The Center for HIV Law and Policys (CHLP) legal and policy outline for advocating for sexual health and HIV prevention programming for youth in state custody. Youth in the state welfare and juvenile justice systems, especially lesbian, gay, bisexual, transgendered and questioning youth, are at alarmingly high risk of becoming HIV-infected. There is a critical need to address discriminatory treatment and the lack of policies, staff training and services that endanger and stigmatize these youth. Targeting advocacy in this direction has a potentially significant impact for the health of at-risk youth and the communities to which they return. The outline highlights various strategies for addressing the states failures; for example, policy and regulations reforms and using existing state laws governing adolescents autonomy and sexual orientation discrimination, as well as state and federal privacy, equal protection, substantive de process and first amendment guarantees to gain legal inroads to securing statesponsored sexual health care services for detained youth.
As part of a Models for Change program funded by the John D. and Catherine T. MacArthur Foundation, the Center for Childrens Law and Policy issued a report on a poll it commissioned to determine public attitudes about the value of juvenile justice reforms, and public preferences for investment of funds dealing with juvenile offenders. CCLP reported, in part, that a significant majority of those polled believe that funds would be better spent on counseling, education and job training for youth in trouble; that treatment and services are more effective ways to deal with youth than incarceration; and that the juvenile justice system treats low-income youth, African American youth, and Hispanic youth unfairly, and far worse than middle-class youth who get in trouble for similar offenses.
The Convention on the Rights of the Child (“CRC”) is an international treaty that discusses many of the rights children, some of which are in addition to those also enjoyed by adults. Particularly relevant to HIV/AIDS issues are: the right to life and corresponding obligation of the state to ensure to the maximum extent possible the survival and development of the child (Article 6); the right to seek, receive, and impart information (Articles 13, 17); the right to education (Article 28); the right to the highest attainable standard of health, including preventative health care, guidance for parents, and family planning education and services (Article 24); rights of disabled children to special care and to conditions that ensure dignity and facilitate active participation in the community (Article 23);the right to a standard of living adequate for physical, mental, spiritual, moral, and social development (Article 27); and the right to be actors in their own development and to express their opinions in all matters affecting the child (Article 12). States are also obligated to respect and ensure the rights in the CRC without discrimination of any kind, irrespective of the child’s or his or her parent’s disability (Article 2). The best interests of the child must be a primary consideration in all actions concerning children (Article 3). Moreover, states are obligated to ensure that the child as such protection and care as is necessary for his or her well-being, and to ensure that institutions, services, and facilities responsible for the care or protection of the child conform with the standards established by competent authorities, particularly in the area of safety and health (Article 3).
As a treaty, the CRC is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. State parties must submit periodic reports to the Committee on the Rights of the Child detailing their progress on upholding the treaty’s provisions.
General Comment No. 3 of the Committee on the Rights of the Child, available separately in the Resource Bank, analyzes the obligations of the CRC in the context of HIV/AIDS.
The United States has signed, but not ratified, the CRC.
General Comment No. 3 was issued by the United Nations Committee on the Rights of the Child to promote the realization of the human rights of children in the context of HIV/AIDS as guaranteed under the Convention on the Rights of the Child (“CRC”). General Comment No. 3 identifies and elaborates on several rights of children and corresponding obligations of state parties with regard to HIV/AIDS issues such as discrimination, HIV-prevention information, health services, counseling and testing, mother-to-child transmission, and children affected and orphaned by HIV/AIDS. For example, General Comment No. 3 explains that under Articles 24, 13, and 17 of the CRC, children should have the right to access adequate information related to HIV/AIDS prevention and care through both formal and informal channels. It also states that “accessibility of voluntary, confidential HIV-counseling and testing services, with due attention to the evolving capacities of the child, is fundamental to the rights and health of children.”
General Comment No. 3 is especially useful for those seeking to understand how HIV/AIDS impacts children and families and what states’ obligations are to respond; it is best read alongside the CRC, available separately in the Resource Bank.
