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April 01, 2010

Universal Access and Human Rights For Women and Girls, Too

by Shelley D. Hayes, Bambi W. Gaddist and Andre W. Rawls

HIV is the leading cause of death and disease in women of reproductive age around the world. Thus it is that the 2009 World AIDS Day Theme, Universal Access and Human Rights, was particularly applicable to the plight of women and girls in resource-rich and resource-limited countries alike. Below we hope to illustrate some of the ways in which culture, history, and laws combine to deny women and girls equal access to HIV prevention and care. Also in this issue, Amanda Kloer describes how modern-day sex trafficking—most often of women and girls—adds another dimension to the intractable nature of HIV in its third decade (see page 8).

The first chapter of this story is told in the numbers. The Joint United Nations Programme on HIV/AIDS (UNAIDS) estimates that in 2007 one-half of the estimated 33 million people living with HIV worldwide—between 14.2 and 16.9 million—were women. In 2008, 60 percent of people living with HIV in sub-Saharan Africa were women. Young women, and girls in particular, comprise a growing proportion of those living with HIV/AIDS in Asia, Eastern Europe, and Latin America. In the Caribbean, 43 percent of those living with HIV/AIDS are young women and girls. Here in the United States, women with AIDS make up a growing portion of those living with HIV/AIDS. In 1992, women accounted for only about 14 percent of adults and adolescents living with AIDS in this country, but by the end of 2008, the proportion had grown to 26 percent. The U.S. Centers for Disease Control and Prevention (CDC) estimates that in 2008 approximately 280,000 women were living with HIV/AIDS in the United States. Women of color in the United States are particularly affected: African American women account for 69 percent of new HIV infections in women and AIDS has become the leading cause of death for black women aged 25 to 34 years.

Across oceans, complex social and economic factors, along with cultural norms, contribute to this tragedy. A look at three geographically distinct locations around the globe, Papua New Guinea in Oceania, the African nation of Botswana, and America south of the Mason-Dixon Line, gives a startling picture of the feminization of this modern-day pandemic.

Papua New Guinea

Just north of Australia, with which it shares the Great Barrier Reef, the nation of Papua New Guinea, known as PNG, occupies the eastern half of the island of New Guinea; its neighbor to the west is Irian Jaya (the Indonesia province of West Papua). Previously administered under the international trusteeship system following World War II, PNG became self-governing in December 1973 and achieved full independence on September 16, 1975. PNG is so richly endowed with gold, copper, oil, natural gas, and other minerals that in 2006 mineral and oil export receipts accounted for 82 percent of its gross domestic product.

PNG is a many-tiered, mountainous society with thousands of separate communities composed of only a few hundred people each. These indigenous Melanesian communities are divided by geography, language—eight hundred or more are spoken there—traditions, and customs. Conflict and internecine warfare have permeated the communities for centuries. Against that backdrop, PNG is experiencing a generalized epidemic, with HIV prevalence exceeding 1 percent in many rural areas. In some urban areas it is as much as 2 percent and, like its American counterpart, PNG’s capital city of Port Moresby has an HIV prevalence rate of 3 percent. According to the 2008 United Nations General Assembly Special Session on HIV/AIDS report for PNG, the number of infected young women is highest of any group and appears to be growing fastest.

The explanation for this disparity well may be found in PNG customary law and its indigenous cultural norms. Only a quarter-century ago, many tribes in PNG segregated men and women, with the village men living in a communal “long house” or “men’s house” while each woman lived in a small house nearby with her children and, not infrequently, her pigs. Under PNG customary law, polygamy continues to be widespread, particularly in rural highland communities, where having five or more wives is not unheard of. If a man has more than one wife, each woman will have her own house and the man will alternate houses.

While, as archeologist Margaret Mead documented decades ago, in some PNG cultures land and other possessions may be passed down through the female line, it is a culture of gender inequality in the main. Violence against women in PNG has reached epidemic proportions. Current research indicates that two-thirds of PNG women experience domestic violence while 50 percent of women have experienced forced sex. Many victims also run the risk of additional assault by the police. Domestic violence is a crime in PNG, but because it is seen as a private matter, few cases are prosecuted. It has been reported that a key factor contributing to domestic abuse is the continuing practice of a prospective groom paying a bride price. In PNG, rape is punishable with imprisonment, but the willingness of some communities to settle incidents of rape through material compensation rather than through the criminal justice system results in very few actual convictions.

According to Amnesty International, women in PNG also continue to suffer widespread “sorcery-related” abuses. In a single province, approx-imately 150 women are believed to be killed each year for allegedly practicing witchcraft. Violence against women, charges of sorcery, and the State’s failure to protect make for a fatal combination in PNG. The case of human rights activist Anna Benny is well known but bears repeating here. In an action typical of her, Anna once secured the release and return home of three young girls—aged seven to eleven—who had been abducted and raped during tribal fighting in PNG’s Eastern Highlands. Local police had failed to intervene. Later, in November 2005, Anna’s sister-in-law was being held in a house and attacked on suspicion of practicing sorcery. When Anna went to her relative’s aid, both women reportedly were shot and killed. Again, the local police took no action.

Cultural devaluing of women in PNG is rampant. Women in PNG have poorer access to health-care services and lower levels of educational attainment. Most women in PNG lack access to credit while limited literacy poses barriers to their participation in the economic activities and political life of the country. When cultural mores and state inaction combine, already vulnerable women become likely hosts for HIV. So it is that the majority of people now living with HIV in PNG are women.


Traveling west across the Pacific Ocean to the landlocked African nation of Botswana, the story continues. Once a British protectorate, the independent nation of Botswana came into existence in 1966. Botswana is bordered by South Africa, Namibia, and Zimbabwe. It is a middle-income country with an economy dominated by mineral extraction, primarily diamond mining, which accounts for 70 to 80 percent of its export earnings. More than half of its population lives in urban areas. Unlike PNG, literacy is high and women outpace men in education. However, Botswana has the second-highest HIV/AIDS prevalence rate in Southern Africa and, indeed, is experiencing a generalized epidemic, with an HIV prevalence rate of 23.9 percent in 2007.

Here again, law and culture combine in ways that fuel the epidemic. Botswana is like PNG in that it has a dual legal system where common law and customary law exist side by side. Given that customary law courts administer most cases—about 80 percent—most of Botswana’s citizens are subject to customary law. Patrilineal inheritance is accorded legislative status in Botswana, thereby giving men control of land and property and effectively disenfranchising women where administration, disposition, enjoyment, and ownership of property are concerned. Although a recent law (the Abolition of Marital Power Act) grants married women in Botswana the right to greater participation in matters of family property, social and economic development, its provisions do not apply in traditional and religious marriages. Abuse of women in Botswana is widespread, characterized by men’s culturally sanctioned entitlement to sex “on demand” and the “cultural imperative” of a woman to prove her fertility before marriage by bearing children. Domestic violence against women is not prohibited by law in Botswana, making it an ongoing and serious problem, while customary law permits husbands to discipline their wives as they would their minor children, including the use of corporal punishment.

As it does throughout Southern Africa, the HIV/AIDS epidemic in Botswana disproportionately affects women. The numbers in Botswana are staggering: overall, females in the reproductive ages have been severely affected by HIV, with one-third of all women—29.4 percent—currently living with the virus. For women aged 25 to 29, the prevalence rate is 41 percent; those aged 30 to 34 experience a prevalence rate of 43.7 percent; and those aged 35 to 39 follow with a rate of 37.8 percent.

The American South

Still traveling west, now crossing the Atlantic Ocean to the heart of the American South, history and culture tell a similar story. The United States is, of course, a high-income country, but tradition and law combine again to make the plight of women in its southern states too much like that of their sisters in PNG and Botswana. Again, a culture of human rights violations has created an HIV epidemic out of control.

It is well documented that the agrarian economy of the American South, built on rice, tobacco, and cotton, led to an insatiable drive to create systems of labor needed to farm the “golden” crops. Cheap human labor was the backbone of that economy. With the housing of African slaves came pandemics of pellagra, hookworm, tuberculosis, syphilis, yellow fever, malaria, and other communicable diseases. Many of those pandemics were found to be associated with a prevalence of dire poverty, poor nutrition, the climate, and the total legacy of slavery.

That legacy of unequal health has been carried down to the HIV/AIDS epidemic of the last quarter-century. The Southern AIDS Coalition has reported that there were 26,347 newly diagnosed cases of HIV infection in the United States in 2007. Of those new diagnoses, 51.2 percent were diagnosed in the seventeen southern states. AIDS rates among African American women in the United States have reached 39.8 per 100,000 compared to 1.8 among white women. Over 52 percent of African Americans with AIDS and 58 percent of new AIDS cases reported in 2006 among African Americans occurred in the South, yet African Americans represent only 20 percent of the South’s population.

A snapshot of South Carolina helps to tell the story of HIV in the South. South Carolina is one of America’s original thirteen colonies. Prior to the American Revolution of 1776, its economy flourished on the production and exportation of rice and on the importation and sale of human beings: 40 percent of all African slaves reaching the British colonies passed through South Carolina, most entering through the Port of Charleston. The rights of slave women during that time were nonexistent. Take the case of James Marion Sims, a son of South Carolina who is viewed by many as a genius and the father of modern gynecology. Often neglected by his biographers, however, is the fact that he perfected his painful surgical techniques by practicing—without anesthesia—on black slave women before he performed the same procedures—with anesthesia—on white women.

African American women in present-day South Carolina fare little better than did their female ancestors. More than 4,200 women in South Carolina live with HIV/AIDS. African American women in South Carolina account for an estimated 83 percent of new HIV infections among all women in the state: they make up 17 percent of South Carolina’s total population, but comprise 26 percent of all persons living with HIV/AIDS and 29 percent of all persons diagnosed with HIV-only in the state. The Kaiser Family Foundation recently released outcomes ranks South Carolina as number one in the nation in heterosexual transmission of HIV. Similarly, the South Carolina Department of Health has confirmed that heterosexual transmission is the most common reported risk for all women and girls, with more than 90 percent of women contracting HIV from their male partners.

Modern South Carolina law has not protected the right to health for its African American women or their children. More than fifty years ago, in 1956, the American Medical Association declared addiction to alcohol and other drugs to be a disease. Yet, South Carolina law holds that, rather than provide treatment for women suffering from such diseases, they must be incarcerated. In the seminal case of Whitner v. State 492 S.E.2d 777 (S.C. 1997), cert. denied, 118 S. Ct. 1857 (1998), the Supreme Court of South Carolina held that a viable fetus was a “child” as used in the child abuse and endangerment statute, S.C. Code Ann. § 20-7-50 (1985), and upheld a mother’s conviction under the statute for her cocaine use during the third trimester of her pregnancy. The court noted that “[a]lthough the precise effects of maternal crack use during pregnancy are somewhat unclear, it is well documented and within the realm of public knowledge that such use can cause serious harm to the viable unborn child.” Id . at 10. The court therefore concluded that Whitner’s drug use unquestionably violated the child endangerment statute. Id . at 11.

The facts in that case are stunning. In 1989, two South Carolina states attorneys began applying the state’s child endangerment law to pregnant women whose conduct was presumed to pose a risk to fetal health. According to her lawyers, on April 7, 1992, Cornelia Whitner, a 28-year-old African American woman, was indicted for violating § 20-7-50 by allegedly failing “to provide proper medical care for her unborn child by using crack cocaine while pregnant.” At her plea hearing, Whitner’s attorney stated that Whitner’s son, born two months previous, enjoyed good health, and that Whitner had received substance abuse counseling. Whitner, requesting assistance from the court, is reported to have said, “I need some help, your honor.” Although Whitner and her attorney emphasized both the need and Whitner’s desire for inpatient treatment, the court reportedly responded, “I think I’ll just let her go to jail.” The court then sentenced her to eight years in prison.

In a companion case, the state indicted Malissa Ann Crawley, a 31-year-old African American woman, on a charge of child neglect based on her pregnancy and substance dependency. On the advice of her court-appointed attorney, Crawley pled guilty. The Court of General Sessions then sentenced Crawley to five years in prison, which it then suspended to five years probation. Subsequently, Crawley’s boyfriend assaulted her and an altercation ensued. Even though she was the victim of abuse, the state charged Crawley with criminal domestic violence. Not informed of the defense of self-defense or, indeed, of any defenses, and ignorant of the ramifications of a guilty plea, Crawley pled guilty for a second time. As a result of that plea, the court found that she had violated her probation and issued an order that she begin serving her previously suspended five-year sentence.

These cases were part of a collaborative effort, launched in 1989 by the city of Charleston, among the police department, the prosecutor’s office, and the Medical University of South Carolina—a state hospital—to punish pregnant women and new mothers who tested positive for cocaine use. Under the policy, the hospital provided the city prosecutor’s office with information on pregnant and postpartum women. The prosecutor’s office then maintained detailed lists containing a woman’s name, drug test result, and other confidential information, including whether she “had AIDS” or had had an abortion. After more than a decade in place, the U.S. Supreme Court invalidated the policy. In Ferguson v. City of Charleston, 532 U.S.67 (2001), the U.S. Supreme Court held that a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search, in violation of the Fourth Amendment to the U.S. Constitution, if the patient has not consented to the procedure. The Court noted specifically that “the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns,” presumably thus allowing known HIV infections to go untreated. Meanwhile, one-third of all persons estimated to be living with AIDS in South Carolina in 2007 were women.

UNAIDS has recognized that the “drivers” of this epidemic—structural and social factors, such as gender inequality, human rights violations, and stigma and discrimination that increase people’s vulnerability to HIV infection—are not easily measured. But, as we see above, the trends are clear: human rights violations and gender inequality fuel the spread of HIV/AIDS. Where women are unequal before the law, with little to no control over their lives, their vulnerability to HIV infection increases. Where tradition and cultural mores deny women the same access to prevention and care as are granted to men, HIV spreads. Where the State and nongovernmental organizations fail in their efforts at gender equity, HIV flourishes.

For example, condom use long has been recognized as an effective prevention measure in controlling the epidemic. Nearly two decades have passed since a female condom was developed that is as effective as its male counterpart. The female condom represents a tool that women, often powerless to negotiate condom use by their male partners, can use to protect themselves and their daughters. Yet, in 2008, only 35 million female condoms were distributed worldwide compared to the 10 billion male condoms distributed annually. Similarly, a recent CDC study of more than 19,500 HIV patients in this country revealed that women are less likely, if slightly so, to receive prescriptions for the most effective treatments for HIV infection.

It is time for change. And, as American health-care activist Byllye Avery has reminded us, “Acceptance and awareness are the first stages of gaining the courage to change.”


Shelley D. Hayes is chair and a founding member of the ABA AIDS Coordinating Committee and a member of the Section of Individual Rights and Responsibilities Section Council. Bambi W. Gaddist is executive director of the South Carolina AIDS Council. Andre W. Rawls is the past president of the National Alliance of State and Territorial AIDS Directors.