Legal and Social Barriers to Access to Sexual and Reproductive Health Services GLEANINGS FROM THE JAMAICAN EXPERIENCE C A R I B B E A N F O R U M O N P O P U L AT I O N , M I G R AT I O N A N D D E V E LO P M E N T, J U LY 9 - 1 0 , 2 0 1 3 TA N I A C H A M B E R S , L E G A L A N D P O L I C Y C O N S U LTA N T Law, Policy & Social Change: Some Propositions Laws often reflect the norms, values, preferences and prejudices of the vocal/voting majority at a particular point in history Law-makers are constrained by popular sentiment, as well as by the practical and logistical challenges of changing law Laws sometimes remain on the books long after the social realities that gave rise to them change If legal change outpaces social change, implementation issues ensue. Policies can play a role in assisting state and non-state actors to tailor legal mechanisms to suit current problems, fulfill agreed goals and engage in an incremental change process. At a given point in the cycle of legislative evolution, laws can be out of sync with (a) social change and (b) policy goals Where laws and policies conflict, law takes precedence. A Sampling of Socio-Legal Access Issues 1. Non-Discrimination and Health as a Human Right 2. Policy Contradictions and Moral Dilemmas 3. Legislative Barriers to Access 4. Social Barriers to Access Non-Discrimination & Health as a Human Right The Right to Health as a Legislatively Enforced and Constitutionally Enshrined Issue Articulation of Health Rights above the level of policy places accountability on governments. Scope and construct of the right varies: “highest attainable standard of health”; enjoyment of life free from disease; enjoyment of a healthy environment etc. Alternatively, countries may statutorily enshrine enforceable health-related responsibilities: Child Care and Protection Act speaks to mandatory parental responsibility to secure the health of children, breach of which can attract prosecution for neglect. Implementation context depends on social safety net to balance impact on poorer families. Should involve the expansion of the law’s definition of ‘health’ to include sexual and reproductive health information and services (ICPD as a model) Non-Discrimination & Health as a Human Right Non-Discrimination Issues: Proximity, Practical Accessibility and Underserved Populations Stigma, discrimination and service protocols Accessibility for the disabled Access to elderly, homeless, mentally ill, populations that lack freedom of movement (e.g. prisons, children’s homes) etc. Adolescent-friendly services Taking services to underserved populations (e.g. Youth-friendly mobile clinics; contraceptive window in Jamaica’s Combined Disabilities Association) Non-Discrimination Issues: Gender-Based Perceptions of Sexual and Reproductive Practices E.g. The application of the ‘uncontrollable’ label by parents to girls considered sexually promiscuous as the most common reason for female adolescent non-offenders currently housed in Jamaican remand and correctional centres. Policy Considerations and Moral Dilemmas The Fear of Facilitating Moral Degradation If children know how to use contraceptives are we encouraging them to have sex? If we identify sex workers as a target group, are we condoning prostitution? Policy systems need to identify appropriate insertion points for moral messages and social values Case Study: Jamaica Health Sector Policy on the Provision of Contraceptives to Minors Fulfills rights of access (child must be registered and referred) Recognises best interest of the child and the child’s right to privacy Acknowledges current values basis of ASRH policy (promoting abstinence and delayed sexual initiation) Acknowledges family context and parenting policy (inviting child to include parent in the discussion) Fulfills child’s right to ASRH information and services (child must be fully informed of their contraception options, and provided with the contraception of their choosing) Policy Considerations and Moral Dilemmas Competing Policy Claims CASE STUDY: Jamaica is currently experiencing tensions between the health sector’s intention of preventing risky sexual encounters between minors and the child protection sector’s intention of prohibiting any sexual encounters between minors Health sector and NGO workers (or parents) providing contraceptives to minors can find themselves under threat of arrest for aiding and abetting a criminal offence NB Anecdotal (undocumented) case of mother arrested for giving her teenaged daughter a condom What is the appropriate role of the state/criminal justice system in regulating sexual relationships between under-aged adolescents? Should health sector (and other) professionals/service points be immune from prosecution from providing contraceptives to minors? Policy Considerations and Moral Dilemmas Ongoing Policy Discussions Should the right to consent to sex include the right to procreate? Where the age of consent is below the age of majority, what is the articulated policy position on children as parents? Does parenthood automatically emancipate a child and bring an end to the responsibilities of their parents? Does entry into a common-law union have the same effect? SRH and social policies must consider the duality faced by children who remain dependent on parental support, but have acquired adult responsibilities, and provide integrated responses. NB Jamaica’s recent policy on Reintegration of Teen Mothers in the Formal School System Legislative Barriers to Access Criminalisation of consensual sex between minors ◦ No distinction between these activities and sexual predation/exploitation of adults, organized criminals etc. ◦ Implications for mandatory reporting requirements imposed on various professions – clouds out incidence of children whose need for care and protection is more grave Limitations on Child’s Right to Consent to SRH services ◦ E.g. Jamaica’s Law Reform Act allows a child at the age of 16 to consent to medical, surgical and auxiliary procedures; does not necessarily cover SRH services delivered outside of primary health facilities ◦ No articulation of the right to refuse consent ◦ Anecdotal claims of forced sterilization among disabled populations raises their special concerns Legislative Barriers to Access Sexual Violence - Biases in Law ◦ Limited common law definition of rape focuses on male-to-female vaginal penetration ◦ Jamaica’s Sexual Offences Act goes beyond vaginal penetration but… ◦ Provides limited protection from male-to-male forced sex ◦ Provides no protection from female-to-male forced sex ◦ Buggery laws give no real recourse to sexually abused boys (or men) as they apply the same label for coerced and consensual anal sex Sexual Violence - Advances in Law ◦ Child Pornography Act; Trafficking in Persons Act; Cyber Crimes Act; Evidence (Special Measures) Act ◦ Laws restricting commercial profit from child sexual exploitation (e.g. child labour, employment of child in a nightclub, using a child to do any immoral act) Social Barriers to Access Presumptions and Prejudices Revealed by KAPBs ◦ Reliance on occasional condom/contraceptive use ◦ Growing incidence of transactional sex, casual sex, multiple and mixed-aged partnerships among adolescents Social Myths and Misconceptions ◦ Mules, Virgin Cures and ‘A Little Rape Down the Lane’ Impact of Violence on Sexual Experiences ◦ Prevalence of coercive or forced sex experiences ◦ Sexual and domestic violence Concluding Statement Within Caribbean jurisprudence there are movements to change SRH laws to better serve the needs of local populations. Within the structures of Caribbean democratic and law-making processes, laws are unlikely to advance too far beyond the values, norms and prejudices of our people. Legal changes therefore cannot be divorced from the concurrent requirement for social and behaviour change advocacy. Among the first target points of advocacy are those tasked with enforcing and applying laws, who can significantly impact their implementation and contextual interpretation.