Stop HIV Criminal Laws, Leading AIDS Groups Say

DAKAR—Leading AIDS groups today denounced a trend in applying criminal law to HIV transmission, issuing ten reasons why criminalizing HIV transmission is bad for public health and human rights.

The statement, “10 Reasons to Oppose the Criminalization of HIV Transmission or Exposure” responds to the widening trend of governments passing punitive laws against HIV transmission in an effort to bring the epidemic under control. The statement was released at the International Conference on AIDS and Sexually Transmitted Infections in Africa (ICASA) held this week in Senegal.

“Countries should remove any law that makes it more difficult for people to access HIV prevention and treatment, and that is precisely the impact of criminalizing HIV transmission,” said Jeff O’Malley, director of the HIV/AIDS Group at the United Nations Development Program . “Instead, countries should adopt laws that protect people living with HIV from discrimination, coercion, and monitoring in their private lives.”

The document stresses that people who maliciously infect others with specific intent to harm can and should be prosecuted under existing law. But passing new criminal laws specific to HIV transmission is likely to have many negative consequences for the response to HIV and to lead to unfair prosecutions.

In some recent cases, people living with HIV have been prosecuted for infecting or exposing others despite revealing their HIV status or using a condom. Some laws are drafted so broadly that women who transmit HIV during pregnancy, childbirth, or breastfeeding can be prosecuted. Even failing to get an HIV test can be grounds for criminal prosecution in some countries with HIV-specific criminal laws.

"Criminalizing HIV transmission will backfire and harm the very people it is intended to protect,” said Jonathan Cohen of the Open Society Institute’s Law and Health Initiative, one of the document's co-authors. “The most vulnerable will surely be prosecuted, especially women who are routinely blamed for bringing HIV into sexual relationships.”

The “10 Reasons” document emphasizes the potentially negative effect of criminalizing HIV transmission on women. Because women typically learn their HIV status before their male sex partners, they are more likely to be blamed for transmitting HIV and prosecuted under HIV-specific criminal laws. To protect themselves from prosecution, women would either have to disclose their HIV status to their sexual partners or insist on condom use—both of which can lead to accusations of infidelity, violence, eviction, and other human rights abuses.

“Instead of oppressing women with criminal laws, governments should be passing laws that protect women from violence and theft of their property,” said Michaela Clayton of the Namibia-based AIDS and Rights Alliance for Southern Africa. “Women deserve real justice against gender-based violence and coerced sex, not criminal laws that will further victimize them.”

In countries that prosecute HIV transmission, cases tend to be overbroad and to capture behavior that does not deserve to be punished. Some countries require that people with HIV inform “all sexual contacts” of their status, meaning they could be jailed for not revealing their HIV status before kissing someone or engaging in other behavior that carries no risk of HIV transmission. In some places, serious criminal charges have been laid against HIV-positive people for activities such as biting, spitting, or scratching that carry zero to negligible risk of HIV transmission.

These prosecutions spread misinformation about how HIV is transmitted and promote fear and stigma against people living with HIV, experts say. The International AIDS Society, the world’s largest organization of AIDS professionals, said it opposed the criminalization of HIV transmission for this reason.

“Responses to HIV should be based on evidence and human rights, not fear and stigma against people living with HIV,” said Craig McClure, Executive Director of the International AIDS Society. “Criminalization will impede our efforts to get HIV testing and treatment to those who need it most.”

Public health experts warn that criminal prosecution will act as a deterrent to HIV prevention. The fear of prosecution for intentionally transmitting HIV could discourage people from getting tested and finding out their HIV status, as lack of knowledge of one’s status could be the best defense in a criminal lawsuit. In places that criminalize HIV transmission, HIV service providers may be coerced into disclosing confidential information about their patients’ HIV status to law enforcement officials.

One African country, Mauritius, recently rejected HIV-specific criminal laws for these reasons. The 10 Reasons document quotes Rama Valayden, Attorney General and Minister of Justice and Human Rights of Mauritius, as saying in 2007 that “criminalization would have created more problems than solving them.” Instead of prosecuting people with HIV, Valayden said, “Mauritius decided to put its resources where they are most likely to have a positive impact on reducing the spread of HIV: increased funding for HIV testing and counseling and for evidence-informed prevention measures.”

Yet many African countries have either tabled or passed legislation making HIV transmission or exposure a punishable crime. Today’s statement calls on these governments to repeal HIV-specific criminal laws and to reject any legislative proposals to create new HIV-specific offenses.

Prominent supporters of today’s statement included the Treatment Action Campaign (South Africa), the World AIDS Campaign, the Global Network of People Living with HIV/AIDS (GNP+), the International Community of Women Living with HIV/AIDS, the Women Won’t Wait End HIV and Violence Against Women Now Campaign, the International Women’s Health Coalition, and the Canadian HIV/AIDS Legal Network. Major international human rights organizations Human Rights Watch and Amnesty International also endorsed the statement. In August, the Joint United Nations Programme on HIV/AIDS (UNAIDS) issued a similar statement calling on governments to restrict criminalization of HIV transmission to those rare cases in which people maliciously intend to transmit HIV and actually succeed in doing so.

“There are much more productive ways governments can address HIV than passing criminal laws,” said Dr. Meskerem Grunitzy-Bekele, director of the UNAIDS Regional Support Team for West and Central Africa . “Instead of criminalizing people living with HIV, governments should focus on empowering people to seek HIV testing, disclose their status, and practice safer sex without fear of stigma and discrimination.”