Today, Southeast Asia Is at a Crossroads in Its Control of the HIV Epidemic

Gunawan Pratama Yoga

THE ROLE OF THE LAW IN HIV/AIDS

I. Introduction

AIDS was first identified in 1981, following outbreaks of Kaposi’s sarcoma and Pneumocystis carinii pneumonia (PCP) in several US cities. These were previously viewed as very rare illnesses, and were always linked to failure of the body's immune system, usually following therapy connected with organ transplants. Since many of the people concerned were homosexual, the illness was first called Gay-Related Immune Deficiency (GRID), but later when it became clear that it was affecting the whole population, the name was changed to Acquired Immune Deficiency Syndrome (AIDS).

AIDS has reached pandemic proportions affecting millions of people men, women, and children around the world. The World Health Organization estimates that, worldwide, 15 million adults and children have already been infected with HIV and each day another 5,000 more are infected. It is estimated that by the year, 2000 30-40 million people will be HIV +, 12-18 million will be showing symptoms of AIDS and each year 1.8 million will die from AIDS; infection rates of women would surpass those of men. 90% of all infection will be in the developing world, particularly in Asia.

I.1. HIV in Southeast Asia

Today, Southeast Asia is at a crossroads in its control of the HIV epidemic. Some countries have already been hard hit. Thailand has an estimated 800,000 infected people, Myanmar has half a million infected people, and Cambodia has approximately 100,000 people with HIV.

In many other Southeast Asian countries, the AIDS epidemic is only beginning to take hold. In Laos and Vietnam, for example, HIV infection rates are still relatively low, though the number of HIV-infected people in Vietnam has doubled since 1996.

In other countries in the region, HIV disease is barely detectable. Yet hidden within these countries are populations whose infection rates may be 10 or more times higher than the national average-a ticking time bomb, according to some researchers.

Since the HIV epidemic first appeared in Southeast Asia in the late 1980s, one of its leading characteristics has been its diversity. A diversity even greater than that found in Africa. Infection levels vary, from no reported infections in some countries to one per several thousand in most countries to up to 3 percent of the population in Cambodia. Some countries in Southeast Asia have higher levels of HIV infection than others, despite the virus's introduction at around the same time, is the result of several important factors,

The nature of sex work, injection drug use, and individual mobility all play a key role in the virus's spread.

Female sex workers and their clients have been a major determinant in the heterosexual transmission of HIV in Cambodia, Myanmar, and Thailand. In 1996, prevalence rates among sex workers reached 40 percent in Cambodia, 25 percent in Myanmar, 19 percent in Thailand, but less than 1 percent in the Philippines and Vietnam.

Key contributors to the rapid and widespread transmission of HIV are the number of sexual partners per sex worker, the portion of the male population engaging in commercial sex, and the rate of regular condom use in commercial sex.

HIV infection in another key population, injection drug users (IDUs), reached staggering levels in the late 1980s in Myanmar, Thailand, Vietnam, and Malaysia, reaching 60 to 90 percent within a few months. Today, 40 percent of Thailand's IDUs are infected with HIV.

Although HIV spreads rapidly among IDUs who share contaminated injection equipment, and to their sexual partners, these epidemics have so far resulted only in limited spread of HIV to the heterosexual population at large. These epidemics appear to emerge and evolve almost independently from each other, as exemplified by the two concurrent HIV epidemics in Thailand, which have been caused by two different subtypes of HIV and have had minimum crossover.

In Asia, as in Africa, mobility has been found to be another risk factor for the spread of the virus, with HIV prevalence high among people who travel widely and in areas where travel occurs. Research has found that travelers and fishermen in Thailand, for example, have higher rates of HIV prevalence than the general population. Truckers, fisherman, traders, and migrant workers who travel widely throughout the region are transmitting HIV to populations in areas where the virus was formerly unknown. High prevalence rates also appear among female sex workers, male patients in sexually transmitted disease (STD) clinics, and young males living near international borders and ports in Thailand, Myanmar, Cambodia, and Vietnam.

II. The Role of the Law

Issues of poverty, discrimination and the presence of draconian practice indicate clearly that HIV/AIDS is not simply a medical disease. It also a socio-economic and political disease. From the angle of law, HIV/AIDS is exposing loopholes and pitfalls as never before. In a word, HIV/AIDS is equally a “legal”disease

The function of law and its interrelationship with ethic pose several challenges to the dimension of HIV/AIDS. It is generally agreed that many of the legal or policy responses to HIV/AIDS are useless and often can be harmful and counter productive because, instead of being based on an understanding of medical issues, they are driven more by fear and the resulting public demand for action than by medical research and its findings.

The role of the law in HIV/AIDS policy has been analyzed in detail by Hamblin (1991), who identifies three main models through which the law can be incorporated into HIV/AIDS policy: (1) the traditional proscriptive model that penalizes certain forms of conduct; (2) the model that focuses on the protective function of the law and the need to uphold the rights and interests of persons living with HIV/AIDS; and (3) a third model that seeks to use the law actively to promote the changes in values and patterns of social interaction that lead to susceptibility to HIV infection.

II.1. Proscriptive role of law

A large number of countries have adopted provisions for compulsory reporting of HIV and AIDS, provided penal sanctions for knowingly spreading HIV, established procedures for mandatory testing for HIV, or enacted other proscriptive laws directed specifically at HIV/AIDS. The coercive nature of such laws, far from encouraging conduct that will reduce the spread of HIV, They may actively impede prevention efforts by alienating those people who are at risk of HIV and making it less urges lawmakers to be sensitive to not only the direct but also the indirect impact of legal sanctions. In the case of proscriptive and punitive laws an appropriate legal response to HIV/AIDS will most often have as its desired outcome the absence of applicable law. The particular dynamics of AIDS and HIV infection suggest that proscriptive laws will rarely be an appropriate policy response if they seek merely to target the conduct of people with HIV or activities that give rise to HIV infection risks. In this guise, the role of the law is a negative rather than a positive one, and the challenges of HIV/AIDS are such that an effective policy requires more than negative prohibition. Of all the different models the law can follow, the proscriptive model has the least scope for a creative application to policy formulation.

II.2. Protective role of law

A second model for the role of law in HIV/AIDS policy focuses upon how the law can protect people from discrimination, breaches of confidentiality, and other harmful and undesirable occurrences. According to Hamblin, this model has been of central importance in the context of the legal response to HIV/AIDS because of the proliferation of discrimination against people with HIV and because of the increasing recognition, both nationally and internationally, of the interplay between AIDS and human rights. Hamblin argues that protective laws may help to enlist the support and cooperation of people at risk of HIV in prevention strategies and suggests that decisive and firm legal intervention may be what is required in the context of measures to protect the rights of people with HIV.

II.2.1. Discrimination

Persons with HIV/AIDS face double jeopardy: they face death, and while they are fighting for their lives, they often face discrimination. This discrimination is manifested in all areas of life from health care to housing, from education to work to travel. It is generally based on ignorance and prejudice and is expressed in particularly harsh forms against the most vulnerable: homosexual men, women, children, prisoners, and refugees among them. Whereas most illnesses produce sympathy and support from family, friends and neighbors, persons with AIDS are frequently feared and shunned.

Prejudice, stigmatization and even violence against those living with HIV/AIDS are a worldwide phenomenon, and AIDS has been successively used to direct blame, stigmatization and prejudice towards homosexual men, prostitutes, intravenous drug users, Haitians, African students in the USSR and India, blacks and Hispanics in the United States, US seamen in the Philippines, foreigners in Japan, Europeans in Africa.

Generally, it is believed that discrimination is more prevalent than is reflected in official statistics; further, and although the potential consequences of HIV-related discrimination were clearly identified early in the course of the pandemic and possible strategies for responding to these have been repeatedly identified and advocated by national and international authorities, there is some evidence that HIV/AIDS-related discrimination is becoming more extensive, more sophisticated and more strongly entrenched.

The effects of discrimination against persons living with HIV/AIDS and those otherwise affected by the disease are devastating not only for the individuals themselves, but also for efforts to prevent the spread of HIV. In the context of HIV/AIDS it has been recognized that there is a strong public health rationale not to interfere with human rights. Indeed, there has been a realization that protection of human rights is a necessary component of HIV/AIDS prevention and care, and that health and human rights are inextricably linked. Discrimination hurts the fight against AIDS. Therefore the protection of the rights and dignity of HIV-infected persons is an integral part of the Global AIDS Strategy. HIV infection leads to stigmatization and discrimination, and those affected will actively avoid detection and contact with health and social services. The result will be that those most needing information, education and counseling will be "driven underground. There are four reasons why human rights must be protected:

(1)Because it is right to do so,

(2)Because preventing discrimination helps ensure a more effective HIV prevention program;

(3)Because social marginalization intensifies the risk of HIV infection;

(4)Because a community can only respond effectively to HIV/AIDS by expressing the basic right of people to participate in decisions which affect them.

Common Forms of Discrimination

Denying a person with AIDS the opportunity to participate;

Providing different or separate benefits or services;

Failure to stop harassment;

Pre-employment inquiries about your health status or disability;

Questions about a disability when selling or renting a house;

Questions about sexual behavior or sexual orientation;

Denial of housing based on a disability;

Discrimination because having friends with a person with AIDS;

Failure to make reasonable changes to accommodate one’s needs;

Violating the confidentiality of a person with AIDS;

Failure to stop discrimination.

What the Law Says About Discrimination

The law tries to halt many kinds of illegal treatment, but people don't always agree on how to enforce these laws. When persons want to explain their situation, you first need to understand the different ways these laws can be interpreted, so that you can decide what your best course of action will be.

Laws are like tools: how much they help you depends on how well you use them. Sometimes, just sharing your understanding of the law with the right people at the right time can solve your problems, and save everyone time, money, and grief. Or, you may have to show people what the laws are and make them understand they have to obey them. To do this, they will need to learn a few legal terms. They will need to use them when they try to explain what they see happening, and why they think it is illegal.

Legal Terms

Action or Inaction, Harm or Injury:

These are the standard words lawyers use when talking about discrimination. They use them when they talk about the three things that prove a charge of discrimination:

They have to prove that someone, through an action or inaction, is being discriminatory. For example, they were fired, or someone refused to rent an apartment to they, or they were denied a service. (If they are afraid that something is about to happen to they, though, they will not be able to get the law on their side: the law cannot step in until the harm is done. This is called potential action);

The discrimination must have resulted in some kind of harm or injury to they. (If someone dislikes they, they must understand that this is not a violation of the law unless they actually cause they some harm or injury).

Here are some examples:

No one will work near me anymore (inaction) so I'm being segregated (harm, injury)

People are harassing me (action) so I'm subjected to abuse (harm or injury)

I asked for an accommodation, but got no response (inaction) so I was denied an accommodation (injury)

If I tell my boss about my diagnosis, I don't think he will keep it confidential (potential action) so I'm afraid my privacy rights will be violated (potential injury)

To say it one more time: they have to be able to prove that there is a connection between their HIV status and the harm done to them. It is often easy to determine action/inaction and harm/injury. However, the connection between that and

their HIV status may be hard to prove. For them to make a good case, they have to prove that they were hurt because someone thinks or knows they have AIDS.

Disparate or Unequal Treatment:

This means they're treated differently or worse than others because they have AIDS (or because people think they have AIDS, ARC, or HIV infection). For example, they are fired from a job and several people heard their boss say it was because they have AIDS. To prove their case of unequal treatment, the witnesses must be willing to repeat what they have heard.

Most often, disparate treatment is deliberate, final, and hard to resolve. People won't listen to reason. They may need to go higher up in the bureaucracy to get what they want. They may need some support. They may have to file a complaint, or say they intend to file a complaint, in order to get fair and equal treatment.

Disparate or Unequal Impact (Unfair Results or Unequal Effect):

This means that the result of a certain policy is unfair to people who have AIDS, even if the policy attempts to treat everyone equally. An example of this: a sick leave policy that penalizes all people for taking a certain amount of earned sick time unless they have a doctor's letter stating the nature of the illness. Because medical information about AIDS and other disabilities is confidential, people do not have to tell their employer that they have AIDS: therefore, this policy could have the result of a PWA being afraid to ask for sick leave; because, if they did, they would have to reveal their medical condition.

Most often in cases of disparate impact, the people hurting they may not think they are being unfair, but the result or effect of their actions is unfair to they. Disparate impact is generally not caused by vindictiveness, and can usually be resolved through discussion.

Separate Treatment (Segregation):

separate treatment is illegal, unless it is the only way to provide the service they are seeking. An example of separate treatment would be: they go to their dentist and they tell him they have AIDS: if he then says he will only treat them after regular office hours, they are being discriminated against. Or, as an example, if their boss moves their work station away from other employees because he thinks or knows they have AIDS, they are being discriminated against.

Some types of separate treatment are legal and sensible: for instance, if they need to check into a hospital, they don't want to be put in a room with someone who has an infectious disease that they could catch easily. But putting they in a separate room because other people are afraid they will catch their AIDS is unnecessary, and therefore discriminatory.

Reasonable Accommodation and Undue Hardship:

The purpose of reasonable accommodation is to change something so that they can do their job or benefit from a program or service, even if they have a disability. The accommodation must be related to their physical limitations and it must be related to the job or activity.