Washington D.C., USA, July 2012www.aids2012.org Condoms as evidence Susan Timberlake Chief, Human Rights and Law Division UNAIDS Secretariat Geneva

Washington D.C., USA, July 2012www.aids2012.org Condoms and the criminal law: issues and concerns Condoms as evidence of sex work Condoms as evidence of same-sex relations Condoms and criminalisation of HIV transmission Other prevention means as evidence of criminal behaviour: harm reduction materials as evidence of drug use; lubricants as evidence of same-sex relations or sex work Non-availability of condoms in prisons

Washington D.C., USA, July 2012www.aids2012.org Condoms and the criminal law: a global problem Criminalisation of sex work and same-sex relations “legitimises” condoms as evidence  67% of countries report “laws and regulations that present obstacles for vulnerable sub-populations” (NCPI, 2010)  78 countries criminalize same-sex relations  116+ countries criminalize some aspect of sex work

Washington D.C., USA, July 2012www.aids2012.org Sex workers, outreach workers vs police South Africa: 80% (16/20) of sex workers surveyed had been intimidated or harassed by police Russia: 80% (8/10) said police had taken their condoms, and 60% (6/10) said police had used condoms as evidence against them Namibia: 50% (10/20) said police destroyed their condoms and 75% (6/8) of those who then did sex work had unprotected sex US: 52% (13/25) said at times opted not to carry condoms because were afraid it would cause problems with police Kenya: 50% (4/8) of outreach workers said that police had harassed them during their outreach work Source: Open Society Foundations Criminalizing Condoms: How Policing Practices Put Sex Workers and HIV Services at Risk in Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe. 12 July 2012

Washington D.C., USA, July 2012www.aids2012.org Condoms NOT as evidence Many jurisdictions criminalise non-disclosure or exposure in spite of condom use In such jurisdictions, condom use is often not a defence Deny evidence of protective value of condoms Remove incentive for condom use Contradict public health messages – create confusion

Washington D.C., USA, July 2012www.aids2012.org Consequences of arrest/sentencing for sex workers, men who have sex with men, transgender people Compulsory HIV testing for those arrested Publication of HIV status Abuse, harassment, rape and violence in police custody Imprisonment, including without due process in “rehab” centres Further health risks/infections in prisons Expulsion of undocumented migrant sex workers following conviction (many cases in USA)

Washington D.C., USA, July 2012www.aids2012.org Condoms as evidence : public health issues Confusion and distrust in HIV prevention efforts Disincentive for use of condoms and other protective measures for fear of prosecution Increased risk of transmission Interference with outreach work for sex workers, MSM and transgender people Diverts resources into punitive legal approaches In criminalization of transmission, should be recognized as a defense

Washington D.C., USA, July 2012www.aids2012.org Condoms as evidence: human rights issues Right to health: hindered access to condoms and other HIV prevention means Right to liberty, security and freedom from arbitrary arrest and detention: police harassment, stop and searches, arrest, detention, profiling of transgender people as sex workers, etc Right to be free from cruel, inhuman, and degrading treatment : violence, ill treatment by police and in detention

Washington D.C., USA, July 2012www.aids2012.org Reviewing punitive laws and policies as a goal of the HIV response Political Declaration 2011: Governments “commit to review…laws and policies that adversely affect the successful, effective and equitable delivery of HIV prevention, treatment, care and support programmes to people living with and affected by HIV” Report of Global Commission on HIV and the Law 2012: Calls on countries to end use of condoms as evidence

Washington D.C., USA, July 2012www.aids2012.org Recent work to addressing the issue Reports by human rights organisations including Human Rights Watch and Open Society Foundations (2012) China: Ended use of condoms as evidence in 2007 to support effective HIV prevention among sex workers Mobilisation by sex workers organisations and partners –USA: major campaigns and advocacy ongoing (NY, Wash, Calif) –Malawi: 14 sex workers suing government for forced HIV testing (condom was used as evidence in arresting them) –India: high court case on Sec 377 part of campaign to end harassment of sex workers, MSM and transgender people –Increased documentation of evidence and emerging mobilisation (Russia, Cambodia, South Africa, Kenya, Namibia etc)

Washington D.C., USA, July 2012www.aids2012.org Recommendations Urgent recommendations Cease using condoms (and other prevention means) as evidence Issue guidelines/directives to police and judicial system prohibiting use of condoms as evidence Sensitize police, the judiciary on protective law enforcement and HIV prevention Train sex workers and LGBTI people on issue, rights, local laws and redress mechanisms available Further recommendations Enact legislation prohibiting possession of condoms (and other prevention means) as evidence of sex work or same-sex relations De-criminalise sex work and same sex relations.

Washington D.C., USA, July 2012www.aids2012.org Way forward Get more evidence: Document use of condoms (and other HIV prevention means) as evidence of crimes and their impact on HIV response Engage key allies: e.g. Ministry of health, NAC Reach out to legal actors: engage the police, judiciary, NHRI and parliamentarians on the issue and ensure dialogue with HIV sector Support sex workers and LGBTI groups to mobilize around their rights Support access to legal services to challenge arrest and use of condoms as evidence

Washington D.C., USA, July 2012www.aids2012.org Thank you!