By Devanand Milton, Latin America and the Caribbean NGO Delegate
With shrinking donor resources and the inability of traditional mechanisms to reach out to key populations using government established services, the civil society AIDS response is at risk of neglect.
One of the dangers of criminalization is that it impedes the response to HIV especially in relation to key populations where punitive laws will drive them underground and away from HIV services, preventing them from getting tested and increasing stigma, discrimination and fear of coming out. This has now been acknowledged by a Caribbean court in the Caleb Orozco v Attorney General of Belize case.
Section 53 of the Belize Criminal Code criminalises “carnal intercourse against the order of nature”, which includes anal sex. The law makes no distinction between consensual and non-consensual sex between adults. Despite the Belize Supreme Court ruling in 2016 that Section 53 violated the Belize Constitution, including the rights to dignity, privacy and equality, to the extent that it criminalised consensual sex between adults, this section continues threaten to criminalization of key populations.
In the Orozco case, the Supreme Court heard evidence from various experts about the relationship between HIV and criminalisation. In his 2016 ruling, the Chief Justice said that ‘given the state of the evidence before the Court, it is more likely than not that the retention of Section 53 as it relates to [men who have sex with men] MSM hinders rather than HIV testing and treatment as a matter of public health’.
The Belize Supreme Court received expert evidence from the renowned Professor Chris Beyrer, the Desmond M. Tutu Professor of Public Health and Human Rights at Johns Hopkins Bloomberg School of Public Health. Professor Beyrer emphasized that the twin facts of criminalization and stigmatization are barriers to responses to HIV. Citing his own empirical research published in 2012, he said that that criminalization has “been shown as a driving factor to reduce health awareness, increase fear around healthcare delivery, facilitate social discrimination and stigmatization, encourage violence, limit treatment availability and effectiveness and contribute to higher HIV prevalence and incidence across many settings.” He also made it clear that “the elimination of criminalization is not sufficient” and that it was only the first step in tackling these issues.
In Guyana, the Criminal Law Offences Act (8:01) under section 351 criminalizes consensual sexual activity between men while Sections 352 and 353 criminalizes ‘buggery’. The laws do not distinguish between consensual and non-consensual acts.
The existence of these laws reduce access to treatment, care and prevention services for men who have sex with men. These so-called ‘sodomy laws’ facilitate discrimination within the health and social services sectors. Moreover, these laws place an added burden on the health sector and this is an additional reason to repeal them.
When we think of criminalization, we often think of laws that criminalize sexual activities. Lesbian, gay, bisexual, transgender and intersex (LGBTI)persons, especially poor trans and gender non-conforming persons, face disproportionate risks of criminalization under very vague summary offences like loitering. Minor offences which are very vague, such as the offence in Guyana about “being a man” appearing in female attire “for any improper purpose” and vice versa, give a lot of room to the police to enforce the law in a discriminatory way. Dr. Christopher Carrico, an anthropologist who worked at University of Guyana in 2012, conducted a small study titled Collateral Damage: The Social Impact of Laws affecting LGBT Persons in Guyana. He found that LGBT persons faced repeated threats of being arrested for minor offences. All the Trans and gender non-conforming persons he interviewed in his small study had been charged with summary offences, and all but one had been charged with the cross-dressing offence.
The Caribbean Court of Justice, the highest court of appeal, will soon hear an appeal by four Guyanese Trans persons who will be arguing that the cross-dressing offence is not consistent with the Guyana Constitution. This is an important case about the human rights of Trans persons in the Caribbean who are often “over-policed and under-protected” and it also has wider implications for the HIV response in relation to key affected populations.
The latest surveillance study finds a HIV prevalence of 8.4% among Transgender persons, which is ten times the national average, according to UNAIDS estimates. The problem is that there is an inconsistent response to sexual and gender minorities who are in need of healthcare and related social services since there is an accepted norm of discrimination. Although there are some healthcare professionals who would exercise their own discretion in terms of how they treat sexual and gender minorities, persons who are discriminated against do not have recourse to any remedies within the health system.
Civil Society would like UNAIDS to:
- Make PREP available for key populations to ensure control on the HIV epidemic within those most at risk
- Advocate for innovative ways in getting key populations to utilise HIV testing services, including self-testing and increase couple testing
- Advocate for governments to provide funding for HIV prevention services through sustainable ways, including contracting civil society organisations to provide those services which include universally available, accessible, affordable and acceptable commodities and treatment services
- Emphasise that treatment is not only to reduce morbidity and mortality, but also for prevention and stronger social systems to support adherence to treatment
- Influence changes in social norms by engaging with opinion leaders (politicians, faith-based leaders and cultural leaders)
- Advocate for the elimination of punitive laws that criminalise key populations
- Advocate for sustainability of programmes that have been funded by donors including the Global Fund and PEPFAR, including increased domestic expenditures on HIV/AIDS for programmes targeting key populations most at risk
- Make sure that HIV plans in countries are sensitive to the epidemiology of the disease
- Ensure that there is regular monitoring of the progress towards achieving the targets of the 2016 UN Political Declaration on HIV/AIDS
- Continue to ensure that programmes for transgender people remain a priority of National Health and Government programmes, including peer support and Government programmes, including peer support and outreach.
 (2016) 90 WIR 161 (Supreme Court, Belize, 10 August 2016).
 Beyrer, C., Baral, S. D., Van Griensven, F., Goodreau, S. M., Chariyalertsak, S., Wirtz, A. L., & Brookmeyer, R. (2012). Global epidemiology of HIV infection in men who have sex with men. The Lancet, 380(9839), 367-377.
 Guyana Summary Jurisdiction (Offences) Act 1893, section 153(1) (xlvii).
 Christopher Carrico, “Collateral damage: the social impact of laws affecting LGBT persons in Guyana” (March 2012, The Faculty of Law, The UWI Cave Hill).