10 Reasons to Oppose Criminalisation of HIV Exposure or Transmission

The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts. These concerns are legitimate. Recently, particularly in Africa, some groups have begun to advocate for criminalisation in response to the serious phenomenon of women being infected with HIV through sexual violence or by partners who do not reveal their HIV diagnoses to them.

According to this document, while these issues must be urgently addressed, a closer analysis of the complex issues raised by criminalisation of HIV exposure or transmission reveals that criminalisation is unlikely to prevent new infections or reduce women’s vulnerability to HIV. It may harm women rather than assist them, and negatively impact both public health and human rights. This advocacy document provides 10 reasons why criminalising HIV exposure or transmission is generally an unjust and ineffective public policy.

The 10 reasons which are explained in more detail in the document are:

• Criminalising HIV transmission is justified only when individuals purposely or maliciously transmit HIV with the intent to harm others. In these rare cases, existing criminal laws can and should be used, rather than passing HIV-specific laws.
• Applying criminal law to HIV exposure or transmission does not reduce the spread of HIV.
• Applying criminal law to HIV exposure or transmission undermines HIV prevention efforts.
• Applying criminal law to HIV exposure or transmission promotes fear and stigma.
• Instead of providing justice to women, applying criminal law to HIV exposure or transmission endangers and further oppresses them.
• Laws criminalising HIV exposure and transmission are drafted and applied too broadly, and often punish behaviour that is not blameworthy.
• Laws criminalising HIV exposure and transmission are often applied unfairly, selectively, and ineffectively.
• Laws criminalising HIV exposure and transmission ignore the real challenges of HIV prevention.
• Rather than introducing laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment.
• Human rights responses to HIV are most effective.