| The law may be one of the most powerful, underutilized tools available to slow the spread of HIV/AIDS. Legal reform to empower women economically and improve their rights, along with medical advances and social change, is needed as part of a comprehensive response to the HIV/AIDS pandemic, says A. Waafas Ofosu-Amaah, senior gender specialist in Poverty Reduction and Economic Management at the World Bank.  | One to one meeting on AIDS prevention between factory worker and Ministry of Health representative, Amman, Jordan.
Credit: UNAIDS/G.Pirozzi |
"HIV/AIDS is fuelled by key economic, socio-cultural, legal and physiological factors that are different for women and men," says Ofosu-Amaah. "But because HIV/AIDS is spread through sexual contact, it is also driven by the unequal power relations between the sexes." Ofosu-Amaah believes there's a clear case for countries to consider the legal dimension of HIV/AIDS. "Research conducted by the World Bank shows the more unequal gender relationships are in a country, the higher its HIV prevalence rate." It's a view shared by Elizabeth Lule, adviser in Population and Reproductive Health at the World Bank. Lule says the changing HIV patterns of infection (with women's infection rates continuing to spiral) mirror gender inequalities and inequities present in society. "In developing countries, women and girls are more vulnerable to HIV infection because they are often economically, culturally and socially disadvantaged and lack equal access to health care, education, employment, resources and decision making powers on their own," she says. "In many cultures, women are socialized to be submissive on matters related to sex and therefore lack the power to negotiate safe sex, negotiate condom use, and withstand sexual abuse, coercion and violence. " Low legal status Ofosu-Amaah says the subordinate role of women in many segments of society, such as in the household or in family relations, places them at a clear disadvantage as far as HIV/AIDS is concerned. And, she says, the subordination is often reinforced under the laws of countries - with some legal and regulatory systems often discriminating against women. Some examples include: - Property rights - because laws generally deny women the right of inheritance or succession
- Employment - because laws don't provide adequate benefits for HIV/AIDS victims and their families
- Trafficking and drug abuse - because some laws provide very narrow definitions of trafficking, and require trials in open court effectively deterring enforcement
- Rape, sexual harassment and coerced sex - because narrow definitions in some legal systems can transform a rape victim into a suspect. Women can also be denied their rights if they are married to the offender
- Reproductive rights - because laws do not grant women, especially young women, the right to control their reproductive choices.
- Marriage - because some laws do not recognize co-ownership of family property, equal division of property at the end of a marriage or in cases of marital rape
- Mixed legal traditions - because in some legal traditions, differences between statutory law and customary law result in unequal treatment of women versus men
Elizabeth Lule says unequal economic opportunity also contributes to women's risk of HIV infection. "Women's dependency on men stems from their lack of access to productive resources such as land property, other household assets, credit and livelihood skills," she says. "Lack of equal rights to inheritance of property has left many AIDS widows and orphans destitute and homeless, particularly in polygamous societies in Africa." International rights Ofosu-Amaah points out most members of the United Nations have ratified a number of international human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).  | HIV-positive woman receives ARV treatment at a health centre in Botswana.
Credit: WHO/UNAIDS/Sven Torfin |
By ratifying CEDAW, the 163 State parties to the convention obligate themselves to incorporate the principle of equality of men and women in their legal systems, abolish all discriminatory laws, and enact laws prohibiting discrimination against women. However, a lack of strong and effective institutions is a serious obstacle to implementing the international treaties and national laws, according to Ofosu-Amaah. "Even at the central level, institutions charged with protecting individual rights have severe capacity and resource constraints," she says. "Court systems often do not function effectively, and are clogged and ill-equipped. At local levels, this limited capacity creates serious enforcement challenges." Legal access? Even in countries where the laws are equitable, Ofosu-Amaah points out women may not be protected -simply because in some cases they don't know their rights, or have the money to actually access the justice system. "Excessive delays within the judiciary also impinge on access to justice," she says. "The attitudes of law enforcement officers and agencies, local council and court officials, police and prison service personnel, are influenced by perceptions that are often shaped by the prevailing customary and traditional attitudes on gender issues." Overall, while many countries have been considering law reform to promote gender equality, progress in achieving the reforms is often too slow, Ofosu-Amaah explains. Uganda, Lighting a Legal Path Lule cites Uganda as a promising example. Policy and legal reforms have increased women's participation in community and local government - from resistance councils to village health committees to health facility management committees - and provided for a quota of women parliamentarians. Of equal importance, changes in inheritance laws have given women property rights. "Women's groups were promoted and empowered to play an effective role in the process of developing a national HIV/AIDS strategy. They were also instrumental in strengthening the response to HIV/AIDS and protecting women's interests, to the extent that women living with AIDS are being represented as Members of Parliament." The successes thus far have led to calls for further action: - Protection of legal, civil and human rights of women to ensure women have the same access as men to information, treatment, counseling and support.
- Better health education and public awareness and for the adoption of preventative strategies, such as safer sex, monogamy, abstinence and the use of safe blood products
The Way Ahead Ofosu-Amaah says as a first step - toward achieving a better legal system - it's important for countries to sensitize legislatures, the judiciary, legal and justice sector professions and the law enforcement community to the gender dimensions of the HIV/AIDS pandemic. Some other beginning points include: - Safe and secure environments for girls to get information and sexual health services
- Privacy and confidentially in voluntary counseling and testing services
- Legal literacy and legal aid services to promote and enforce women's rights under customary and statutory law
- Strategic litigation - filing of test cases on legislation in a bid to force legislatures to act quickly on law reform
- Anti-stigma and anti-discrimination laws, policies and programs targeting the sexual and economic exploitation of females
- Criminalization of willful transmission of HIV/AIDS - including marital rape and spousal forced sex
- Reproductive law and policy - so women can make decisions free of coercion, violence and discrimination and to promote access to safe services and information
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