In 2010, around 63 countries had specific laws to criminalize, in various was, HIV transmission, exposing others to the virus, or the failure to reveal a positive HIV status to sexual partners. The regions of the world with the highest number of countries with such laws were Africa (27), Asia (13), Latin America (11) and the Caribbean (11). This is without considering the States that criminalize the transmission or exposition of HIV through general crimes (that do not make specific reference to HIV, such as bodily harm).
Criminalization laws present challenges for the guarantee of human rights of those who live with the virus (such as the right to privacy, free development of one’s personality, health, personal liberty, equality and non-discrimination) and for the response of governments and health institutions to confront the epidemic. Thus, such laws are suspect to criticism from both a criminal policy and public health perspective.
From the former perspective, it is difficult to find a clear reason as to why there are laws that specifically criminalize the transmission of HIV and not other pathogens that can cause health complications, which are in many cases more serious. Additionally, generally, these norms can only be applied to those who carry the virus, which signals out a specific social group that already confronts stigma. Moreover, they wind up disproportionately affecting those who live with HIV, who are likely to be members of other marginalized groups: sex workers, those who consume drugs, and homeless individuals.
Additionally, in various areas of the world, such as Colombia, the transmission as well as mere exposition to the virus is a crime, although the law does not clearly define what exposition means. This creates the risk that behaviors that present an insignificant risk of transmission, such as biting, spitting, throwing bodily fluids, or sharing sex toys, can be subject to criminal prosecution, which has already occurred in the past in countries such as the United States.
Other conduct that present a low risk of transmission can also lead to a person’s criminalization, such as engaging in oral sex, having penetrative sexual relations with a condom or with an undetectable viral load (when the amount of virus in the blood is so low that it does not appear in analyses to measure its presence).
Almost always, criminalization attempts to respond to cases in which a person consciously and deliberately seeks to transmit HIV. However, a large part of these norms do not clearly establish when transmission is voluntary and deliberate, which creates the risk that they wind up criminalizing conduct that, in principle, was not meant to be and should not be criminalized. For example, the minimal information that exists in certain areas of the world regarding ways of transmitting HIV could lead to a person not knowing for certain what conduct can and cannot transmit the virus, or how to minimize the risk of transmission, even if he does know that he has the virus. This can create relevant doubts regarding his intention to expose others to the virus. This also occurs in cases in which a pregnant woman decides not to take anti-retrovirus treatment during pregnancy, which could reduce the probabilities of vertical transmission (mother to child transmission during pregnancy or birth). However, this has not prevented that, according to some sources, at least 600 peoplearound the world have been criminalized for transmitting or exposing the virus to others.
From a public health perspective, it is necessary to consider that laws criminalizing HIV began to be adopted towards the end of the 1980s, when treatment was almost non-existent, in order to halt the epidemic’s expansion. More recently, some countries have adopted new laws, which could be considered a second wave of criminalization. These are in addition to laws adopted in various States that imposed travel restrictions on HIV positive individuals, of which at least 35 are still in force. This is in spite of the fact that there is no evidence that these types of measures are effective at avoiding or reducing then number of new cases.
Countries with restrictions for the entry of people with HIV
Criminalization norms ignore that a large number of transmissions occur through consensual sexual relationships, between people who may be unaware of their HIV status, lack access to measures of prevention, or do not have the intention of transmitting the virus. Thus, their impact on the expansion of the epidemic is doubtful.
Criminalization can also have unforeseen results for governments’ responses to the epidemic. These norms could lead to people living with HIV having an incentive to hide their status from their sex partners or health providers, due to the fear of prosecution. In addition, criminalization may also create a disincentive for individuals to voluntarily test for HIV, which could lead to fewer HIV+ people receiving treatment, which would have reduced their possibility of transmitting the virus to others.
Criminalization seems to be an inappropriate measure to address a public health problem such as this, and has negative effects on the rights of people who live with HIV. This fact led to UNAIDS undertaking efforts to determine and evaluate the impact of these norms on the response to the epidemic and avoid the disproportionate use of criminalization, restricting it to only exceptionally serious cases. Thus, the decriminalization of HIV is a possibility that governments should seriously consider to improve the living conditions of people living with HIV and protect public health. This measure should be taken in addition to others that are also necessary for containing the virus, including guaranteeing effective and continuous access to effective treatment and instruments to prevent transmission (e.g. condoms, pre and post exposition prophylaxis, needle exchange programs, and, above all, reliable information that reduces stigma and discrimination).
* Daniel Gómez-Mazo is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).