An Analysis of HIV-Related Law in South Africa: Progressive in Text, Unproductive in Practice

Author:Megan Heneke
Position:J.D., The University of Iowa College of Law, 2009

J.D., The University of Iowa College of Law, 2009. The author would like to thank the TLCP staff and student writers. She would also like to thank her parents, Tom and Kim Heneke, for their support.

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I Introduction: Fighting The Hiv/Aids Pandemic

In December 1998, GuGu Dlamini, a thirty-six year old South African woman, spoke at an AIDS education meeting and told the attendees that she was HlV-positive.1 She said that she disclosed her status in order to "help others."2 A group of young people later beat GuGu to death because of her candor and honesty regarding her HIV status.3 In South Africa, myths about Human Immunodeficiency Virus ("HIV) and Acquired Immune Deficiency Syndrome ("AIDS") persist, and the stigma surrounding the disease is a serious problem.

Laws that protect people from discrimination are vital to fighting global HIV/AIDS. Likewise, safety and protection for those that disclose their status is an essential element in the global fight against HIV/AIDS. This Note will compare the legal frameworks in South Africa and the United States that are designed to protect those living with HIV/AIDS. This Note will use the United States to illustrate the seemingly progressive nature of South Africa's HIV-related laws.

Twenty million people worldwide have died from AIDS since the first diagnosis of the disease in 1981. 4 Across the globe, health authorities reported more cases of HIV/AIDS in 2006 than in 2004. 5 An estimated 2.6 million more people have HIV/AIDS now than in 2004.6 It is projected that 39.5 million people are living with HIV/AIDS in the world today.7

HIV/AIDS has a particularly disastrous affect on the African continent, with 65 percent of all new HIV/AIDS infections occurring in sub-Saharan Africa. 8 In many countries in southern Africa, nearly one quarter of the Page 753 population is infected with HIV/AIDS. 9 Swaziland, a small southern African nation, has the highest rate of infection at 33.4 percent.10 Prevention is difficult in southern Africa, because a high number of HIV-positive individuals are unaware that they are infected. In South Africa alone, an estimated 2 million people are unaware that they are living with HIV or AIDS.11

HIV/AIDS is a serious issue in Africa that experts contend affects more than just public health. They posit that HIV/AIDS is starting to affect worker productivity and the economy at large. In Africa, HIV/AIDS contributes more to employee absence from work than any other factors. 12 In addition to the effects of HIV/AIDS on African economies, experts argue that the epidemic worsens crime in countries where HIV/AIDS is most prevalent.13 Studies indicate that those orphaned because of the disease often turn to crime because of the lack of parental influence in their lives.14 The U.N. Programme on HIV/AIDS estimates that by 2010, 20 million AIDS orphans will live in Africa. 15 The experience of being orphaned as a result of HIV/AIDS is particularly devastating because of the stigma and humiliation caused by the disease. 16 The stigma and secrecy that surround the disease worsen the spread of HIV/AIDS.17 Many people at risk of having or contracting the virus are afraid to take an HIV test, use precautionary measures, or talk about the disease. 18

While the problem is most pronounced in Africa, HIV/AIDS affects all countries around the world, including the United States. Since the first diagnosis of AIDS in the United States in the early 1980s, 1.7 million Americans have been infected; 1.2 million Americans now live with HIV/AIDS. 19 The number of women infected with HIV is on the rise in the United States.20 Women accounted for 15 percent of infections in 1995, but as Page 754 of 2004, women account for 27 percent of total infections.21 These statistics are alarming, but may not accurately reflect the nature of the problem in the United States, as only thirty-five of the fifty states have procedures for reporting AIDS cases and HIV diagnoses. 22 The fact that approximately one quarter of people living with HIV in the United States are unaware of their infection complicates prevention measures.23

The aforementioned examples illustrate the serious and devastating effects of HIV/AIDS on the entire world. The seriousness of this epidemic makes life incredibly hard for those individuals living with HIV/AIDS. Despite the disease's prevalence, many feel too ashamed to talk about the disease, educate themselves, or seek testing and treatment. This secrecy and stigma leads to discrimination, some forms of which are worse than others. In southern Africa, women have been cast out of their villages because of positive HIV status, children have been denied schooling and access to medical treatment, and HlV-positive individuals have been denied employment or fired from their jobs.24

Discrimination against those living with HIV/AIDS is not a phenomenon limited to Africa. The United States has a history of discrimination against those with HIV/AIDS which continues today. HIV-positive individuals have faced discrimination in employment,25 and although Congress repealed a law banning HIV-positive persons from immigrating to the United States, the Health and Human Services Department still includes HIV as a disease on its "no-entry" list.26

This discrimination makes HIV/AIDS more than just a public health and moral issue. It makes HIV/AIDS a legal issue. The law needs to protect those who are most vulnerable to discrimination. Members of the public health and legal communities debate and discuss the best ways to combat and mitigate the spread of HIV/AIDS. Proposed solutions often include a component about the rights of those living with the disease. Countries with high infection rates need to use the law and public health initiatives to stop the spread of HIV/AIDS. One of the law's most powerful roles is protecting those living with HIIV/ADS. Page 755

This Note will compare approaches to protecting those living with HIV/AIDS in the United States and South Africa. The impression one immediately gets when analyzing these two countries is that South Africa appears to have a more protective legal regime for those living with HIV/AIDS than the United States. However, even in the face of this seemingly protective regime, South Africa has one of the highest infection rates in the world.27 This Note will explore possible reasons for this dichotomy. Part II will provide a brief overview of the constitutional and statutory protections for those living with HIV/AIDS in both the United States and South Africa. Part III will compare South Africa to other African nations briefly. Part IV will discuss possible reasons for South Africa's devastating AIDS pandemic in the face of the country's seemingly progressive legal framework. Finally, Part V will explore law and policy recommendations for fighting this global epidemic that retain the rights and uphold the dignity of those living with HIV/AIDS.

II An Overview of Statutory and Constitutional Protections In South África And The United States

Since the emergence of HIV/AIDS in the early 1980s, countries around the world have faced the challenge of protecting those living with HIV/AIDS from discrimination. South Africa's constitution offers more explicit protection for those infected with HIV/AIDS than the U.S. Constitution.28South Africa also has broad statutory protections which many U.S. states lack. 29 In addition, South Africa does not criminalize HIV transmission, while all U.S. states have laws that have some criminalizing effect on sexual behavior that may transmit HIV.30 About half of the U.S. states have laws that are specific to HIV. 31 The United Nations recommends policy measures designed to reduce the stigma and discrimination associated with HIV/AIDS. 32 The international body argues that "stigma and discrimination . . . undermin[e] . . . HIV prevention and care efforts."33 From a facial examination of South Africa's statutes and constitution, it appears that the country heeds this advice; however, HIV/AIDS remains extremely prevalent in the country. Page 756

A Constitutional Protections
1. South Africa

South Africas current constitution became effective on February 4, 1997.34 The constitution was a major turning point in the history of South Africa, as it represents the end of apartheid-the official system of government since 1948.35 Many of the themes and ideas throughout the South African constitution are a reflection of the struggle against inequality which afflicted the country for many years.36 South Africas constitution became effective after the HIV/AIDS pandemic had begun to plague the country. The constitution's broad equality and privacy guarantees likely stem from a desire to correct the ills of apartheid rather than a desire to grant protections to those living with HIV/AIDS. Regardless of the motivation...

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