the HIV movement, this was a welcome and long overdue conversation. We know the ways in which abusive laws and practices put sex workers, gay and other men who have sex with men, transgender women (there is still a dearth of data on HIV and transmen or lesbians and other women who have sex with women) and other marginalised groups at increased risk of contracting HIV and create serious and unmanageable barriers to accessing services and justice. We also know the ways in which governments use criminal laws not just to contain and regulate the lives of individuals, but they also use it to circumscribe the work of civil society organisations working on these issues.

Laws that criminalise adult consensual sex, non-heteronormative behavior and gender transgression are used to control (often in the name of “protection”), penalise and, as a result, stigmatise a range of sexual practices and sexual and gender identities that put health and rights at risk.  Many of the groups who are on the receiving end of such punitive laws and practices are among those most at risk of contracting HIV.  This conversation, despite massive evidence, still doesn’t always inform legislation and public policy.  This is, in a sense, “old hat” to social movements across the board.

However, what was new to the conversation at this year’s International AIDS Conference (AIDS2016) in a visible way and in a public conversation was the introduction of criminalisation of abortion to the list of forms of criminalisation that intersect with HIV risk and vulnerability.  At one panel, Lucinda O’Hanlon from the UN human rights office drew out some of the parallels between criminalisation of abortion and other forms of criminalisation, stating “Restrictive legal regimes on abortions, including criminalisation, do not reduce abortion rates but rather makes them unsafe. These restrictions are rooted in societal norms that deny women’s agency and capacity to make decisions about their own lives.”  In many countries, women who undergo abortions are stigmatised as improper women, much like sex workers who, as Ruth Morgan Thomas noted “Criminalisation of sex work sends the message that sex workers are not seen as fit and worthy to enjoy rights.”

However, the linkages can be more direct.  For example, transmen who have sex with other men and become pregnant may find it impossible to find safe and non-judgmental sexual and reproductive health care, let alone abortion services.  Sex workers, too, may find their access to abortion services restricted because of the ripple effect of laws criminalising sex work.  With abortion, as with other groups whose identities and practices are penalised, other factors of marginalisation matter.  In the case of abortion, it is women with fewer resources who are at greatest risk of facing punishment for their choice.  The same could be said for those who get penalised for living with HIV.  For example, a young woman who has been coerced into having sex and fears that the man she had sex with might be living with HIV, will find it difficult in many countries, to have an abortion. In some countries, if she is under the age of consent for services, she will have to get parental consent just to be able to see a sexual and reproductive health practitioner. A limited number of countries ban abortions under any circumstances, even, in some cases, as a principle of their country’s constitution (Ecuador, for instance).  Most countries allow abortion under some circumstances, but access the services requires money, information and the ability to travel.  Such resource requirements have a particularly severe impact on young women, poor women, and women in marginalised groups.  Failing to learn lessons from HIV, women, adolescents and girls in countries affected by Zika face similar barriers to services and justice.

In a cross-issue conversation, Edwin Bernard from the HIV Justice Network also noted a “shift towards intersectionality in our efforts to end the punitive and abusive laws against various populations,” including women who seek or undergo abortionsIn this context, these conversations stand as a clarion call for a new or renewed effort to link forces to challenge the growing reliance on punitive laws and practices, including those about abortion, by governments to control those who step outside of social norms around gender and sexuality. 

Read more articles on openDemocracy 50.50's platform: AIDS, Gender and Human Rights

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For many communities, this is not the first crisis they’ve faced. The lockdown feels familiar to those who have years of experience living and organising in the face of scarce resources and state violence.

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