Prosecuting People for HIV Transmission

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Should it be a criminal offence for an HIV-positive person not to tell their sexual partner about their status? This question is a moral, legal and practical minefield, affecting many people living with HIV around the world.

With 34 million people globally living with HIV, it is clear to see why some governments believe such laws are an effective way to curb the epidemic. The argument is that if a person could be prosecuted for transmitting HIV, then they are less likely to practice unsafe sexual behaviour.

A study of people living with HIV in the USA state of New Jersey, published last month, has added to the body of research demonstrating that this is not the case. The study found no correlation between awareness of the New Jersey laws around criminal transmission and safer sexual behaviour.¹

This conclusion echoes the appeal of many experts in the field of HIV prevention. Michel Sidibé, the Executive Director of UNAIDS said, “Laws and prosecutions do not stop the spread of HIV. There is no correlation between the existence of these laws and the drop in HIV infections.”

Despite this advice, most states in the USA require people living with HIV to disclose their status or to abstain from sex, and people who violate this are often registered as sex offenders. Some people have even been prosecuted for acts such as spitting, which cannot transmit the virus.

Whilst the USA has the highest concentration of criminal transmission cases, prosecutions for HIV transmission, or potential transmission, are also increasing in other parts of the world. Across West Africa, for example, several countries have implemented new laws derived from the USAID Action for West Africa Region on HIV/AIDS (AWARE) project, run by a USA-based non-profit organisation. HIV-based prosecutions have also spread to the Middle East, Southern Africa, Australia and Asia.

Many people living with HIV feel that these laws are a step towards the culture of blame that surrounded the early years of the epidemic. Indeed, as more cases are brought to court, the consistent media representation of those who are HIV-positive as criminals has the potential to negate the idea of shared responsibility for sexual health between partners. This could put HIV-negative people, who may not feel the need to take responsibility for protecting themselves, even more at risk.

However, a country’s law and justice system certainly has huge potential to help curb the epidemic.  If people at high risk of infection, such as men who have sex with men, were given legal protection from the discrimination and harassment that frequently impedes their access to medical services, transmission among this group could be reduced. However, the power to enforce the protection of such groups through legislation needs to be implemented by more governments, 112 countries have laws that protect at least some populations based on their vulnerability to HIV.²

Whether criminalising transmission can help to prevent new infections is something that may continue to be disputed by people living with HIV, government and legal bodies, HIV and AIDS organisations and the media. Nevertheless, this debate consistently draws attention to the need for society to treat people living with HIV equally and for everyone to be responsible for their sexual health. This includes encouraging testing and the practise of safer sex to friends, family and society at large. Read more about the issues around this topic on our ‘Criminal Transmission of HIV’ page.