In the last quarter century, we have witnessed the disastrous results of a collision between HIV and laws that reflect social mores about drug use and prostitution. Draconian law enforcement practices have punished injecting drug users for their addictions and have conspired to create an environment favorable to the spread of HIV/AIDS. Because political sentiment disfavors needle exchange programs in many places, drug users have been unable to obtain sterile syringes and therefore HIV has spread within that population at alarming rates. Likewise, social reactions to prostitution have allowed the virus to proliferate. Despite pious rhetoric by politicians condemning prostitution worldwide, the real effect of its criminalization has been to make sex workers chronically powerless against the demands of pimps, madams, and customers, as well as to subject them to a relentless stigma that has barred them from health and social services.
Today, the uncomfortable truth is that HIV will continue to spread until policymakers and the public face up to the fact that business as usual cannot continue. Controlling HIV/AIDS requires a thorough, ongoing reassessment of sex and drug laws. Nowhere is this reassessment more pressing than in Russia, China, and India.
Snapshots of a Crisis
The latest UN statistics are grim. China has about one million people with HIV, more than half of them drug users. Irresponsible blood collection practices have infected whole villages, an estimated one-quarter million people overall. Heterosexual transmission accounts for just 10 percent of cases, but this is likely to change as the number of commercial sex workers explodes in the new free market system. An estimated 120 million internal migrants, poor young people from the country flocking illegally to the cities looking for work, comprise another high-risk population. All of these populations present ideal opportunities for increased HIV.
India has some five million cases, concentrated in several distinct regional epidemics. In the industrialized western and southern states, the disease is spread primarily through heterosexual contact, with sex workers and their clients playing a conspicuous role. The prevalence of HIV among sex workers in some southern states is reported to be more than 50 percent. In some northeastern states that adjoin the opium-producing Golden Triangle, the epidemic is concentrated among drug users and their sex partners. Between 1993 and 1998, estimated prevalence among Manipur drug injectors raced from 1 to 60 percent.
HIV can spread rapidly among drug users, then “break out,” like a brushfire, into the population at large. This seems to be happening in Russia, where more than 60 percent of its 860,000 HIV cases have been among drug users. In the last two years, more and more cases have been among nondrug-using heterosexuals. From 1998 to 2002, the rate of HIV among pregnant women, a bellwether population, increased by 1,000 percent. Heterosexual transmission now accounts for about 20 percent of cases.
First Steps
Through most of the epidemic, health lawyers have widely agreed on the right prescription for HIV law. Regulating the safety of the blood supply is an urgent first step. Then the task is to create a conducive environment for HIV prevention efforts. Criminal penalties for HIV transmission and mandatory testing have been discouraged as stigmatizing and counterproductive, while protecting privacy, prohibiting discrimination, and guaranteeing access to care have been deemed essential. Prompted by vigorous advocacy, most countries facing HIV outbreaks have followed this course to some degree. Russia’s 1995 HIV law contains basic protections. China is on the brink of a major revision of its communicable disease control law. It is sure to endorse nondiscrimination and privacy, but the tradition of criminal penalties for disease transmission may carry forward into the new law despite international human rights pressure. In India, adverse court decisions and the continued criminalization of homosexual activity leave more basic work to do. Even where protection is adequate on paper, practice is often quite different. Continued vigilance and activism are needed.
General “good government” reform is needed if corruption and bureaucratic turf wars are not to undermine treatment and prevention. India, Russia, and China have all been unable to deliver HIV medication to more than a fraction of those who need it. The high price of HIV medications has not been an immediate problem in these relatively well-off countries. Rather, China’s government has let the rural healthcare infrastructure disappear. Today less than 10 percent of the rural population has any health insurance. Efforts to deal with HIV have chronically been stymied by provincial officials who have regularly harassed researchers and stifled activism. “Civil society,” that web of nongovernmental organizations (NGOs) that plays so important a role in HIV prevention and treatment, is embryonic in China and still fragile in Russia. Mistrust, political jealousy, and overregulation must all be addressed to foster a vigorous NGO sector.
With international help, all three countries have launched large-scale treatment campaigns, but the transition from rhetoric to action will depend largely on the competence, honesty, and commitment of local health officials and political leaders.
Going Further: Changing Societal Views and Laws
Effective HIV care and prevention now challenge deeply held views on drugs and sex. Evidence has been mounting, and recognition growing, that criminal law and HIV control are on a collision course. From the laws on the books, through police practices on the streets, through the operation of courts, to the conditions of prisons and jails, the criminal justice system contributes significantly to the shape of everyday life and the risk of HIV among drug users and sex workers.
The day-to-day decisions of drug users—whether to buy a new syringe, whether to carry it when buying drugs, when and where to inject—all have much to do with their risk of getting HIV, and each decision is heavily influenced by drug laws and law enforcement practices. Syringe prescriptions are still sometimes required in Indian pharmacies. Needles are cheap and legal to buy in China and Russia, but people who carry them too often have bad experiences with the police. Being a drug user is, in effect, a crime. Only having a needle can be enough for a policeman to threaten mandatory drug testing and possible confinement in a detoxification center. If the needle has been used, it may contain enough drug residue to constitute the crime of possession. The threat of arrest or testing alone is usually enough to extort a bribe. Forty percent of drug users surveyed in five Russian cities said that one of their main reasons for not carrying syringes was to avoid attracting attention from the police. When possession of even small amounts of a drug can result in serious jail time, the incentive is for users to shoot up quickly, whether or not they can do so in hygienic conditions with a sterile needle. Report after international report laments that users are too frightened and stigmatized a group to be reached with the public health messages and interventions they need to avoid HIV.
A similar scenario plays out with sex workers. Prostitution, whatever its formal legal status, can better be described in India, Russia, and China as a heavily regulated industry, with the police as regulators. In return for money and sex, and leaving aside the occasional raid for public relations purposes, police look the other way. Researchers report that in Russia, where prostitution itself is not a crime, police officers use other laws, like residency permit requirements, to control street prostitution and extort bribes or favors. In a few places, sex workers have been able to band together and improve hygiene, living, and working standards—and prevent HIV. But that is rare. In most places, the lives of sex workers are dominated and endangered by brutal pimps and madams who do nothing to support or enable HIV prevention. The benign neglect and complacent stigmatization of male and female sex workers are no longer consistent with community health, if they ever were.
The effect of arresting and imprisoning drug users and sex workers can be significant. Jails and prisons are breeding grounds for HIV, bringing together people at high risk from all over a country and leaving them to have sex and use drugs under the most dangerous circumstances possible. Tuberculosis presents another major prison threat. It has been rampant in Russian prisons, with as many as 100,000 cases, one-third of them drug resistant. The situation in Chinese and Indian jails is less clear, but India and China rank first and second in overall tuberculosis mortality. Imprisonment for drug use thus can be tantamount to a death sentence. If these infected prisoners do survive and return home, they likely spread their infections through sex and drug use.
Criminal laws and enforcement practices can also influence drug user and sex worker risk by affecting the ability of public health agencies to effectively deliver prevention services. Laws that explicitly prohibit interventions such as syringe exchange programs or methadone treatment act as “barriers” to those interventions. Police pressure reduces program attendance, limits expansion, and increases the length of time contaminated needles circulate on the streets. In China and India, laws on drug use and prostitution have slowed implementation of needle exchange and other harm reduction measures, but in Russia the effects have been the most dramatic. In 2003, the new State Drug Control Committee excoriated needle exchange programs as a violation of laws against the encouragement of drug use. The Duma later overrode this opinion, but at least one needle exchange program had been shut down. Even now, the legality of needle exchange remains confused. The Duma’s new law does not make clear who can authorize exchange—public health authorities or drug prosecutors—leaving people who want to conduct or fund programs uncertain about how to proceed. Whatever happens with needle exchange, methadone maintenance therapy, effective in reducing drug use and HIV risk, is still illegal in Russia.
New Directions
There is a better way, starting with acceptance of harm reduction, or the effort to preserve the health of drug users and their communities while continuing the battle against addiction, as a strategy that unites public health and law enforcement authorities. Vancouver’s AIDS and drug policies treat harm reduction as a cornerstone mission. Syringe exchange and a safe injection center have been set up with full cooperation between health and law enforcement agencies. Having and using a clean syringe is not treated as a crime to be discouraged; safe injection is facilitated; drug treatment is readily available. Similar approaches are at work in Europe and Australia. In China, high officials now offer some support for harm reduction programs in their public statements, and eight pilot methadone programs are in place. In Manipur, India, the introduction of syringe exchange and other harm reduction strategies has helped pull prevalence among drug users back under 40 percent.
When it comes to drug policy, the best way forward is not as clear as the need for change. Putting drug users in jail is a policy disaster, utterly unsuccessful in blunting the addiction epidemic. Certainly antidiscrimination and equal protection laws in all countries should be amended to guarantee the civil liberties and human rights of drug users, not least their rights to HIV and addiction treatment. But complete legalization of drugs or drug use would be a big, and risky, step. Substance abuse is a terrible public health problem in its own right. Legal drugs like alcohol and cigarettes take a terrible health toll, and one can rightly shudder at the prospect of cocaine or heroin in the hands of the sort of multinational companies that have been so successful marketing Marlboros and malt liquor.
Regulation of prostitution as a legal business has a long and successful track record in Europe and even in the United States, in Nevada. Thailand’s “Hundred Percent Condom” campaign showed that an epidemic centered on commercial sex could be stopped in its tracks.
Policy experimentation is essential. Decriminalizing personal possession of drugs, routing drug users to treatment rather than jail, removing legal barriers to harm reduction, and training police about drug use and HIV are options in action now in various countries. Russia’s Duma dramatically changed course by removing criminal penalties for possession of small amounts of illicit drugs.
Yet laws remain a major barrier to policy innovation. National drug policies are constrained by three international treaties: the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and especially the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which have embodied the war on drugs philosophy in international law. Spurred on by a few hard-line states, the UN’s drug authorities have pushed a narrow interpretation of these drug conventions, threatening countries that attempted to move toward a public health approach. However, the latest report from the International Narcotics Control Board, the board that monitors international compliance with these conventions, stated that needle exchange and other harm reduction programs do not violate UN drug policy conventions if done as part of an effort to reduce drug use. This is a welcome step away from “zero tolerance.” In the longer term, the conventions should be interpreted (or amended) to encourage national governments to view drug use primarily as a matter of public health.
As important as formal policy change are changes in local practice. Public health officials and law enforcement agents must learn to work together. A model program in the Yunnan, China, police academy teaches thousands of police officers a year about harm reduction and the health aspects of drug use. Improving police pay, and matching that with greater accountability, would help reduce HIV. As valuable as good laws can be, the bottom line is what happens on the streets.
More than a quarter century into the AIDS pandemic, law is as important as ever. Protecting basic human rights is essential to creating the conditions in which HIV can be stopped. Today, Russia, China, and India all stand at a fork in the road. The path of continued criminalization of drug use and sex work leads inevitably to the growth of HIV. The path of public health, though socially challenging, offers hope that the virus can be stopped.
Syringe Exchange Goes to Prison
In 1997 the ABA House of Delegates passed a resolution endorsing the removal of legal barriers to needle exchange programs (NEPs). In the years since, accumulated evidence has indicated that these programs are effective, indeed essential, in the fight against HIV/AIDS. Even so, NEPs can still be politically controversial and face serious legal battles. Nonetheless, HIV prevention workers have been pushing the envelope well beyond street exchange to prison-based programs.
Prisons are an integral part of the HIV problem in Russia and places of concern in China and India. They are populated by people at risk of HIV, especially drug users, so HIV is usually more common in the prison population than the population outside. The prevalence of HIV in Russian prisons was reported in 2003 to be 4.3 percent: 36,000 out of 830,000 prisoners. The prevalence among prisoners in China and India is unknown, but most countries where HIV is spreading among injecting drug users sooner or later see transmission in prisons. The living conditions in prisons are all too conducive to HIV. Overcrowding and boredom lead to sex and drug use. Condoms are unavailable, and needles—or homemade approximations—are used repeatedly.
Prisons not only create HIV/AIDS risk for those inside, but also for the communities to which inmates sooner or later return. HIV infections acquired in prison are brought home to injecting partners, spouses, and other sexual partners who might not otherwise be at risk. A study of male prisoners in one province in China found that one-third reported multiple sex partners on the outside, and another third never used condoms. Thus an epidemic that starts in prison quickly amplifies within the free population.
But, for the same reasons, prisons present an opportunity for prevention. In prisons, health authorities have a captive audience of hard-to-reach people who are ordinarily reluctant to seek out public health officials or get tested for HIV because of the stigma and criminal policies. Harm reduction programs can take advantage of this situation.
Condom distribution is a basic step that Australia, Canada, a few prison systems in the United States, and all but four prison systems in Europe have taken. Yet it is still not enough to prevent infection in prisons among inmates who share needles. A growing number of countries, including Belarus, Germany, Kyrgyzstan, Moldova, Spain, and Switzerland, are introducing syringe exchange programs. Syringes are made available through the prison doctor, through automatic distribution machines placed in discrete locations, or both. The regulations are changed so that prisoners are allowed to have syringes in their possession.
The first evaluation of prison-based needle exchange declared them a qualified success. Needle sharing decreased without countervailing problems. In the German pilot program, for example, the number of inmates sharing needles went from fifty-four to four. The study also noted that the Spanish exchanges facilitated referral to drug treatment programs. The main fears of officials were not realized: there were no reported cases of needles being used as weapons or an increase in drug use. A variety of issues, like anonymity, remained a concern for inmates, but these concerns can be addressed by refinements in the delivery models. Syringe exchange in prisons may be a hard sell, but the unprecedented epidemic requires dramatic action.—SB & DV
As published in Human Rights, Fall 2004, Vol. 31, No. 4, p.10-14.