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IV. Examples of Country Restrictions on Condoms and HIV/AIDS Information

While international donors play an important role in establishing HIV prevention policy in the developing world, the responsibility to guarantee access to condoms and complete HIV/AIDS information also rests with national governments.  Widely ratified human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, oblige states parties to respect, protect, and promote the right of all people to the highest attainable standard of health.  This in turn requires states to “refrain from limiting access to contraceptives” and “people’s participation in health-related matters,” to refrain from “censoring, withholding or intentionally misrepresenting public health information,” and to prevent third parties from limiting “people’s access to health-related information and services.”⁵³  The following country case examples, based on documentary research and interviews with key informants, provide illustrations of various restrictions on access to condoms and complete HIV/AIDS information. 

India

In September 2004, the executive director of the Global Fund to Fight AIDS, Tuberculosis and Malaria, Dr. Richard Feacham, echoed numerous analyses in suggesting that India had surpassed the Republic of South Africa as the nation with the highest number of people living with HIV/AIDS in the world.⁵⁴  Current United Nations estimates place the number of people living with HIV/AIDS in India at approximately 5.1 million; however experts have pointed to widespread underreporting of HIV/AIDS in India and believe the actual figure to be much higher.  In most Indian states, sex is the main mode of transmission of HIV.⁵⁵

Despite an increasing need for access to condoms in India, condom sales in the country reportedly dropped by 5 percent in 2002.⁵⁶  Condom shortages have also been reported, including in brothels.⁵⁷  While the Indian government nearly doubled the funding available for purchasing condoms in 2003 and private sector and bilateral funding helped to narrow the condom supply gap, a significant unmet need for condoms and information about condoms remained.⁵⁸  As of 2004, India was one of only eight countries whose public health budget represented less then 1 percent of its gross domestic product.⁵⁹ 

Nongovernmental organizations (NGOs) offer a critical source of condoms and HIV/AIDS information in India.  However, NGOs that serve vulnerable populations such as sex workers and men who have sex with men report regular harassment by police.⁶⁰  Some police officers treat the provision of condoms to men who have sex with men as an act abetting sodomy, which is criminalized under section 377 of the Indian penal code.⁶¹  While prostitution is not criminalized in India, police reportedly have used condom possession as justification for harassing sex workers and outreach workers who encourage sex workers to use condoms.⁶²

In addition to sodomy laws, strict obscenity laws limit the types of information that NGOs can provide on condoms.⁶³  A staff member at the Lawyers Collective, a legal assistance group in Mumbai with a specialized AIDS unit, told Human Rights Watch, “It is easy for instructions on correct use of a condom in a pamphlet [designed for men who have sex with men] to violate the law.”⁶⁴  The same staff member observed that, starting in 2002, abstinence education gained a stronger foothold in India due to the combined influence of the United States and the former government led by the Bharatiya Janata Party (BJP).  “This is a complicated political thing,” he said.  “There are lots of trade-offs with the U.S. . . . The last government was very into the abstinence-only thing. . . . I had never heard of abstinence in the five years that I was working here, until the last year and a half—it seems to be the U.S.”⁶⁵

People at risk of HIV in India lack adequate access not only to condoms, but also to basic information about HIV transmission.  A 2001 survey cited by the World Bank found that 70 percent of women and 82.5 percent of men had “basic awareness” of HIV/AIDS; however, the World Bank also reported that “more than 75 percent of Indians mistakenly believe that they could contract HIV from sharing a meal with a person with HIV.”⁶⁶  Moreover, awareness of HIV/AIDS is significantly lower for rural women, who are less likely to have access to information and demonstrate rates of HIV/AIDS awareness of as low as 30 percent.  Until 2004, advertisements providing information about condoms were banned from Indian television.⁶⁷  According to testimony gathered by Human Rights Watch in 2002, government officials and medical staff sometimes provided misinformation about HIV transmission and disease progression.⁶⁸

Children and young people may be severely affected by the deficit of comprehensive information about HIV/AIDS in India.  As of 2003, far less than half of government secondary schools offered HIV/AIDS education.⁶⁹  HIV/AIDS education was available only in grades eight and above, by which time most children, particularly girls, stop attending school.⁷⁰  Even where school-based HIV/AIDS education was provided, information about HIV transmission and condoms was often omitted and “HIV education tend[ed] to address not gender roles and sexuality, but parenting, disease, and abstinence.”⁷¹  The secretary of education in the state of Kerala told Human Rights Watch in 2003, “In schools we don’t say that you can get HIV by sex.  We say, ‘Protect yourselves,’ but we don’t say how to protect.”⁷²  HIV/AIDS education programs are also virtually nonexistent for children who are out of school, on the streets, or in institutions.⁷³

Given these restrictions on HIV/AIDS information, it is no surprise that misinformation about HIV/AIDS pervades Indian society, fueling stigma against people living with the disease.  The staff member at the Lawyer’s Collective told Human Rights Watch, “In some areas of the country there is also a culture that sex with a virgin will cure STDs [sexually transmitted diseases],” and that some men who have sex with men “don’t consider it sex,” and thus don’t perceive themselves as at risk for HIV.⁷⁴

The appointment of a new health minister in India, Anbumani Ramdoss, provided an opportunity for improvement in both access to information and access to condoms.  In July 2004, the Indian press reported that the ministry of health had lifted the prior administration’s ban on condom advertisements on television, paving the way for the National AIDS Control Organization to develop several condom promotion advertisements.⁷⁵  However, further steps must be taken to ensure that condom promotion strategies work, especially for women.  For example, violence or the threat of violence significantly impedes women’s ability to negotiate condom use with their sex partners; however, the Indian government has failed to take the most basic steps to protect Indian women from violence.  Rape within marriage is not recognized under Indian law, and there is currently no domestic violence law, although one has been drafted.⁷⁶

Nigeria

An estimated 5.4 percent of adults aged fifteen to forty-nine are HIV-positive in Nigeria,⁷⁷ the majority of them having been infected through sex.⁷⁸  Condoms remain inaccessible or unaffordable for many Nigerians.⁷⁹   In a 2002 survey, 75 percent of health service facilities visited by Deliver, a program run in Nigeria by the U.S.-based John Snow International, were missing condoms or contraceptive supplies.⁸⁰  One health advocate reported that there had been an absence of condoms in rural communities.⁸¹   Another reported a lack of information about HIV and HIV transmission in rural communities.⁸²

Efforts to improve condom access in Nigeria have sometimes been hindered by restrictions on condom promotion.  For example, Population Services International (PSI), a social marketing group that sells condoms in the private sector at subsidized prices, sold a record number of condoms in the first quarter of 2001.⁸³  However, PSI’s radio advertisements promoting condoms were suspended for four months in 2001 by the Advertising Practitioners Council of Nigeria, a Nigerian government organization, on the unsubstantiated grounds that the messages were “seductive” because they encouraged condom use in premarital sexual relationships.⁸⁴  Nigerian states that operate under Islamic law (Shari’a) have seen similar restrictions.  In October 2004, the Nigerian press reported that the Shari’a Consultative Council in Bauchi State had banned condom advertisements in the state-owned electronic media, claiming that such advertisements promoted immorality.  The press quotes the statement as saying, “[T]he continued advisement of condoms indirectly legalizes fornication and adultery.”⁸⁵

In the meantime, groups supporting abstinence-only messages have increased their reach in Nigeria and the government has not responded by taking a clear and discernible position on condoms’ effectiveness.  The Nigeria Abstinence Coalition, an umbrella body of individuals, organizations, and agencies promoting abstinence-until-marriage education in Nigeria, was launched in 2004 and includes representatives of over twenty-five non-governmental and faith-based organizations.⁸⁶  In 2004, international NGOs collaborated with local faith-based organizations to launch an abstinence campaign for youth in Nigeria.⁸⁷  One Nigerian reproductive health expert told Human Rights Watch that mixed messages on condoms were confusing to the public, a problem exacerbated by the government’s failure to take a clear position in the issue.  “The government doesn’t come out clearly to promote condoms.  NACA [the National Action Committee on AIDS] may be afraid of a backlash.  This failure to take a stand is really where the problem is.”⁸⁸

Condom promotion in Nigerian schools is similarly limited.  While the national approved curriculum for HIV prevention education includes comprehensive education and condom promotion messages, at this writing only three of Nigeria’s fifty state governments have adopted and implemented it in their schools.⁸⁹  The reproductive health expert quoted above told Human Rights Watch that this delay results, in part, from state governments bending to religious pressure.⁹⁰ 

Nigeria has long experienced problems with condom quality.  A condom quality study in 1999 found that USAID-donated condoms “did not compare well with the requirements in the current international standards for condoms.”⁹¹  Similar results had been reported in a 1991 study.⁹²  The connection between low condom quality and distrust of condoms was made as early as 1989 in Nigeria.⁹³  One NGO staff person told Human Rights Watch that distrust continues in the general population.⁹⁴  The Nigerian government has taken some steps to address these concerns, and in 2002, the National Condom Quality Assurance and Testing Laboratory announced that one brand of condoms had been tested and approved for use in the country.⁹⁵  However, continuing mistrust of condoms suggests a need for additional action both to ensure quality itself and to ensure that the public is aware of the improved quality controls.

Peru

Peru had a low estimated adult HIV prevalence of under 1 percent as of the end of 2003, according to UNAIDS.⁹⁶  HIV/AIDS in Peru had begun to spread into the general population, with women and heterosexual men representing increasing percentages of new HIV infections.⁹⁷  Prior to 2001, Peru’s National AIDS Program provided condoms free of charge and promoted condom use for HIV prevention, particularly among men who have sex with men and sex workers.⁹⁸  However, this focus reportedly led to condom use being stigmatized in the rest of the population and thus rarely practiced.⁹⁹

A women’s rights advocate for the Peru office of an international NGO told Human Rights Watch that under a reasonable policy approach, “the next step in 2001-2004 would have been to integrate family planning and STI and HIV prevention.”¹⁰⁰  Instead, between July 2001 and July 2003, access to condoms, especially for poor women, and government funding levels for HIV/AIDS prevention and treatment, decreased.¹⁰¹  Peru’s national STD/AIDS program was eliminated, and HIV/AIDS was placed within a “Risk Reduction Program” that addresses diseases such as malaria, dengue and tuberculosis.¹⁰² “Essentially nothing has been done regarding prevention of HIV and sexually transmitted infections (STIs).  There have been restrictions in the distribution of condoms, and increased barriers to accessing them.  The sensitive outreach efforts for high risk groups were abandoned,” the women’s rights advocate told Human Rights Watch.¹⁰³ 

In October 2002, in response to studies showing that the spermicidal lubricant nonoxynol-9 could damage the wall of the vagina and expose women to HIV, government health officials in Peru released a misleading public alert warning people not to use condoms lubricated with nonoxynol-9.¹⁰⁴  The alert neither explained the precise risk presented by nonoxynol-9 nor recognized that any risk of HIV transmission presented by nonoxynol-9 condoms was still much smaller then the risk of transmission presented by using no condoms at all.¹⁰⁵  The alert also failed to inform the public that condoms not containing nonoxynol-9 remained available and were safe to use.¹⁰⁶  “Although health officials later retracted the alert, many health care providers and the general public interpreted the alert as the government’s position on condoms,” according to the women’s rights advocate interviewed above.¹⁰⁷ 

Youth aged fifteen to twenty-four years are particularly vulnerable to HIV infection, representing half of new HIV infections worldwide in 2003.¹⁰⁸  However, in Peru children cannot attend a public health clinic for reproductive health services without their parent or guardian.  As a result, children are discouraged from seeking the services they need, including counseling on HIV prevention.  UNAIDS describes sex education in Peru as “insufficient and hindered by conservative attitudes.”¹⁰⁹

In February 2004, Pilar Mazzetti took office as health minister in Peru.  A staff member at an international NGO based in Peru told Human Rights Watch that under Mazzetti’s administration, the Ministry of Health has been working closely with women’s health organizations to take steps to retake the ground lost over the past few years.¹¹⁰  At this crucial turning point in the country’s epidemic, it is important that Peru take steps to restore full condom access, especially for youth and low-income Peruvians, and to increase the use of comprehensive public education strategies in the general population.

United States Domestic Policy

Condoms are generally available in the United States through a variety of sources including pharmacies, family planning clinics, and HIV prevention organizations, and condom promotion messages are visible in some public places.  However, complete and accurate information about condoms is becoming increasingly difficult to find, especially for youth.

In 2002, the Centers for Disease Control and Prevention (CDC) and USAID removed information on condom use and effectiveness from their web-based fact sheets on male condoms.¹¹¹   References to studies concluding that providing information about condoms to adolescents did not affect the timing of sexual debut were also deleted from the fact sheet.  The CDC also discontinued its “Programs that Work” initiative, which identified sex education programs that were found to be effective through scientific studies.  All five previously identified programs provided comprehensive HIV prevention information, including information about condoms.¹¹²  Guidelines proposed by the CDC in 2004 require that AIDS organizations receiving federal funds include information about the “lack of effectiveness of condoms” in any HIV prevention educational materials that mention condoms (emphasis added).¹¹³  The proposal also requires recipients of CDC funds to “include a certification that accountable state, territorial or local health officials have independently reviewed educational materials” for compliance with federal legislation.  This raises the concern that materials already approved on scientific grounds by relevant review panels will face a costly, time-consuming, and potentially politicized second review process by health officials, who are often political appointees.

The CDC further requires that programs receiving CDC funding not “provide education or information designed to promote or encourage, directly, homosexual or heterosexual sexual activity” and not violate obscenity standards established by the U.S. Supreme Court.¹¹⁴  Consistent with these principles, a review panel must determine that the material would not be construed as obscene by the “average person applying contemporary community standards.”  This means that what might be considered appropriate in one community may be obscene in another.¹¹⁵  Since 2001, these guidelines have been used as grounds for politically-motivated audits of federally funded HIV prevention programs.  A 2001 audit of San Francisco’s STOP AIDS Project Inc. conducted by the Department of Health and Human Services (DHHS) concluded that two of STOP AIDS’ HIV prevention workshops could be construed as obscene and encouraging sexual activity.  In February 2003, CDC officials deemed the controversial materials appropriate.  Four months later the CDC reversed its position, finding that the materials violated the ban on encouraging sexual activity and asking STOP AIDS to discontinue their use. 

The STOP AIDS audit prompted further investigation of federally-funded HIV/AIDS programs.¹¹⁶  Audits also have apparently been targeted at federal grantees critical of Bush administration positions on sex education and HIV/AIDS.  Audits of Advocates for Youth (AFY) and the Sexuality Information and Education Council of the United States (SIECUS), non-profit organizations which provide information on comprehensive sex education, were requested soon after these organizations started a website opposing federal funding of abstinence education.¹¹⁷  Both organizations have been audited at least three times since late 2002, with no findings of misconduct.¹¹⁸  In 2002, members of the U.S. Congress requested that federal health agencies review the funding of government-funded organizations that had protested a speech by Tommy Thompson, secretary of the U.S. Department of Health and Human Services (HHS), at the 2002 International AIDS Conference in Barcelona.¹¹⁹

The associate director for prevention policy at New York-based Gay Men’s Health Crisis (GMHC) said that the pursuit of audits by conservative members of Congress of organizations deemed offensive to them has “created a chilling effect” on HIV prevention activities.¹²⁰  GMHC and other organizations that work with high-risk populations like men who have sex with men are concerned that they will be subject to invasive and time-consuming audits by the federal agencies that fund them.  While this effect is impossible to quantify, the audits have discouraged organizations from creating explicit materials considered effective at reaching people most at risk and most affected by HIV/AIDS, including men who have sex with men.

While limiting available information on comprehensive sex education, the U.S. government has steadily increased its spending on abstinence-until-marriage programs for youth.  In FY 2004, the federal government appropriated U.S.$138.25 million for abstinence-only programs.¹²¹  President Bush requested an increase to U.S.$268 million dollars for abstinence-until-marriage programs for FY 2005.¹²² 

The bulk of federal funding for abstinence-only programs is provided directly to public and private entities through annual U.S. federal legislative appropriations for the Adolescent Family Life Act (AFLA) and the Special Projects of Regional and National Significance-Community Based Abstinence Education Program (SPRANS-CBAE).  In addition, U.S.$50 million is provided to states through the Personal Responsibility and Work Opportunity Reconciliation Act (commonly known as the Welfare Reform Act), which requires states to contribute U.S.$3 for every U.S.$4 received in federal funds.¹²³  This further increases the total support for abstinence-only programs.  All federally funded abstinence-only programs must provide abstinence education as defined by Section 510(b) of the Welfare Reform Act as follows:

“Abstinence education” means an educational or motivational program which:

(A) has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity;

(B) teaches abstinence from sexual activity outside marriage as the expected standard for all school age children;

(C) teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems;

(D) teaches that a mutually faithful monogamous relationship in  context of marriage is the expected standard of human sexual activity;

(E) teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects;

(F) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society;

(G) teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances; and

(H) teaches the importance of attaining self-sufficiency before engaging in sexual activity.¹²⁴

Section 510(b) funds also can be used for “mentoring, counseling and adult supervision” activities that promote abstinence.¹²⁵  Section 510(b) and AFLA programs are not required to emphasize all eight elements of the above definition equally, but cannot provide information that is inconsistent with any of them.¹²⁶  Since these programs must have as their “exclusive purpose” promoting abstinence outside of marriage and must teach that abstinence outside of marriage and a mutually faithful monogamous relationship in the context of marriage is the expected standard of sexual activity, they cannot also “promote or endorse" condoms or otherwise discuss them, except to provide “factual information, such as failure rates.”¹²⁷  SPRANS-CBAE programs are more restrictive, requiring that funding recipients must emphasize each of the eight points of the Section 510(b) definition and must target "adolescents" twelve to eighteen years old.¹²⁸  In addition, except in limited circumstances, SPRANS-CBAE grantees cannot use their own funds to provide any other education regarding sexual conduct (such as information about condoms that they cannot provide in the abstinence-only program) to any children to whom they provide abstinence-only education.¹²⁹

In addition to federally-funded programs, state governments in the United States also implement policies that, misleadingly, give primary emphasis to abstinence-based strategies without providing accompanying information about condoms.  Thirty-four states require that abstinence be mentioned or stressed in STD/HIV prevention classes in schools, while only seventeen states require that information about contraception be covered.¹³⁰  In Michigan, school districts that refuse to stress abstinence-until-marriage as 100 percent effective can be penalized 1 percent of their state education funding.¹³¹  In Indiana, sex education is state-mandated and must “include that abstinence from sexual activity is the only certain way to avoid…sexually transmitted diseases…and…that the best way to avoid sexually transmitted diseases is to establish a mutually faithful monogamous relationship in the context of marriage.”¹³²  Texas has a similar provision.¹³³

In 2002, Human Rights Watch profiled federally-funded abstinence programs in Texas.¹³⁴  Texas requires that the state board of education approve textbooks before they can be purchased by school districts.  In 2004, three of the four health textbooks submitted for approval did not mention contraception, an unsurprising consequence of the state’s strong support for abstinence-only education.¹³⁵

Brazil

Brazil is frequently cited as a success story for effectively controlling its HIV/AIDS epidemic.¹³⁶  The elements of this success include bold policy and programming to ensure local production of generic ARVs for all people living with AIDS in the country, widespread availability of prevention information and voluntary HIV testing, and government-supported programs for sex workers and drug users.  At the end of 2003, UNAIDS estimated that 660,000 people were living with HIV/AIDS in Brazil, significantly fewer than what some had projected years earlier.¹³⁷ 

With respect to access to condoms, the government of Brazil distributed 400 million condoms in 2003 and reported that it wanted to triple that number in 2004-2006.¹³⁸  Government-supplied condoms are in addition to condoms provided to low-income and high-risk groups by NGOs.¹³⁹  The Brazilian government also supports the construction of a domestic condom factory to help the country further meet its need for condoms.¹⁴⁰  Brazil has conducted mass media campaigns educating the public about HIV transmission and safe sex, including advertisements to encourage the use of condoms by gay men.¹⁴¹

Brazil’s aggressive efforts to provide condoms and complete HIV/AIDS information have not been free of controversy.  In December 2003, the director of Brazil’s AIDS program wrote an open letter to the Roman Catholic church condemning inaccurate statements made by church leaders about condom effectiveness and criticizing the church’s attempt to stop the distribution of a government produced condom promotion video.¹⁴²  In 2004, the government ran a public service message entitled “nothing gets through a condom” soon after the Brazilian Catholic Bishop’s Conference issued a statement saying that condoms were not 100 percent safe.¹⁴³ 

In 2003, USAID canceled a U.S.$8 million grant to Brazil for condom promotion and marketing and HIV prevention materials.¹⁴⁴  USAID provided no explanation for this unusual cancellation, leading to speculation that the cancellation had reflected a change in USAID priorities away from condom promotion to high-risk groups.¹⁴⁵  A working paper from the International Working Group on Sexuality and Social Policy further reported that the U.S. “insisted on an abstinence-only” standard in a joint venture by the U.S. and Brazil for HIV/AIDS treatment, care, and prevention in lusophone Africa.  As a result, Brazil chose to omit any mention of sex education from the agreement.¹⁴⁶