Criminalization

In recent years, there has been an apparent increase in the number of people prosecuted for transmitting HIV, particularly in Europe and North America, with cases now numbering in the hundreds in the English-speaking world alone. There is also an increase in laws that criminalize HIV transmission and exposure to the virus, as reported in sub-Saharan Africa, Asia, and Latin America and the Caribbean.

As early as 1996, UNAIDS and the Office of the UN High Commissioner for Human Rights expressed concern over the inappropriate and overly broad application of criminal law to HIV transmission and provided guidance on it in the International Guidelines on HIV/AIDS and Human Rights. In 2002, UNAIDS issued a more detailed policy options paper on the subject. However, in light of growing concern over the spread of such laws, UNAIDS and UNDP felt it necessary to recently publish a policy brief entitled “Criminalization of HIV transmission”.

Intentional transmission of HIV

The policy brief makes specific recommendations for governments, civil society and international partners, urging that criminalization be limited to cases of intentional transmission of HIV. While UNAIDS and UNDP acknowledge that use of the criminal law may be justified in these limited circumstances – i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it – they are concerned that going beyond such cases risks applying criminal sanctions to people who are not actually blameworthy, further stigmatizes people living with HIV, and creates disincentives for mutual responsibility for sexual health and to finding out one’s HIV.

The policy brief highlights concerns about possible negative impacts on effective prevention of HIV transmission, problematic disclosure and partner notification provisions, miscarriage of justice, as well as the possible negative impact on women and girls.

International Consultation on the Criminalization of HIV Transmission

In November 2007, the UNAIDS Secretariat and UNDP hosted an “International Consultation on the Criminalization of HIV Transmission” in order to consider recent developments in the area. The meeting brought together diverse points of view but also a shared concern over the apparent trend of criminalizing HIV transmission. An in-depth report from the three-day meeting has been released, giving an overview of the discussions, summary of the main issues and conclusions by the participants who included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

The report also includes the summary provided by Justice Edwin Cameron, judge of the Supreme Court of Appeal, South Africa.

“What meeting participants underlined was the fact that laws criminalizing HIV exposure and transmission are a dangerous and ineffective ‘sideshow’ in the response to AIDS,” said Susan Timberlake, Senior Human Rights and Law Adviser, UNAIDS Secretariat.

“Criminal law will never do the work of comprehensive and evidence-informed HIV prevention programmes. In fact, widespread criminalization may set back prevention efforts by deterring people from learning their HIV status, disclosing it to partners, and accessing treatment.”

No evidence that the use of criminal law reduces transmission of HIV

The main reasons advanced for applying criminal law are either punishment for someone who has caused harm or to deter risky behaviours that lead to HIV transmission.

However, there is no evidence that the use of criminal law is an effective measure for reducing transmission of HIV, and experts are concerned that criminalization is likely to have a negative impact on the overall response to HIV, including HIV prevention.

Potential negative impacts of use of criminal law

For fear of prosecution, people may be more reluctant to get tested and find out about their HIV status, as a perceived “legal defense”. Such laws and the reporting of individual cases in the media risk undermining the public health message that it is best to take responsibility for your own protection, rather than rely on a legal obligation of HIV positive people to disclose their status.

Criminalization may also create distrust in relationships with health service providers as courts might subpoena medical records in court cases. Finally, though many of these laws appear to have been passed as a “measure to protect women”, many experts fear that these laws will actually be disproportionately applied to women living with HIV. Women are often the first to find out their status and cannot tell their partners for fear of violence or abandonment. They also are less likely to have access to legal counsel than men.

For these and other reasons, many experts are concerned that the potential adverse consequences for both public health and human rights far outweigh any perceived benefits that could arise from an increased and overly broad application of criminal law to HIV transmission.

Justice Edwin Cameron, Supreme Court of
Appeal, South Africa highlighted the
importance of public health strategies as an
alternative to the criminalization of HIV
transmission.

Several countries have recently introduced laws to criminalise HIV transmission, or exposing another person to the virus. A number of jurisdictions have used general laws against serious bodily harm in cases where someone is accused of knowingly transmitting HIV or willingly exposing others to HIV transmission.

Subject of controversy, these measures are sparking debate and concern among policymakers, legal and public health professionals, international organizations and civil society, on whether criminal law is applicable in such cases and if such application is accomplishing or damaging public health goals such as universal access to HIV prevention, treatment, care and support.

Addressing these issues, UNAIDS brought together a range of stakeholders in Geneva for a three-day international consultation (31 October – 2 November) to discuss the apparent trend of criminalization of HIV transmission in the context of national responses to AIDS.

The purpose of the consultation, co-hosted by the UNAIDS Secretariat and UNDP, was to foster dialogue and provide an opportunity to reach an understanding of what constitutes appropriate application of criminal law to HIV transmission, if at all, given public health and human rights imperatives. Participants in the meeting included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

Consultation participants expressed concern about the apparent rise in the number of cases in which people living with HIV have been criminally charged for transmitting HIV, or engaging in acts that risk transmitting HIV. In some cases, criminal charges have been laid for conduct that is “perceived” as risking transmission, but where no real risk exists, and sometimes with very harsh penalties imposed. Participants also expressed concern that there are jurisdictions moving to enact or amend legislation specifically to criminalize transmission and exposure. While noting that many legislators may be acting out of good intentions, consultation participants stated clearly that such laws are not an effective way of dealing with the transmission of HIV.

“Like in the early years of the epidemic when I declared that we have now ‘HIL – Highly Inefficient Laws’, when there were the proposals for testing everyone in society, we now have a new wave of HIL. And it’s a wave that’s coming particularly in Africa, but also in other parts of the world,” stated Justice Michael Kirby, judge in the High Court of Australia, in the concluding session of the consultation.

While little is known about the impacts of criminalizing HIV transmission, many are concerned that it may have a negative impact on the uptake of HIV testing and access to HIV prevention, treatment and care services. Sensational media reports can exacerbate stigma and discrimination, and jeopardize HIV prevention strategies currently in place. “Applying criminal law to HIV transmission has a heightened role in stigmatizing HIV, it is ineffective and public health strategies are better used to advance HIV prevention,” said Justice Edwin Cameron, Supreme Court of Appeal, South Africa.

Furthermore, there is also concern that criminal proceedings may compromise basic civil rights such as the right to privacy, especially among the most vulnerable populations. Some legislators and women’s rights groups think such laws will protect women from HIV infection, but as Susan Timberlake, UNAIDS Human Rights and Law Advisor noted, “There is great concern that in fact these laws would hurt women most, as it is women who first find out their status and thus will be first subject to prosecution.  Laws to ensure women’s equality inside and outside marriage would protect them more than laws criminalizing HIV transmission.”

Recommendations from the meeting will inform the finalization of UNAIDS’ policy position and other guidance documents on the criminalization of HIV transmission. “A clear message from the meeting was that criminal law is a very blunt tool to deal with HIV,” said Seema Paul, UNAIDS Chief of Policy Coordination. “The real goal of policy makers is preventing new infections but, in fact, criminalizing HIV transmission – excepting in a very small sub-set of cases dealing with retributive justice – will create disincentives for learning about one’s HIV status and accessing health and other services,” she added.

GENEVA, 27 April 2009 – The Joint United Nations Programme on HIV/AIDS (UNAIDS) is concerned and disappointed with regard to the move of Burundi’s National Assembly to criminalize same sex relations.
  
UNAIDS was optimistic that such a law would not be passed, when in February this year, Senators in Burundi overwhelmingly rejected an amendment of the penal code that included provisions for imprisonment of people who have sexual relationships with those of the same sex.

“The decision to criminalize same sex relations is a serious setback to the AIDS response in Burundi and to the rights of those affected by the law,” said Michel Sidibé, Executive Director of UNAIDS. “As these discriminatory laws drive people underground, they will have a negative impact both on the delivery of HIV prevention programmes and on access to treatment for those living with HIV.”
  
Evidence shows that protection of the rights of men who have sex with men, lesbians and transgenders, both in law and practice, combined with scaled-up HIV programming to address their HIV and health needs are necessary and complementary components for a successful response to the epidemic.

In the 2006 United Nations Political Declaration on HIV/AIDS, governments committed to removing legal barriers and passing laws to protect vulnerable populations. However, over 80 countries still have legislation that prohibits same sex behaviour.

UNAIDS urges all governments to take steps to eliminate stigma and discrimination faced by men who have sex with men, lesbians and transgenders and create social and legal environments that ensure respect for human rights and universal access to HIV prevention, treatment, care and support.

GENEVA 18 February 2009 — UNAIDS welcomes the Senate action in Burundi to reject a draft law that sought to criminalize homosexuality. Senators in Burundi overwhelmingly rejected an amendment of the penal code that included provisions for imprisonment of people who have sexual relationships with those of the same sex.

“By rejecting this amendment, Senators in Burundi have protected the human rights of their people,” said Mr Michel Sidibé, Executive Director of UNAIDS. “They have also set a standard for other lawmakers around the world to follow their example in stopping laws that block the AIDS response.”

Criminalization of adult sexual behaviour and violation of human rights of people living with HIV are hampering HIV responses across the world. Such measures have a negative impact on delivery of HIV prevention programmes and access to treatment by people living with HIV. Not only do they violate human rights of individuals, but further stigmatize these populations. Currently, 84 countries in the world have legislation that prohibits same sex behaviour.

In the 2006 United Nations Political Declaration on HIV/AIDS, governments committed to removing legal barriers and passing laws to protect vulnerable populations. Countries that have non-discrimination laws against men who have sex with men, injecting drug users and sex workers have provided better access to HIV prevention, treatment, care and support services.

GENEVA, 15 January 2009 – UNAIDS deplores the arrest and imprisonment of nine members of an association called AIDES Senegal since December 22nd, 2008. On 6 January, 2009 they were tried before the court in Senegal and sentenced for acts against nature and the creation of an association of criminals. The case is currently on appeal.

A coalition bringing together organizations from civil society, the public sector and partners such as UNAIDS, UNDP, the French Embassy and the Swedish Embassy representing the European Union has been working towards the release of the detainees.

“There is no place for homophobia. Universal access to HIV prevention, treatment, care and support must be accessible to all people in Senegal who are in need—including men who have sex with men,” said UNAIDS Executive Director Michel Sidibé. “This will only happen if the men convicted are released and steps taken to rebuild trust with affected communities.”

Homophobia and criminalization of consensual adult sexual behaviour represent major barriers to effective responses to HIV. Such responses depend on the protection of the dignity and rights of all those affected by HIV, including their right and ability to organize and educate their communities, advocate on their behalf, and access HIV prevention and treatment services.

UNAIDS urges the Government of Senegal to take steps to eliminate stigma and discrimination faced by men who have sex with men and create an enabling legal environment for them and the organizations working with them so as to protect their rights and increase access for HIV prevention, treatment, care and support services. Failure to do so will jeopardize Senegal’s target of achieving the goal of universal access by 2010.

UNAIDS would like to see the creation of a social and legal environment that guarantees respect for human rights. UNAIDS recommends that criminal law prohibiting sexual acts between consenting adults in private should be reviewed with the aim of repeal.

UNAIDS urges the Senegalese authorities to take the necessary legal steps for the release of the nine detainees.

Contact: Sophie Barton-Knott | tel. +41 22 791 1697 | bartonknotts@unaids.org

Geneva, 27 November 2008— Criminalization of adult sexual behaviour and violation of human rights of people living with HIV are hampering HIV responses across the world. UNAIDS urges countries to remove laws and policies make it difficult for people to access HIV prevention and treatment and adopt laws that protect people living with HIV from discrimination, coercion and monitoring in their private lives.

Recently, a number of countries and local bodies are considering a range of legal measures such as making homosexuality a crime, using technology to trace movements of people living with HIV, and mandatory HIV testing and forced rehabilitation of sex workers and people who are addicted to drugs. Such measures have a negative impact on delivery of HIV prevention programmes and access to treatment by people living with HIV. Not only do they violate human rights of individuals, but further stigmatize these populations.

"Homophobia - in all its forms - is one of the top five barriers to ending this epidemic, worldwide,” said UNAIDS Executive Director Dr Peter Piot. “If communities, NGOs, governments and international organizations do not respect and promote the rights of all people with diverse sexuality, we will not end AIDS."

All forms of restrictions on people living with HIV, whether it is limiting their ability to travel, monitoring their movements or criminalizing transmission of HIV, are not based on sound public health practices. It can alienate people living with HIV from society and facilitate further transmission of HIV.

Laws that reduce stigma and discrimination, protect privacy, and promote gender and sexual equality help save lives. Only 26% countries report having laws that protect men who have sex with men. Currently 84 countries in the world have legislation that prohibits same sex behaviour. In the 2006 political declaration on HIV/AIDS, governments committed to removing these legal barriers and passing laws to protect vulnerable populations. Countries that have non-discrimination laws against men who have sex with men, injecting drug users and sex workers have achieved higher rates of coverage of HIV prevention efforts.

Contact UNAIDS: Mallory Smuts | +41 22 7911697, email: smutsm@unaids.org

About UNAIDS

UNAIDS is an innovative joint venture of the United Nations, bringing together the efforts and resources of the UNAIDS Secretariat and ten UN system organizations in the AIDS response. The Secretariat headquarters is in Geneva, Switzerland—with staff on the ground in more than 80 countries. Coherent action on AIDS by the UN system is coordinated in countries through UN theme groups, and joint programmes on AIDS. UNAIDS’ Cosponsors include UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, ILO, UNESCO, WHO and the World Bank. Visit the UNAIDS Web site at www.unaids.org