Can the Law Assist HIV Response?

In Ghana stigmatization of gay men is so harsh that many form sexual relationships with female partners to avoid prejudice and violence. It is also the root cause of the men's inability to access treatment and of the rising HIV rate among them, according to a Ghana AIDS commission report presented at a meeting of 30 African jurists in Johannesburg.

"In Ghana it is illegal for a man to have sexual intercourse with another man," says chief justice Georgina Wood. But, she adds, human rights groups "are making moves to decriminalize homosexuality and open up the channels of treatment."

"[Men who have sex with men] live in such constant fear of discovery and exposure to homophobic violence that they present a façade of heterosexuality and maintain female partners on the side," Wood continues. "This places the women at an increased risk of HIV infection."

Due to the epidemic, some courts, especially the lower courts, have mandated HIV testing of both plaintiff and defendants in cases involving sexual violence, Wood explains. "However, beyond the public outcry, no one has yet tested the constitutionality of this practice by the judiciary."

"The criminalization of transmission will lead to further stigmatization and do nothing but push people who need treatment further underground," says justice Edwin Cameron of the Constitutional Court of South Africa, speaking on the sidelines of the conference. To prevent HIV transmission and facilitate treatment access, laws must protect human rights, he adds.

"If we don't protect the rights of people living with HIV, they will simply go underground and not seek out treatment or services," says Mark Heywood, executive director of the AIDS Law Project. "This is what justice Michael Kirby [former member of the High Court of Australia] referred to as the paradox of AIDS. Normally we try to protect the uninfected from the infected; the paradox is that we have to protect the infected to protect the uninfected."