HIV criminalisation rising globally

13 May 2016
Stop AIDS sign in Tanzania

HIV criminalisation is a growing global issue that is threatening effective HIV prevention, treatment and support, according to a new report from the HIV Justice Network and the Global Network of People Living with HIV (GNP+).

Some 72 countries now have laws that allow for the criminalisation of people living with HIV (up from a UNAIDS estimate of 61 in 2014), according to Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. 61 of these countries have used these laws to prosecute people living with HIV.

HIV criminalisation is the application of laws that allow for the prosecution of people living with HIV – including the unintentional transmission of HIV to others; the perceived or potential transmission of HIV to others when no transmission actually occurred; and non-disclosure of HIV status.  

The increased number of laws that ‘specifically allow for HIV criminalisation’ is a result of both new laws in specific regions, but also better reporting on HIV criminalisation globally, according to the report’s authors.

Edwin Cameron of the Constitutional Court of South Africa says in a foreword to the report, “the enactment and enforcement of HIV-specific criminal laws – or even the threat of their enforcement – fuels the fires of stigma. It reinforces the idea that HIV is shameful, that it is a disgraceful contamination.”

HIV is now considered a manageable chronic illness, as people living with HIV with access to early testing and treatment can live long and healthy lives. Undetectable viral loads also mean that people cannot pass HIV to others.

Despite these positive medical advancements, stigma is a huge barrier to curbing the global HIV epidemic.

Cameron continues, “by reinforcing stigma, HIV criminalisation makes it more difficult for those at risk of HIV to access testing and prevention. It also makes it more difficult for those living with the virus to talk openly about it, and to be tested, treated and supported.”

Between April 2013 and October 2015 the largest numbers of prosecutions resulting from HIV criminalisation were in Russia (at least 115), the USA (at least 104), Belarus (at least 20) and Canada (at least 17). Globally, there were 313 arrests, prosecutions and/or convictions in 28 countries over the same time period.

The report also highlights real concerns about HIV criminalisation in sub-Saharan Africa – there was no criminalisation in the region at the turn of the century, now at least 30 countries have enacted laws. In Nigeria, a new Sexual Offences Bill was passed in June 2015 that put 13% of the world’s population of people living with HIV at risk of being criminalised.

Julian Hows of GNP+ states: “These laws and prosecutions do not only impact the people investigated, prosecuted, or incarcerated. These laws undermine core sexual rights and public health principles. Their existence and application exacerbate racial and gender inequalities and jeopardize critical HIV prevention and service delivery efforts.”

However there has been some positive news since the last report, with successful advocacy against HIV criminalisation meaning that new laws haven’t been enacted in certain countries. In March 2015, Kenya scrapped an HIV criminalisation provision in a new bill because the language was too vague around ‘sexual contact’, and other laws made HIV criminalisation unconstitutional.

In a press release, GNP+ states that: “HIV criminalisation does not exist in vacuum. It is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers, current and former drug users (particularly people living with hepatitis C), transgender people and/or men who have sex with men and other sexual minorities.”

A context-specific advocacy strategy, which includes the involvement of people in leadership positions and people living with HIV, can result in positive law reform and policy developments to stop HIV criminalisation.