By Gunawan Pratama Yoga Ethics group

1. THE ROLE OF THE LAW IN HIV/AIDS By Gunawan Pratama Yoga Ethics group

2. Outline • Introduction • History of HIV/AIDS • Pandemic disease • South east Asia • The Role of Law • Proscriptive role of law • Protective role of law • Instrumental role of law • The case of Thailand • Conclusion

3. Introduction • History of HIV/AIDS • First identified in1981; Kaposi sarcoma and Pneumocyctis carinii pnuemonia (PCP) • Failure of the body’s immune system • Gay-Related Immune Deficiency (GRID) • Acquired Immune Deficiency Syndrome

4. Pandemic disease • WHO • By the year 2000, 30-40 M HIV+; • 12-18 M AIDS and • 1,8 M will die • 90% will be in developing world, particularly Asia

5. Southeast Asia • First appeared in the late 1980s • Diversity  than in Africa because of • The nature of CSW, major determinant • IDU, sharing contaminated injection equipment • Individual mobility, Travelers, Fishermen, Truckers, Traders and Migrant workers

6. Not simply a medical disease • Socio-economic and political disease • The function of law and its interrelationship with ethics pose several challenges to the dimension of HIV/AIDS • Legal or policy responses to HIV/AIDS are useless, harmful and counterproductive

7. The Role of The Law • Analyzed in detail by Julie Hamblin (1991) • Three main models • Proscriptive role of law • Protective role of law • Instrumental role of law

8. Proscriptive Role of The Law • Traditionally penalizes certain forms of conduct • Often obstruct rather than facilitate effective policy implementation • Need for proper saveguards to prevent the misuse

9. Proscriptive Role of The Law • Compulsory for reporting of HIV and AIDS • Penal sanctions for knowingly spreading HIV • Mandatory testing for AIDS • Disclosure of HIV-positive status • etc • Alienating people at risk of HIV • Consultation with public health officer

10. Protective Role of The Law • Protect individuals or classes of individuals from harmful and undesirable occurences • Central importance because of discrimination against people with HIV/AIDS • Help to enlist the support and cooperation in prevention strategy • Required in the context of measures to protect the rights of people with HIV

11. Discrimination • Double jeopardy • Facing death • Fighting for lives ------facing discrimination • Poverty becomes a reality in relation to HIV • Become poor because of AIDS • People who are poor can be more at risk • Successively used to direct blame, stigmation, prejudice and even violence

12. General terms : “Any form of distinction, exclusion or restriction affecting a person, usually, but not only, by virtue of an inherent personal characteristic, irrespective of whether or not there is any justification for these measures”.

13. Effects of Discrimination • Persons • HIV/AIDS persons • Homosexual • Prostitutes • IDU • Foreigner in some country • Efforts to prevent the spread of HIV • Community

14. 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;

15. Continue • Questions about your sexual behavior or sexual orientation; • Denial of housing based on a disability; • Discrimination because you are friends with a person with AIDS; • Failure to make reasonable changes to accommodate your needs; • Violating the confidentiality of a person with AIDS; • Failure to stop discrimination.

16. 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 • First need to understand the different ways these laws can be interpreted • Laws are like tools; how much they help you depends on how well you use them. • Need to learn a few legal terms

17. Legal Terms • Action and Inaction; Harm and Injury • You have to prove that someone, through an ACTION or INACTION, is being discriminatory. • If someone dislikes you, you must understand that this is not a violation of the law unless they actually cause you some harm or injury • 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)

18. Disparate or Unequal Treatment • Treated differently or worse than others because of AIDS • The witnesses must be willing to repeat what they have heard. • Disparate or Unequal Impact (UnfairResults or Unequal Effect) • The result of a certain policy is unfair to people who have AIDS, even if the policy attempts to treat everyone equally • Generally not caused by vindictiveness, and can usually be resolved through discussion.

19. Separate Treatment • Illegal, unless it is the only way to provide the service you are seeking. • Some types are legal and sensible • Reasonable Accommodation and Undue Hardship • To change something so that you can do your job or benefit from a program or service, even if you have a disability. • Must be related to the physical limitations and it must be related to the job or activity. • Failure is a violation of law, unless can be proved costly or too difficult (UNDUE HARDSHIP)

20. Preventing and Redressing Discrimination • Not simply go away if it is ignored • It will not cease simply because people become better informed about the virus and its means of transmission • A carefully planned and appropriately resourced strategy is necessary • Enforcement of human rights legislation • AIDS is considered a disability • Prevention is more important than redress

21. Barriers of seeking redress for discrimination through courts: • Takes time and resources • Publicity would lead to loss of confidentiality • Fear of further discrimination and reprisal • Fear that the process would be lengthy, stressful, and ultimately futile • Lack of protection by existing laws and statutes

22. Instrumental Role of Law • To promote the changes in values and patterns of social interaction that lead to susceptibility to HIV infection • Operates on a broader and more far-reaching level • The law can play a proactive role • Require a creative approach to the law; more than just a direct proscriptive or protective role • Require a recognition of all the implications of a particular legal intervention on the direct, indirect and symbolic levels

23. 1990s • The most significant factors are not sexual or drug-use activity as such • Socio-economic dependency • Preventable for who : • Can access to information • Can Appropriate preventive measures • Have the means to implement

24. The most vulnerable • Because of economic need or powerless to control their sexual relationship • Sexual activity for economic support • Condom is not accessible and affordable • Poor health care • The challenge is also the underlying social and economic factors that deprive of power to protect against HIV infection

25. THE CASE OF THAILAND

26. 1985 - 1991 • “The diseases requiring notification” • Order infected persons to appear for examination, detain them and measures of protection • Order to desist from action which may lead to spread of the disease • Order to leave the employment • Report information about HIV/AIDS in 24 hr • Non compliance/violation lead to fines and/or imprisonment Proscriptive Role

27. 1991-Now Deletion of AIDS from “the disease requiring notification” • No compulsory notification to the authorities • Reporting is done on a voluntary basis and sentinel surveillance system • Voluntarily HIV testing

28. Protective Role • The Thai Constitution • Do not include non Thais • Labour legislation • No case concerning discrimination by reasons of HIV/AIDS come to court even several employers have been dismissing • Fear of exposure of one’s identity

29. Immigration • Announcement No. 11, 1986: Foreigners with HIV/AIDS were prohibited from entering the country or becoming residence • It Was Revoked in 1991 • Confidentiality • Criminal code and civil code • Never been used against doctors • General reticence to sue doctors, inaccessibility of judicial system, fear of exposure of one’s identity

30. Instrumental Role National Plan for the Prevention of AIDS • Empowerment of women to help the women affected, and the elevation of their educational capacity as well as improved sexual negotiating skills so as be on par with their male counterparts

31. Conclusion • The three models of legal can play a role in the response to HIV/AIDS • The three models of legal are potentially relevant • The proscriptive and the protective roles of the law have already been widely utilised • Must fully exploit the potential of the law • Change the traditions and values that place people at risk of HIV infection

32. Conclusion of Thailand • Thailand has a myriad of laws relevant to HIV/AIDS • In several instances, they are remedial rather than preventive • At times, they are reactive rather than proactive and humane • Poor law enforcement • National Plan for Prevention of AIDS • Better performance towards those with HIV/AIDS

33. That’s all, thank you !

34. Acknowledgments • Dr. Maria • Dr. Suvit • All of the Bioengineering class